Agenda item

(1)       The Panel Members visited the site before the meeting. The visit was attended by Mr Mike Baldock applicant, Mr Clive Sims (Borden PC) and Mr M J Whiting (Local Member).

(2)       The Commons Registration Officer introduced the report by saying that the application to register the land had been made on 30 October 2015 by Mr Mike Baldock under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014.   A report on the application had been considered by a Regulation Committee Member Panel on 23 October 2017 where the decision had been taken to refer the matter to a Public Inquiry to clarify the issues. 

(3)       The Commons Registration Officer said that the Public Inquiry had been held in June 2018.  The applicant had agreed at this point to amend the application by excluding the area in the north-eastern part of the site which was owned by SEPN as well as a further strip of land owned by Ward Homes Ltd that was subject to rights to lay cables.  The Inspector had produced her findings on 27 November 2018.

(4)       The Commons Registration Officer moved on to consider the Inspector’s findings on the legal tests.  The first of these was whether use of the land had been as of right.  It was clear that use had taken place neither secretly nor by the use of force.  There had, however, been a question as to whether as to whether it had been with permission.  The objectors had stated that notices had been erected by Ward Homes in 2003 and 2006 explaining that the land was owned or managed by Ward Homes and that use of the land was with the consent of the owner.  The Inspector had concluded that as no member of the public had seen the notices and as the applicants had been unable to provide photographs and could not recollect the wording on them, use had been of right. 

(5)       The second test was whether use of the land had been for the purposes of lawful sports and pastimes.  It had become apparent during the Inquiry that the predominant use of the land had been for walking, leading to the question of whether this was walking in a general fashion or walking a defined linear route.  The latter was generally regarded as a “rights of way type use” which case law (Laing Holmes) had established needed to be discounted for the purposes of Village Green registration. The Inspector had concluded that as the land had become ever more overgrown during the period on question, nearly all of the walking would have been along the main paths.  This, taken together with the insufficiency of the evidence given to have persuaded the landowners that the site was in regular use by the local community for lawful sports and pastimes throughout the relevant period had led her to conclude that the test had not been met.

(6)       The third test was whether use had been by a significant number of inhabitants of a particular locality or neighbourhood within a locality.  The Inspector had concluded that the New Zealand Estate within the ecclesiastical parish of Borden qualified as a description of a neighbourhood within a locality.  The Inspector had, however, concluded that qualifying use had not been by a significant number of inhabitants because most of the use had been “rights of way type use” which could not be considered to be “as of right” use for Village Green purposes. The remainder had been insufficient to indicate to the landowner that a Village Green right was being asserted. The test had therefore not been met.

(7)       The Commons Registration briefly set out that the Inspector had concluded that the two remaining tests (whether use of the land had continued up to the date of application and whether use had continued for a period of twenty years or more) had both been met in themselves.   The Inspector had, however also noted that she did not consider that use had taken place with the requisite sufficiency, particularly during the latter part of the material period.

(8)       The Commons Registration Officer then said that the Inspector had also considered representation made by SEPN that registration should not take place due to statutory incompatibility. This argument had been based on the Newhaven case where the Supreme Court had ruled that even though the claim had satisfied the legal tests, the land was not capable of registration as a village green as it formed part of the operational land of the port of Newhaven.  The Inspector had concluded in respect of the Cryalls Lane site that SEPN’s duties would not be as clearly impeded by registration as had been the case at Newhaven.  Furthermore, SEPN did not hold the land for statutory purposes. It merely had the benefits of certain rights which could be terminated at any time by the landowner.

(9)       The Inspector’s overall conclusion was that the application should fail because the applicant had failed to demonstrate that there had been qualifying use by a significant number of local inhabitants throughout the relevant period and that a Town or Village Green was being asserted.

(10)     The Commons Registration Officer then said that she had asked all parties to comment on the Inspector’s report.  The applicant had argued in response that the main objector had deposited a statement with KCC in 2008 under section 31 (6) of the Highways Act 1980 confirming that no additional rights of way could be dedicated for public use.  The applicant claimed that, as a result, any subsequent use of the paths across the site could not be relied on to acquire public rights of way and that such use therefore had to be considered as qualifying use for the purposes of village green registration. 

(11)     The Inspector had written a response to this representation stating that the fact that footpath use was highly unlikely to result in the acquisition of PROW rights did not mean that it could be considered as village green use. She had therefore confirmed her original conclusions. 

(12)  The Commons Registration Officer concluded her presentation by saying that she had carefully considered the Inspector’s report and that she was in agreement with its conclusions. She therefore recommended that the application should be rejected. 

(13)     Mr Clive Sims (Borden PC) said that the east-west paths were in constant agricultural use and could not possibly qualify as a public right of way.  The circular path was widely used and site-specific.  He believed that this should be sufficient to enable registration.  He noted that there was no clear definition of the word “significant.”   The word was used in s31 of the Children and Young Persons’ Act 2008, proving that a minimal amount could also be significant.    Mr Sims also stated that Borden PC would be happy to pay for the maintenance and upkeep of the site of it was registered as a Village Green.

(14)     Mr Mike Baldock (applicant) referred to the R v. Oxfordshire County Council, ex parte Sunningwell case.  He said that the judgement confirmed that the status of the land was independent in that registration simply confirmed that it was a village green. 

(15)     Mr Baldock then turned to Section 31 of the Highways Act 1980.  He said that the general assumption was that if the landowner lodged a statement together with a map of the land, no further rights of way could be created.  Section 31 (6) stated that the act of doing so did not prevent the landowner himself from dedicating any other way as a highway. In this instance, the landowner had provided a map and statement without lodging any land at all as a public right of way.  

(16)     Mr Baldock continued by saying that he believed that the Inspector had misunderstood the full implications of the user qualifications for Rights of Way and Village Greens.  He said that there could be no doubt that use had taken place over a 20-year period.  In the event that the evidence was ambiguous, the Courts had established that the tests for Village Greens were less onerous than those for Public Rights of Way.  As no rights of way existed on the site, and as the landowner had stated his intention that no rights of way could be claimed on the site, it could only be that any potentially qualifying use had to be for a Village Green – where the tests were less onerous.  Furthermore, use of the track, dog walking or the pushing of prams could all be activities which could be treated as recreational use. 

(17)     Mr Baldock went on to say that the critical matter in determining whether use had been by a significant number of people was how the landowner would perceive such use.  Justice Lightman had ruled that if the land was in general use, this would qualify as “significant” in this regard.  Use of the tracks and paths had certainly been general, and the landowner would have known that members of the public could not be seeking to establish a public Right of Way.  Therefore, they could only be seeking to establish Village Green rights and the use was sufficient to draw to the landowner’s attention that they were doing so. 

(18)     Mr Baldock then said that he did not agree with the Inspector’s view that the site had not been used for the entire 20-year period.  This was because aerial photographs taken during this period showed that the network of usable paths was ever-changing.  By 2015 for example, the circular path was being used less frequently than other paths, whilst the second east/west path had been created later during the period.  

(19)     Mr Baldock concluded his remarks by saying that the site was set aside as Local Green Space in the Swale Borough Local Plan. In other words, it was identified as appropriate for recreation.  The site had been used extensively for lawful sports and pastimes throughout the period and the implication of the various aerial photographs was that this use must have been constant.  The whole site had been used for a variety of purposes and should consequently be registered.

(20)     The Commons Registration Officer replied to some of the points made by Mr Baldock by saying that the people using the path were exiting the site onto agricultural land.  In doing so, they were using it in a Public Rights of Way manner.  There was no legal definition of the word “significant” in the context of section 15 of the Commons Act 2006, although case law had provided some guidance.  The fact that the landowner did not intend any part of his land to be designated as a Public Right of Way did not mean that any such use automatically became a Village Green recreational activity.  Village Green legislation did not contain a rebuttal presumption, so the landowner would simply not have been able to take the same action in this respect as he had done under Section 31 (6) of the Highways Act.

(21)     On being put to the vote, the recommendations contained in the report were carried by 4 to 1.

(22)     RESOLVED that for the reasons set out in the Inspector’s report dated 27 November 2018, the applicant be informed that the application to register land at Cryalls Lane in Sittingbourne has not been accepted.