Agenda item

(1)       Members of the Panel visited the application site prior to the meeting. The visit was attended by Mr Mike Baldock (applicant), Mr M J Whiting (Local Member), Mr Clive Sims (Borden PC) and Mr Hamish Buttle (Quinn Estates).

(2)       The Commons Registration Officer briefly confirmed that the application had been made by Mr Mike Baldock under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014. 

(3)       The Commons Registration Officer explained that the majority of the application site was owned by Taylor Wimpey UK Ltd and that a rectangle of land in the north western corner was registered to the Highways England Company.

(4)       Following consultation, objections had been received from Swale BC and Mulberry Estates Sittingbourne.  The Borough Council had argued that a Village Green would have a negative impact on development needs and supporting infrastructure. Mulberry Estates Ltd Sittingbourne had objected on the grounds that the site had been identified as highway land and was therefore not capable of registration.

(5)       The application had been considered at a meeting of the Regulation Committee Member Panel on 23 October 2017 where the decision had been taken to refer it to a Public Inquiry for further consideration.  This Inquiry had taken place in April 2018. 

(6)       The Commons Registration Officer then set out the Inspector’s findings which set out her findings and conclusions in a report dated 8 July 2018.   The Inspector had considered the legal tests, the first of which was whether use of the land had been “as of right.”  She had found that use had not taken place secretly or forcibly. 

(7)       The Inspector had then considered the question of whether the application site was highway land.  She had noted that deed dated 28 January 1969 in which KCC had agreed to take over the road now known as Grove Park Avenue and all the verges as a highway maintainable at the public expense.  Although there was no proof that this adoption had taken place, there was sufficient circumstantial evidence that the entire site including the narrow rectangle of land should be considered as highway land. 

(8)       The Commons Registration Officer then said that the Inspector had approached the “as of right” question by taking into account that the two Acts had never expressly precluded highway land from being registrable as a Village Green.  Case Law had, however, established that qualifying use could not occur when the landowner had given permission.  She had then studied the implications of the DPP v Jones 1999 case and concluded that as the whole of the land was highway land, the use which took place was carried out lawfully by virtue of the public’s right to use the land as highway land, and was consequently not “as of right” but “by right.”

(9)       The second test was whether use of the land had been for the purposes of lawful sports and pastimes.  The Inspector had seen evidence that the site was used for a range of recreational activities including ball games, hide and seek, barbecues, frisbee, picnics and golf practice.  She had nevertheless concluded that the test had not been met because all of these lawful sports and pastimes were lawful uses of the highway verge and had therefore been undertaken by virtue of a pre-existing right.

(10)     The Commons Registration Officer then turned to the question of whether use had been by a significant number of inhabitants of a particular locality or a neighbourhood within a locality. The Inspector had agreed with the applicant that Grove Park Avenue constituted a neighbourhood because although, as the objector had pointed out, this was a small road, she had found it to be a cohesive area which was bounded and where the houses had been built at the same time.  She had also agreed that the evidence before her would have been sufficient (if the “as of right” test had been met) to be considered a significant number as the land was in general use by the community.

(11)     The Inspector had also concluded that use of the land had continued up to the date of application and that it taken place for the entire 20-year qualifying period between May 1996 and May 2016.

(12)     The Commons Registration Officer said that the Inspector’s overall conclusion had been that the application should fail because the evidence indicated that the land was highways land.  Consequently, all lawful recreational use had taken place lawfully by virtue of the public’s right to use it and could not therefore lead to the acquisition of a prescriptive right.

(13)     The Commons Registration Officer said that she had forwarded a copy of the Inspector’s report to the applicant and objector.  The applicant had disputed the Inspector’s findings in respect of the small rectangle of land owned by Highways England, arguing that it was a matter of opinion whether it was Highways land or not. The Inspector’s response to this was that she had reached her decision on the balance of probabilities on the basis of the evidence presented to her. 

 (14)    The Commons Registration Officer then said that the applicant had also disputed the Inspector’s interpretation of the House of Lords’ decision in DPP vs Jones.  He had argued that although it was widely believed that the decision was that the public had a wide-ranging right of access on highway land, the decision had not been unanimous.  Two judges had dissented had formed the view that the public’s rights to use the highway were limited to passage, re-passage and anything else related to that right.  For this reason, the judgement should be understood as meaning that activities that took place on the highway were not undertaken “by right” but rather on the basis that they would not be unreasonable in certain circumstances.  Thus, the decision did not create any right to use the highway for recreational purposes.  Most of the use of the site was therefore of a nature that was tolerated rather than in exercise of a legal right.

(15)     The Commons Registration Officer moved on to set out the Inspector’s rebuttal of the applicant’s representations. She had based her decision on the ratio decidendi (i.e. the passage which set the legal precedent.)  She had agreed that the test to be applied depended on the individual circumstances of each case and that there had been no binding court judgement dealing with the recreational use of highway land in the context of village green legislation.   Her task had been to make a recommendation based on the view that the courts were most likely to take.   She had therefore remained of the view that the application should be refused. 

(16)     The Commons Registration Officer concluded her presentation by saying that she agreed with the Inspector that the application site was highway land.  She also agreed with her that the majority judgement in the DPP vs Jones case had the effect of making any lawful use of highway land for recreational purposes part of an existing right and that it’s use had consequently not been “as of right.”    She therefore recommended accordingly.

(17)   Mr Clive Sims (Borden PC) said that everything in this particular case depended on legal terminology and interpretation.  In respect of the Inspector’s conclusions in relation to the nature of the land, he said that he had asked Swale BC which legislation they used for the purposes of parking enforcement on the land.  They had informed him that they used a by-law.  He asked why Swale BC would need to resort to such measures if the site was highway land. 

(18)     Mr Mike Baldock (applicant) began his presentation by referring to the Eyre vs New Forest Highway Board 1892 case where the judgement had been that all highways had their actual or presumed origin in a dedication (either by design or by inference).  The Inspector had not addressed this in her report.  As there was no record of the land in question being dedicated in such a way, he believed that it could not be categorized as “highway land” unless those claiming it to be highways land could actually verify it; nor did the land appear on the list of streets.   The fact was that neither KCC nor Swale BC had been able to provide any documentation (although several documents ought to exist).  This included the period when it was claimed that KCC and passed responsibility to Swale BC.  The fact that Swale BC was maintaining the land did not imply that it had rights to it. 

(19)     Mr Baldock then addressed the question of whether the land should be registered even if it were to transpire that it was highway land after all.  He said that the comments that he had made in respect of differing verdicts to that reached by Lord Irwin related to two judges who were in fact part of the majority verdict rather than dissenting judges as the Inspector had believed.   The majority had simply ruled that a peaceful assembly on a highway which did not unreasonably interfere with or obstruct it, was not a trespassory assembly.  Lord Irvine’s judgement had applied this to all lawful activities whereas Lord Hutton had limited it to the right of assembly and Lord Clyde had stated that it needed to be a case-by-case decision.  The two dissenting judges had been Lord Slynn and Lord Hope.  The DPP vs Jones  decision did therefore not have the effect of creating the right to use highways for any lawful purpose, so even if this was highway land, lawful sports and pastimes carried out on it could not be automatically disqualified as not being “as of right.” 

(19)     The Commons Registration Officer commented on the representations made by saying that a local authority needed to pass a by-law if it wished to make parking illegal.  It was permissible to park on highway land unless such an enactment was made.   She added that the list of streets was a maintenance record that was far vaguer than the Village Green Register.

(20)     The Commons Registration Officer then said that the 1969 Deed specified that the road and all verges was to be forever open to the public.  This meant that there had been a clear intention to dedicate the land to public use. 

(21)     In respect of Mr Baldock’s comments on DPP vs Jones, the Commons Registration Officer said that the terms of the judgement had been framed in such a way as to clarify the relationship between the House of Lords judgement in that case and the Attorney General vs Antrobus 1905 judgement.

(22)     On being put to the vote, the recommendations contained in the report were carried unanimously.

(23)     RESOLVED that for the reasons set out in the Inspector’s report dated 8 July 2018, the applicant be informed that the application to register land at Grove Park Avenue in the parish of Borden has not been accepted.