(1) Mr D Murphy informed the Panel that as he had Cabinet responsibilities in Dover DC, he would not participate in the decision making for this item.
(2) The Public Rights of Way and Commons Registration Officer introduced her report on The County Council has received an application to register an area of land at Snowdown as a new Town or Village Green from Mr. M. Anderson. This application had been made under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014 on 24 January 2019. In order for registration to take place, it would need to be demonstrated that “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.” This use of the land had to have ended by no more than one year prior to the date of application.
(3) The Public Rights of Way and Commons Registration Officer said that the land subject to this application consisted of a roughly L shaped area of land of approximately 10.3 acres (4.17 hectares) comprising wooded areas (covering a large part of the northern section of the site as well as along its boundary with Sandwich Road) with a central, grassed open space that included children’s play equipment and football goals. It was crossed by two Public Footpaths (EE301 and EE302) which provided access to it from Aylesham Road (on the northern side of the site), Sandwich Road (on the southern side of the site) and South Avenue, which provided easy access to the site from the residential properties comprising the Snowdown settlement.
(4) The application had been accompanied by a statement of support from the applicant, photographs of the application site, as well as 29 user evidence questionnaires demonstrating recreational use of the application site
(5) The Public Rights of Way and Commons Registration Officer then summarised the responses to consultation on the application. Aylesham Parish Council had written in support of the application, noting that it wished to keep the amenity available for children to use in the future. A representation had been received from Mr T Johnstone noting that the application site was the subject of a lease in favour of Aylesham Parish Council, which provided for recreational use of the land, which prevented the site from being registered as a Village Green. Southern Water had objected to the application on the basis that the application site included existing wastewater network assets contained within a permanently fenced compound which had not been accessible for recreational use. They also required to the underground infrastructure in the vicinity for maintenance purposes, possibly triggering a criminal offence if the land were to be registered as a Village Green. They were developing the site as a pumping station and essential sewerage infrastructure for the village.
(6) The Public Rights of Way and Commons Registration Officer went on to say that the vast majority of the application site was owned by the Plumptre Children’s Trust, except for a roughly triangular area of approximately 0.2 acres where the application site abutted The Crescent. The entirety of the land owned by the Trust was subject to a lease dated 3 May 1983 in favour of the National Coal Board (now the Coal Authority). Additionally, the central (non-wooded) part of the application site was subject to a sub-lease in favour of Aylesham Parish Council dated 1 October 1974. The remaining small section of land abutting The Crescent was registered to The Coal Authority.
(7) The Trust had objected to the application on the grounds set out below:
- that the application site was leased to the Coal Authority and described in the lease as a Recreation Ground, which meant that use of the land could not be considered to have been “as of right’” ;
- Part of the land was sub-leased to the Aylesham Parish Council for recreational purposes;
- The remainder of the land consisted of woodland scrub and many of the claimed uses could not have taken place due to the nature of the site, such that any use of the woodland areas was necessarily confined to the Public Footpaths; and
- Only a small number of local inhabitants of the 46 dwellings at Snowdown had used the land for the full twenty-year period, such that use was not by a significant number of the local inhabitants throughout the relevant period.
(8) An objection to the application had also been received from the Coal Authority (as lessee) on the following grounds:
- The applicant had failed to show that use of the application site had taken place by a significant number of the local residents, and the claimed usage was not sufficient to demonstrate to a reasonable landowner that Village Green rights were being asserted;
- The applicant had failed to show that recreational use took place over the whole of the application site, with much of the claimed usage referrable to the Public Footpaths that crossed the site or defined tracks through the woodland;
- Use of the application site had been permissive by reference to the leases which existed in respect of the land.
(9) The Public Rights of Way and Commons Registration Officer moved on to consider the tests which all needed to be passed for registration to take place. The first of these was whether use of the land had been “as of right”. This meant that use of the land had to be without force, stealth or permission. There was no suggestion of force or stealth in this case. There was, however, a question as to whether the use of the application site had taken place by virtue of some form of permission, for example, by way of a notice on site or (by implication from the actions of the landowner (such as preventing access on certain days). Whilst in some cases, such permission would be communicated to the users of the land, in others it might not. This situation might arise where there was a lease in place which specifically provided for recreational use of the land, albeit that the users of the land were not aware of the specific provisions, or even existence, of this lease.
(10) The Commons Registration Officer said that in this case, the 1983 Lease between the landowning Trust and the now Coal Authority extended for a period of 60 years, expiring on 31 December 2042. It covered the vast majority of the application site (with the exception of the small triangle already owned by the Coal Authority), as well as other areas comprising the former Snowdown Colliery. Clause 13 of the lease provided that: “the Tenant shall not without the prior written consent of the Landlords… use or permit to be used [the former Pit Head Baths Restaurant] or the Recreation Ground (coloured blue on the Plan)… for any purposes other than those for which they are respectively currently used.” Meanwhile, Clause 7 of the sub-lease 1974 with Aylesham PC provided that the Parish Council would not use the land “otherwise than for recreational purposes”.
(11) The Public Rights of Way and Commons Registration Officer then referred to the recent and still unreported case of R v Hereford and Worcester City Council ex parte Ind Coope (Oxford and West) Ltd, in which the Court had overturned the decision of the City Council to register as a Village Green a piece of land owned by a local brewery and licenced to the local District Council as a children’s play area and open area. It was held that “…if there is an express licence for the use of the land, then the land is used pursuant to that licence. There can be no question of a right being established… I find it impossible to form the view that the public, in some way or other, were capable of acquiring additional rights over and above the rights that the local District Council possessed pursuant to the licence to make the land available for the purposes for which it was used…”.
(12) The Public Rights of Way and Commons Registration Officer also referred to the Sunningwell case which had established that the absence of any challenge to recreational use by the local residents could not in itself lead to the conclusion that the tenant was simply acquiescing to use and allowing Village Green rights of be acquired.
(13) The Public Rights of Way and Commons Registration Officer said that, in the lighty of these judgements, she had concluded that despite the absence of any notices on site, the effect of the leases was to convey an express permission to local residents to use the land for recreational purposes. Therefore, those using the land could not be regarded as trespassers, but rather as users of the land by virtue of a formal arrangement providing for such use. Thus, use of the land had been “by right” rather than “as of right.”
(14) The next test was whether use of the land had been for the purposes of lawful sports and pastimes. The Courts had held that dog walking and playing with children [were the kind of informal recreation which might be the main function of a village green. The summary of evidence of use by local residents showed that the activities claimed to have taken place on the application site included walking, ball games, and playing with children. It therefore appeared that the land had been used for a range or recreational activities. The Cheltenham Builders case, had established that “a Registration Authority would not expect to see evidence of use of every square foot of a site”; so long as it could be shown that “for all practical purposes, it could sensibly be said that the whole of the site had been so used…”. Although, in this case, there were small sections of the application site that were impenetrable due to vegetation, it was clear from the photographs that even within the wooded areas users were not confined to the paths. The Public Rights of Way and Commons Registration said that it would be wrong to conclude that all (or even most) of the references to walking on the application site were referable to the use of the Public Footpaths crossing it.
(15) The Commons Registration Officer then considered the test of whether use had been by a significant number of inhabitants of a particular locality, or a neighbourhood within a locality. The Cheltenham Builders case judgement had been that a locality should normally constitute “some legally recognised administrative division of the county”. The concept of a “neighbourhood” did not need to be a legally recognised administrative unit. The Registration Authority had to be satisfied that the area alleged to be a neighbourhood had a sufficient degree of cohesiveness. In this case, the applicant had specified relevant” locality or neighbourhood with a locality” as “Snowdown.” All of the users resided within the residential streets comprising the settlement of Snowdown. This constituted a neighbourhood within the parish of Aylesham, which, as an administrative unit, qualified as a locality.
(16) In order to consider the question of whether a “significant number” of the residents, it was necessary to determine whether the number of people using the land in question was sufficient to indicate that the land was in general use by the community for informal recreation rather than occasional use by individuals as trespassers. In this case, the evidence submitted in support of the application demonstrated that use of the application site had taken place on a regular basis by a sufficiently large number of residents to indicate that the application site was in general use by the community.
(18) The Public Rights of Way and Commons Registration Officer briefly informed the Panel that the remaining two tests (whether use had continued over a period of twenty years or more up to the date of application) had clearly been met.
(19) The Public Rights of Way and Commons Registration Officer then considered whether the triangle of land not covered by the lease was capable of registration. She said that this land was substantially smaller than the application site as a whole and the area was thick with vegetation during at least part of the relevant period to the point where it would have been largely impenetrable. She did not, therefore conclude that this smaller area was capable to registration as a Village Green.
(20) The Public Rights of Way and Commons Registration Officer concluded her introduction by saying that she recommended that the application should be rejected as use of the land in question had been “by right” rather than “as of right.”
(21) Representations from members of the public had previously been submitted to the clerk and are set out as written:-
(22) Mr Mark Anderson (applicant) said:-
(23) “In my document dated 5th September 2019, in response to the objections, I asked for a new boundary line to be considered, shown on the accompanying map (page 3) of that document. This updated boundary excludes Southern Water’s facility from the application site, it also excludes the small ‘triangle’ of land actually owned by The Coal Authority. In any further consideration we would like this to be taken into account.
(24) “In the report it is stated that there is a recommendation for the application not to be accepted. It appears that this recommendation has been made due to the question whether the land has been used “as of right” as outlined in the Procedure section 4 and legal test (a) in section 19. It seems that all other legal tests (b) to (e) in section 19 have been met.
(25) “Section 55 the conclusion of the report states that the crux of the matter is whether recreational use of the application site has taken place on a permissive basis. It assumes that the application site has been used “by right” as opposed to “as of right” due to the existence of two leases.
(26) “Sub-lease dated 1 October 1974: This is a sub-lease of a lease dated 23rd June 1924 between The Plumptre Family and Pearson & Dorman Long (the then operators of the coal mine) which we have not had sight of. It is between The National Coal Board and Aylesham Parish Council, the title of the sub- lease states “Land at Snowdown Village”. It refers to the area of land marked “A” on their map and appendix E of the PROW report.
(27) “Clause 7 states that the demised land is not to be used for other than for recreational purposes. This sub-lease does not specifically give anyone else, i.e. the general public, permission for the use of it as a recreation facility.
It should be noted that the sub-lessees are in support of the application.
(28) “Lease dated 3rd May 1983: This lease is between the Plumptre family and The National Coal Board, it is for the lease of Snowdown Colliery and other parcels of land to carry out mining operations. It must be assumed that this lease is a continuance of the 1924 lease otherwise the 1974 sub-lease would be a paradox.
(29) “Clause 1(iv) refers to the recreation land around Snowdown Village.
Clause 7(13). Not to use the described lands or any part thereof or permit the same to be used for any purpose other than that of a colliery and mineral producing unit and all other purposes ancillary thereto. The former Pit Head Baths, the Restaurant and the Recreation Ground are mentioned as in paragraph 25 of the PROW report.
(30) “It should be noted that Snowdown was a “pit village.” The houses within the settlement were owned by The National Coal Board and provided for their workers. It is therefore accepted that under the terms of the lease that the miners and their families would have used the recreation Land “by right” for their welfare as an ancillary purpose at that time.
(31) “However, in 1987, Snowdown colliery closed. All mining operations and ancillary activities ceased. The houses in Snowdown were either bought by their tenants or transferred to the local authority. Many of the then inhabitants may have moved away for work or other reasons, maybe passed away. There is a 12- year gap between this time and the beginning of the “material period” in 1999. Obviously, as anywhere else, houses are bought and sold. Since 1987 a significant part of the population has been refreshed.
(32) “There are many residents in Snowdown that have used the Recreation Land around it, on a regular basis, for a long time, who have never had any involvement with the closed coal mine or its then ancillary activities. They have been doing this without secrecy, force or permission. Referring to paragraph 34 of the PROW report, it is accepted that up until 1987 (the pit closure) that the colliery workers and their families (as Coal Board tenants) used the Recreation Ground “by right” as in the leases as part of the welfare programme. However, since that date until 2019 (the end of the “material period”), any use, especially by newer residents not involved with the former coal mine, have done so “as of right”.
(33) I”t is assumed from the PROW report that it can be accepted, from the evidence we have provided, that the whole of the application site has been used for recreational purposes by a significant number of people. ((b) and(c)).
(34) “We ask for the recommendation to not accept the application to be reconsidered. We have offered to exclude the Southern Water facility, it’s access track and the triangle of land owned by the Coal Authority as in my previous response.
(35) “Aylesham Parish Council are the 1974 sub-lease holders (area A), they continue to do some maintenance of the play area, they are in support of this application.
(36) “If you cannot reconsider the whole of said application site, we would ask that you reconsider the two areas referred to as “B” by the Coal Authority, (map in attachment 1 of their objections). These are joined by a hedgerow and track which is uninterrupted apart from a gate giving access to one of the public footpaths. This area still represents a significant amount of the whole site. The Coal Authority have accepted, in their objections to the application as a whole that these areas could be considered. However, the Coal Authority insist that these areas are made up of dense woodland and have not been used for recreation. We have provided evidence, very clearly, to the contrary and that it has been used for generations. Therefore, this area meets all of the tests.”
(37) Merrow Golden from FTB Chambers spoke on behalf of the Coal Authority. She said that she did not intend to speak on the main application as her clients fully supported the recommendations in the report. She asked whether, in the event that the Panel was minded to consider registering the small parcel of land (see paragraph 19 above), she would be permitted to make representations on this aspect of the application.
(38) Mr R A Pascoe said that he considered that all the tests had been met except for the first test. He referred to Clause 7 of the 1974 sub-lease and said that this very clearly demonstrated that use of the land was “as of right” rather than “by right.”
(39) Mr R A Pascoe moved, seconded by Mr A H T Bowles that the recommendations set out in the report be agreed.
Carried 4 votes to 0 (Mr Murphy not participating)
(40) RESOLVED to inform the applicant the application to register the land at Snowdown as a Town or Village Green has not been accepted.