Agenda item

(1)       The Panel Members visited the site before the meeting. This visit was attended by Mr Alan Day (Gladman Developments Ltd) and some 8 members of the public.

(2)       The Public Rights of Way and Commons Registration Officer introduced the application which had been made by Brabourne PC under section 15 of the Commons Act 2006 and the Commons Registration (England) Regulations 2014.  Section 15 of the Commons Act enabled any person to apply to the Commons Registration Authority to register land as a Village Green where it could be shown that a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, had indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.

(3)       The Public Rights of Way and Commons Registration Officer continued by saying that an objection had been received from Gladman Developments Ltd on the grounds that the neighbourhood relied upon was not a qualifying one; that the use relied upon was predominantly referable to the Public Footpaths on the application site and insufficient to indicate that the land was in general use by the community; that the land was not available for recreational use for long periods due to the presence of crops; and that any wider recreational use was either challenged or with permission.

(4)       The application had been considered on 18 March 2018 by a Regulation Committee Member Panel which had referred it to a Public Inquiry for further consideration.

(5)       The Public Rights of Way and Commons Registration Officer said that the Public Inquiry had taken place in February 2019. She went on to summarise the Inspector’s findings and conclusions which had been produced on 22 July 2019. 

(6)        The Inspector had first considered whether use of the land had been “as of right.”   All parties had agreed that use had been without force. The objector had given evidence that some of the activities relied upon by the applicants had either been challenged (in the case of horse riding) or been with permission (metal detecting.   The Inspector had, however, concluded that as these two activities had not constituted a major proportion of the evidence relied upon by the applicant, use of the site had been “as of right.”

(7)       the Inspector had then considered whether use of the site had been for the purposes of lawful sports and pastimes.   Her findings had regard to the physical state of the site during the relevant 20-year period, when it had been in arable production for crops including wheat, barley and rapeseed.  The tenant farmer’s records only went back as far as 2005, but the Inspector was satisfied that the general pattern of agricultural use before then would have been similar.  During those years when the field was left fallow (2006, 2010 and 2012), it would have been possible for the whole of the application site to be used for recreational purposes.  During other years, however, the pattern of use would have been different.  The Inspector found that people would have needed to stick to the public footpaths as the opportunity to carry out activities other than walking and dog walking would have been limited due to the crops.  This would have been for particularly lengthy periods, especially when fast-growing, thick crops such as rape had been planted.  The Inspector had found that it would have been very rare indeed during these periods (sometimes lasting for several months) for people to use the land off the public footpaths. 

(8)       The Inspector had concluded that, whilst being satisfied that the application site had indeed been used for lawful sports and pastimes, such use would have been dependent on the agricultural state of the land.

(9)       The Public Rights of Way and Commons Registration Officer turned to the Inspector’s findings on whether use had been by a significant number of inhabitants of a particular locality, or a neighbourhood within a locality.  She had been satisfied that use had taken place by residents of the neighbourhood of Brabourne Lees within the localities of the civil parishes of Brabourne and Smeeth.  She had also concluded that use of the land had been sufficiently significant for it to be apparent to the tenant farmer that it was taking place. This conclusion was, however, closely linked to the question of whether this significant recreational use could have taken place throughout the twenty-year period. 

(10)     The Public Rights and Commons Registration Officer informed the Panel that the Inspector had concluded that use of the site had continued up to and beyond the date of application.

(11)     The final test was whether use had taken place over a period of twenty years or more.  The qualification period for this test was 1 February 1996 to 1 February 2016.  The Inspector’s conclusion was that this test had not been met because use had been interrupted by the physical growing of crops and associated agricultural activities during those years when the land had not lain fallow.  Any use during these periods would have been sporadic and necessarily limited to the Public Footpaths and small portions of the site. 

(12)     The Public Rights and Commons Registration Officer informed the Panel that in the light of the findings she had described, the Inspector had concluded that the site was incapable of registration as a Village Green. 

(13)     The Inspector’s report had been forwarded to both the applicant and objector.  The objector had responded that the Inspector’s report was both comprehensive and correct. The applicant had disagreed, claiming that recreational use had continued at a significant level in co-existence with agricultural use, even during the periods when crops were grown.  They had also asked for further consideration to be given to the registration of the small portion of land at the southern end of the site known as the “bottom wedge.” 

 (14)    The Public Rights of Way and Commons Registration Officer briefly summarised her own conclusions which were set out in greater detail in the report.  In respect of the applicant’s request to consider registration of “the bottom wedge,” she explained that the evidence (in the form of aerial photographs) had shown that crops had been planted in this part of the land between 2013 and 2016.  She then said that she was in agreement with the Inspector’s conclusions in every respect and that she consequently recommended that the land should not be registered.

(15)     Mrs C Bell (Local Member) addressed the Panel.  She said she was in agreement with the Parish Council’s response to the Inspector’s report because she believed that significant recreational use of the land had co-existed with agricultural use on a sufficiently large area of the site for registration to take place. 

(16)     On being put to the vote, the recommendations of the report were unanimously agreed. 

(17)     RESOLVED that for the reasons set out in the Inspector’s report dated 22 July 2019, the applicant be informed that the application to register the land known as Hospital Field at Brabourne as a new Village Green has not been accepted.