Agenda item

(1)       The Public Rights of Way and Commons Registration Officer introduced her report by saying that the County Council had received an application from Lady L Laws on behalf of the Two Fields Action Group on 18 November 2019 to register an area of land known as Two Fields at Westbere as a new Town or Village Green under the Commons Registration Act 2006 and the Commons Registration (England) Regulations 2014. 

 

(2)        The land subject to the application was situated on the Westbere/Sturry parish boundary, south of Staines Hill and Westbere Lane, and consisted of a large area of approximately 37 acres (15 hectares) comprising mixed woodland (some of which has been recently cleared) as well as more open areas of grassland and scrub. Access to the application site was via Public Footpath CB91 which, for the most part, ran alongside the railway line abutting the southern edge of the application site and connected Westbere Lane with Fairview Gardens.

 

(3)       The Public Rights of Way and Commons Registration Officer said that the application had been made under section 15(2) of the Commons Act on the basis that use of the application site had continued “as of right” until the date of the application.  The applicant relied upon the parishes of Westbere and Sturry as the qualifying locality for the purposes of the application.

 

(4)       The ownership of the application site was sub-divided into five strips of varying width that were registered with the Land Registry to four different landowners.  These were: Bellway Homes Ltd, Mr S Saadat, Westbere Green Space Protection Ltd and Mr S Mahallati.

 

(5)       The Public Rights of Way and Commons registration Officer then said that two objections had been received on behalf of two of the affected landowners.  Winkworth Sherwood LLP (on behalf of Bellway Homes Ltd) objected on the basis that:-

 

-       The use of the application site had not been by a significant number of the inhabitants of a single locality, or neighbourhood within a locality;

 

-       Use of the application site had not been “as of right” due to the erection of prohibitive notices erected on site in 2018 (replaced in September 2019);

 

-       The vast majority of the use relied upon consisted of walking (which was considered equivalent to the use of a right of way) and not sufficient to establish use of the application site for lawful sports and pastimes; and

 

-       Use of the application site had ceased to be “as of right” more than one year prior to the submission of the application, such that the tests under sections 15(2) and 15(3) of the Commons Act 2006 were not met.

 

(6)       The objection from Thompson, Snell and Passmore LLP (on behalf of Mr. Mahallati) was made on the basis that:-

 

-      A large proportion of the users had not provided evidence of use of the application site for the full twenty-year period;

 

-      One of the main uses of the application site was for walking and such use fell to be discounted on the basis that it was akin to a right of way usage rather than a general right to recreate;

 

-       Use had not been by a sufficient number to give rise to a general appearance that the land was available for community use;

 

-       Use of the application site had been the subject of verbal challenges by the landowner, and in January 2020 fencing and prohibitive signage had been erected; and

 

-       Local Plan policy OS6 constituted a “trigger event” such as to prevent the registration of the land as a Village Green.

 

(7)       The Public Rights of Way and Commons Registration Officer explained that  the County Council had to be satisfied that it was capable of considering the application for Town or Village Green status before it applied the tests for registration. The Growth and Infrastructure Act 2013 had introduced a new provision requiring Commons Registration Authorities, on receipt of a Village Green application, to enquire of the relevant planning authorities as to whether the land subject to a Village Green application was affected by any prescribed planning-related events, known as “trigger events.” These events were set out in a new Schedule inserted into the Commons Act 2006). The right to apply for the registration of a Town or Village Green was excluded if any “trigger event” had occurred in relation to the land and only became exercisable again if a corresponding “terminating event” had occurred.  

 

(8)       The Public Rights of Way and Commons Registration Officer continued by saying that in this case, following receipt of the Village Green application, the local planning authority had advised that “trigger events” had occurred in respect of the land, but that corresponding “terminating events” had also occurred, which meant that the right to apply for Village Green status was not disengaged. The “trigger events” consisted of four planning applications made during the late 1970s and the 1980s in respect of the application site, all of which had been refused and all means of challenge exhausted. Since there were no current “trigger events” affecting the application, there was no reason for the County Council not to proceed with the determination of the application.

 

(9)       Following advertisement of the application, the issue of a possible (and different) “trigger event” in relation to the application site had been raised by the objectors who suggested that the identification of the entirety of the application site as a “Green Gap” within Canterbury City Council’s Local Plan (adopted in July 2017) meant that a “trigger event” had taken place in accordance with paragraph 4 of Schedule 1A of the Commons Act 2006. That paragraph provided specifically that a “trigger event” took place where “a development plan document which identifies the land for potential development is adopted under section 23(2) or (3) of the [Planning and Compulsory Purchase Act 2004).”

 

(10)     The Public Rights of Way and Commons Registration Officer said that the objectors were placing reliance upon the recent Court of Appeal decision in Wiltshire Council v Cooper Estates Strategic Land Ltd in which it was suggested that the words “potential” and “development” were not to be narrowly construed. A “trigger event only required for the land to be identified as having the potential for development, rather than to be to be specifically allocated for development. 

 

(11)     The applicant’s response to the objectors’ proposition was that the designation of the land as a “Green Gap” in the Local Plan was not a designation of the land as being suitable for development, but rather of it being unsuitable for development. In the case of a “Green Gap”, an exception might be made for developments that were compatible with its continued use for recreational purposes and its maintenance as an open space between settlements, but it would be perverse to assume that Parliament had intended such a designation to prevent the land in question from being afforded the further protection of Village Green status.   The decision in the Cooper Estates case could be distinguished because that decision had been reached on the basis that Village Green registration in that case would frustrate the broad objectives of the relevant development plan, from which it was clear that new housing would be required. In the case under consideration, it was clear that the intention of the “Green Gap” was to preserve the land as open space between settlements.

 

(12)     The public Rights of Way and Commons Registration Officer then said that advice had been sought from Counsel in light of the dispute on the applicability of a possible “trigger event” in relation to the application site.  This advice was that the identification of the application site as a “Green Gap” in the Canterbury City Council Local Plan operated as a “trigger event” for the purposes of Schedule 1A of the Commons Act 2006, such that it is not possible for the County Council to consider the Village Green application.

 

(13)  In reaching that advice, Counsel had paid close attention to Policy OS6 in the Local Plan, relating to “Green Gaps”, which stated: “Within the Green Gaps identified on the Proposals Map… development will be permitted where it does not: (a) Significantly affect the open character of the Green Gap, or lead to coalescence between existing settlements; (b) Result in new isolated and obtrusive development within the Green Gap.  Proposals for open sports and recreational uses will be permitted subject to there being no overriding conflict with other policies and the wider objectives of the Plan. Any related built development should satisfy criteria (a) and (b) above and be kept to a minimum necessary to supplement the open sports and recreation uses, and be sensitively located and of a high quality design”.

 

(14)     Counsel had further advised that in applying the principles of the Cooper Estates case to this application:-

 

“The existence of constraints affecting the land is not a reason for ruling out the area from being identified for potential development. The question comes down to the consequences of the land being within a Green Gap, looking at the plan as a whole, and bearing in mind the policy underlying the change in the law, which was that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of registration of a TVG. 

 

I accept the point that the effect of the ‘green gap’ designation is essentially restrictive in that development will only be permitted where it does not affect the open character of the gap or lead to coalescence or result in isolated and obtrusive development. Furthermore, the policy is said to supplement national policies restraining built development in the countryside. It seems unlikely there that any significant built development would be in compliance with this policy. 

 

However, the very fact that such a policy exists appears to acknowledge that the area is under development pressure (see supporting text). It therefore could be said that the policy is identifying the land for ‘potential development’ and seeking to regulate that development in order to preserve the open character of the Green Gap. Proposals for open sports and recreational uses would be in compliance with the policy (provided they met other policies in the plan). Where these involve a material change of use of land, they would also fall within the meaning of ‘development’. It could therefore further be argued that the policy is identifying the land for potential sports and recreational development as well as for more general forms of built development (subject to the restrictions imposed). … It is therefore my view that Policy OS6 does identify the land within the ‘green gaps’ for potential development. The likelihood of such development being permitted in accordance with the policy will, of course, depend on whether the development applied for significantly affects the open character of the gap or leads to coalescence of settlements or not (or otherwise results in new isolated and obtrusive development). It is clear that the development plan envisages the development pressures on these ‘green gap’ areas being managed through the planning system. Whilst TVG registration may be in accordance with the restrictive nature of the protection for the green gap, that is not always necessarily going to be the case. For example, TVG registration would prevent sympathetic sports buildings and structures being erected on the land or, by way of another example, a utilities mast being erected which would not affect the open character of the gap. The Courts have emphasized the wide scope of the meaning of ‘potential’ development. In light of this, I consider that a Court would be more likely than not to conclude that Policy OS6 functions as a ‘trigger event’ in this case”.

 

(15)     The Public Rights of Way and Commons Registration Officer then said that the applicants had been consulted on Counsel’s Opinion and had strongly maintained their position (as set out in paragraph 11 above).  Their comments had been referred back to Counsel who had accepted that the matter was not clear-cut and was open to interpretation, but had confirmed that her advice remained unchanged. 

 

(16)     The Public Rights of Way and Commons Registration Officer concluded her introduction by saying that the issue before the Panel was whether the application site was affected by one of the “trigger events” set out in Schedule 1A of the Commons Act 2006. if so, the application would fall to be rejected without further consideration.  Having carefully considered Counsel’s advice and revisited all of the submissions made by the parties, she considered that there were good grounds for concluding that the application site had been identified for potential development, such that the County Council was not able to consider the Village Green application.

 

(18)     The Public Rights of Way and Commons Registration Officer then said that if the Panel was not minded to accept her recommendations it should refer the matter to a Public Inquiry for further consideration on the basis that there was a significant conflict of evidence between the applicant and the objectors. This course of action should only be considered if the Panel was satisfied that no “trigger events” applied in respect of the application.

 

(19)      Sir Steven Laws addressed the Panel on behalf of the applicants.  He had previously sent a transcript his representations to the Clerk.  This is set out as written.

 

(20)     “My name is Sir Stephen Laws; and my wife, Lisa Laws, is the secretary of the group on whose behalf the application has been made. She has asked me to speak on behalf of the group, and I do so as one of its members.

 

(21)     “My submissions to the committee are made assuming that, in the light of the report to the committee, there are only two options for the committee to choose between today. The committee is invited by the report either (a) to accept the tentative, legal advice that has been received to the effect that the designation of the two fields by Canterbury City Council as a “green gap” is a “trigger event” that is fatal to the application, and to disallow the application on that basis, or (b) to submit the application to a public inquiry because of the factual disputes that exist between the applicants and the different landowners.

 

(22)     “If there are in fact other options available, I should be grateful if I could be told: so that I can have an opportunity to address them. We think there is a case that could have been made that, if the legal advice is rejected, the grounds for registration in respect of the part of the site that is not owned by Bellway has been so clearly made out by the applicants that it does not need a public inquiry to decide to register that part of the site. As the committee will know there are four different owners of the different parts of the site. But we accept that there are factual disputes that relate to the Bellway part of the site, and that (if the legal advice is not accepted) it is reasonable to suggest that all aspects of the application are dealt with together at any public inquiry.

5.

 

(23)     “So, my submission to the committee is that the tentative legal advice about a trigger event should not be accepted at this stage as fatal to the application and that, as a result, the committee should decide that the application should be allowed to proceed and be submitted to a public inquiry.

 

(24)     “The detailed substance of the legal arguments about the effect of the green gap designation can be found in the copy of the legal advice provided to the county council and incorporated in the report to the committee and in the written response to that advice made by the applicants. I understand that the committee has been provided separately with a copy of that written response, even though it was not incorporated in the report. I invite the committee to study both those documents closely, and in their entirety - rather than rely just on the arguably incomplete summary of the applicant’s arguments in the report to the committee. Knowing the committee will be able to do that, I propose not to waste time and will propose to do no more that draw attention to the most important elements of the applicant’s arguments.

 

(25)     “I want to emphasise, in particular, exactly what the effect of the designation of the land as a green gap was.  The Canterbury City Council local plan is quite clear about that.  First it says in paragraph 11.42:

 

The objective of the green gap policy is to retain separate identities of existing settlements, by preventing their coalescence.

 

(26)     “The formal policy for green gaps is set out in paragraph 11.48

“Within the Green Gaps identified on the Proposals Map development will be permitted where it does not:

 

a. Significantly affect the open character of the Green Gap, or lead to coalescence between existing settlements;

 

b. Result in new isolated and obtrusive development within the Green Gap.

 

Proposals for open sports and recreational uses will be permitted subject to there being no overriding conflict with other policies and the wider objectives of the Plan.

 

Any related built development should satisfy criteria (a) and (b) above and be kept to a minimum necessary to supplement the open sports and recreation uses, and be sensitively located and of a high quality design.”

 

(27)     “Two very important points need to be made about this.

 

(28)     “First, it is clear that the green policy is intended to apply for keeping two settlements separate, and by definition must apply to the land that is between

them, and so not included in either.  The open character of the green gap is to be preserved and there is to be no coalescence between settlements.

 

(29)     “This is really important because the legal authorities on which the applicants and the legal opinion rely are all precedents in which the land in question had been treated by the local plan (one way or another) as included in a residential settlement. It was, for that reason, that the courts held the land to be available for development. The cases are cases where the issue was whether more was required than just acknowledgement that the land was part of a settlement to indicate that it was available for development. The whole purpose of the trigger event system is to prevent registration as a village green being used to frustrate decisions made by planning authorities, and to that end the courts have given a wide meaning to the expression “available for development” to ensure regard can be had to the spirit of the local plan so far as existing settlements are concerned, as well as to its letter.

 

(29)     “However, in this case there is no question at all of frustrating the spirit, or indeed the letter, of the local plan. The local plan designates the two fields as a green gap specifically for the purpose of securing that the land that is designated should be excluded from the two settlements it is intended to keep apart. It is intended that it should not be available for development if either or both of those settlements needs to expand.

 

(30)     “The second really important point is that the specific policy (viz OS6 6 on green gaps) expressly prohibits any sort of permission for development except in response to proposals for “open sports and recreational uses”. The further tests that development will be permitted only where it does not significantly affect the “open character of the gap or lead to coalescence between existing settlements”,or result in “new and isolated and obtrusive development” are cumulative, not alternative, conditions. They operate within the constraint that sports and recreational uses are the only uses that may be permitted for the land.

 

(31)     “It follows that the only development that the local plan contemplates in a green gap is the sort which would be completely compatible with - and is confined to - something that is, for all practical purposes, equivalent to the use of the land for lawful sports and pastimes.  In other words, the only uses for which the land is said by the local plan to be made available are the very same uses that would qualify it to be registered as a village green.

 

(32)     “In those circumstances, it is perverse and absurd to argue that designating the land as a green gap is a planning decision that can trigger a ban on registering the land as a village green. If it is impossible to register land as a village green where the local plan makes it available for use and development only in the ways in which a village green could be used or developed, what land can be registered as a village green? 

 

(33)     “We have it on the authority of Mr Bumble in Oliver Twist that the law is an ass, but it is not that big an ass. The argument that the designation as a green gap must have that affect because, on a purely literal reading, it can be argued to be within the wording of the statute is quite clever, but it breaks the rule against being too clever by half. Despite a widespread belief to the contrary, the law has to be understood and applied with common sense, and its provisions have effect on that assumption. Common sense suggests that you cannot stop land from being registered as a village green by saying it can be used only for village green purposes. 

 

(34)     “That would also be accepting an argument that would, in practice, mean that no land in the country can be registered as a village green. Some sort of development consistent with existing use is in practice always allowed by local plans for every area of land covered by the plan. And all land in England within the area of a planning authority has to be subject to a local plan. If the legal advice is right, it is impossible to imagine how there can be any land within the area of a local planning authority that could escape the argument that it has been the subject of a trigger event.

 

(35)     “If the committee accepts the legal advice that has been received and rejects the application on that basis, it will effectively be deciding that when Parliament decided - as it undoubtedly did - to limit the availability of village green registration, it inadvertently abolished the system of registration altogether.

 

(36)     “I suggest that cannot be the case. But, even if it were, it would be a very significant ruling on the law with implications across the country for a very wide range of those interested in protecting open spaces for public use.  The point would be very likely, eventually, to find its way to the administrative court.

 

(37)     “The author of the legal advice herself says that the matter is not clear cut. I suggest it would be quite wrong for the committee to be any more definitive

about coming to a decision with such significant implications than the author of the legal advice is about the correctness of her advice.

 

(38)     “I suggest that the committee should not follow the advice, because it is highly problematic and questionable as well as only tentative, but also because this is the wrong moment to make a definitive decision on whether it is right or wrong.

 

(39)     “The time to decide what the law requires in the case of the two fields is when all the facts relevant to the application have been authoritatively determined at a public inquiry, and legal rulings can be made by reference to the established facts, not just hypothetical ones. There are reasons to think there may well be other legal questions that could arise in relation to the application once the facts are properly established. If the application is going to end up in the administrative court, it would be much more sensible for all the legal issues relating to it to be decided at that point, when it is known whether the findings of fact make it necessary to decide them, and when all the legal points and their interactions with each other can be decided at the same time.

 

(40)      “For these reasons, I invite the committee not to act now on the basis of the tentative legal advice that has been received but, instead, to submit the application to a public inquiry - leaving the trigger event issue to be determined (if necessary) at a later stage.”   

 

(41)     The Clerk read out the following representations from Louise Harvey-Quirke, City Councillor for Westbere:-

 

(42)     “As the Canterbury City Councillor for Westbere, I would like to offer my full support for this application.

(43)     “Westbere is neatly situated between neighbouring villages Sturry and Hersden and opposite the small town of Fordwich in the District of Canterbury. The village itself has small winding roads, historical buildings, nestled in an attractive rural setting. The residents who live in Westbere are incredibly proud of their community and, understandably, they wish to preserve it for as long as possible.

(44)     “Both Sturry and Hersden have been heavily developed through the Canterbury Local Plan 2017. Therefore, by approving this village green application, the panel will be helping the local community of Westbere to defend their much-loved open space from the threat of further development.

(45)     “During this terrible time of Covid, where people heavily rely on open space for exercise, areas such as the Two Fields have become invaluable to our communities. The pandemic has highlighted the importance of having communal, accessible public spaces, which are safe and inclusive for all who use them.

(46)     “A village green at this location would offer many mental and physical health benefits to the residents of Westbere and the surrounding villages.

(47)     “We should not forgo the opportunity to help this local community safeguard their wonderful green space, for the benefit of future generations. Therefore, I urge you to grant this application.”

(48)     The Clerk read out the following representations from Ann Davies, a local resident from Westbere:-

(49)     “I have been a resident of Sturry for over 40 years and during the whole of this time the whole of the land in Westbere subject to this application has been open and accessible to members of the public and well used for informal recreation. I visited the site often with my children. They were young and it was a wonderful place for collecting blackberries and sloes.

 

(50)     “In later years, as more shrubby vegetation developed on the site we added evening excursions to listen to nightingales singing and now it is a favourite place for walking with my dog. In all but the worst weather I see other people using the fields while I am there. It makes a lovely circular walk that is not too long for the more elderly people who live nearby. The extent to which it is used is evidenced by the number of informal paths which are kept open simply by frequent use and which are accessible from the A28, Westbere Lane and from the public footpath CB91.

 

(51)     “I disagree very strongly that the designation as Green Gap under Local Plan Policy OS6 constitutes a Trigger Event, since the ‘related built development’ permitted by this designation is specific to open sports and recreation is not specifically in conflict with Village Green Designation. In coming to the conclusion that designation as a Green Gap constitutes a Trigger point there is an assumption that ‘related’ building will necessarily include buildings such as dwellings, pavilions etc. Policy OS6 does not say this and it is not a safe assumption. Development is, by definition any kind of construction including that which is necessary to allow proper management of the land and enable recreational use while maintaining public safety. These works would include such operations as drainage, culverts boundary fencing, up-grading of paths and maintenance entrances on to the site, even the erection of goal posts and signage to the extent that they are not covered by existing permitted development rights.

 

(52)     “Policy OS6 could therefore equally be interpreted as enabling open (not indoor) sport and recreation and such other enabling construction work, normally requiring planning permission, as is necessary to manage the site and ensure safe public use and access including use by people with disabilities. There is therefore no assumption that development of this kind would conflict with Village Green status.”

 

(53)        The Clerk read out the following representations from Ashley Clark, the Canterbury CC Member for Seasalter:-                     

 

(54)     “I have seen a copy of the officer report prepared for the Regulation Committee and ask that the following statement be read out to the panel in relation to the Westbere issue.

 

(55)    “I am Ashley Clark, Canterbury City Councillor for Seasalter Ward. I have been a Councillor since 2011 and hold a number of additional responsibilities within Canterbury City Council. Those which are relevant are my long-established role as vice chair of the Planning Committee and I am the appointed Lead Councillor for the District for enforcement and open spaces.

 

(56)     “By profession I am a retired Inspector of Police. I have in the past successfully applied for three village greens, the first two of which were opposed. I have been called upon on several past occasions to advise applicants seeking to make village green applications. I would not call myself an expert in these matters, but I have considerable experience in the steps required to make a sound application.

 

(57)     “I am sure that the panel are well aware that town and village greens exist to guarantee the rights of local people to engage in lawful sports and pastimes. I note Counsel’s advice to the panel and in particular para 28 which states:

 

I acknowledge, however, that my conclusion stems from a particular interpretation of the policy in light of the comments of the High Court and Court of Appeal in Cooper Estates and it is potentially open to different interpretation and application.

 

 

(58)     “I do not regard policy OS 6 as creating a trigger event and in that respect I quote the advice of Vivian Chapman QC and Paul Wilmshust in their practical handbook on the issue published by Stone Buildings Barristers Chambers. Both are considered as foremost in their expertise in the field of Village Green Law. In respect of trigger events they mention they will include “land identified for potential development in local and neighbourhood plans, including draft plans” (p.26 2nd edition 2014). There has been no planning application to date in respect of this land.

 

(59)     “The land in question is identified as forming part of a green gap under the 2017 Canterbury Local Plan. The purpose of the green gap policy is to preserve greenness and openness as clearly outlined in Policy OS 6 which states:

 

 

Policy OS6 Green Gaps

Within the Green Gaps identified on the Proposals Map (see also Insets 1,3 and 5) development will be permitted where it does not:

a. Significantly affect the open character of the Green Gap, or lead to coalescence between existing settlements;

b. Result in new isolated and obtrusive development within the Green Gap.

Proposals for open sports and recreational uses will be permitted subject to there being no overriding conflict with other policies and the wider objectives of the Plan. Any related built development should satisfy criteria (a) and (b) above and be kept to a minimum necessary to supplement the open sports and recreation uses, and be sensitively located and of a high quality design.

 

(60)     “I know that Counsel is of the view that this could be construed as development in that development could include use for sports and recreational purposes, but this is precisely what village greens exist for. Accordingly, any common sense view would be that Counsel’s view is extreme and must be seen as perverse in the sense that the gap exist not for development but to prevent development in the ordinary sense of the word and that green gaps and village greens are entirely compatible. All land has potential for development, but this land has been identified in the Local Plan as clearly not having that potential, in fact quite the opposite. Counsel has doubts and these have been expressed. She goes on to say:

 

If the registration authority disagrees with my conclusion and decides to proceed to determine the application, I consider that the evidence should be tested by means of a public inquiry. There is no ‘knock out’ blow to cause the application to fail conclusively at this stage.

 

(61)     “I would urge the Committee to take that course. Not to do that would deny the people of Westbere their expectation of natural justice. To dismiss matters at this early stage on legal advice that has, in itself expressed considerable doubt would in my view be wholly wrong and all relevant matters should receive the proper scrutiny they deserve.”

 

(62)     The Clerk read out the following representations from Wayne Murray, Chairman of Westbere Green Space Protection Ltd :- 

 

(63)    “As thechairman ofWestbere GreenSpace ProtectionLimited andan agentwho regularlymakes planning applications to Canterbury City Council, I would like toreiterate the supportI registeredin myletter toMs McNeirof 12March 2020.

 

(64)    “WGSP ownspart ofthe secondof theTwo Fieldsand has covenantedthe titleto prohibitany form of development on that parcel. This demonstrates the commitmentof the residents of the village to preserving the key green spaces around the parish and ensuresthat asignificant sectionof theTwo Fieldscannot bedeveloped asthe parcelowned byWGSP isolatesthe adjacenttitles, K779400and K786421,negating theobjection fromThomson Snelland Passmore.

 

(65)    “As anagent andresident ofWestbere, Ihave aworking knowledgeof the currentLocal Planand supportthe positionthat the designationof theTwo Fieldsas aGreen Gapis entirelycompatible with theland beinga VillageGreen.

 

(66)    “It isclear thatthe designationof theland asa GreenGap bythe LocalAuthority isintended toprevent coalescencebetween settlementsand thisnecessarily restrictsany significantdevelopment. Atno time have the Two Fields been identified as a developmentopportunity and, as no planning applications have come forward, a Trigger Event has notoccurred and istherefore not a valid reasonto preventVillage Green Statusbeing awarded.

 

(67)    “The shareholdersand officersof thecompany whollysupport therepresentations beingmade bythe Parish Counciland otherWestbere residents. Werequest thatthe TwoFields shouldbe designateda VillageGreen.”

 

(68)    Ms Anne Williams of Thompson Snell and Passmore LLP addressed the Panel on behalf of Mr Jamshid Mavaddat who exercised power of attorney for the landowner, Mr S Malhallati. She said that the Cooper Estates case was the prime legal authority on the question of trigger events. She asked the Panel to support the clear recommendation in the report and the clear legal advice that had been given.  The Counsel who had given this advice was very experienced in Village Green Law, having served as the Inspector on many occasions. 

 

(69)    Ms Williams continues that the Court had made relevant observations in the Cooper Estates case. The judgement of Lord Justice Lewison had made clear that the word “potential” was a broad concept which was not to be qualified or equated with likelihood or probability. 

 

(70)    Ms Williams quoted paragraph 42 of Lord Justice Lewison’s judgement in which he had said that it would be too narrow to regard “potential development” as a form of development on the land that would be acceptable.   She added that this meant that the bar for trigger events was very low.

 

(71)    Ms Williams then turned to the Green Gaps Policy OS6 in the Canterbury Local Plan which, she said was a permissive policy:

 

Within the Green Gaps identified on the Proposals Map, development will  be permitted where it does not:          

    

(a)  Significantly affect the open character of the Green Gap, or lead to coalescence   between existing settlements;

(b)  Result in new isolated and  obtrusive development within the  Green Gap   

                         

She added that the following paragraph in the Local Plan set out the type of development that would be permitted, but did not specify that this was to the exclusion of other development. 

 

(72)     Ms Williams concluded by saying that the provisions set out in the Local Plan fitted exactly with those in the Court of Appeal judgement.  Development did not need to be clear development or development that was the subject of a planning application.

 

(73)     Ms Williams agreed to the Clerk reading the following text from Mr Ian MacLean, Chair of Westbere PC.

 

(74)     “I am writing to you on behalf of Westbere Parish Council with respect to the meeting on Wednesday 24 February, at which the application to register land at Two Fields, Westbere as a new Village Green is being considered.

 (75)    “The Two Fields lie within the Parish of Westbere and, as the elected representatives of the Parish, we are all in agreement that this essential amenity should be preserved for the purpose of exercise and recreation, in order to benefit the wellbeing of our community.

(76)     “The panel may be interested to know that we have a resident who was born in one of the cottages in the village during the 1940’s, they have lived here their whole life. Conversely, we have newer residents who have chosen to move to Westbere in the recent years of 21st Century. The support for this application amongst all of our parishioners old and new is, to our knowledge, unanimous. The Two Fields have been used by residents of all ages for lawful sports and pastimes for at least 30 years and this continues to be the case. This facility is part of the character of the village and therefore needs to be preserved.

(77)     “It is evident from our recent experience of 2020 and the multiple Covid-19lockdown periods that a nearby area of outside space for exercise and recreation is vital for the physical and mental wellbeing of Westbere residents and our neighbours.

 (78)    “We are hopeful that the committee will agree that this is the case and we look forward to a decision in support of our community.”

(79)     Elly Barr-Richardson from Winckworth Sherwood LLP addressed the Panel on behalf of the landowner, Bellway Homes, one of the four freehold owners of the land subject to the application. 

 

(80)     Ms Barr-Richardson said that the Panel needed to consider whether a trigger event had occurred pursuant to the provisions of section 15C(1) of the Commons Act 2006, and that the recommendation of the County Council’s PROW and Access Managers following advice given to the County Council by its highly experienced counsel, Mrs. Annabel Graham-Paul, was that a trigger event had arisen and, as such, that the application could not be accepted.

 

(81)     Ms Barr-Richardson continued by saying that Bellway was asking the Member Panel to accept the advice of its counsel, and the recommendation of its officer, and to confirm that the application to register Two Fields as a village green was not accepted on the basis that a trigger event had occurred under Section 15C and Paragraph 4 of Schedule 1A of the Commons Act 2006 as a result of the land being identified for potential development in the Canterbury City Local Plan adopted in 2017. 

 

(82)     Ms Barr-Richardson then said that Bellway’s position was based on key points. The first of these was that the land subject to the application, including that land owned by Bellway, had been designed by Canterbury City Council as a Green Gap in its Local Plan adopted in July 2017.  Policy OS6 of the Local Plan provided:

 

Within the Green Gaps identified on the Proposals Map development will be permitted where it does not:

 

a. Significantly affect the open character of the Green Gap, or lead to coalescence between existing settlements;

 

b. Result in new isolated and obtrusive development within the Green Gap.

 

Proposals for open sports and recreational uses will be permitted subject to there being no overriding conflict with other policies and the wider objectives of the Plan. Any related built development should satisfy criteria (a) and (b) above and be kept to a minimum necessary to supplement the open sports and recreation uses, and be sensitively located and of a high quality design.

 

(83)     Ms Barr-Richardson said that designating the land subject to the application as a Green Gap did not prohibit development on the land, but just controlled the type of development which would be suitable. Development within a Green Gap was consistent with policy OS6 and could include, for example, new sports pitches or other recreational uses, as Mrs Graham-Paul had acknowledged in her written advice to the County Council (as in her paragraph 23). Section 15(C) of the Commons Act 2006 provided that the right to apply for a town or village green ceased if a trigger event had occurred. Paragraph 4 of Schedule 1A of the Commons Act provided that one such trigger event was a “development plan document which identifies the land for potential development is adopted under section 23(2) or (3) of the 2004 Act”.

 

(84)     Ms Barr-Richardson said that the decision of Wiltshire Council v Cooper Estates Strategic Land Ltd (2019) confirmed that the phrase “potential development” in Paragraph 4 of Schedule 1A was not to be construed narrowly. The development plan only needed to identify the land for potential development.

 

(85)     Ms Barr-Richardson said that when these key principles were applied to this application, the Canterbury City Local Plan was clearly a “development plan document”. The designation of the land subject to the application as a Green Gap meant that the land had been identified as being suitable for “potential development” for the purposes of para.4 of Schedule 1A of the 2006 Act.  She asked the Panel to refer specifically to the wording used in the Local Plan which confirmed that development “will be permitted” where it satisfied the requirements of policy OS6.

 

(86)     Ms Barr-Richardson continued that it was therefore Bellway’s position that the identification of the land as a Green Gap under the Local Plan was a trigger event pursuant to Paragraph 4 of Schedule 1A of the Commons Act. Accordingly, the right to apply to register land as a town or village green ceased to apply where a trigger event had occurred.

 

(87)     Ms Barr-Richardson then made the more general point that the registration of the land as a town or village green would prevent development such as the introduction of playing fields on the land from taking place consistent with policy OS6, given the rights that would accrue and vest in local inhabitants following registration. It was to in order to avoid conflict with the operation of planning policy that the statutory provisions concerning trigger events had been introduced, as Mrs Graham-Paul acknowledged in paragraphs 18 and 21 of her written advice. Bellway therefore asked the Panel to decline to accept the application forthwith for the reasons given in her submission.

 

(88)     Mr R A Marsh addressed the Panel as the Local Member.  He said that there was sufficient latitude available to the Panel to gain further information which might enable it to come to a decision.

 

(89)     Mr Marsh moved on to Canterbury CC’s method of operation.  He referred to paragraph 22 of the report, saying that the planning applications considered in the 1970s and 80s had been decisively refused.  This indicated the approach that the City Council took in respect of the land. 

 

(90)     Mr Marsh then referred to paragraph 28 of the report. The Green Gap had been established by the City Council in 2017. It had never been intended for the land to be the subject of development purposes and did not qualify as a “trigger event.”   Policy OS6 was an “anti-development” policy designed to maintain and protect open space. 

 

(91)     Mr Marsh noted that counsel had used the phrase “the restrictive nature of the protection of the green gap” (paragraph 31 of the main report). He said that this was not the case because Canterbury CC did not consider that the green gap was available for any form of development.

 

(92)     Mr Marsh said that paragraphs 35 and 40 of the report indicated that neither counsel nor the officers were completely confident in the advice that they were giving to the Panel.  It was the Panel’s role to make the decision. 

 

(92)     The people of Westbere were looking for acknowledgement that their  13^th century village would receive the respectful treatment it deserved for the application for Two Fields to become a village green.

 

(93)     Mr Marsh concluded by saying that Two Fields constituted the last pair of lungs for east Canterbury. It was not insignificant to him that that page 8 of the Introduction to Westbere Vision contained the following quotation from Edmund Burke:

 

A state without the means of some change is without the means of its conservation. 

 

(94)     Mr Harman said that this particular application involved considering a legal argument rather than determination based on the facts.  He considered the legal arguments and advice to be unclear and was minded to seek to establish the facts through the mechanism of a non-statutory public inquiry.

 

(95)     Mr Ozog said that given the evidence in front of him, he would be reluctant to come to any decision without a site visit and deeper consideration of the issues that would occur through a non-statutory public inquiry. 

 

(96)     Mr Pascoe said that he had read the papers carefully and repeatedly and that he was still not clear in his own mind on the best way forward.  He referred to paragraph 28 of Counsel’s advice where she wrote:

 

I acknowledge, however, that my conclusion stems from a particular interpretation of the policy in the light of comments of the High Court and Court of Appeal in Cooper Estates and it is potentially open to different interpretation and application. 

 

(97)     Mr Pascoe moved that the matter be referred to a non-statutory public inquiry, saying that he did not believe that there was any alternative open to the Panel. 

 

(98)     Mr J M Ozog seconded the motion.  

 

(99)     The Chairman said that he agreed with the motion as he considered it to be somewhat perverse if Canterbury CC’s attempts to safeguard the land could be used as a trigger event, which could have the effect of opening the land up for a degree of development. 

 

(100)   On being put to the vote, the motion was carried unanimously.  

 

(101)   RESOLVED that the matter be referred to a non-statutory public inquiry to clarify all the issues.