Agenda item

The Committee considered a report of the Head of Legal and Democratic Services which provided an update to the Committee on a legal opinion provided by Mr David Manley QC relating to the application received to register land lying to the south of New Row, Eldon as town or village green under the provisions of the Commons Act 2006 (for copy see file of Minutes).

The legal adviser advised the Committee that it needed to determine the application with the key question being as to whether the evidence submitted, on the balance of probabilities, satisfied the statutory test contained in section 15(2) of the Commons Act 2006.

Twenty-two written statements had been provided by local residents and the landowner had objected to the application.  A number of statements had been withdrawn since they had been made, some of which had been later reinstated.  The Council had previously expressed its concern about the associated withdrawal of statements.

The objectors to the application were of the view that the withdrawn statements should not be taken into account as part of the application.  They highlighted to the Committee that the statements were originally made due to people in the village being misinformed about the potential uses of the land and therefore, felt obliged to sign and submit the statements.

Eldon Parish Council had consistently taken the view that it could not withdraw the application once validly lodged, as it was considered that this was only a matter which the County Council as Registration Authority could determine. However, the Parish Council had acknowledged that, if a non-statutory public inquiry was held, it would be able to call little or no evidence in support of the application.

The legal opinion received stated that the County Council could not wholly ignore the evidence as it has been submitted, but by the same token it could not ignore the fact that the deponents wished for it to be withdrawn or effectively ignored.  Given that none of the parties, including the applicant had explained their change of position it was the QC’s advice that 'their view, all goes to weight’ and entitled the Council to conclude that the application had not been supported by credible evidence that supported the case to the necessary standard of proof’.  The Barrister’s view was that the evidence submitted could not be considered believable as part of the application due to the change in position.

Having considered all of the factors and the legal advice received, the Legal Adviser informed the Committee there appeared to be no credible evidence that could be relied upon and that the statutory test for registration of the application land as a town or village green had not been met by the applicant.

Resolved

That the application be rejected on the basis that the test contained within section 15(2) of the Commons Act 2006 had not been satisfied on the balance of probabilities.