Agenda item

The Committee considered a report of the Head of Legal and Democratic Services regarding determination of an application to register land at Romaldkirk, as Town or Village Green, under the provisions of the Commons Act 2006 (for copy see file of Minutes).

The Solicitor informed the Committee that the relevant law was contained in Section 15 of the Commons Act 2006 which stated that a Village Green has come into existence where:

(a) A significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports or pastimes on the land for a period of at least 20 years; and

(b) They continue to do so at the time of the application.”

The application had been made by Romaldkirk Parish Council, acting through its chair, Lesley Cutting (the Applicant). A copy of the application, excluding the supporting user evidence was detailed in Appendix 1 to the report. The Application was dated 11 September 2016 and was accompanied by a plan showing the area claimed as town or village green and included two statements in support from users of the claimed town and village green. Copies of all the user evidence had been provided in Appendix 3 of the report and copies of the letters of objection were detailed in Appendix 4 of the report.

The solicitor acting on behalf of the Commons Registration Authority wrote to both the Applicant and the occupants of the property adjacent to the application land in May and July 2018. The letters expressed concerns in respect of the use of the application land and invited further representations, particularly in respect of the effect of a deed dated 4th September 1930 made under the provisions of section 193 of the Law of Property Act 1925.

It was felt that there was a lack of clarity in respect of the status of the application land and in particular whether the land was used ‘as of right’ or ‘by right’. Copies of the documentation were attached as Appendix 6 to the report and the 1930 Deed was attached as Appendix 7.

On 27 July 2018 the applicant submitted a further 10 supporting statements together with an opinion from a barrister responding to the issues raised in the letters. Copies of the documentation were attached in Appendix 8 and 9 of the report.

The Solicitor informed the Committee that credible evidence had been submitted both in support and in opposition of the application.  Whilst there was no set format regarding the determination of applications, it was good practice where there were significant areas of dispute to hold a public inquiry to test the evidence.

The Committee heard from an objector who had resided in the village since 1997. The objector explained that the land was not registered as such, but had been maintained continuously since that time. The objector felt that support of the application had grown since the application date over a period of two years which had culminated in further support and evidence. The objector explained the importance of the evidence that must meet the qualifying criteria.

The objector also felt that the recommendation to instruct an independent barrister to hold a non-statutory public inquiry was the correct course of action and that it was important for the evidence to be tested via this method.

The Committee then listened to representations on behalf of the applicant who was a parish councillor for Romaldkirk. The representative explained that the land formed part of a wider village green of Romaldkirk. Those objecting to the application had continuously parked cars, planted trees and shrubs on the green area.

The parish council application had been supported by 15 evidence statements, 10 from individuals who could contest use for the entire qualifying period. The representative considered that it was hard to reconcile the further use of public money to determine the matter.

The applicant felt that the objector had also provided instances of recreational use of the land which supported the village green application and suggested that the matter should be determined by the Committee. The representative felt that if the Committee were to refer the matter to a non-statutory public inquiry, the parish council were extremely confident in succeeding with their application, particularly given the legal advice they had received.

The Committee then head from a supporter of the application who had lived in Romaldkirk for 29 years. The supporter explained that the land was a very important piece of public land. The application had been brought about to save the land and enshrine it for years to come for local residents, including the objector. The supported claimed that the land had been used as public land and the only way to protect the land would be to register it as village green. The supporter also expressed the view that the Committee should determine the matter at the meeting.

The Solicitor referred the Committee to the 15 individual statements that had been produced as part of the application evidence, however, advice was also given that statements had been provided which contradicted the evidence, hence the suggested approach as set out in the recommendation detailed in the report. Whilst the decision on the application was a matter for the Committee, it was felt that there were sufficient areas of dispute in terms of the extent of the use of the application Site to require a non-statutory public inquiry to test the evidence in order to assist the Committee in the determination of the application. A non-statutory public inquiry was also recommended given the complex legal issues surrounding the status of the land arising from the 1930’s deed.

Councillor J Rowlandson informed the Committee that he knew the area of Romaldkirk very well and Moved the recommend approach detailed in the report because of the conflicting and contradictory evidence.

Councillor S Dunn felt that all sides of the argument needed to have a fair hearing. Councillor Dunn was puzzled as to why land included in the 1930’s deed was not included in the 1967 registration and queried whether it had been considered and if it had been considered, why had it not been accepted.

The Solicitor informed the Committee that there were no details to suggest why the area of land was excluded from the 1967 registration.

The representative of the applicant, through the consent of the Chair of the meeting explained that it was simply missed off when the map was drawn.

Councillor J Shuttleworth appreciated that there was a cost element to instructing a specialist barrister, however, it was in fairness to all parties concerned that the matter should be determined by way of a non-statutory public inquiry and seconded the proposal.

Resolved

That the Committee delegate authority to the Head of Legal and Democratic Services to instruct an independent specialist barrister to hold a Non-Statutory Public Inquiry to consider the Application and thereafter prepare a report to Members of the Highways Committee which makes a recommendation to Members in respect of the Application.