To consider the following application
Nature of application: Application for the registration of an area of land known as the Recreation Ground, Prestbury Road, as a town or village green.
Location: Land to the north of Prestbury Road, Cheltenham and to the west of Prestbury Recreation Ground.
Prior to the commencement of this item the following declarations of interest were made:
Cllr Wheeler – “As a member of the Planning Committee at Cheltenham Borough Council, I have considered applications on land in this area. However the question of what is recreational land was not part of this consideration. I come to the meeting today with an open mind and will make my decision in the light of the published report and today’s discussion.”
The Committee noted that following advice from the Monitoring Officer, in the light of his declaration of a personal and prejudicial interest, Cllr Prince would make a short statement and then withdraw from the meeting so that he would take no further part in the debate.
Cllr Prince – “I have worked for many years seeking to retain this land for recreational purposes and am very disappointed (but not surprised) with the recommendation in the report. I feel that the 20 year rule had been adequately reinforced. The photos provided at the Inquiry did not show footpaths as the grass had been left to grow long so that when mown it covered the footpaths. Gloucestershire County Council is failing to preserve the Olympic legacy by protecting recreational land. This was an ideal opportunity to enforce recreational land use as of right. I felt that there was an adequate demonstration of this right. There is much in the report that I do not agree with. I hope the Committee will listen to the evidence and make an objective decision.”
Janet Smith, Senior Lawyer, introduced the report and asked the Committee to note the corrections to the following typographical errors:
· Page 13 Plan should be entitled ‘A’
· Page 15 Advice annex should be entitled ‘B’
· Page 67 para 116 – correction in the last line to the spelling of ‘Mr Houldey’
· Page 68 para 117 – year in the last line should be ‘2000’.
The Committee then viewed a slide show (copy attached to the signed copy of these minutes) which showed views of the area of land, together with an annotated Plan indicating where the photographs had been taken. Ms Smith then asked Mr Leslie Blohm, QC, as the Inquiry Chair, to introduce his report and explain how he came to the recommendation before the Committee today.
Mr Blohm explained that the Inquiry into the application to register an area of land known as the Recreation Ground, Prestbury Road, Prestbury, as a town or village green, was held between 9 and 12 September 2013.
There had been a substantial amount of written evidence available to study before the Inquiry. During the Inquiry there had been a lot of evidence given orally by various witnesses. Mr Blohm’s advice report considered this evidence in some detail since being given during the hearing meant that it was able to be tested.
In order to be successful the applicant had to show that the land in question had been used for at least 20 years for lawful sports and pastimes by a significant number of inhabitants of (in this case) the ecclesiastical parish of Prestbury.
It had been possible by negotiation to reduce the number of disputed issues prior to the start of the Inquiry.
The Committee noted that the legal phrase ‘as of right’ has been included in English law since the Middle Ages. It is defined as being use which is:
· Not permissive i.e. not by licence
· Not contentious, and
· Not in secret i.e. takes place in the open.
The applicant would generally be expected to show usage up to the date of the application. However the 2006 Commons Act gives some leeway for applicants in that it allows an applicant to show use over a period of 20 years before a landowner had given formal permission for use. The application could therefore be made citing historical usage which no longer took place.
Following the introduction of this Act, Landowners were in a difficult position. If they took no action and allowed use of their land to continue for recreational purposes an application for registration as a village green could be made. However if the land was fenced and use therefore stopped, there was a significant risk that this would also prompt an application being made.
The safest course of action for landowners was therefore to erect ‘permission notices’ which formally gave the residents permission to use the land and thus stopped the ‘as of right’ usage. Applicants also lost the right to make an application if this had not been made within two years of the Act. However applications could be made using historical evidence to show that there had been 20 years ‘as of right’ use prior to the erection of any ‘permission notices’.
In this case the landowner had argued that the land had not been used for recreational purposes for the required 20 years as the landowner had granted permission for use in 2003. The photograph number 6 in the slideshow was of the erected sign which was alleged to have been erected before the 2006 Commons Act.
Much legal argument had taken place over this Act and case law had been developed. This had concluded that to be sufficient to win there must be strong evidence of the 20 years usage which in this case would be between 1983 and 2003. The burden of proof lay with the applicant and the test was ‘on the balance of probabilities’ i.e. more likely than not. If this could not be shown, then the application failed.
Mr Blohm emphasised that the Committee’s decision should be based on the evidence of the historical use of the land in question only. When considering the evidence it needed to be borne in mind that the evidence given by witnesses from either side is coloured by their desired outcome for the future. The strongest views are likely to produce the most evidence.
As part of the Inquiry a large number of interviews were undertaken and the site itself was viewed.
Mr Blohm explained that his conclusions and recommendation was based on the evidence before him and the law.
He had concluded that the use of the land after 2003 was permissive and not ‘as of right’. This conclusion had been reached as of the four signs erected 3 remained standing on site thus giving clear evidence that the landowner had given permission for the land to be used. This point was conceded by the applicant at the Inquiry.
Although it had been suggested that notices had been erected earlier (in 1982 and again in 1990) along the lines of ‘No dog access or fouling’, this had not be proved to the required standard (more likely than not) and therefore had been disregarded.
Case law had indicated that applications for registration can only rely on historical usage if there was no licence (permission) granted before the 2006 Act. As the landowner in this case granted permission by the erection of notices in 2003, this application could not rely on the historical evidence.
Giving further consideration to the use of the land before 2003 Mr Blohm had concluded that this could be seen as use as a right of way rather that for recreational purposes. This use must therefore be disregarded if the land in question was only used as a footpath.
The definition of a significant number of people using the land also had to be quantified as to whether their use was a permissive right or by trespass which would be for the landowner to control.
When considering the reliability of the evidence before the Inquiry Mr Blohm had to consider if it was accurate and if it concurred with other evidence.
Although it was acknowledged that the witnesses for the application gave evidence honestly in that they were recalling an historical situation from some years previously, the inconsistencies between the various witnesses were such that Mr Blohm came to the conclusion that the evidence given was not reliable.
The expert witness however gave detailed evidence which was maintained under challenging questioning emphasising the material fact that the land had been used as a school field.
The conclusion reached therefore was that there was not sufficient evidence to prove use between 1983 and 1990, and so the application should be dismissed.
The following points were made by Mr Blohm in response to questions from the Committee:
· The report referred to historical written evidence only where directly relevant as the oral evidence given at the Inquiry had been the main consideration with regard to the contentious issues.
· Although best practice would mean that permission signs erected would give a date and authorisation signature, the assertion that these signs had been erected in 2003 had not been disputed.
· As the Inquiry Chairman, Mr Blohm’s remit was to focus on the evidence specifically relating to the application and did not require research into other matters to provide ‘background’ information.
· Ms Cox had been clear and consistent in her evidence which had led Mr Blohm to the conclusion that it should be accorded significant weight in his consideration of the matter.
· The local residents’ wish to continue to have the use of the land in the future was not a relevant matter for the Committee to consider in coming to its decision on this application.
· A ‘significant number of local inhabitants’ had been defined by past cases in the High Court in that it was a matter of judgement in each case and that there was no one percentage figure which could be used.
Following a short debate on the matter, the Chairman agreed to a 10 minute adjournment with the instruction that members were not to discuss the issue with anyone outside of the Committee.
The meeting having been reconvened, Cllr Vines proposed (seconded by Cllr Stowe)
That the application be rejected on the basis that the applicants had failed to establish the relevant twenty year period of use as of right.
On being put to the vote the motion was CARRIED (with two abstentions) and the Committee therefore
That the application dated 2 November 2010 made by the Prestbury Green Working Group for the registration of an area of land known as the Recreation Ground, Prestbury, Cheltenham (and which is shown edged in pink on the map attached hereto and numbered 4A) as a town or village green pursuant to Section 15 of the Commons Act 2006 be refused for the reasons set out in the inspector’s report attached hereto and numbered 4B.