Download Report

Local Members Interest
Mark DeavilleBi Cheadle and Checkley
Countryside and Rights of Way Panel – 17 April 2015
Commons Act 2006 Section 15
Application to Register Land at Wentlows Hill, Upper Tean as a Town or Village
Green
Report of Director of Democracy, Law and Transformation
Recommendation
1. That the Application Reference Number NVG20 for the registration of land described
as Land at Wentlows Hill, Upper Tean, should fail for the reasons set out in this
report, i.e. that 20 years use of the land by people of the locality or neighbourhood
for lawful sports and pastimes has not been established.
2. That the land should not be registered as a Town or Village Green.
PART A
Why is it coming here – what decision is required?
1. Staffordshire County Council is the Registration Authority responsible for maintaining
the register of Town or Village Greens under the Commons Act 2006 (“The Act”).
Determination of applications for land to be registered as a Town or Village Green
falls within the terms of reference of the Countryside and Rights of Way Panel of the
County Council’s Regulatory Committee. The Panel is acting in a quasi-judicial
capacity when determining these matters and must only consider the facts, the
evidence, the law and the relevant legal tests. All other issues and concerns must be
disregarded.
2. To consider an application made by Mr D W R Richardson to register land known as
Land at Wentlows Hill, Upper Tean as a Town or Village Green as provided for under
Section 15 (2) of the Commons Act 2006.
3. To decide, having regard to and having considered the Application and the
accompanying documentation, and this Report, whether to accept or reject the
Application.
PART B
Background
4. 14. The County Council is the Registration Authority responsible for maintaining the
register of Town or Village Greens under the Commons Registration Act 2006.
5. Section 15 (1) of the Act states that any person may apply to the Registration
Authority to register land as a town or village green in a case where subsection (2),
(3) or (4) applies.
6. The Application is made under Section 15 (2) which states that it applies 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 and pastimes on the land for a
period of not less than 20 years; and
(b) they continue to do so at the time of the application.
7. The Application to register the land was accepted on 08 April 2008 and was given
the designation NVG20. A copy of the Form 44, accompanying statutory declaration
and plan submitted by the applicant are attached at Appendix A.
8. No further evidence was submitted with the application.
9. The application was duly advertised and notices were erected on site addressed to
the owner.
10. The land is unregistered but Mr Richardson had provided details of the owner and
his last known address. Officers wrote to that address but all correspondence was
returned as “not known at this address”. Other enquiries have not been made
although a sear h of the Land Registry ahs revealed that a company has a caution
registered against the land. .
11. No objections to the application were received during or after the advertisement
period ended.
12. The Application
13. Officers, acting for the County Council in its capacity as Registration Authority,
examined the application when it was lodged. The application is founded upon the
content in the form and accompanying documentation. The latter are attached at
Appendices B to G as indexed by the applicant. Appendix H is the Open Spaces
User Questionnaire attached by Mr Richardson to the other material.
14. The statutory declaration which accompanies the Form 44 is an affirmation by Mr
Richardson that the content is, to the best of their knowledge, true.
15. On examining the application there was no valid reason not to accept the application
and make a decision upon the matter.
16. On closer examination of the form 44 officers considered that there was a deficiency
contained within it regarding the question of usage. There was no actual reference to
usage of the land for lawful sports and pastimes for 20 years contained in the form
itself. Under Q7 of the Form 44 the reason for the application being made should be
set out. This is where the applicant ought to set out the fact that the land has been
used as mentioned above.
17. In Q7 there is mention of the area being used by villagers for public open space but
that does not qualify as use for a town or village green. In fact if the land in question
was designated as such that would mean it could not be a village green as that
would mean use was “by right” not “as of right”.
18. Officers contacted Mr Richardson in 2011 as to whether he had any evidence of use
to submit and received a response that there was no further evidence to be
submitted.
19. There was no evidence of usage beyond that oblique reference stated in the form at
Box 7. Consequently officers were unclear as to whether in the absence of other
supporting material a determination of the application could reasonably be made.
20. While your officers were aware that regulations governing town or village green
applications did make provision for applicants to amend any defects they considered
that they ought to seek independent clarification. This would ensure that in the event
of any challenge there could be no substance or foundation to a claim that officers
were misinterpreting the legislation. Case law since the application was lodged had
also meant that there was further guidance given by the courts in relation to this
particular point.
21. Officers therefore sought advice on this issue from leading counsel as to how they
ought to proceed.
22. With regard to the question of use counsel advised that the applicant be asked to
produce evidence that the users had used the land for lawful sports and pastimes for
over 20 years. However, counsel commented that this need be no more than a
written statement that this was the case but any such needed to be made by the
same person who signed the statutory declaration.
23. In response to the query as to whether the matter could be determined on the
material available counsel advised that it could. The requirements of the legislation
had been satisfied by the making of the application, there was no need to supply
additional evidence although it was more usual to do so. Provided that the defect
was rectified then the Authority could proceed with the application on the material
before them.
24. The question of the landowner and whether further enquiries should be made was
also posed to counsel who advised that as there was a caution on the land that
amounted to a legal interest. That body should be contacted with details of the
application and enquiries made of them whether they were aware of the owner’s
contact details. However, this action would only be necessary if the applicant could
remedy the defect.
25. Officers contacted Mr Richardson to ask once more if there any evidence that he
could submit and additionally ask for a written statement as mentioned above if there
was still none available.
26. A reply was forthcoming from Mr Richardson’s daughter who advised that her father
had sadly passed away last year.
Comments on the Evidence
27. The test for determining these matters is laid out in Section 15 of the Act as follows:
(1) Any person may apply to the commons registration authority to register land as a
town or village green in a case where subsection 2 applies.
(2) This subsection applies where(a) a significant number of the inhabitants of any locality, or any neighbourhood
(b) within a locality, have indulged as of right in lawful sports and pastimes on the
(c) land for a period of 20 years; and
(b) they continue to do so at the time of the application.
28. The Panel will be aware that the entire test outlined above must be satisfied for the
land to be registered as a town or village green. Should any element not be satisfied
then the application must fail.
29. The application is not accompanied by any user evidence to assist in determining the
matter and so the determination rests upon the material contained with the form.
30. Unfortunately as, sadly, the application cannot be amended and the only person who
can legally do so is the applicant himself, it must fail as it does not satisfy the legal
test set out in the legislation above. Even if some person or body were to come
forward with evidence that the land had been used so as to satisfy the legal test it
could not be taken into account as the application was defective in itself. It is of
course open to any other person to submit another application for the same area of
land. A rejection of this application does not preclude that from being done.
31. In the absence of any other material the Registration Authority is entitled to place
reliance upon the application as made and proceed to determine whether or not the
land should be registered as a town or village green.
32. As there is no documentation or material to suggest that the land should be
registered as a town or village green the application should fail.
Recommended Option
33. To reject the application based upon the reasons contained in the report and outlined
above.
Other options Available
34. To decide to accept the application and register the land as a town or village green.
Legal Implications
35. The legal implications are contained within the report.
Resource and Financial Implications
36. The cost of determining applications is met from existing provision.
37. There are, however, additional resource and financial implications if decisions of the
Registration Authority are challenged by way of Judicial Review.
Risk Implications
38. There is always a risk of a Judicial Review of any decision of the Panel as there is no
appeal mechanism from a determination.
39. If the Panel makes a determination based upon the facts and the applicable law the
risk of a challenge by way of judicial review succeeding or being made is lessened.
40. There are no additional risk implications.
Equal Opportunity Implications
41. There are no direct equality implications arising from this report.
_____________________________________________________________________
John Tradewell
Director Democracy Law and Transformation
Report Author: Michael Murphy
Ext. No.:
01785 277249
Background File: 002350DW & Zip008437
Appendix A: Copy of the Form 44 and accompanying documentation referred to in the
Form 44.