Meeting documents

1 THE ISSUE

1.1 An application to register land known as "The Rec", Hawthorns Lane, Keynsham as Town or Village green has been made to the Council in its role as Commons Registration Authority. The Council is also the owner of the affected land and is in the process of developing adjoining land as an elderly persons "care village". The application was advertised and an objection was received from the Council's Property Services department. An objection was also received from Keynsham Town Council but this was subsequently withdrawn.

1.2 An independent expert, Mr Ian Dove QC was appointed by the Registration Authority to conduct a non-statutory public inquiry and then report with a recommendation in relation to the application. The Inquiry was held on the 16^th and 17^th October 2007 and Mr Dove's final report was issued on 10^th January 2008. Committee is asked to consider the application and Inspector's report and to determine the application.

2 RECOMMENDATION

2.1 That the Committee notes the report prepared by Mr Ian Dove QC and his recommendation to refuse the application to register land at "The Rec", Hawthorns Lane, Keynsham as Town or Village Green based on the facts and reasons given for his recommendation. In view of his conclusion that the Rec is incapable of registration as a Village Green, the Officer recommendation is to accept Mr Dove's conclusions and refuse for the reasons set out in his report as summarised below and set out in the full in the attached report.

3 FINANCIAL IMPLICATIONS

3.1 The Council's role of Commons Registration Authority, insofar as it relates to Town or Village Green registration, is carried out by the Public Rights of Way Team. Any costs incurred in the determination of such applications are met from PROW budgets. The potential financial implications, for the Council as landowner, of the land being successfully registered are not a relevant consideration in the determination of the application.

4 HUMAN RIGHTS IMPLICATION

4.1 The Human Rights Act incorporates the rights and freedoms set out in the European Convention on Human Rights into UK law. So far as it is possible, all legislation must be interpreted so as to be compatible with the convention.

4.2 The Committee is required to consider the application in accordance with the principle of proportionality. The Committee will need to consider the protection of individual rights and the interests of the community at large.

4.3 In particular, the convention rights which should be taken into account in relation to this application are Article 1 of the First Protocol (protection of property) and Article 6 (the right to a fair hearing).

5 THE LEGAL BACKGROUND

5.1 The Council has a statutory duty, originally under the Commons Registration Act 1965, then as amended by the Countryside and Rights of Way Act 2000 and now under the Commons Act 2006, to consider and dispose of applications to register land as Town or Village Green (TVG). Applications are to be determined according to the law in force at the time of the application.

5.2 The application in question was received on 9 September 2004 and thus the relevant legal tests are those contained in the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000. The inspector summarised the test for land to be successfully registered as town or village green in paragraph 29 of his report as follows:

It is necessary to demonstrate that the land is: "Land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and... continue to do so."

5.3 The Inspector provides an explanation of the statutory framework and relevant case law within the body of his report.

6 THE REPORT

6.1 An application to register land known as "the Rec", Hawthorns Lane, Keynsham ("the land" - see Appendix 1) was received by the Council on 9 September 2004. (Amendments to the application were made on 10 March 2005.)The Council is the freehold owner of the land and is developing an adjoining area of land as an elderly persons "care village". Part of the application site is currently fenced off to form the building contractors' compound and safe working area. On completion of these works it is envisaged that the land will be returned to its original condition and be available for informal recreational use again. The boundary landscaping and fencing of the care village may overlap to a minimal extent with the land.

6.2 The application was advertised on 29 April 2005 and a period continuing until 13 June 2005 was allowed for the receipt of representations. Within that period, two objections were received. The Property Services department of the Council lodged an objection to the application on 10 June 2005. Keynsham Town council submitted an objection to the application also on 10 June 2005 but this was subsequently withdrawn on 20 June 2007.

6.3 Following legal advice, an independent inspector, Mr Ian Dove QC, was appointed to consider the application by means of a non-statutory Public Inquiry and to make recommendations to the Council as Registration Authority as to whether the application should be accepted or not. The Public Inquiry took place in Keynsham on the 16^th and 17th October 2007 and the Inspector's Final report and recommendations were published on 10 January 2008.

6.4 The Inspector's report is attached as appendix 2 to this report. He accepts that the number of people from the defined area using the land is significant, that their use has been in excess of twenty years, that the use continued until the time of the application and that the use consisted of lawful sports and pastimes. However, he identifies two key issues (para 39). These are whether the people who provided evidence of use of the land come from an area that is a "neighbourhood within a locality" and whether their use of the land has been "as of right". For the application to succeed the answer to both questions must be positive.

6.5 On the neighbourhood question the Inspector quoted and endorsed the view that the definition was drafted with "deliberate imprecision" but that the neighbourhood relied upon must have "a sufficient degree of cohesiveness". Having carefully considered the extensive direct evidence of use at the Inquiry the Inspector concluded that the application met the "neighbourhood within a locality" test (para 44).

6.6 The application thus turns on whether the use has been "as of right". Put simply, this means that those using the land must be doing so without force, without secrecy and without permission. Critical to this was the legal basis on which the Council owned the land. There was detailed legal argument at the Inquiry on this but in his report the Inspector noted "if this land is owned by the Council, it can only do so as a creature of statute pursuant to some statutory power or obligation to do so. It cannot, like a private individual, hold the land for an unspecified purpose not covered by statute, in particular since there is no general power of competence provided to a local authority by statute." (para 48). On this basis, he concluded that the land must be held by the Council under the statutory trust under section 164 of the Public Health Act 1875.

6.7 The implication of this is that the land is public open space and use for recreation has been "by right" rather than "as of right" and thus the land is incapable of being registered as a TVG and the application must be refused.

6.8 The Inspector concluded his report with some comments on the future of the land. He acknowledged the clear value of the land as a place for informal recreation, describing it as "an invaluable green lung for the community which it serves" (para 56) and noted that as the land is held on a statutory trust, then the Council could not appropriate it for another use without a formal public consultation process.

7. RISK MANAGEMENT

7.1 As the Council is both the Registration Authority and the owner of the land affected by the application there is a potential conflict of interest. This risk has been managed by the roles of the different functions of the Council being kept separate and by appointing an independent expert to hold a public inquiry into the application to hear evidence and to provide a report containing his findings of fact and his reasons for the decision. A copy of the report is attached.

8. CONSULTATION

8.1 Extensive public consultation has been held including the advertisement of the application and the holding of the public inquiry.

9. ISSUES TO CONSIDER IN REACHING THE DECISION

9.1 Human Rights; Other Legal Considerations

10. ADVICE SOUGHT

10.1 Advice from the Council's Planning & Environmental Law Team has been taken upon this matter.

11. CONCLUSIONS

11.1 An independent, extensive and thorough Public Inquiry has been held. The independent Inspector concluded that the applicant, whilst satisfying most of the necessary tests, had failed to demonstrate that use of the land has been "as of right" and thus that the application should be refused. In view of the Inspectors conclusion that the Rec is incapable of registration as a Village Green, the Officer conclusion is that the Council as the Registration Authority should accept the Inspectors conclusions and refuse the application for the reasons set out in his report.