Agenda item

An Application has been received by Bath and North East Somerset Council in its capacity as Commons Registration Authority (“the Authority”) to register land known as Bath Recreation Ground, Bath as a Town or Village Green (“TVG”).  The Application was advertised and seven objections were received against registration.

An independent expert was instructed by the Authority to advise the Authority as to whether or not Bath Recreation Ground should be registered as TVG.

The Regulatory (Access) Committee (“the Committee”) is recommended to refuse the application and not register the land edged red on the plan attached at Appendix 1 in the report (“the Plan”) as a TVG.

The Chairman informed the meeting that the Committee will hear from Graeme Stark first. 

The Committee will also hear from speakers in the following order:

Councillor David Dixon

Mr Jack Sparrow (Applicant)

Mr Steve Osgood

Mrs June Scott

Mr David Greenwood

Mrs Susan Macdonald

The Committee will then debate the matter and make their decision.

The Chairman invited Graeme Stark to introduce the report.

Graeme Stark addressed the Committee with the following statement:

‘The matter in front of the Committee today is to determine whether Bath Recreation Ground should be registered as a Town or Village Green pursuant to section 15 of the Commons Act 2006.

On 18 December 2012, Bath and North East Somerset Council, in its capacity as the Commons Registration Authority, received a duly made application from Mr Sparrow to register the land edged in red on the plan contained at Appendix 1 of my report as Town or Village Green.

The application was duly advertised and the Authority received seven objections and 18 emails and letters of support.  The Registration Authority instructed an independent barrister – Mr Leslie Blohm QC - to advise on whether the Bath Recreation Ground should be registered.

The legal test which must be satisfied in order for land to be registered as town or village green is contained in section 15(2) of the Commons Act 2006 which states that land should be so registered if:

“a significant number of the inhabitants of any locality, or neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and they continue to do so at the time of the application.”

The Committee are only permitted to consider whether this legal test has been satisfied, which in relation to this particular application means whether it has been demonstrated that a significant number of the inhabitants of the city of Bath have indulged as of right in lawful sports and pastimes on the Bath Recreation Ground from 1992 to 2012.  The Committee is not permitted to consider whether or not registration would be deemed desirable nor what affect registration might have upon the future use or development of the land; these matters are legally irrelevant to the matter in hand.

Paragraph 71 of the Inspector’s Initial Advice advises that;

“…the Registration Authority…should dismiss the Application for Registration of The Rec, Bath as a Town or Village Green pursuant to section 15 Commons Act 2006 on the following grounds:

(1)   That usage of The Rec for lawful sports and pastimes ‘as of right’ has not been by a significant number of the inhabitants of Bath;

(2)   That usage of the land demised to Bath Rugby plc, and of the Leisure Centre and the tennis and Croquet Courts has not been ‘as of right’.

Use must be ‘as of right’; however, the 1956 conveyance gives the citizens of Bath the right to use the land for “games and sports of all kinds tournaments fetes shows exhibitions displays amusements entertainments or other activities of a like character” use that is consistent with this description is therefore ‘by right’ and not the qualifying ‘as of right’ type of usage which is required to contribute towards registration as a TVG.

The Committee is recommended to refuse the application and not register Bath Recreation Ground as Town or Village Green.’

The Chairman asked Simon Elias to clarify the difference in definitions ‘as of right’ and ‘by right’.

Simon Elias quoted a comment from Leslie Blohm QC which was part of the Further Advice in regards of an application by Mr Jack Sparrow (application number TVG12/1), on page number 156 of the agenda:

‘Mr. Sparrow has confused the terms ‘by right’ and ‘as of right’. This is understandable as these are legal terms of art, and they do not bear the meaning that they might be thought to have if used in ordinary speech. ‘As of right’ refers to the quality that the use of the land must have in order for it to count towards the test for registration. It means ‘as if of right’, or to put it another way, in the same manner as a person would use the land if he was entitled to do so. It presupposes that the person doing the act does not have a right to do it at that time. ‘By right’ by contrast means ‘by reason of a pre-existing right’. Therefore, if a person already has a right to use the land for recreation, then the law does not allow him to count his usage towards use ‘as of right’. Mr. Sparrow suggests that citizens of Bath who are beneficiaries of the charitable trust have a right to carry out sports and games on the Rec, and that therefore their use should be considered to be ‘as of right’. That is not correct.  Their use of the Rec for such purposes would be ‘by right’ and not ‘as of right’.’

The Chairman invited Councillor David Dixon to read out his statement.

Councillor David Dixon said that he was speaking on behalf of the Recreation Ground Trust Board which has 10 members.  The Trust welcomed the recommendation from the Inspector, who gave quite clear advice.  It still remains the view of the Trust that the uses put forward by the applicant were made ‘by right’ and not ‘as of right’.  The Trust also agreed with the Inspector that the applicant has failed to prove, and has no reasonable prospects of approving, qualifying use of the Rec by a significant number of the inhabitants of the City of Bath.  The application to register the Rec as the Town and Village Green should be rejected.

The Chairman invited Mr Jack Sparrow to address the Committee.  The Committee acknowledged that they received a statement from Mr Sparrow in advance of the meeting.  Full statement from Mr Sparrow is attached as Appendix 1 to these minutes.

Mr Sparrow addressed the Committee as per his statement, by saying the following:

‘I will assume that the committee members have read all the Town Green application papers, the objections, my response to the objections, support letters or emails, the two sets of advice from the Barrister, my additional information to the Barrister and my responses to his advice.

I will thus confine my contribution today to a series of questions, which I expect to be answered prior to the Committee making its decision.

There has obviously been some confusion on my part concerning ‘As of right’, ‘By right’ and ‘As if of right’ introduced by the Barrister. I preferred to use the normal English language meaning of the words not some arbitrary legalistic interpretation and chose ‘The Right’ finally as what Bath Citizens are entitled to.’

Mr Sparrow went through the questions, as included in the statement.  The Chairman reminded Mr Sparrow that this part of the meeting, or the meeting, is not a question and answer session. 

Mr Sparrow read out questions (until question 17) as printed in his statement.

Mr Sparrow finished his statement by saying that (quote) ‘All the above questions and, more importantly, the original conveyance in 1956 indicate that the Recreation Ground is an ideal candidate to be a Town Green and I urge the Committee to recognise this and give it the appropriate status’ and added that ‘this meeting is an absolute farce and not worth counting’.

Councillor Laming asked Mr Sparrow about the comment on page 92, bullet point a), and asked how Mr Sparrow can be sure that the objector in would be aware that the Rugby Club’s occupation of the Rec is illegal.

Mr Sparrow responded that everybody locally had agreed that the Rugby Club’s occupation of the Rec is illegal.  The Council, Trustees, the Charity Commission agreed that this is illegal. 

Councillor Laming asked Mr Sparrow about the evidence for the comment made on page 94, bullet hh) (quote) ‘The Council and the Trustees should be concerned because one of their main reasons for falling over backwards to keep Rugby at the Rec. is because it brings trade to the pubs and restaurants on match days. These pages show clear evidence that much of the trade goes directly to the Rugby Club and into its coffers’.

Mr Sparrow responded that half of the stands have beer provider facilities and on match days they, Rugby Club, import special caravans to sell pies and other refreshments.  In Mr Sparrow’s view the Club conducts illegal trade then and all of the money made at the match is not going to pubs and restaurants in Bath. 

Councillor Laming asked Mr Sparrow about the evidence for the comment made on page 95, bullet ii) (quote) ‘How much of the clubs profits go to the Trust for illegally permitting this commercial activity to take place on charitable land?’

Mr Sparrow responded that he cannot produce any figures because he never saw any figures on that.

Councillor Laming asked Mr Sparrow about the comment made on page 95, bullet mm) (quote) ‘I assume are pictures of the seating for a charity concert allowable under the rules. I only hope that the profits made at the clubhouse were donated to the appropriate charity!’.

Mr Sparrow responded that if you carry out the charity function then the significant amount of money should go to the charity.  Mr Sparrow said that he never saw any evidence on that.

Councillor Edwards commented on the comment/question from Mr Sparrow about the appropriateness of non-Bath Councillors to take part in the process and stated that it is suitable or appropriate.  All Councillors are duly elected and hardworking Councillors and capable of dealing with this matter.

Mr Sparrow commented that the conveyance was to the Mayor, Alderman and the citizens of Bath and not to the people outside of Bath.

The Chairman invited Mr Steve Osgood to address the Committee.

Mr Osgood (Bathwick Ward resident) read out the following statement to the Committee:

‘I have questions relating to two aspects of this application:

First aspect:

The 1956 Conveyance limits the uses to which this property may be put.  In 2002 the High Court order confirmed the Rec as a Charity, with B&NES as the corporate Trustee to safeguard these uses, in perpetuity.  Does the Town & Village Green proposal fall within the use description?  Is there a ‘trigger event that would preclude its registration, under the Commons Act 2006?

Second aspect:

Owners of the subject property are Citizens of Bath – some 80,000 of them.  How have these Owners responded to Notices of the Application?  Have Landowner Statements been deposited that would preclude registration? (reference to Growth & Infrastructure Act 2013 amendments to Commons Act 2006).

I would like these questions answered before the meeting proceeds further.’

The Chairman reminded Mr Osgood that this is not a question and answer session.

The Chairman invited Mrs June Scott to address the Committee.

Mrs Scott read out the following statement to the Committee:

‘I moved to Bath more than 45 years ago.  All my children grew up here and my family regard Bath as our home town.  I taught mathematics for 25 years and I feel that I served Bath well.  Do I have the right to speak to you tonight?  The Rec is second home to me.  I played croquet there in Bath croquet club. Each day I look out of my window and I see many different activities on the Rec – joggers, dog walkers, kite flyers, kids playing football, tennis, croquet, cricket…all these people enjoying the Rec.  I support the application to make the Rec Town & Village Green.  Captain Forester intention was for people to use the Rec for activities above.  The Rugby Club is not the only one to raise the money for Bath.’

The Chairman invited Mr David Greenwood to address the Panel.

Mr Greenwood said that several points were made today.  One, that is extremely difficult, is the definition of ‘by right’ and ‘as of right’.  One thing that does affect the issue is that there is an existing right of way from Riverside through the Recreation Ground.  This is ‘as of right’ and open to all without the need to request permission and applies for 365 days of the year.  Mr Greenwood and his family have been residents of Bath for over 20 years.  Friends and family were always able to access the Rec as of right.  There has never been any restriction.  There are many hundreds of people who use the Rec for football, cricket, and other leisure activities.  Nobody ever recognised that permission would have to be sought.  There is no requirement to provide the evidence of how many people are using the Rec.  In 2002 the High Court made B&NES an interested party.  It is B&NES interest to reject this application. It is extremely difficult for residents and other people to distinguish that B&NES is the judge and jury for the Rec.

Councillor Laming asked that it should be noted that proposal before the Committee considers Bath as the locality.

Graeme Stark responded that Mr Sparrow application specifically said that the locality is the City of Bath.  The locality has to be the area known to the law and specified elsewhere, such as electoral Ward with defined boundaries.

The Chairman invited Mrs Susan Macdonald to read out her statement to the Committee.

Mrs Macdonald read out the statement (attached as Appendix 2 to these minutes) and offered her full support to the application for the Bath Recreation ground to be granted as a Town and Village Green.

Mrs Macdonald highlighted in her statement that Captain Forester did not give away his own personal property in 1922 so that a commercial business would solely benefit from his generosity.  Access to the Rec was intended to be free and open to all.

Mrs Macdonald finished her statement by saying that the Committee have a duty to respect the rules.

The Chairman thanked to all speakers who address the Committee.

The Chairman asked Graeme Stark if there are any issues to be clarified before the Committee debate the matter.

Graeme Stark responded that the Committee have to decide whether or not the land was used by significant number of inhabitants of the locality for 20 years.  The on-going management of the site is not relevant for the consideration – the Committee is asked to look at the use of the land from 1992 until 2012.

The Chairman invited the Committee to debate the matter.

Councillor Laming said there are three main issues for Members of the Committee to take into account before making the decision.  Those issues are; ‘as of right’, locality or neighbourhood and significant numbers.  In terms of the locality – the Committee is asked to consider City of Bath as the locality.  In terms of the significant numbers – Councillor Laming commented that he had not found a reasonable description of significant numbers.  In terms of ‘as of right’ issue – Councillor Laming said that his understanding is that ‘as of right’ means that people have permission to go somewhere and there is nothing stopping you.  Councillor Laming said that the applicant should have found out for himself what ‘as of right’ means before submitting this application.

Councillor Dave Laming moved a motion that the Regulatory Access Committee refuse the application and not to register Bath Recreation Ground as a Town or Village Green, as per officer’s recommendation.

Councillor Peter Edwards seconded a motion by saying that he fully supports the reasons for the motion from Councillor Laming.

Councillor Mathew Blankley said that he will support the motion from Councillor Laming as there is no evidence that the land was used by substantial number of people for 20 years continuously.

Councillor Jeremy Sparks said that he is not a rugby supporter and that he is not representing a Bath Ward so his view is un-biased.  Councillor Sparks said that in the view of legal reasons presented in the report and at the meeting he will support the motion from Councillor Laming.

The Chairman asked the Committee to vote by show of hands.

Voting: all in favour of the motion.

On a motion from Councillor Dave Laming, seconded by Councillor Peter Edwards, it was unanimously RESOLVED to REFUSE the application and not to register Bath Recreation Ground as a Town or Village Green.