Friday, June 23, 2006
Message from Chris Mcglade.
Our campaign has been long and hard and at times vocal, but that is all. It is our right to protest and our right to be vocal in that protest. This country is founded on struggle and protest from the tolpuddle martyrs to the suffragette movement, from CND to fathers for justice! This country has a history and a tradition of protest and demonstration. I believe,that it highlights the people of this country's determination to be governed fairly and justly and truthfully. As a result,the democracy and the fairness that a lot of people take for granted in this country is envied all around this world. But we as a people have had to fight for it.
We have fought in our town for Coatham. However,we have always remained within the law.I shouted at a scrutiny meeting in 2004 and I shouted at demonstration we held at the council's exhibition in 2005. Being noisy is the limit towhich we have gone to as a protest group. I am glad that we have because we have been heard, and by many thousands of people in the town and borough who like us, are very concerned about what is happening here in Redcar and Cleveland.
The letter below from Colin Moore is abhorrent to me and it should be to anyone who values truth, democracy and fairness.
This man is a blatant liar. This letter proves this. We have never threatened or intimidated any member of the council and we have never,ever behaved in a violent manner in any way towards anyone. If we had do you think that this paranoid council, who now employ doormen to patrol their council meetings, would have hesitated to have us arrested?
The 'dirty tricks' have been perpetuated by these people in charge of our town hall. These dirty tricks have ranged from starting a whispering campaign that I was a member of the BNP, which I am not nor ever have been, to spraying the common with poison after the environmental study we had had done showed the prescence of rare lizards and bats, to threatening the administrator of Redcar.net with possible legal action if he did not bar me from the site( because I was bringing too many facts out into the public domain ) to threatening a Redcar printer if they gave me the Informer to distribute, to Colin Moore writing this lie filled letter to the MP in order to try and get her onside. A letter that shows him subventing the council and acting as a politician,something that is well outside his remit.
This is the true face of this council. A council that is now being run on fear and mistrust and dirty tricks and secrecy and lies and bullying and intimidation and deceit. A council that is spiralling into the depths whilst those at the top try con people into thinking differently. They try to put a shiny veneer on the rotten core that lies beneath. Not only have I and our group been subject to the real face of this council, employees of this council have risked their positions to come forward to tell the real truth about what is going on in RCBC. From people in lofty positions within the council to kitchen staff and office staff. All see Colin Moore as being the architect of this rotten empire, where the councils code of conduct and its constitution is flouted and the guilty go unpunished, remaining in their positions of power to carry on these abuses. They accuse everyone else, they blame everyone else but it is they who are the guilty ones.
I love Redcar and I love Coatham. This place is my home and I have fought with all the passion and heart that I could have possibly mustered. I urge those within the council to search your hearts and fight with us too. I am asking for anyone who is privvy to any illegal actions that have or are taking place within the council to come forward and give the information to us. Your anonymity is assured. I believe, as do a lot of other people too, from people working for major property developers in the South to legal people, to policemen, to people within the council itself that there is a really bad smell in this council and that things are definately not as they should be.
If the environment agency state that councils should be diverting developers like Persimmon away from areas like Coatham because of the high risk of flooding, but this council have bent over backwards to actively encourage them to the point where they have committed themselves to spending hundreds of thousands of pounds on half of the biggest and richest builder's consultancy fees and all of their legal fees which is an undisclosed amount just to keep their 'confidence', then seriously: WHAT DOES THAT SAY TO YOU?
Please, if you have information that can answer this question contact us.
Do it for the town, do it for the area, but most of all do it for your children and your grandchildren who will ultimately inherit what we are fighting for now. Openness, honesty, truth and transparency in local government and a coastline that will remain that "oasis in the middle of industrial Teesside, that haven for wildlife and human beings for as long as the sea decides not to reclaim it.
Coatham Petition
petition.doc (Word)
petition.pdf (Acrobat)
Thursday, June 22, 2006
Letter to Baird
Message from another council employee.
Hi Chris, I know someone who has info on the council, they are a trusted source. 1: Simon Waller a Manager in the refuge department was on £30'000 a year this year his wage has been increased to £69'000. 2: Staff at RBC have been told not to talk to anyone about RBC if they are caught they may be suspended or sacked. 3:With regards to the collection of waste, everyone in the boro gets charged £5 if they have any extra waste to pick up apart from people who live in South Bank and Grangetown they get that service for free. I have given my informant yours and Rachels mobile numbers I have also told them about Redcar.net I have advised that all info will be treated in the stricted confidence. I don't know if any of the above is any use but I do know that they have more info. If I here anything else I will let you know.
Wednesday, June 21, 2006
The Village Green Report
In the Matter of An Application to Register Part of the Land known as Coatham Common,
REPORT of Mr VIVIAN CHAPMAN
1. Coatham Common
[ 1]
[2] The north western part of
[3] The former High Street of Coatham is known as
[4] To the west of
[5] The present boundaries of the
o The northern boundary between the
• The western boundary consists of a waist high fence constructed of concrete posts with metal cross bars. There are gateways in this fence at the southern and northern ends which allow easy pedestrian access from
• The southern boundary has two distinct sections divided by
• The eastern boundary is not well defined. There is a short stretch of knee-high railing and a mixture of rubble, grass and hard surfacing where the former golf club house and its car parks were situated. It is possible to walk onto the
[6]The character of the
[7] There are some fairly new signs erected by
2. Title to Coatham Common
[8] The whole of Coatham Common, amounting to some 170 acres, was acquired by the Borough of Redcar under a Conveyance dated 31
[ 9]The Borough of Redcar and Cleveland is the statutory successor to the Borough of Redcar. In 2000, the 1967 Lease was surrendered and replaced by two new leases by the Council in favour of the trustees of the Cleveland Golf Club. One was a lease of the Report Land for a term of 18 months from 2 July 2000 It was excluded from protection under the Landlord and Tenant Act 1 9548 The other was a 125 year lease of the rest of the golf course at a peppercorn rent The Lease of the Report Land expired and was not renewed.
[10] The present position is that the Council is freehold owner of the
3. The Town Green Application
[11] On
• Mr. WJ Briggs,
• Squadron Leader Kenneth Kime,
• MrTJPinkand
• Ms Julie Pink.
The application was made to the Council as registration authority under the CRA
1965.
[12] The application was in the required form 30. The form contained the following information:
• Part 3 of the application form stated that the land to be registered was usually known as Coatham Common, that its locality was Coatham,
• Part 4 of the application form stated that the land became a new green on l August 1990
Part 5 of the application form answered the question how the
“Usage by local residents for over 20 years and still used on a daily basis”
The application form was accompanied by the written evidence specified in Part 8 and verified by the required statutory declaration made by Mr Briggs 2 The statutory declaration is defective in that para. 4 has not been completed by reference to a supporting plan. It was not suggested by anyone that this error invalidated the application.
[13] The application was publicised by the Council and only one objection statement was received. This objection was from the Council in its capacity as landowner.
[14] I was appointed by the Council (in its capacity as registration authority) as an independent inspector to hold a non statutory public inquiry and to report to the Council with my recommendation whether the application should be accepted or rejected. I gave written Directions on
[15] This is a case (quite common in practice) where the objector is also the registration authority. A number of supporters of the application expressed their concern that the Council has a conflict of interest. I would like to make it clear that my duty is to deal with the application impartially and on the strict legal merits, uninfluenced by the interest of the Council as landowner. This is also the duty of the Council (as registration authority) when it comes to consider my report.
4. The Case for the Applicants
[16] The case for the applicants is that the
[ 17]In support of their case, the applicants called numerous witnesses to give oral evidence to the public inquiry and also relied on a volume of written material. I now turn to consider this evidence.
4.1. Oral Evidence in Support of Application Kenneth Christopher Kime
[18] Sc Leader Kime produced an evidence questionnaire’ and a written statement 6 Squadron Leader Kime first visited
[19] He met his future wife in 1953 and they married in 1955. His mother-in-law lived in
[20] Squadron Leader Kime acquired and moved to 119,
[21] Squadron Leader Kime believed that he and other local people had a right to use the Common. This seemed to have been based on three factors
• He was under the impression that his title deeds conferred such a right, but was unable to find the relevant “piece of paper”
• Some years ago, there had an unsuccessful prosecution of a Mr John Stevenson (known locally as “Young Stivvy”) for cutting a fence barring access to the Common from
• As with many other local people, he believed that because the land was called Coatham Common, the people of Coatham had the right to use it.
[22] Squadron Leader Kime remembered that some signs were put up on the
[23] He would call the area from which the recreational users of the
[24] I found Squadron Leader Kime to be a man of very strong views, which he expressed forcefully. However, I found him basically to be an honest and reliable witness. I accept his evidence of his own use of the
John Nigel Judson
[25] Mr Judson was born in 1953 and has lived in
[26] In 1970/71 Mr Judson worked as a green keeper for the golf club. There were regularly dog walkers on the golf course. His instructions were to ask the public not to walk on the fairways and greens, but there were in fact no problems with the public and he never had to ask a member of the public not to use the land. He used to cut the greens once or twice a week with a big lawnmower and cut the fairways weekly with a gang mower. The rough was cut about twice a year. The greens were top dressed about 12 times a year. There were no animals on the land except that horses were sometimes led on the land.
[ 27]Mr Judson seemed to me to be an honest witness and I accept his evidence about his own and other people’s use of the
David Gray
[28] Mr Gray produced a written statement His family moved to Coatham in 1965 when he was 4 years old. Initially they lived in
[ 29]Mr Gray used to play on the
• He was a member of the Coatham cubs. They used the
• He attended
• He was a member of the
However, Mr Gray conceded in cross examination that he did not know whether the cubs, school and church had sought permission from the golf club for these activities.
[30]Mr Gray believed that the
[31] I found Mr Gray to be an honest witness. The group activities (including the folk festival camping) may well have been permissive, but Mr Gray’s evidence of general informal recreational use of the
Ruth Jameson
[32] Mrs Jameson produced a written statement She was born in 1968. As a child she used to visit her great aunt who lived in
[33] Mrs Jameson said that she had never been told to leave the
[34] Mrs Jameson considered that the
[35] I found Mrs Jameson to be an honest witness. I accept her perception of the use made of the
Andrew Stewart Hayden
[36] Mr Hayden moved to
[37] Mr Hayden described the relationship between the golfers and the local people as “peaceful co-existence”. “The golfers waited until we were out of the way and we waited until the golfers were out of the way”. He would not picnic on the fairway. He was told by neighbours that local residents had the right to use the Common.
[38] He considered that the recreational users of the
[ 39]I found Mr Hayden to be an honest and careful witness. Although, like most other witnesses, he found it difficult to describe the exact boundaries of Coatham, I found his comments about Coatham to be perceptive and helpful.
Howard Watson
[40] Mr Watson and his family have lived in
[41] I accept the evidence of Mr Watson. I found him to be a perfectly honest and genuine witness.
Freda Vivien Thomas
[42] Mrs Thomas produced a written statement She was born in about 1950. She lived in
[43] When she was living in the Lakes Estate as a young child, she used to walk with her brother and friends to play on the
[44] After her parents moved to the club house, she learned to play golf and joined the golf club. She played 3 or 4 times a month on the golf course from the age of 12 until a couple of years ago. The golfers called the local people who used the Common “the dog walkers”. It was sometimes frustrating when the dog walkers wandered across the golf course. There were occasions when families set up picnics in the middle of the 1 fairway and had to be asked to move for their safety. There have usually been a few people on the
[45] She used to take her own children to play on the
[46] Both while playing golf and playing with her children on the
[47] Now that she has retired, Mrs Thomas walks her dog on the
[48] I found Mrs Thomas to be a good witness with a clear recall of the use made of the
Patricia Ann Roberts
[49] Mrs Roberts produced a letter dated 20 November 200520. She lives in
[50] For the last 25 years, Mrs Roberts has walked daily on the
[51] Mrs Roberts did not know the precise boundaries of Coatham. She thought that Coatham included
[ 52]Mrs Roberts struck me as a perfectly honest and reliable witness. I accept Mrs Roberts’s evidence about her own use and observations of the
William John Briggs
[53] Mr Briggs is one of the applicants. He produced an evidence questionnaire and some photographs Mr Briggs was born in 1941. In about 1945, he moved with his family to
[ 54]As a child living in
[55] Mr Briggs has three children, now aged 38, 36 and 27. When they were young, he used to take them onto the
[56] Mr Briggs now has three grandchildren, aged 7, 6 and 2. They are taken to play on the
[57] At some time after 1972, a fence was erected across the
[58] Other than the permissive signs erected recently by the Council, notices had been erected now and again on the Report Land but they soon disappeared and he could not remember the wording. If they had prohibited trespass on the
[59] Mr Briggs’s perception was that the people (other than the golfers) who used the
[60] Mr Briggs struck me generally as an honest and careful witness. The only topics on which he seemed to me to be a little uncomfortable were (a) the 1970s fence across the
Dennis Roderick Wright
[61] Mr Wright produced an evidence questionnaire He moved to Coatham about 30 years ago. He lives in
[62] Mr Wright’s written and oral evidence was brief and was not materially challenged in cross examination. I accept his evidence.
Catherine Ethaney
[63] Mrs Alton produced a letter dated 15 November 200526. Mr and Mrs Alton purchased 107, High Street West 32 years ago and retired there 21 years ago. The rear fence has always had a gate opening onto the
[64] Mrs Alton’s evidence about the relationship between the golfers and other recreational users was not wholly consistent. In her evidence in chief, she said that the other users had priority and that the golfers would stand back if she walked on the golf course. There was only one occasion when she had been ordered off the golf course by a golfer. She told him that she had every right to be there and later telephoned the secretary of the golf club to complain. He apologised profusely. When cross examined by Miss Crail, she said that at weekends there were golf competitions and she respected them. At those times, the golfers did not stand back.
[65] Mrs Alton’s evidence that golfers generally gave way to other users of the
Thomas James Pink
[66] Mr Pink is one of the applicants. He produced an evidence questionnaire and a written statement He lived at 113,
[67] He had been told that there was a document which legally gifted Coatham Common in perpetuity to the people of Coatham (although he had not seen the document himself). Also, he believed that the people of Coatham had a right to use Coatham Common because it was common land. Other people he had spoken to thought the same.
[68] He regarded the relationship between the golfers and other users as one of mutual respect for each other’s rights. He has had perfectly amiable conversations with the golfers on the
[69] Mr Pink thought that the majority of non golfer users of the
[ 70]Mr Pink did remember that signs reading:
“
WARNING
It is dangerous to trespass on the golf course”
were erected on the
[71] There were only two points about Mr Pink’s evidence which I do not accept without qualification. First, I am not satisfied that there has ever been any document conferring rights of access over Coatham Common to the people of Coatham. The existence of any such document has not been proved and seems inconsistent with the title deeds that have been produced. Second, Mr Pink gave conflicting evidence about how long the 1998 signs remained standing. I consider that he was concerned to play down the importance of such signs in his oral evidence and I think it likely that they were up and down over a period of weeks rather than days.
Anne Cooper
[72] Mrs Cooper produced a letter dated 22 November 200529. In the I 950s and 1 960s, she lived with her family at Eston (which is between
[71] I accept the evidence of Mrs Cooper.
Julie Pink
[72] Ms Pink is one of the applicants. She produced letters dated
She has lived there ever since. She produced an Abstract of Title and a statutory declaration which formed part of the title documents of her present house. I have read these documents but it does not seem to me that they throw any light on the issues I the present case.
[73] When her parents lived in
[74]Relations between the golfers and local users was generally good. She took care to avoid busy golfing times. . There has been the occasional shout from golfers “Get that bloody horse off the bloody golf course”, to which she replied that she had every right to be on Coatham Common with her horse. She thought that it was only twice that she has she been shouted at by golfers. Once was when she was riding her pony across the
[75] Ms Pink considered that most of the informal recreational users of the
[76] Ms Pink remembered the signs (mentioned by her father above) that were erected on the
[77] I accept Ms Pink’s evidence.
Bruce Harrison
[79] The Reverend Bruce Harrison is the vicar of the parish of Coatham and Dormanstown. He submitted a letter dated 25 November 200532. He said that he had walked his dog on the
[80] I accept Mr Harrison’s evidence.
Hazel Willis
[81] Mrs Willis, jointly with her husband, Mr James Willis, submitted a letter dated 23r November 2005 and an evidence questionnaire Mr Willis is in the army and Mr and Mrs Willis lived abroad for many years. However, Mr Willis’s family come from Grangetown (between
[ 83]In 2002, they purchased their present house at 99,
[84]Without seeing copies of Mrs Willis’s title deeds, I cannot see that they are relevant to the present issue. Subject to this, I accept Mrs Willis’s evidence.
Donald John Williamson
[85] Mr Williamson produced a letter dated
[ 86]In about 1949, he moved with his family to
[87] Mr Williamson struck me as a perfectly truthful witness. However, it did not appear to me that Mr Williamson had made much personal use of the
Marion Horsley
[88] Mrs Horsley produced a letter dated 13 November 200536. She has lived at various addresses in
[89] I thought that Mrs Horsley was an honest witness. However I did get the impression that her own recreational use of Coatham Common was more of the side west of Majuba Road which is closer to her home in York Road and that she had mostly used the Report Land (at least until recent months) as a route to the shops or to take her children to school.
Christopher Sean McGlade
[90] Mr McGlade produced a letter dated
[ 91]Mr McGlade was an impassioned speaker and I think that he was probably carried away a little and exaggerated in making his 99.9% estimate. Nonetheless, I accept the broad thrust of his evidence.
Malcolm Baxtrem
[92] Mr Baxtrem produced a written statement Mr Baxtrem has lived in
[93] Mr Baxtrem had been involved in a public inquiry held in 2002 into a proposed modification of the definitive map to show two new public paths on Coatham Common west of
[94] I accept Mr Baxtrem’s evidence. Margaret Hayden
[95] Mrs Hayden produced a letter dated
[96] I accept the evidence of Mrs Hayden.
Robert Hayden
[97] Robert Hayden is Mrs Hayden’s 15 year old son. He produced a letter dated November 2005 He has used the Report Land every day for walking, sometimes with a friend’s dog, and for playing informal games such as football, golf and cricket. The golf was just hitting a ball around.
[98] I think that “every day” is probably an exaggeration but, subject to this point, I accept Mr Hayden’s evidence.
James Hayden
[99] James Hayden is Mrs Hayden’s 18 year old son. He produced a letter dated 20 November 2OO5 He has used the
[100] I think that “daily” was something of an exaggeration but, subject to this point, I accept Mr Hayden’s evidence.
Sean Wright
[101] Mr Wright produced a written statement He is the son of Mr Judson, one of the earlier witnesses. He now lives in
[102] Other people are using the
[103] Like most other witnesses, Mr Wright had some uncertainty in defining the boundaries of Coatham. Subject to this point, I accept his evidence.
Charles William Davis
[104] Mr Davis produced a written statement dated
[105] There was an amicable relationship between the golfers and local people. When Mr Davis and his family were on the common, they took care not to interfere with the golf. Mr Davis could only recall two or three occasions when golfers shouted at him or his family. These were warning shouts of “fore”. Often local people used the common in the early morning or the evening when golf was not being played.
[106] Mr Davis thought that there were rights of grazing on the common although he could not cite any chapter and verse. He had seen some old photographs showing animals grazing on the common.
[107] Mr Davis accepted that there was some use of the
[108] I did not have enough evidence to make any clear findings about the ancient use of Coatham Common for grazing. It would not be surprising if Coatham Common were historically subject to grazing rights. His evidence about the ancient boundary fence of Coatham had some support from Mrs Robinson (see below). However, leaving aside this historical material, I accept Mr Davis’s evidence.
Peter Mewse
[109] Mr Mewse produced a letter dated
[110] Mr Mewse started using the
[111] Mr Mewse had serious heart problems in 2002. He stopped using the
[112] I accept Mr Mewse’s evidence.
Bernard Liddell
[113] Mr Liddell produced and adopted a written statement made by his wife Mr and Mrs Liddell lived in Gordon Road (just south west of the junction of Corporation Road and Kirkleatham Lane) from 1972 to 1982. Since 1982, they have lived at 112,
[114] There was only one occasion when he had some conflict with the golfers. In 1987, he threw a ball for his dog and it fell in a bunker. The golf club green keeper complained and Mr Liddell apologised.
[115] Mr Liddell was a leader with the 1st Redcar Cub Scouts from 1976-1996. They were based in a building on the corner of
[116]I accept the evidence of Mr Liddell,
Vera Duncan
[117] Mrs Duncan produced a letter dated 25 November 200546. She has lived in
[118] I accept the evidence of Mrs Duncan.
Gillian Davies (formerly
[119] Mrs Davies produced a letter dated
[120] I accept the evidence of Mrs Davies.
Vera Robinson MBE
[121] Mrs Robinson produced a written statement and associated materials She is aged 91 and has for many years been interested in local history. She has written a book called “Redcar Reminiscences”. She produced a number of quotations to show how Coatharn and
[122] Mrs Robinson gave some evidence about her own use of the Report Land as a child but she was rather tired at this stage in her evidence and it was not easy to follow.
[123] Mrs Robinson was frail and Mr Lawrence rightly did not attempt to cross examine her. The evidential basis for much of Mrs Robinson’s historical evidence was not disclosed. However, I do accept the broad thrust of her evidence that historically Coatham and
Malcolm Andrew McBurney
[124] Mr McBurney produced an evidence questionnaire He has lived at 133,
[125] Generally, Mr McBurney got on well with the golfers. If you were walking on the golf course, the golfers either shouted “fore” or let you pass. There have only been two occasions when he was challenged by golfers. Once in the early 1960s, a golfer told him that he was trespassing. Mr McBurney said that he was not trespassing. The golfer said that Mr McBumey could be prosecuted and Mr McBurney said “try to prosecute me”. As far as he knew, it was common land and he had a right to be on the land. There the matter rested. Once in the late 1 970s he was walking his dog on the Report Land and a man who was a golfer (although not playing at the time) said that Mr McBurney might get hit by a golf ball. Mr McBurney replied that the man might be hit as well.
[126] I do not think that there is clear enough evidence to make any finding about historical grazing rights on Coatham Common, although it would not be surprising if such rights had existed. Subject to this point, I accept Mr McBurney’s evidence.
Michael Cameron
[127] Mr Cameron produced a letter dated 17 November 200552. He moved to
[128] I accept the evidence of Mr Cameron.
Frederick James Barwick
[129] Mr Barwick produced a letter dated November 2005 Mr Barwick lived in
[130] I accept the evidence of Mr Barwick.
4.2. Written Evidence in Support of Application
[131] In addition to the witnesses who gave oral evidence, the applicants submitted a great volume of written evidence in the form of letters and statements. I approach this material with great caution. I have not had the advantage of seeing and assessing these witnesses. Their evidence has not been tested by cross examination. Much of the written material is in very vague and general terms, expressing support for the registration of the
[132] I briefly summarise the written evidence as follows:
These tables would not scan: please see images at the end of document.
5. The Case for the Objector
[133] The case for the objector (as it appeared in the objection statement) was:
• The permissive signs erected in 2003 prevented continuing user as of right
• Use of the
• The applicants had not proved sufficient recreational use of the
• The applicants had failed to prove that the local recreational users came from any definable locality or neighbourhood
This case was both elaborated and refined as the public inquily progressed.
[134] The objector called a number of witnesses to give oral evidence and also relied upon a volume of written evidence.
5.1. Oral Evidence in Support of Objection Peter Fletcher
[135] Mr Fletcher produced a signed witness statement dated 13 December 200556. Mr Fletcher has been a member of the Cleveland Golf Club for the past 25 years. From 1989 to 1998, he was a member of the Management Committee. From 1998 to 2002, he was the Club Secretary. The club has about 600 playing members and non- members can play by arrangement. The course is busiest in the mornings and all day Saturday. It is closed only 3 or 4 days a year. Until recently Mr Fletcher played golf on the course 3 or 4 times a week.
[136] In his witness statement Mr Fletcher gave the general impression that use of the
[137] Mr Fletcher was shown a signed witness statement by Stan Garbutt In para 21 of that statement, Mr Garbutt said that, throughout his membership of the Cleveland Golf Club since 1979, there had been four signs on the Report Land with words to the effect of:
“
Private Property
Keep off’
Mr Fletcher said that he was unable to confirm that there had been any such notices.
[138] However, Mr Fletcher said that in 1998, the golf club had erected two notices on the Report Land and two notices west of Majuba Road stating:
“
Warning
It is dangerous
to trespass on
the golf course”
One of the signs west of
[139] It was never satisfactorily explained why Mr Fletcher’s witness statement and his oral evidence differed so much about i of the
George Smith Lupton
[140] Mr Lupton produced a signed witness statement Mr Lupton has been a member of the Cleveland Golf Club for 20 years. He has been assistant Secretary. He plays golf on the course several times a week. When he was at work he tended to play in the evenings. Since he has retired, he plays more in the daytime.
[141] In paragraph 6 of his witness statement, he said that all the time he has been a member of the club there have been four signs on the Report Land in positions marked “N” on a plan which he produced. His evidence was that the signs read:
“
However, when he came to give oral evidence, Mr Lupton withdrew paragraph 6 of his witness statement. He was not able to give any satisfactory explanation why this incorrect evidence on such a crucial topic was included in his witness statement. I am bound to say that this somewhat shook my confidence in Mr Lupton’s evidence as a whole.
[142] Mr Lupton’s evidence was that use of the
Ian Hopley
[143] Mr Hopley produced four witness statements dated respectively 2 December
200560, 9 December 200561, 12 December 200562 and 20 December 200563. Mr Hopley is employed by the Council in its Department for Sustainable Communities Regeneration Services and he is the Coatham Links Project Manager. He has worked for the Council since 2003.
[ 144]Mr Hopley’s first witness statement was to the effect that the permissive signs were erected on the
[145] Mr Hopley’s second witness statement dealt with the fact that members of the golf club had given witness statements in opposition to the application, but had not appeared at the public inquiry to speak to them. The gist of Mr Hopley’s evidence was this was because the club feared malicious damage to the golf course if its members gave evidence against the application. This evidence was not challenged and I accept it. However, it was not suggested that any threats of malicious damage had been made to the golf club and there is no evidence on which I could find that the club’s fears were well-founded. It does not seem to me that this evidence adds anything to or detracts anything from the written evidence of golf club members who did not appear at the pubIic inquiry. The officers of the golf club wrote a letter dated 12 December 20056 “to whom it may concern” it which they said that the relationship between the club and local residents was good and that they were not appearing at the public inquiry because they felt that the club should not take sides. There was no suggestion of intimidation by local residents.
[146] Mr Hopley’s third witness statement produced plans marking the addresses of some of the applicants’ witnesses in relation to the
[147] Mr Hopley’s fourth witness statement produced a quantity of statistical information about visitors to
[148] Although Mr Hopley was cross examined at some length, it did not seem to me that any material further evidence emerged.
Eric Howden
[149] Eric Howden produced a signed witness statement dated 24 November 200565. Mr Howden has been a member of the Cleveland Golf Course for the past 11 or 12 years although he has lived locally for longer. He has played golf on the course once or twice a week over the last four or five years and less frequently before then. His written evidence was that use of the land by non golfers was occasional and infrequent. In his oral evidence, he accepted that there was a problem with dogs on the course, both with and without their owners. He gave written evidence that he or other members “would” have told non golfers using the course to be careful and that they “would” have kept out of the way of the golf. In his oral evidence he accepted that it was “once or twice a year if that” that he spoke to children or dog walkers on the course. In his written evidence, Mr Howden recalled a notice on the land close to the club house confirming that it was private land. In his oral evidence, he said that he could not remember what it said except for “Cleveland Golf Course”. Mr Howden’s evidence about the amount of use by non golfers was inconsistent with the evidence to the contrary (which I accept) from the applicants’ witnesses and from Mr Fletcher. His evidence of what “would” have happened is, to my mind, suspect. If a witness is confident that an event happened, he says that it did happen and not that it “would” have happened. As for the sign by the club house, I accept that there was a sign there. A number of witnesses mentioned the sign. However, there was no unanimity on what the sign said and I am unable to find that it was a sign which challenged recreational use of the
Richard Johnson
[150] Mr Johnson produced two witness statements dated 2 December 200566, 4 January 200667 and a letter dated 4 January 200668. Mr Johnson is a Principal Valuer with Jarvis Accommodation Services Limited which has an out-sourcing contract with the Council for the provision of Facilities, Estate Management and Property Services.
[151] In his first witness statement, Mr Johnson produced:
• The conveyancing documents relating the
• A plan showing his interpretation of the application land on a larger scale and more clearly drawn that the plan used with the application, and
• An aerial photograph of the
[152] In his second witness statement, Mr Johnson produced some conveyancing documents relating to land other than the
[153] In his letter, Mr Johnson produced plans showing:
• The boundaries of the ecclesiastic parish of Coatham before 2002
• The boundaries of the united parish of Coatham and Dormanstown after 2002
• The amended boundaries of the united parish after 2004
• The location of the applicants’ witnesses in relation to ward and parish boundaries.
Apart from the fact that the last plan was based on the current address of witnesses rather than the address when the
5.2. Written Evidence in Support of Objection
[ 154]The objector produced a number of witness statements from witnesses who did not appear at the public inquiry. I have not had the opportunity of seeing these witnesses and their evidence has not been tested by cross examination. I cannot therefore give this evidence the same weight as that of witnesses who attended the public inquiry to give oral evidence.
[ 156]The objector produced a signed witness statement of Stanley Garbutt dated 3 December 2005 Mr Garbutt has been a member of the Cleveland Golf Club since 1979 and is now Assistant Secretary. He plays golf on the course about three times a week. There are about 500 playing members. Before the club lost use of the
“
Private Property
Keep Off’
[ 157]As noted above, Mr Fletcher and Mr Lupton did not agree with Mr Garbutt’s evidence about the four signs, and this evidence was not relied upon by the objector. This inevitably places a question mark against Mr Garbutt’s evidence. I find it hard to see how he could positively state that there were four such signs on the land from 1979 onwards when it turns out that it was not correct. Nor am I happy with his evidence about what “would” have happened. In view of the other evidence given to the public inquiry (and in particular that of Mr Fletcher) I think that Mr Garbutt has seriously understated the amount of use made of the
Douglas Fraser
[158] The objector produced a signed witness statement of Douglas Fraser Mr Fraser has been a member of the Cleveland Golf Club for 45 years. He has played golf on the course about three times a week. He stated that he has read and agrees with the witness statement of Mr Garbutt. As noted above, I find serious weaknesses in the witness statement of Mr Garbutt and I find it surprising that Mr Fraser can confirm Mr Garbutt’s evidence about the four notices said to have been displayed on the
David Hatfield
[158] The objector produced a signed witness statement of David Hatfield Mr Hatfield has been a member of Cleveland Golf Club since 1989 and is currently Club Captain. Mr Hatfield’s evidence was substantially identical to that of Mr Garbutt (and indeed often word for word the same). In particular he also gave evidence about the four signs on the
Les. Hunt
[ 159]The objector produced a signed witness statement of Les Hunt Mr Hunt has been a Green Keeper at the Cleveland Golf Club since 1 989.He said that the Report Land was only used by a “few” dog walkers and children playing football on the practice ground. Nine times out often, somebody from the club “would” ask the children to move off the land. Mr Hunt also gave evidence about the four notices mentioned by Mr Garbutt. He said that people kicked them down and he had to put them up. At some unspecified time, the club had erected a fence across the
Keith Dennis Nixon
[ 160]The objector produced a signed witness statement of Keith Dennis Nixon Mr Nixon has been a member of the Cleveland Golf Club for 57 years. Subject to certain specified (and immaterial) exceptions he confirmed Mr Garbutt’s witness statement. In view of the weaknesses in Mr Garbutt s evidence, I cannot place much reliance on that of Mr Nixon.
Keith Cooper
[161] The objector produced a signed witness statement of Keith Cooper He has been a member of the Cleveland Golf Club since 1976. Subject to certain specified (and immaterial) exceptions he confirmed Mr Garbutt’s witness statement. In view of the weaknesses in Mr Garbutt’ s evidence, I cannot place much reliance on that of Mr Cooper
Peter Taylor
[162] The objector produced a signed witness statement of Peter Taylor He has been a member of the Cleveland Golf Club since 1979 and has played golf about four times a week. Subject to certain specified (and immaterial) exceptions he confirmed Mr Garbutt’s witness statement. In view of the weaknesses in Mr Garbutt’s evidence, I cannot place much reliance on that of Mr Taylor.
Dan Weighell
[163] The objector produced a signed witness statement of Dan Weighell He has been a member of the Cleveland Golf Club since 1968 and is a past Captain. Subject to certain specified (and immaterial) exceptions he confirmed Mr Garbutt’s witness statement. In view of the weaknesses in Mr Garbutt’ s evidence, I cannot place much reliance on that of Mr Weighell.
Alex Duncan
[164] The objector produced a signed witness statement of Alex Duncan Mr Duncan has been a member of the Cleveland Golf Club since 1980 and is the current Treasurer. He has played golf about three times a week. Subject to certain specified (and immaterial) exceptions he confirmed Mr Garbutt’s witness statement. In view of the weaknesses in Mr Garbutt’s evidence, I cannot place much reliance on that of Mr Duncan
Albert Southall
[165] The objector produced an unsigned witness statement of Albert Southall As it was unsigned, I do not consider that I can properly place any reliance upon it.
Russ Grimshaw
[166] The objector produced a signed witness statement of Russ Grimshaw Mr Grimshaw has been a member of the Cleveland Golf Club since 1971. He plays golf between two and four times a week depending on the season. His evidence was that the only non golfers who came on the Report land were “occasional dog walkers” and “infrequently” children. The only person who caused any problem was Squadron Leader Kime. Otherwise, “all deferred to the golfers’ use of the land”. Mr Grimshaw gave evidence that there were the four notices mentioned by Mr Garbutt. I cannot accept that use by non golfers was as slight as Mr Grimshaw suggests. The overwhelming body of evidence (including that of Mr Fletcher) is to the contrary. However, I do accept that, except for Squadron Leader Kime, non golfers tended to defer to the golfers. This is consistent with the thrust of the evidence of the witnesses on both sides. I do not accept the evidence of the four notices, which was contradicted by Mr Fletcher and Mr Lupton and not relied upon by the objector.
Sheila Grimshaw
[167] The objector produced a signed witness statement of Sheila Grimshaw She has been a member of the Cleveland Golf Club since 1976 and was Lady Captain in 1990. She plays golf two to four times a week depending on the season. She had read and confirmed the contents of the witness statement of her husband, Russ Grimshaw. She added no independent evidence of her own about recreational use of the
Jim J Reid
[168] The objector produced an unsigned witness statement of Jim J Reid As it was unsigned, I do not consider that I can place any reliance upon it.
6. Evidence of the Public
Jane Thirlwall
[169] Only one member of the public contributed to the public inquiry. She was Jane Thirlwall. She produced a written statement dated
7. Registration Authority Evidence
[170] At my request, the Council (as registration authority) produced certain evidence:
• Plans showing local government boundaries at all material times
• Extracts from the definitive map and statement showing that the path running along the south side of the Report Land from Church Street to Queen Street is a public footpath and
• Confirmation that the
8. Findings of Fact
[170] Having carefully considered all the evidence submitted to the public inquiry (whether specifically summarised above or not) I make the following findings of fact on the issues which arise in this case.
Use of
[171] I find that, from as far back as living memory goes (at least as far back as the 1 920s), the
Use of
[172] I find that from as far back as living memory goes, the open parts of the Report Land have also been extensively used by non golfers for informal recreation such as dog walking and children’s play. Some of the walking has been linear walking in transit. Thus the informal paths running east-west have been used by caravan residents to get access to the centre of
Where did non golf users come from?
[173] I find that the non golf recreational users of the
[174] I find that the local people who used the
Relationship between Golf and Other Use
[175] I find that the relationship between the golfers and the local recreational users was generally cordial. There was evidence of only a few disputes. Only Squadron Leader Kime seems to have caused problems by actively asserting a right to use the
Signs
[176] I am not satisfied that there were from 1979 onwards four signs on the ReportLand as stated by Mr Garbutt and other of the objector’s witnesses whose written statements were submitted. Mr Fletcher and Mr Lupton could not recall these signs.
However, I find that signs were erected on the
“
Warning
It is dangerous
to trespass on
the golf course”
Although these were vandalised several times after which the golf club gave up trying to maintain them, I am satisfied that they were in place long enough for regular users of the Report Land to know of them. Indeed, it seems that they caused a stir locally because of the implication that local people using Coatham Common were trespassers. They also received publicity in the local newspaper. I am also satisfied that in 2003, the Council erected signs granting the public revocable permission to use the land for recreation. These signs are still in place. There was evidence of a sign at the
Fences and Gates
[177] Although the
9. The Law
[178] The law relating to the registration of new greens has been dramatically altered by the decision of the Court of Appeal in Oxfordshire County Council v Oxford City Council & Robinson (the Trap Grounds case The present law can be summarised as follows:
The Statutory Framework
[179] The Commons Registration Act 1965 provides for each registration authority to maintain a register of town or village greens within its registration area. There was a period expiring on 3lS July 1970 for the registration of greens. By s. I (2)(a) of the 1965 Act, no land which was capable of being registered as a green by the end of the original registration period “shall be deemed to be.. .a town or village green unless it is so registered”. Section 13 of the Act provides for the amendment of that register where any land becomes a town or village green after the end of the original registration period.
[180] The expression “town or village green” is defined by s 22(1) of the Act. It is a three limbed definition, comprising
• statutory greens (i.e. greens created by statute),
• customary greens (i.e. greens based on immemorial use) and
• prescriptive greens (i.e. greens based on 20 years’ use).
It is the third limb of the definition, i.e. the definition of prescriptive greens, which is relevant in this case. This definition has been altered once and is likely to be altered again in the future under the Commons Bill presently before Parliament.
[181] Until
“land... on which the inhabitants of any locality have indulged in [ sports and pastimes as of right for not less than twenty years “.
As from
“...land on which for not less than twenty years a sign I cant 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 either (a) continue to do so, or (b) have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.”
No regulations have yet been made to implement para. (b) of the new definition. Both the first and second definitions have given rise to a host of legal issues many of which have now been the subject ofjudicial decision.
[182] The 1965 Act is to be repealed and replaced by a new statutory regime under the Commons Bill which includes the following new provision for the registration of new prescriptive greens:
“Registration of greens
(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) or (3) applies.
(2) This subsection applies where
(a) a sign number of local inhabitants indulged as of right in lawful sports and 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.
(3) This subsection applies where
(a) a sign Ulcant number of local inhabitants indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the time of the application; and (c) the application is made within the relevant period
(5) For the purposes of subsection 2(b) in a case where the condition in subsection 2(a) is satisfied-
(a)
(b) where permission is granted in respect of use of land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining where persons continue to indulge in lawful sports and pastimes “as of right “.
(6) In subsection (3)(c), “the relevant period” means-
(a) in a case where the cessation referred to in subsection (3) (b) occurred before the commencement of this section, the period offive years beginning with that cessation;
(b) in a case where the cessation referred to in subsection (3)(b) occurred after the commencement of this section, the period of two years beginning with that cessation.”
The proposed new provision is complicated and transitional provisions are left to regulations (clause 56(1)). Unless and until the Act is passed and transitional regulations made, the precise effect (if any) of the new legislation on the present case is a matter of speculation.
The Legal Issues
[183] The main legal issues that have been decided are as follows:
What is the effect of registration?
[ 184]The effect of registration can be summarised as follows:
* The fact that land is registered as a green is conclusive evidence that it was a green as at the date of registration
• The fact that land is not registered as a green is not conclusive evidence that it is not now a green: it may have become one
• It follows that land does not become a green when it is registered:
rather, it can only be registered if it has become a green.
• It was decided by the Court of Appeal in the Trap Grounds case that the fact that land is a new prescriptive green (whether registered as such or not) does not give local people any recreational rights over the green.
• It was further decided by the Court of Appeal in the Trap Grounds case that the fact that land is a new prescriptive green does subject the land to the protective provisions of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876, which in practice preclude development of greens. The sections provide as follows:
IA 1857s. 12.
And whereas it is expedient to provide summary means ofpreventing nuisances in town greens and village greens, and on land allotted and awarded upon any inclosure under the saidActs as a place for exercise and recreation: If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof before two justices, upon the information of any churchwarden or overseer of the parish in which such town or village green or land is situate, or of the person in whom the soil of such town or village green or land may be vested, forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [ 1 on the standard scale] and it shall be lawful for any such churchwarden or overseer or other person as aforesaid to sell and dispose of any such manure, soil, ashes, and rubbish, or other matter or thing as aforesaid; and the proceeds arising from the sale thereof and every such penalty as aforesaid, shall, as regards any such town, or village green not awarded under the said Acts or any of them to be used as a place for exercise and recreation, be applied in aid of the rates for the repair of the public highways in the parish, and shall, as regards the land so awarded, be applied by the persons or person in whom the soil thereof may be vested in the due maintenance of such land as a place for exercise and recreation; and f any manure, soil, ashes, or rubbish be not ofsuftIcient value to defray the expense of removing the same, the person who laid or deposited such manure, soil, ashes, or rubbish shall repay to such churchwarden or overseer or other person as aforesaid the money necessarily expended in the removal thereof and every such penalty as aforesaid shall be recovered in manner provided by the Summary Jurisdiction Act 1848; and the amount of damage occasioned by any such offence as aforesaid shall, in case of dispute, be determined by the justices by whom the offender is convicted; and the payment of the amount of such damage, and the repayments of the money necessarily expended in the removal of any manure, soil, ashes, or rubbish, shall be enforced in like manner as any such penalty.
CA 1876s. 29
An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and f any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Ac! 1857. he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned.
This section shall apply only in cases where a town or village green or recreation
ground has a known and defined boundary.
The Commons Bill does not address this issue.
Which definition applies?
[185] The judge at first instance in the Trap Grounds case had held that, if land had become a green before
What is the meaning of the second definition?
[186] The meaning of the second definition has been extensively considered by the courts.
Land...
.on which for not less than 20 years...
[187] The 20 year period need not be the 20 years immediately before the s. 13 application but can be any 20 years subject to the proviso that no reliance can be placed on any period of 20 years expiring before 3lS July 1970. In practice, the requirement in the second definition that user must be continuing often makes it unnecessary to consider any 20 year period ending before the application date (at least unless and until regulations are made to permit registration where user is not continuing). It is not relevant that the land was subject to 20 years’ recreation user before
a significant number..,
[188] “Significant” does not mean considerable or substantial. What matters is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers of the inhabitants of any locality
[189] A “locality” cannot be created by drawing a line on a map A “locality” must be some division of the county known to the law, such as a borough, parish or manor An ecclesiastical parish can be a “locality” but it is doubtful whether an electoral ward can be a “locality” It will be seen that the courts have adopted a very narrow construction of “locality” which catches out many lay applicants for registration of new greens..
...or of any neighbourhood within a locality...
[190] A “neighbourhood” need not be a recognised administrative unit. A housing estate can be a neighbourhood However a neighbourhood cannot be any area drawn on a map: it must have some degree of cohesiveness It seems that the neighbourhood must lie wholly within a single locality
.have indulged in lawful sports and pastimes...
[191] The words “lawful sports and pastimes” form a composite expression which includes informal recreation such as walking, with or without dogs, and children’s play It does not include walking of such a character as would give rise to a presumption of dedication as a public right of way’°°
as of right...
[192] Use of land “as of right” means use without force, stealth or permission (“nec vi nec clam necprecario”) and does not turn on the subjective beliefs of User “as of right” must be use as a trespasser and not use pursuant to a legal right’
[193] “Force” does not just mean physical force. User is by force in law if it involves climbing or breaking down fences or gates, if it involves ignoring notices prohibiting entry, or if it is under There is a dictum in the Beresford case’ that assumes that user can be as of right notwithstanding that it involves ignoring a prohibitory notice. There was no argument on that point in the House of Lords and, in my view, the assumption is contrary to principle. It was held by the Court of Appeal in the Trap Grounds case that a prohibitory notice prevented user as of right.
[194] “Permission” can be express, e.g. by erecting notices which in terms grant temporary permission to local people to use the land. Permission can be implied, but permission cannot be implied from inaction or acts of encouragement by the landowner’°
[195] It might be thought that, in the light of the Sunningwell case a conclusion that recreational user was not by force, stealth or permission would be determinative of the question whether such user has been “as of right”. However, the decision in R (Laing Homes Ltd) v Buckinghamshire CC’° is authority that this is not the case. According to this decision, it is also necessary to analyse the relationship between recreational use of the land and the use of the land by the landowner (or his tenants or licensees). In certain circumstances, that relationship will lead to the conclusion that recreational user is not as of right. In the Laing case, the landowner’s use was agricultural but the decision appears to apply to any use by the landowner. The reasoning of Sullivan J in the Laing case is complex and requires careful analysis.
I. The starting proposition is that at common law a customary right of recreation over land could co-exist with the right of the landowner to use the land for agricultural activities.
2. Each right was conditional upon its not being exercised in such a way as deliberately to obstruct the exercise of the other’°
3. However, this principle was altered by the enactment of s. 12 of the\ Inclosure Act 1857 and s 29 of the Commons Act 1876.
4. Thereafter, it was unlawful for the landowner to use his land in a way which interrupted its use as a place for exercise and recreation.
5. Parliament did not intend that the effect of the 1965 Act should be that local inhabitants could, by enjoying recreation on land in a manner which deferred to the landowner’s agricultural use of the land, acquire rights over that land which prevented the landowner from using it for those agricultural activities.
6. Recreational user which defers to agricultural user is not “as of right” because it does not have the appearance to the landowner of the assertion of a right. ‘
7. Thus if the landowner uses the land for hay-making (albeit only for a few days a year), recreational use of the land is necessarily interrupted while the hay is being made, so that recreational users defer to the agricultural use of the land and the recreational user is not “as of right”.
8. However, if the agricultural use is so low-key that it does not materially conflict with the use of the land for recreation (e.g. the rough grazing in the Sunningwell case), recreational rights can be acquired by 20 years use notwithstanding that recreational user does not defer to agricultural use.
9. The question whether the agricultural use is so low key that it does not materially conflict with recreational use is one of fact and degree to be determined by the registration authority.
[196] The Laing Homes case was considered and applied by HR Judge Flowarth (sitting as a High Court Judge) in Humphries & anor. v Rochdale MBC & ors. (I
[197] The most important point decided by the Court of Appeal in the Trap Grounds case is that the relevant user must continue not just down to the date of the application: user must continue down to the date of registration. This part of the decision will be reversed by cl. 15 of the Commons Bill, but it is as yet unclear whether the reversal will be retrospective as this will depend on transitional provisions to be made by regulations. This point decided by the Court of Appeal is of crucial practical importance because it means that, after an application is made to register a new green, but before the green is actually registered, the landowner can take steps, e.g. by fencing the land or erecting notices on the land, to prevent user “as of right” from continuing. This appears to give every landowner a cast-iron method of defeating any application to register a new green.
Procedure
[ 198]Procedure on applications to register new greens is governed by The Commons Registration (
Who can apply?
[199] Anyone can apply to register land as a new green, whether or not he is a local person or has used the land for recreation.
Application.
[200] Application is made by submitting to the registration authority a completed application form in Form 30. The form has not been updated to take account of the new definition. The form asks a series of questions which are very hard in practice to answer.
Part 3 asks for the “locality” of the application land. Few people completing the form are aware of the narrow technical meaning given by the courts to “locality”.
• Part 4 asks the applicant to state on what date the land became a green. Technically, this must be the end of the first 20 years of qualifying user, but few applicants are able to fix this date with any accuracy
• Part 5 asks how the land became a green. The technical answer is that the land became a green when it first complied with the requirements of the second definition. Again, few applicants are in a position to work this out.
Accompanying documents.
[201] Although the application form has to be verified by a statutory declaration by the applicant or his solicitor, there is no requirement that the application should be accompanied by any other evidence to substantiate the application. Instead, reg. 4 provides for the application to be accompanied by any relevant documents relating to the matter which the applicant may have in his possession or control or of which he has the right to production. In most cases, there are few, if any, of such documents as the application turns simply on a claim that the application land has been used for recreation by local people for more than 20 years.
Evidence.
[202] The applicant is only required to produce evidence to support the application if the registration authority reasonably requires him to produce it under reg. 3(7)(d)(ii).
Preliminary consideration.
[203] After the application is submitted, the registration authority gives it preliminary consideration under reg. 5(7). The registration authority can reject the application at this stage, but not without giving the applicant an opportunity to put his application in order. This seems to be directed to cases:
• Where Form 30 has not been duly completed, or
Where the application is bound to fail on its face, e.g. because it alleges less than 20 years use or where the supporting documents disprove the validity of the application
Publicity.
[204] If the application is not rejected on preliminary consideration, the registration authority proceeds under reg. 5(4) to publicise the application:
• By notifying the landowner and other people interested in the application land
• By publishing notices in the local area, and
• By erecting notices on the land if it is open, unenclosed and unoccupied.
Objectors
[205] Anyone can object to an application to register a new green, whether or not he
or she has any interest in the application land.
Objection Statement.
[206] Any objector has to lodge a signed statement in objection. This should contain a statement of the facts relied upon in support of the objection. There is a time limit on service of objection statements. The time limit is stated in the publicity notices issued by the registration authority. However, the registration authority has a discretion to admit late objection statements.
Determination of application.
[207] The most striking feature of the regulations is that they provide no procedure for an oral hearing to resolve disputed evidence. The Commons Commissioners have no jurisdiction to deal with disputed applications to register new greens: R (Whitmey) v Commons Commissioners’° The regulations seem to assume that the registration authority can determine disputed applications to register new greens on paper. A practice has grown up, repeatedly approved by the courts, most recently by the Court of Appeal in the Whitmey case, whereby the registration authority appoints an independent inspector to conduct a non statutory public inquiry into the application and to report whether it should be accepted or not. However, there is no power to award costs. Accordingly, it can be very expensive to become involved in a disputed application to register a new green since all parties will be left bearing their own costs. In the Whitmey case, the Court of Appeal said that either party could apply to the court to determine whether the application land was indeed a new green, without waiting for the registration authority to decide. This puts a powerful weapon in the hands of landowners, since applicants are otherwise free to pursue their application without any risk of having to pay the legal costs incurred by the landowner in opposing the application.
Procedural issues.
[ 208]A number of important procedural issues have been decided by the courts:
Burden and Standard of Proof. The onus of proof lies on the applicant for registration of a new green, it is no trivial matter for a landowner to have land registered as a green, and all the elements required to establish a new green must be “properly and strictly proved” However, in my view, this does not mean that the standard of proof is other than the usual flexible civil standard of proof on the balance of probabilities.
• Defects in Form 30. The Court of Appeal has held in the Trap Grounds case that an application is not to be defeated by drafting defects in the application form, e.g. where the wrong date has been inserted in Part 4. The issue for the registration authority is whether or not the application land has become a new green
• Part registration. The Court of Appeal also held in the Trap Grounds case that the registration authority can register part only of the application land if it “ is satisfied that part but not all of the application land has become a new green Withdrawal of application. Also in the Trap Grounds case, the Court of Appeal held that the applicant has no absolute right to withdraw his application unless the registration authority considers it reasonable to allow withdrawal. Despite the applicant’s wish to withdraw, the registration authority may consider that it is in the public interest to determine the status of the land.
The
[209] Does the decision of the Court of Appeal in the Trap Grounds case mean that the party is over for new village green applicants and that landowners can now develop their land free of any concern that their land may be registered as a new green, so that development is precluded by s. 12 of the Inclosure Act 1857 and s. 29 of the Commons Act 1876? The answer is no, for three reasons:
First, the House of Lords is to hear an appeal in the Trap Grounds case in March this year. If the House of Lords allows the appeal, this whole area of the law may again be changed. The House of Lords may, for example, hold that landowners cannot defeat s. 13 applications by action taken after the application is submitted.
Second, DEFRA may make regulations under s. 22(1A)(b) which prescribe a period of time after the ceasing of continuing use which does not preclude registration. Consultation documents put out by DEFRA suggest that this period may be up to five years. It may be that such regulations will be retrospective. If regulations are made, it will be possible to register new greens notwithstanding that recreational user ceased before the making of the regulations. If retrospective regulations are made, it may be that applications which have been rejected can or must be re-opened. However, it seems possible that DEFRA will not make regulations and rely on the new provisions in the Commons Bill relating to applications made after qualifying user has ceased
Third, under cl 15 of the Commons Bill there will be a provision for applications to be made a specified time after user as of right has ceased. There is also a provision restricting the action that can effectively end user as of right. Whether or to what extent the Commons Bill will be retrospective is a matter for regulations governing transitional matters. However, it appears likely that applications to register new greens made after the new Bill becomes law will have an improved chance of success.
10. Applying the Law to the Facts
[210] I now turn to apply the law to the facts that I have found. The convenient course is to break down the current definition of town or village green into its constituent parts, although I do not lose sight of the need to construe the definition as a whole.
Land…
[211] Some time was taken up at the public inquiry debating exactly what land was the subject of the application, bearing in mind the small scale and crude drawing of the application plan. Mr Cooper accepted that the applicants could not claim that local people used the site of the former club house and its car park for recreation before 2002. In the end, substantial agreement was rightly reached between the parties that plan B 179 accurately represented the land that the applicants intended to have registered and was consistent with the application plan. The only alteration to that plan suggested by the applicants (and Squadron Leader Kime in particular) was that the route of the public footpath from
on which for not less than 20 years...
[212] I consider that the applicants have established that the
.a significant number...
[213] I am quite satisfied that the applicants have proved that recreational use of the Report Land has been by such number of local people as to signify that it has been in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers.
of the inhabitants of any locality...
[214]I am also quite satisfied that the applicants have established that recreational use has at all material times been predominantly by the inhabitants of Coatham. Until 2002, Coatham was a “locality” as that word has been narrowly construed by the courts, since it was an ecclesiastical parish the boundaries of which broadly coincided with the local popular understanding of the area of Coatham. Since 2002 however, Coatham has not been a “locality” because the parish of Coatham has been merged with the parish of Dormanstown.
or of any neighbourhood within a locality...
[215] In my judgment, Coatham has since 2002 been a neighbourhood within the locality of the enlarged ecclesiastical parish of Coatham and Dormanstown. The former locality of Coatham still retains its own cohesive identity as part of the larger locality. It is still known as and referred to as “Coatham” by the local community. Minor parish boundary changes in 2004 were de minimis.
have indulged in lawful sports and pastimes...
[216] I am satisfied that the recreational use made of the Report Land by the inhabitants of Coatham, being predominantly walking, with or without dogs, and children’s play, has constituted “lawful sports and pastimes” as construed in the Sunningwell case.
...as of right...
[217] Nec vi: I consider that the applicants have established 20 years recreational use of the
[218] Nec clam: In my judgment, recreational user of the
[219] Nec precario: In my judgment, the permissive signs erected in 2003 rendered precario all recreational user of the Report Land thereafter in accordance with the reasoning of the House of Lords in the Beresford case.
[ 220] I see no evidence that the public footpath was used other than for linear - walking by right as a public footpath. User under an existing legal right is user by right and not user as of right. See the Beresford case.
[221] Leaving aside the public footpath, I consider that the reasoning in the Laing Homes and Humphries cases squarely applies to the
.and continue to do so.
[222] Recreational user as of right is not continuing because user has been permissive since the permissive signs were erected in 2002. Mr Cooper conceded that the permissive signs were fatal to the present application as the law now stands.
11. Conclusion and Recommendation
[223] My conclusion is that the application fails for the following reasons:
- Recreational user of the public footpath was by right as a public footpath
- Recreational user of the rest of the
- Recreational user of the
[ 224]The third point will be reversed by the Commons Bill (if enacted in its present form) but the first and second points will not be affected by the Commons Bill or by the appeal to the House of Lords in the Trap Grounds case.
[225] My recommendation is that the registration authority should reject the application. By statute, the decision must be made by the registration authority, which is legally free to follow or reject my recommendation as it thinks right. Any decision must however be made by applying the correct legal principles and after due consideration of the evidence. The members of the relevant committee must have access not only to this Report but also to all the documents before the public inquiry so that they can consider such of them as they think fit. If it is decided to reject the application, it is necessary to give written reasons for rejection pursuant to reg 8(1) of the 1969 Regulations. I recommend that the application is rejected “for the reasons stated in the Inspector’s Report dated
[226] It is right to point out that, if the registration authority accepts my recommendation, the applicants are entitled to apply to the High Court for permission to seek judicial review of the decision of the registration authority.
12. Timing of Report
[227] I add an addendum about the timing of this report. At the conclusion of the public inquiry I notified the parties that it might take some time to prepare my report because of the volume of evidence to be considered and my other commitments.
[228] The applicants applied to me to adjourn delivery of my report until after the decision of the House of Lords in the Trap Grounds case. In view of the conclusions that I have reached, I have decided that there is no ground for such an adjournment. My finding that recreational user of the
[229] The objector applied to me to deliver a Preliminary Report recommending that the application should be rejected on the basis of the permissive notices alone. I have not thought it appropriate to do so. First and foremost, I have been most reluctant to make any recommendation until I have considered all the evidence and arguments fully and with the care that they deserve. Second, it was the objector which, in its objection statement, asked for a non statutory public inquiry covering all issues rather than a preliminary determination on the basis of the permissive signs. Third, the objector did not put forward any reasons for particular urgency. I invited the objector to call its evidence on the issue of urgency, but it elected not to do so. Fourth, it seems to me that it would be unfair and discourteous to the applicants to deliver any report without giving proper consideration to all the material which they had collected and presented with enormous industry and diligence.
Vivian Chapman
