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