: for Decision
Committee : HUMAN RESOURCES AND MISCELLANEOUS APPEALS SUB COMMITTEE
Date : 1 SEPTEMBER 2006
Title : REGISTRATION OF NEW TOWN OR VILLAGE GREEN LAND COMPRISING THE BANDSTAND, THE PARADE, COWES, ISLE OF WIGHT
REPORT OF THE CHIEF LEGAL ADVISER
1. The Isle of Wight Council as Registration Authority has received an application to register land at the Bandstand, The Parade, Cowes, Isle of Wight, as a town or village green. The application is made under Section 13 of the Commons Registration Act 1965 and the new Land Regulations of 1969. The paper setting out the background and legal requirements for registration is attached as Appendix 1 for members’ information and reference.
2. The application was advertised and the consultation procedure required by the 1965 Act has now been completed. The application is brought before the Committee for decision.
3. The application was made by Mr P D Miller of Princes Building, Bath Road, Cowes, Mr A Miller, Challow Mead, West Challow, Oxfordshire, Mr D V Ellis, Claymore, The Parade, Cowes and Mr F A Squibb, 10 Marine Court, Cowes and is supported by 40 statements of use in the form of completed questionnaires as summarised in Appendix 2.
LOCATION AND SITE CHARACTERISTICS
4. The land the subject of the application is shown edged with a thick black line on the plan attached to this report.
5. The land which is known as the bandstand is situated on the south west side of The Parade at its junction with Bath Road, Cowes, Isle of Wight, having an overall area of 232 square metres or thereabouts. The application land is approximately semicircular in shape. It is a paved area partly open to the sea and about two thirds surrounded by walls of varying heights, to include a seating area with a veranda over it and backed for about a third of its circumference by public conveniences.
6. The land is currently in the ownership of the Isle of Wight Council. It was sold to Cowes Urban District Council in 1957. The area of land sold at that time included a building known as the Pavilion together with the adjoining land. The Council stated that its intentions for the purchase were in connection with the Cowes Urban District Council Act 1938 which permits the Council to provide concert halls, entertainment rooms, reading rooms, pavilions, bandstands with all the necessary and suitable offices, refreshment rooms, kitchens, cloakrooms, lavatories, conveniences and appliances.
7. In 1959 Cowes Urban District Council obtained planning permission to erect public conveniences and a shelter on The Parade, a proportion of that development encompassing the application site. The planning application refers to a garden area which it would appear was the then current, albeit temporary use.
8. It is not anticipated that the options placed before the Panel will have any Council policy implications relevant to the Committee’s decision other than as described elsewhere in this report.
9. Advertisement - In accordance with the requirements of the 1965 Act and 1969 Regulations the application was advertised by notices placed on site and in the County Press. Copies of the application and supporting documents were made available for public inspection at the Customer Services Centre in County Hall and at Cowes Library.
10. Fire – No consultation was necessary in connection with the fire implications of this report.
11. Police – No consultation was necessary in connection with the police implications of this report.
Relevant Council Departments
12. On 12 April 2002 notification was sent to Property Services, Planning Policy and Countryside Services.
13. On 12 April 2002 notification was sent to Cowes Town Council.
14. On 12 April 2002 notification was sent to Councillor Marc Morgan Huws the local member for the bandstand and notification was also sent to the other Cowes Councillors being Councillors Pearson, Buckle and Effemey. No response has been received.
15. Objections have been received from the Isle of Wight Council’s Property Services Manager and the Principal Planning Officer together with objections from Mrs Wardrop a local resident and Cowes Town Council and there were individual objections from E Hamilton and Lynn Hammond both members of Cowes Town Council but who wrote separately.
16. These objections are to be found in Appendix 3.
17. 40 questionnaires have been submitted in support of the original application and these are also evaluated in Paragraph 19 the Evaluation Section. A copy of the objections from the Council and the other named parties were sent to the applicant under cover of a letter dated 2 August 2002 requesting the applicant to consider the application and make any comments on the objections.
18. A letter was received from a further person in support of the application but not containing any evidence to be considered. An undated letter was received from Mr P D Miller, the main applicant, on 1 October 2002 and a further letter dated 7 October 2002 from another of the applicants was received on 5 November. The main applicant referred to the legal criteria for the creation of a village green but conceded that the Isle of Wight Council periodically closed access to the bandstand. It was his view that such closure showed tolerance to activities on the bandstand as opposed to permission. These letters can be found at Appendix 4.
19. The land the subject of this application is owned and maintained by the Council for public recreation and there will be no further financial implications in this respect.
20. If the Committee decides to seek independent expert advice the cost of referring the application to Counsel could be between £1,000 to £5,000 (depending on complexity) and the cost of a non-statutory public inquiry could be between £15,000-£20,000 (depending on length and number of witnesses). There is no allocation within the budget for this.
21. See Appendix 1.
22. It is not anticipated that the options placed before the Committee will have any implications under the Crime and Disorder Act 1998. However the Committee should be aware that the bandstand has been subject to vandalism.
23. A matter to be considered is whether the Council’s role as Registration Authority and Planning Authority is compatible with Article 6 of the European Convention on Human Rights particularly where the land as subject of the village green application is owned by the Council. This would mean that the Council would be determining issues on its own land where it might be interested in disposing/redevelopment of that land and it is questioned whether the Council could be independent and impartial as required by Article 6.
24. It is advised that there is no violation of Article 6 for the following reasons:
(a) Any decision taken by the Council is subject to subsequent control by judicial review. Although the statutory provision for judicial review is limited to the legality of the decision and not its merits it constitutes sufficient compliance with the convention; and in any event,
(b) primary legislation namely the Commons Registration Act 1965 requires the Council to take such a decision. Section 6 (2) of the 1998 Act provides that public authorities can act in a way seemingly incompatible with convention rights where the public authority must so act because of the provision in primary legislation.
(c) In circumstances where land is privately owned then Article 1 of the first protocol (Right to Possessions) would have to be considered. However in this instance it is not held to be relevant as the land is in the ownership of the Isle of Wight Council.
(d) Nevertheless where evidence is in dispute or contentious it would be best practice for the application to be referred to an independent inspector and/or public inquiry to consider all evidence and submissions.
25. To accept the application and to register the land as a town or village green
26. To reject the application on the grounds that the criteria are not met.
27. To appoint an independent inspector and/or hold a non-statutory public inquiry to hear the evidence and make a recommendation to the Committee.
28. All the evidence and representations submitted in support of the application and the objections to the registration have been assessed and evaluated with reference to current statute and case law in the preparation of this report.
29. The stated ground for the application is that the land has become a town or village green by (a) use of land by a significant number of local inhabitants, (b) for lawful sports and pastimes, (c) as of right and (d) for not less than 20 years.
30. For the application to succeed the applicant must prove his case on all four parts of the stated ground.
31. Prior to considering the four parts in turn it has to be stated that the definition of village green is land used by local inhabitants for recreation, together with the other criteria. In the recent House of Lords ‘Trap Grounds’ decision, Lord Hoffman confirmed in his opinion that “Following the earlier case law, there was no restriction by reference to the size or character of such land”.
Lord Hoffman also referred to the fact that Halsbury’s Laws have said in successive editions (1st edition 1908):-
“the essential characteristic of a town or village green is that by immemorial custom the inhabitants of the town, village, or parish should have acquired the right of playing lawful games thereon and enjoying it for the purposes of recreation.”
32. The 40 questionnaires submitted as evidence in support of the application have been completed by residents of Cowes, East Cowes and Gurnard and are attached as Appendix 2.
33. Two of the objectors state “The bandstand’s immediate defined locality/neighbourhood residents would not often use this site for its limited sedentary ground level viewing pastime, themselves having at home better private viewing from their own homes alongside, behind or nearby. This applies naturally in a seaside town to many other local inhabitants. Majority users would be summer visitors.”
34. The 1965 Commons Registration Act has been amended by the Countryside and Rights of Way Act 2000 which now only requires to show use by a “significant“ number of local inhabitants. The bandstand as a shelter would be used by the public in general and more particularly in the summer months by visitors and holidaymakers to Cowes. A considerable number of people using the bandstand/shelter would be local which is reflected in the supporting statements and this would seem to be sufficient to satisfy the criteria as amended by CROW.
35. It is concluded that the application satisfies the criteria of use by a significant number of local inhabitants.
36. The questionnaires identify a variety of activities enjoyed on the land. These include sitting and watching yachts, chatting, sheltering from rain, listening to music and eating sandwiches. Many statements refer to enjoying band concerts, Songs of Praise and memorial services. There is also reference to dog walking and bonfires.
37. The Head of Property Services states that the bandstand “has been developed by our forefathers as a point of entertainment of public assembly but in no way is it to be classed as a village green. Whilst some people may sit and enjoy the view and as you say you might class this as idling there is no degree of permanence for that idling or its enjoyment when other events are being held at the bandstand”. Individual objectors have commented “lack of amenity space and structure itself does not lend itself to sports” and “pastimes by nature of viewing of sailing and listening to music are very limited to a very few weeks of the year in the summer. You would hardly expect a pastimes such as kite flying in this small defined area. The defined area is too small for dog walking and there are also no dog bins available to meet the dog walking criteria”
38. Lawful sports and pastimes is an expression not just restricted to organised games and activities. In the House of Lords ruling in the Sunningwell case it was held that informal activity such as dog walking and playing with children are sufficient to justify registration so long as there is an established pattern of use. It does appear that some of the activities stated by the applicants are unlikely such as bonfires and dog walking. On balance it can probably be accepted that reading the paper and watching the yachts are pastimes that would take place on a regular basis and would satisfy the Sunningwell criteria.
39. It is concluded that the application satisfies the criteria for lawful sports and pastimes.
40. The information provided in the questionnaires suggests that the inhabitants have carried on the various activities openly without anyone trying to stop them. None of the questionnaires indicate that submitters were prevented from using the land and that they have used the land without having asked permission. It should be noted however, that nearly all the statements refer to Songs of Praise and/or band concerts and the submitters state that they were spectators to these activities.
41. The applicant himself in his letter of 1 October 2002 refers to the Isle of Wight Council periodically closing access to the bandstand. It has been assumed by the report writer that this refers to Cowes Week but that is not stated.
42. Although none of the formal objectors made reference to the as of right element in respect of band concerts, further investigations with Wight Leisure have elicited the information that specific arrangements were made with individual bands to play on specific days and times during Cowes Week. In all bar a few cases there was a fee payable to the band for the concert. Copies of correspondence from July 1990 through to 2000 attached as Appendix 5 clearly show that specific written permission had to be granted for bands to play during Cowes week. It also shows that for the majority of the period a payment was made for those bands to play.
43. It has already been stated that the land was acquired by Cowes Urban District Council in 1957 for purposes contained within the Cowes Urban District Council Act 1938 which enabled that Council to purchase land to provide inter alia bandstands and public conveniences.
44. It is necessary for the applicants to provide evidence that the land was used without force, without secrecy and without permission. The existence of the bandstand seating area being maintained by the Isle of Wight Council for use by the public would suggest that the public had been encouraged to use the bandstand and would imply that such use was with the express or implied permission of the Isle of Wight Council. Following the House of Lords decision in the Sunderland (Beresford) Case the provision of seating is not sufficient to imply the grant of permission, such as would defeat this application per se.
45. It is clear however from the correspondence from Wight Leisure that the public were excluded from the bandstand when the Isle of Wight Council wanted to use it for its own purposes in that specific permission was given to bands who were performing. By asserting its right to exclude the Council has made it plain to the public that their use at other times was allowed/permitted because it chose not to exclude them therefore permitting the use. This is sufficient to defeat the application.
46. The applicant relies on the 20 year period being 1980 to 2000. Of the questionnaires submitted in support of the application all indicate use without interruption throughout some or all of the qualifying period.
47. Whilst no specific objectors’ submissions have been received, the correspondence from Wight Leisure shows a series of regular interruptions into the period claimed by the applicant.
48. The closure of the bandstand area for the purposes of public entertainment during Cowes Week is considered sufficient to defeat this head of the criteria, as the period has to be continuing without interruption.
49. The stated ground for the application is that the land has become a town and village green by (1) Use of the land by local inhabitants, (2) for lawful sports and pastimes, (3) as of right and (4) for not less than 20 years. For the application to succeed the applicant must prove his case on all four parts of the stated grounds. The evidence suggests that the use of the land was (1) by local inhabitants and (2) on balance possibly for such activities that might consist of lawful pursuits and pastimes. The evidence does not suggest that the use of land was (3) as of right nor does it suggest that this usage occurred for 20 years.
Appendix 1 Registration of town and village greens … legal background
Contact Point : Helen Miles, ' 823288, e-mail firstname.lastname@example.org
Chief Legal Adviser
1. The Isle of Wight Council is the Registration Authority for the purposes of the Commons Registration Act 1965. As Registration Authority, the Council is responsible for compiling and maintaining the Registers of Common Land and Town or Villages Greens and for any amendments to the Registers.
2. The purpose of this Appendix is to provide background information about village greens. It is also to provide a summary of the legal requirements for the registration of new village greens under the 1965 Act for Members’ information and ease of reference when determining the above applications.
3. Village greens have their origins in the manorial system introduced by the Norman Conquest in 1066. Most village greens may at one time have formed part of open uncultivated and unoccupied land belonging to a manor or estate. Use of the land for sports and pastimes by local inhabitants was tolerated by the lord of the manor and over many years the local people could claim rights to use the land for recreation.
4. The traditional green was a communal area where people could gather to play games, dance and exercise and often served as a secure place where livestock could be gathered and safely grazed during times of unrest. Greens were also the location for services such as the village well or where justice was dispensed in the village stocks.
5. During the Second World War, many commons were ploughed up for agriculture and after the War growing ownership of cars and demand for housing brought pressure to bear on village greens. The increasing recreational needs of the public were recognised and a Royal Commission was established to look at any changes that could be introduced to balance the needs of the owners of the land and the enjoyment of the public. Some of the recommendations of the Commission were implemented by the Commons Registration Act 1965.
6. Although village greens have been recognised in law for centuries, until the Commons Registration Act 1965 there was no statutory definition of the classes of land involved and no strict common law meaning. The 1965 Act for the first time provided a scheme for registration of town and village greens as a distinct category of land separate from commons.
7. Under the 1965 Act, the Council was appointed as the Registration Authority for the purposes of compiling and maintaining the registers of Common Land and Village Greens. The compiling of the registers depended upon interested parties making an application to register any eligible land. Anyone could make an application regardless of whether they had an interest in the land. The application was advertised and if no objections were received the registration automatically became final. Any applications the subject of unresolved objections or questions of ownership or rights were referred to the Commons Commissioner for decision.
8. The 1965 Act and regulations provided that village greens had to be registered within five years. The statutory deadline was 2 January 1970 and any existing town or village greens not registered by that date ceased to be a village green for registration purposes. However, Section 13 of the 1965 Act allowed for the amendment of the village green registers where any land became a village green after the initial registration period ended.
NEW VILLAGE GREENS
9. In Section 22 the 1965 Act, one of the definitions of a village green is land “on which the inhabitants of any locality have indulged in lawful sports and pastimes as of right for not less than twenty years”. As more than twenty years has elapsed since the registers closed in 1970, sufficient time has accrued to enable applications to be made for the registration of land as a new green on the basis of twenty years use for recreation by the local inhabitants. The twenty years would have to run from some point after the registers closed so that the earliest date on which the land could acquire village green status would be January 1990.
10. The procedure for registration is laid down in the Commons Registration (New Land) Regulations 1969. As with the original exercise, anyone can make an application to register any eligible land. However, unlike the original exercise it is left to the Council, as registration authority, to determine the application.
11. The application is made on a prescribed form and must be accompanied by a statutory declaration. The Council, once it is satisfied the application is in order, is under a duty to advertise it in the local newspaper and notify the landowner (if known) and any person known to have an interest in the land (ie tenant, lessee or occupier).
12. A period of six weeks is allowed for objections to be lodged. If any objections are received, the applicant is given the opportunity to comment on them. At the end of the consultation process, the evidence submitted for and against the application has to be considered and a decision taken on whether the application satisfies the statutory requirements for registration.
13. The popular view of a typical green is a small area of open land in the middle of a village where the children run around and where the village cricket team holds its matches. However, village greens do not need to be traditional picturesque areas. A town or village green depends on the rights exercisable over the land rather than its location. Thus, any land used by people from the locality for informal recreation can become a town or village green.
14. Such land can be derelict scrubland in a city centre, a brown field site or a field formerly used for grazing. When the 1965 Act was passed this land may not have qualified for registration but since 1970 the land may have become subject to the qualifying uses and may therefore now satisfy the requirements for registration.
15. For the application to succeed the applicant has to show that the land has been used by (1) a significant number of local inhabitants (2) for lawful sports and pastimes (3) as of right (4) for not less than 20 years.
16. This is a developing area of law. In addition to an amendment to the definition of a village green in the Countryside and Rights of Way Act 2000, there have been some recent court cases that have clarified the meaning of “local inhabitants”, “lawful sports and pastimes” and “as of right”. These judgements have significantly changed the criterion by which registration authorities determine applications for new village greens.
20. As of right: The applicant only needs to provide evidence that the land has been used without force without secrecy and without permission. It swept away the previous understanding of the law that for users to demonstrate they had indulged in lawful sports and pastimes “as of right” they also had to prove that they and only they (i.e. not the public at large) had the right to do so. Also, the fact that the owner knows of the use and does nothing to prevent it does not amount to permission. The toleration of use by the owner cannot prevent use as of right for the purposes of prescription.
24. The burden of proof lies with the person seeking the registration. He or she has to properly prove that the land satisfies all four parts of the criterion for registration as a village green namely that the land has been used by (1) a significant number of the inhabitants of any locality or neighbourhood; (2) for lawful sports and pastimes; (3) as of right; (4) for not less than twenty years. If any one part cannot be satisfied then the application will fail.
25. The meaning of the words “local inhabitants” is not defined in the 1965 Act or the 1969 Regulations. Following the Sunningwell case and the amendment in Section 98 of the CROW Act 2000, it is now a question of fact in each case as to the extent of the relevant locality (i.e. a housing estate could be acceptable). The applicant is required to show the recreational use of the land is predominantly, but not exclusively, by people who live in that locality. However, although use by persons other than local inhabitants will not prevent the recognition of a right for local inhabitants, a right cannot be claimed for the public at large for the purposes of a village green.
26. The types of activity that would constitute “lawful sports and pastimes” include formal sports and organised events such as football, cricket, fetes and bonfires. In addition, informal modern activities such as walking the dog, strolling, birdwatching, kite flying or just sitting and idling have now been accepted as being as relevant as the more traditional ones. However, it must be an activity that could properly be called a sport or pastime (i.e. walking along a path to get from a to b would not in itself amount to a sport or pastime). The applicant will need to provide evidence of an established pattern of recreational use and the use should not be trivial or sporadic.
27. For user to be as of right the applicant must show that the recreational use of the land by local people has been (a) without force, (b) without secrecy, and (c) without permission.
(a) Without force: there must be unrestricted access for the entire twenty year period. If access is obtained by climbing over or breaking down fences and tolerated only in so far as the landowner could not prevent such access then the use is not as of right.
(b) Without secrecy: the use must not be exercised in secret but carried out openly. If the use takes place only at night under cover of darkness then the use is not as of right.
(c) Without permission: The use must be without the permission of the owner. If the owner merely does nothing to prevent the use of the land for recreational activities, even if he knows about the activities, his toleration would not be sufficient to imply he had given permission for such use.
28. The use for lawful sports and pastimes must have occurred for at least twenty years. Any evidence that the use has been interrupted or the land has not been available for such use during the required twenty year period will destroy the claim.
29. The purpose of the 1965 Act, amongst other things, was to give legal protection to the greens and safeguard them from development. Once registered, it was intended that the green would remain available for continued enjoyment by the inhabitants for recreational use. Registration does not in itself confer any recreational rights that did not exist prior to registration. The practical effect of registration is only to confirm the existence of such rights. Consequently, a registered village green is held in the same way as any other land and, although nothing should be done which would interfere with the lawful recreational activities of the local inhabitants, the owner is not required to maintain it in a suitable state for such activities. There is nothing to prevent the owner from selling a green but a transfer of ownership does not affect any right to use it for recreation.
30. A registered green also enjoys the protection of two 19th Century Acts that prevent interference with or encroachment on village greens. The combined provisions of Section 12 of the Inclosure Act 1857 and Section 29 of the Commons Act 1876 make it an offence to undertake any activities that injure a green or interrupt its use as a place for exercise. However there is some ambiguity over whether Section 12 and 29 apply to new greens established after 1970 through 20 years use by local inhabitants. This matter has not been tested in the courts so to date there is no case law that has determined whether or not these new village greens will have the same level of protection as the ancient greens. The government department having general responsibility for the environment (DEFRA) is proposing to end this ambiguity so as to ensure the consistent protection of Sections 12 and 29 for all greens but this will require primary legislation and will be some time in the future. In the meantime, any land registered as a village green is effectively un-developable.
31. The primary duty of the Council, as registration authority, is to maintain the registers and related maps of common land and village greens. When a property is sold, the buyer’s solicitor can apply for a search to be made of the relevant register and the Council provides a certificate which confirms if the land is registered as common land or village green and what rights, if any, are registered.
32. The Council is also responsible for any amendments to the registers. Consequently, since the window of opportunity has opened for applications to register new village greens under Section 13 of the 1965 Act, it is the Councils duty to receive, advertise and determine such applications.
33. Once an application is received, unless it is defective, it appears the Council must pursue the full decision process even on those applications which, on examination of the evidence, do not appear to establish a reasonable prima facia case for registration.
34. No procedure has been has been laid down in the 1965 Act or its subsequent regulations as to how the applications should be determined. This is left entirely to the registration authority. As many applications are made with a view to preventing development and the Council is both registration authority and planning authority it is the view of the Open Spaces Society that such applications should be referred to a non-statutory public inquiry before an independent inspector (see also Human Rights Act 1998 paragraphs 38 to 44 below). However, an inspector can only make a recommendation, it is the responsibility of the Council to decide whether the application is accepted or rejected.
35. The application must be determined strictly on legal issues and evidence. The Council’s sole function as registration authority is to consider the evidence for and against the application. If having done so, the application satisfies the relevant statutory requirements then the Council may accept the application, but if the statutory requirements are not satisfied, then the Council has no option but to reject the application.
36. If the application is accepted, the village green register is amended and the land entered in the register as a new village green. Any person aggrieved by the inclusion of any land by amendment to the register under section 13 of the 1965 Act has a right of appeal to the Chancery Division of the High Court. The High Court may quash or amend the registration if it deems just.
37. If the application is rejected, the applicant is informed of the reason for the rejection. There is no formal right of appeal against a refusal to amend the register but the applicant can seek a Judicial Review if he or she believes the decision to be wrong in law or procedurally improper.
38. A matter to be considered is whether the procedure for determination of the applications is compatible with the Articles of the European Convention for the purposes of the Human Rights Act 1998.
39. The Human Rights Act potentially impacts on a village green application in two ways :
(a) Article 6 : Fair hearings in determining civil rights
Council owned land : It could be questioned whether the applicants rights can be properly determined by the Council where it owns the land the subject of the application. The Council would be determining issues on its own land where it could have an interest in disposing of that land. Consequently given its dual role as registration authority and owner, the Council may appear not to be independent or impartial as required by Article 6.
(b) Article 1 of Protocol 1 : Protection of Property
Privately owned land : The registration of privately owned land as village green is destructive of the value of the land to the owner (see effects of registration paragraph 29 and 30 above). This could be seen as a breach of the landowner’s rights under Article 1 of Protocol 1 since it would deprive him of the value of his land.
40. The Council is discharging a statutory function and provided the proper procedure is followed and each application is determined on legal issues and evidence there would appear to be no violation of the Articles of the Convention for the following reasons :
(a) Any decision taken by the Council is subject to the subsequent control of judicial review as regards the lawfulness and fairness of the decision making process and this would constitute sufficient compliance with the convention; and
(b) Primary legislation, namely the Commons Registration Act 1965, requires the Council to determine village green applications.
41. There is no express provision in the 1965 Act or 1969 Regulations for a public inquiry to be held automatically. The Council, as Registration Authority, has general discretion to hold a non-statutory public inquiry to hear the evidence, but the ultimate decision to accept or reject the application remains with the Council.