COMMONS AND RIGHTS OF WAY COMMITTEE 20 JULY 2016 · PDF file 2017-03-21 · COMMONS...

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Transcript of COMMONS AND RIGHTS OF WAY COMMITTEE 20 JULY 2016 · PDF file 2017-03-21 · COMMONS...

  • COMMONS AND RIGHTS OF

    WAY COMMITTEE 20th JULY

    2016 Agenda Item 7

    Application for the Registration of land known as “The

    Leys” Berkeley, Gloucestershire as a Town or Village

    Green under Section 15 (2) of The Commons Act 2006

  • Application

    • The application is to register land known as “The Leys” Berkeley (“the Application Land”) which was received by the

    Commons Registration Authority on the 15th January 2014..

    • Mr. Charles Berkeley submitted the Application on behalf of local residents (“the Applicant”).

    • The area of land that is subject to the application (“the Application”) is known as “The Leys”.

  • Application Land

    •The Application Land consists of 3 agricultural fields for ease

    of reference known as Fields

    1,2 and 3 (see Appendix 1)

    •They lie to the east of Berkeley Town with Field 1

    being the most southerly and

    Field 3 to the north. A stream

    runs alongside the eastern

    boundary

    •The Application Land is crossed by a public footpath

    OBE 3 (see Appendix 3)

    •Land used throughout 20 year period for agricultural purposes

    including growing grass crop

    for silage and grazing livestock

    and 1 horse

  • • Land is registered under two separate titles

    • Main part owned jointly by AJ, MC and S Aldridge

    • Two separate sections on western side registered in sole name of

    AJ Aldridge

    • Persimmon Homes Limited has the benefit of an option

    agreement giving them the right to acquire all the Application

    Land

    Land Ownership

  • Access - Entrance to Field 1

    March 2016

  • Field 1 – Access looking North towards Field 2 (PROW shown)

    March 2016

  • Field 1 – Looking East across site

    March 2016

  • Field 1 – Taken from Landowners gateway onto Field 1

    March 2016

  • Field 2 – Looking North across site (PROW shown)

    March 2016

  • Field 2 – Looking North across site

    March 2016

  • Field 2 taken from Landowners Gateway (looking East)

    March 2016

  • Field 2 – Looking South towards Canonbury Street

    March 2016

  • Field 3 – Looking North towards B4066

  • Field 3 – Looking North towards B4066

    March 2016

  • Field 3 – Looking East towards B4066

    March 2016

  • Field 3 – Looking North towards B4066 (middle of field)

    March 2016

  • Field 3 – Looking North East across site

    March 2016

  • Legal Criteria

    • Application submitted under Section 15 (2) of the

    Act

    • Section 15 (2) states;

    (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 at least 20

    years;

    (b) They continue to do so at the time of the application

  • Locality /

    Neighbourhood

    The Applicant relied on civil

    parish of Berkeley as

    the locality

    There was some debate as

    to whether Berkeley

    Town could be a

    neighbourhood but this

    was not pursued so

    Application proceeded

    on locality only - see

    area edged in green

    and Appendix 1

  • Amended

    Application Plan

    Following receipt of

    objections (discussed

    later) the Applicant

    amended his plan to

    exclude the area

    coloured yellow due

    to ‘trigger event’

  • The Commons Act 2006

    • The Application was originally made under Section 15(2) of the Commons Act 2006 which states;

    (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 at

    least 20 years;

    (b) they continue to do so at the time of the application

    • The Applicant sought to amend their Application to rely on Section 15(3) in the alternative. Section 15(3) states:

    (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

    at least 20 years;

    (b) they ceased to do so before the time of the application but after the commencement of

    this section; and

    (c) the application is made within the relevant period

    EACH ASPECT OF THE TEST NEEDS TO BE MET FOR AN APPLICATION TO BE

    SUCCESSFUL.

  • “Significant Number”

    • R(McAlpine) v Staffordshire County Council

    • It does not mean a considerable or substantial number.

    • “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 community for informal recreation,

    rather than occasional use by individuals as trespassers”

    (Sullivan J).

    • Only recreational use by members of the public from the relevant Locality or Neighbourhood will contribute to the “significant

    number” test. Therefore use by people that do not come from

    within the claimed locality or neighbourhood does not support an

    application for registration of a town or village green and must be

    discounted.

    • The burden of proof lies with the Applicant to evidence that users come from within the claimed Locality or Neighbourhood.

  • “Inhabitants of any locality or of any

    neighbourhood within a locality”

    • A Locality must be an area recognised in law, for example a parish boundary.

    • Its boundaries must be ascertainable given that the effect of registration as a town or village green is to confer upon the

    inhabitants of the Locality general recreational rights.

    • It is necessary to be able to identify those who are possessed of the right to use the land and those post-registration users

    who continue to be trespassers against who, the landowner

    would be entitled to bring proceedings.

  • “As of Right”

    An applicant must show that the land has been used without force

    stealth or permission from the landowner.

    “lawful sports and pastimes”

    • Has to be something more than a mere wandering as not “exercise

    and recreation”.

    • Types of activity include playing games (e.g. cricket, football), dog

    walking, fruit picking, bird watching.

    “for a period of 20 years” Any 20 year period ending before the date of the application and after

    the commencement of section 15(3), provided that the application is

    made within the relevant period

  • Application

    • The Application was submitted on the 14th January 2014.

    • The Commons Registration Authority advertised the Application in the Dursley Gazette on 7th August 2014 and by erecting site

    notices on same date with a 6 week consultation period in

    accordance with “The Commons (Registration of Town or Village

    Green) (Interim Arrangements) (England) Regulations 2007”

    • Objection period expired on 19th September 2014

    • Due to oversight formal notice not served on Landowners at correct time so they were notified on 19th September 2014 and

    given until 3rd November 2014 to make representations

  • Objections

    • Objections were received from:-

    • Solicitors acting for Persimmon Homes Limited

    • GVA Grimley acting for the Aldridges’

    • A local resident Mr P Boobyer

  • Reason for objections The main reasons for Persimmon objecting to the Application were;

    • A previous planning consent affecting part of the Application Land which they claimed amounted to a trigger event (preventing the application

    from being considered unless there was a corresponding terminating

    event)

    • CRA agreed there was a trigger event but only affecting part of the land. Applicant requested to amend his Application Plan to exclude this area

    (see map at Appendix 5 and previous slide)

    • They requested that a non-statutory inquiry be held

    • They stated that a significant number of witnesses used land before the 20 year qualifying period and therefore should be discounted. They

    claimed use akin to a public right of way

    • Persimmon has Planning Application to develop whole of Application Land

  • • Main reason for GVA objecting were similar to those submitted by Persimmon making reference to previous landfill operations and land now largely used for

    grazing.

    • Also of view that Application should be regarded as defected due to ‘trigger event’

    • Mr Boobyer stated claim was without foundation.