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. He has used public footpath

for last 22 years and never seen human activity other than the occasional dog

walker. He did not comment on the legal tests or the evidence submitted in

support of the Application

Reason for objections cont...

Applicant’s Response

• They argued alleged ‘trigger event’ did not apply to the whole of the Application Land

therefore the Application in relation to the remainder of the land must be valid

• As activities did occur for many years (they claim over 50) before the relevant 20

year period it must reinforce argument that recreational use has been long standing

• Witnesses do not mention previous landfill which is not surprising being as it took

place on a small area only

• They contended that witnesses had used a much wider area than the public footpath

crossing site

• Because there was a conflict of evidence the CRA arranged a non-statutory public

inquiry

Inquiry

• The Inspector held a non statutory public Inquiry commencing 23rd February 2016 and

concluding 1st March 2016 at Shire Hall Gloucester. Public Notice was given of the

proposed inquiry both on site and in the local press.

• Both the Applicant and the Owners/Persimmon attended and were represented by

Counsel. The Inspected heard oral evidence from witnesses (see report at Appendix 2)

and she considered written evidence that had been submitted.

• The Inspector along with the CRA conducted a site visit on the 1st March 2016 and was

accompanied by representatives of the parties.

• Together the parties walked the Public Footpath and boundaries of each field. No

evidence was heard during the site visit.

• The Inspector also visited other parts of Berkeley where they had been mentioned by

witnesses. She was unaccompanied.

Inspectors Findings

• Please refer to the Inspector’s Report at Appendix 2

• Note paragraph 98 onwards with regard to findings of fact to establish

if statutory tests met

• As already stated locality ‘is the civil parish of Berkeley’

• She concludes (paragraph 100) that landfill operations ceased before

the start of the 20 year period and land returned to agricultural use in

accordance with a 1991 planning consent

• In relation to signs she accepts that there were signs identifying the

route of the public footpath and GCC signs asking for people to keep

their dogs under control. Also a ‘no parking’ sign on vehicle gate of

Canonbury Street erected by Mr Aldridge

Inspectors Findings (2)

• Paragraphs 107-110 of her report considers the issue of lawful

sports and pastimes by local inhabitants

• Some oral evidence vague, limited and very general and she

could not be satisfied by frequency of use or whether it occurred

consistently through the whole of the relevant 20 year period

• Having considered all the evidence the Inspector stated that she

was unable to ‘make a positive finding that there had been any

consistent and regular use of the Application Land for lawful sports

and pastimes throughout the whole of the Application period’

• In applying the law she stresses that each and every part of the

statutory test must be strictly proved by the Applicant on a balance

of probabilities test

Inspectors Findings (3)

• Inspector accepts that Berkeley is a locality but test is whether a ‘significant

number’ have made a qualifying use

• Claimed locality has a population of more than 2000 residents therefore

Applicant has not met the threshold

• Her conclusion with regards to this part of the test is sufficient enough to

dispose of the Application but she considers other aspects in her report

• In paragraph 121 she concludes that due to her findings of the use not being

sufficient to assert a right that use ‘as of right’ test is not met. She does accept

that the activities are lawful sport and pastimes

• Reference to land in the test must refer to the whole of the Application Land. It

is possibly for topography and nature of land to preclude some use but in this

case there is no such impediment and concludes there was not recreational

use over the whole of the Application Land in accordance with the test

Inspectors Findings (4)

• Finally (see paragraphs 126-129) she considers the ‘trigger event’ and

whether the CRA should have rejected the Application from the outset

• Publication of the Planning Application that resulted in the 1991 permission

was a ‘trigger event’ however she does not agree that the right to apply for the

village green would be excluded in relation to the whole of the site

• The ‘trigger’ only relates to a small parcel within Field 1

Inspectors Conclusion

The Inspector concludes that the Application

fails and recommends that the TVG

Application should be rejected for the

reasons set out in her report dated 9th June

2016

Recommendation

Members are recommended to accept the report

of the Inspector and to determine that the

Application to register land known as ‘The Leys’,

Berkeley Gloucestershire as a Town or Village

Green be REJECTED and no part of the

Application Land be added to the Register of

Town and Village Green