appendix 2 in the matter of an application to registercouncillors.halton.gov.uk/documents/s4474/town...

Appendix 2

In the Matter of an Application to Register

Land Known as Lovel Fields, Hale Bank in the Borough of Halton

As a New Town Green

_____________________________________________________________________

REPORT

of Mr. VIVIAN CHAPMAN QC

1st. June 2007

_____________________________________________________________________

Halton Borough Council

Municipal Building

Kingsway,

Widnes,

Cheshire WA8 7QF

Ref JT/E:CRA 0001/PS

60036/VRC/07/125/wp/248/Lovel Fields Report

1

In the Matter of an Application to Register

Land Known as Lovel Fields, Hale Bank in the Borough of Halton

As a New Town Green

REPORT

of Mr. VIVIAN CHAPMAN QC

1st. June 2007

EXECUTIVE SUMMARY

The report concludes that the applicant has proved that part of the application

land between Clap Gate Crescent and Lovel Terrace has become a new green and

recommends that it should be registered as such. However, the report concludes that

the applicant has not proved 20 years’ qualifying use of the rest of the application

land and recommends that the application should be rejected in relation to the rest of

the application land.

INDEX

Part Title Paragraphs

1. Introduction [1] – [2]

2. Description of Lovel

Fields [3] – [10]

3. History of Lovel Fields [11] – [66]

4. Evidence for Applicant [67] – [120]

5. Evidence for Objector [121] – [134]

6. Evidence of Public [135] – [136]

7. Findings of Fact: the

Broad Picture [137] – [144]

8. New Greens: Law and

Procedure [145] – [178]

9. The Application and

Objection [179] – [182]

10. Applying the Statutory

Definition [183] – [207]

11. Conclusion and [208] – [210]

2

Recommendations

12. Acknowledgments [211]

1. Introduction

[1] On 20th September 2006, Mrs Florence Hurley applied under s. 13 of the

Commons Registration Act 1965 (“CRA 1965”) to register land known as Lovel

Fields, Hale Bank1 in the borough of Halton as a new town green. The application

was made to Halton Borough Council (“the Council”) as the commons registration

authority. The Council is also the owner of Lovel Fields, and, in that capacity,

objected to the application.

[2] As independent counsel, I was instructed by the Council, in its capacity as

registration authority, to hold a non statutory public inquiry into the application and to

report in writing with my recommendation whether the application should be accepted

or rejected. I held a public inquiry in Runcorn Town Hall on 21st, 22

nd, 23

rd and 24

th

May 2007. This is my report.

2. Description of Lovel Fields

[3] The town of Widnes lies on the north bank of the River Mersey, east of

Liverpool. The town of Runcorn lies on the south bank of the River Mersey, directly

opposite Widnes. The towns are joined by a bridge across the river. In the local

government reorganisation of the 1970s, the borough of Widnes, then in Lancashire,

was amalgamated with the urban district council of Runcorn, in Cheshire, to form the

new borough of Halton. In the further local government reorganisation of the 1990s,

the borough of Halton became an unitary authority with responsibility for the

registration of greens under the CRA 1965.

[4] Hale Bank is a somewhat isolated community on the south west edge of

Widnes, separated from the main part of Widnes by the main Liverpool railway line.

Hale Road crosses the railway line by a bridge near the disused Ditton railway station

and runs southwards towards a road junction. At that junction, Hale Gate Road runs

southwards towards the village of Hale, Hale Bank Road runs westwards and Mersey

View Road runs eastwards towards the river. East of Hale Road and north of Mersey

View Road, there is a large industrial estate.

[5] There is some ribbon residential development along all four roads. However,

the main residential area of Hale Bank lies within a rectangle of land, west of Hale

Road and north of Hale Bank Road, which was developed for municipal housing in

the mid Twentieth Century. This area can be analysed from north to south into five

elements:

1 Also written as Halebank

3

• Lovel Terrace, which is a terrace of 14 houses entered from Hale Road and

facing north. Vehicular access is by a cul-de-sac road which runs along the

north side of the terrace.

• Clap Gate Crescent2, which is entered from Hale Road and then divides into

an oval shaped road with housing facing north and south from the centre of the

oval and flats facing north on the south side of the oval. There is open land on

the north side of the oval where some flats have been demolished. There is a

small road called Hollins Way near the Hale Road end of Clap Gate Crescent.

• Blackburne Avenue, which is also entered from Hale Road and then divides

into an oval shaped road with housing in the centre and on each side. At the

western end of Blackburne Avenue there is a formal recreation ground with a

grass football pitch surrounded by a low white metal fence, a hard surfaced

games pitch surrounded by high metal fencing, a skateboard park and an

enclosed children’s play area with swings and slides.

• Baguley Avenue, which is also entered from Hale Road and then divides into

an oral shaped road with housing inside and around the oval.

• A complex of three roads (Heathview Road, Heathview Close and Kenview

Close) on three sides of the Hale Bank Church of England Primary School.

[6] Lovel Fields is an irregularly shaped expanse of open land lying north of Clap

Gate Crescent and stretching northwards to the railway. Lovel Terrace projects into

this land from the east, but the land is open to the south, west and north of Lovel

Terrace. There is some disagreement amongst local people as to whether the

expression “Lovel Fields” also includes some agricultural land to the west, but for the

purposes of this Report, I will use this expression to mean the town green application

land. I estimate that it is about 15 acres in area.

[7] The boundaries of Lovel Fields are as follows:

• The northern boundary consists of a modern metal fence dividing Lovel Fields

from disused railway sidings which lie on the south side of the main railway

line

• The southern boundary is the edge of the northern pavement of Clap Gate

Crescent. This boundary is unfenced along the edge of Clap Gate Crescent.

• The eastern boundary runs alongside Hale Road. This boundary is fenced with

a post and rail fence, which also runs along the northern side of Lovel Terrace.

About half way along the eastern frontage to Hale Road, the fence is inset to

the west to give safe access to a locked metal gate which serves as a vehicular

entrance to Lovel Fields from Hale Road. There is a gap in the fence on the

Lovel Terrace frontage where the cross bars of the fence have been taken

down between a set of posts.

• The western boundary consists of poorly maintained hedges and fencing

dividing Lovel Fields from neglected agricultural land to the west. Some

informal tracks lead through gaps in the hedges and fences onto the

agricultural land

[8] Most of Lovel Fields consists of fairly level open mown grassland. There is an

area of longer grass forming a wildflower meadow to the north of Lovel Terrace.

There are a few small clumps of trees and bushes. There is some undergrowth along

2 Also written as Clapgate Crescent

4

the northern and western boundaries and to the rear of Lovel Terrace. The ground

rises in a low slope about halfway from east to west. There are some small metal

goalposts in the north eastern sector of the land.

[9] There are no signs inviting or forbidding access to, or regulating the use of,

Lovel Fields.

[10] The general impression of Lovel Fields today is that it is an attractive spacious

and informal recreational and amenity area for the residents of the central residential

area of Hale Bank. It is open to Clap Gate Crescent and there is easy pedestrian access

from the rest of the residential area via the more formal recreation ground at the rear

of Blackburne Avenue. Lovel Fields has obvious attractions for local children who

want some open land on which to play, for local people, both children and adults,

wanting to enjoy informal ball games, for local dog walkers and for local residents

seeking some open air and exercise close to their homes.

3. History of Lovel Fields

[11] The history of Lovel Fields is more complicated than its present appearance

would suggest. Much of this history can be gleaned from undisputed documentary and

other evidence presented to the public inquiry.

1940s

[12] Lovel Terrace was built in the early 1940s. Lovel Terrace and what is now

Lovel Fields are shown in an aerial photograph of 19453. Hale Road can be seen

entering the photograph from the north, crossing the main railway lines by a bridge

east of Ditton Station and then passing southwards through Hale Bank. In the angle

south of the railway sidings and west of Hale Road, there is a large triangular piece of

land. Lovel Terrace is built in the south-eastern corner of that triangle. Apart from

Lovel Terrace, the triangle of land was owned by the British Railways Board or its

predecessor railway company. In the narrower western part of the triangle, one can

see pale coloured areas which were sludge beds associated with the railways. Local

people called them “the lime pits”. Apart from a few isolated buildings, the rest of the

triangle appears to have been unused. To the south of Lovel Terrace, there is a

rectangular area of land which appears to have been divided into four fields. This is

the site on which Clap Gate Crescent was subsequently to be built. Further to the

south of this rectangle of land, one can see the north western corner of Blackburne

Avenue. To the west of Blackburne Avenue there is a square field which is now the

formal recreation ground. The land which is now Lovel Fields consists of (a) the

triangle of land (excluding Lovel Terrace) owned by the railways and (b) a strip along

the northern side of the fields which were to form Clap Gate Crescent. I will call the

triangle of land (excluding Lovel Terrace) formerly owned by the railways “the Lovel

Triangle”.

1960

3 B30

5

[13] In 1960, the site of Clap Gate Crescent was purchased by Widnes Corporation

for £12,600. I have not seen the conveyance of the land to the Corporation, but the

unchallenged evidence of the Council is that the conveyance recited that the land was

acquired for housing purposes under Part III of the Housing Act 1957 (Clearance and

Redevelopment) and that the land has never been appropriated to any other purpose.

Shortly afterwards, Clap Gate Crescent was constructed on the acquired land. The

north western sector of the site was laid to grass and used as amenity land for the local

residents. This land is now owned by the Council as statutory successor to Widnes

Corporation. Title is unregistered and is held in deed packet DP826. The extent of this

land is shown on a plan produced by the Council and marked 8264. I will call this land

“the Clap Gate Amenity Land”. The Clap Gate Amenity Land forms the southern part

of the present Lovel Fields.

1964

[14] For town and country planning purposes, the only adopted statutory plan

before 1996 was the Widnes Town Map, which was prepared by Lancashire County

Council and adopted in 1964. The Widnes Town Map was not produced to the public

inquiry, but there is documentary evidence that the Lovel Triangle was shown on that

Map for a mixture of residential and industrial purposes but not for open space

purposes5.

1967

[15] In 1967, planning permission was granted to use part of the Lovel Triangle as

a scrap yard6.

1971

[16] An aerial photograph of 19717 shows the situation on the ground at that date.

Clap Gate Crescent and the Clap Gate Amenity Land are clearly shown. The Clap

Gate Amenity Land appears to have well worn patches indicating heavy recreational

use, probably for informal ball games. Apart from a square enclosure in the north

eastern sector (which may well be the scrap yard) the Lovel Triangle appears to be

disused waste land crossed by a network of informal tracks which link up with the

Clap Gate Amenity Area.

1972-4

[17] A series of photographs8, variously dated 1972 or 1974, show a procession of

carnival floats passing along the northern arm of Clap Gate Crescent. It is clear that

the visible parts of the Clap Gate Amenity Land are level and grassed and are not

fenced off from Clap Gate Crescent. There are some glimpses of the Lovel Triangle in

the distance, but not enough to be useful in ascertaining the state of the Lovel Triangle

4 B14B

5 B40, 42, 45, 59 & 61

6 R60

7 B31

8 R15

6

at that time. One of the photographs appears to show some fence posts along the

boundary between the Clap Gate Amenity Land and the Lovel Triangle.

1974

[18] In 1974, British Railways Board successfully applied for outline planning

permission to develop the whole of Lovel Fields (including the Clap Gate Amenity

Land owned by the Council) for warehouses9. However, the development did not

proceed.

1975

[19] In 1975, Mr B Nulty applied for planning permission to change the use of a

part of Lovel Fields adjoining Hale Road and directly in front of Lovel Terrace to use

for the sale of cars and vans. Permission was refused10, in part because the land was

shown for residential proposes in the Widnes Town Map.

1976

[20] In 1976, S Evans & Son applied for planning permission to use part of Lovel

Fields (again a section adjacent to Hale Road and immediately in front of Lovel

Terrace) for parking lorries and for a perimeter fence. Permission was refused11, again

partly because of the Widnes Town Map.

1977

[21] A photograph of 197712 shows children playing on a swing on the Clap Gate

Amenity Land. The photograph shows part of the Clap Gate Amenity Land as a level

grassed area open to Clap Gate Crescent. The photograph does not show the Lovel

Triangle.

1978

[22] In 1978, Arthur Maiden Ltd applied for planning permission to erect 4

advertisement display panels on the Hale Road frontage of Lovel Fields. The

application was refused13, but the applicant successfully appealed to the Secretary of

State. The inspector’s decision letter of 4th August 1978

14 describes the site of the

proposed panels as forming the eastern boundary of a scrap metal yard with vacant

land to the north between the yard and the railway and to the south between the yard

and Lovel Terrace.

[23] A photograph dated 197815 shows a boy and a toddler kicking a football on the

Clap Gate Amenity Land. This land is level mown grass with some fixed play

9 B19 & 38

10 B19 & 40

11 B19 & 42

12 R4

13 B19 & 44

14 B45

15 R8

7

equipment, including a see-saw and swings. There is a glimpse of the Lovel Triangle

in the background, but not enough to be useful about its condition or use.

[24] There is also a group of four photographs taken at Christmas 197816. Only two

of them are helpful. One shows a boy and a toddler on the swings on the Clap Gate

Amenity Land with the houses of Clap Gate Crescent in the background. The land is

covered in snow, but is level and not fenced off from Clap Gate Crescent. The other

shows a mother and toddler in the snow on the Clap Gate Amenity Land. Behind them

are some swings. Behind the swings is the Lovel Triangle, which appears to be open

to the Clap Gate Amenity Land and covered in low undergrowth. No building or

scrapyard is visible on the Lovel Triangle.

1980

[25] There are two photographs said to date from 198017. They show a group of

boys playing an informal game of cricket on the Clap Gate Amenity Land close to the

boundary with the Lovel Triangle. The swings on the Clap Gate Amenity Land can be

seen in the background. The Clap Gate Amenity Land is level grassed land, although

the grass is longer than in previous photographs. There does not seem to be any

physical barrier between the Clap Gate Amenity Land and the Lovel Triangle,

although the latter is more overgrown and one can see the scrapyard in the distance.

[26] It seems that the use of part of the Lovel Triangle as a scrap metal yard had

expanded without planning permission. On 15th September 1980, the Council served

an enforcement notice against Messrs Evans and Shaw alleging change of use of parts

of the Lovel Triangle from vacant land to land used for storage, parking and a scrap

metal business, together with unauthorised fencing18.

1982

[27] Messrs Evans and Shaw appealed against the enforcement notice. After a

public inquiry in 1982, the inspector delivered a decision letter dated 21st September

198219. The inspector upheld the enforcement notice in part and granted certain

conditional planning permissions to the appellants. He observed (at para 56) that the

unlawful use of the land in front of Lovel Terrace had resulted in a considerable

degree of annoyance and loss of amenity by the residents of Lovel Terrace. Although

the decision letter is not easy fully to understand in the absence of the documents to

which it refers, it does appear (a) that the scrapyard was surrounded (or had before

unlawful development been surrounded) by what was perceived as vacant land and (b)

that part of the Lovel Triangle had been unlawfully fenced. The inspector recorded the

Council’s statement (at para 37) that:

“…agreement had been reached with British Rail for the acquisition of 9.3

acres of land…for reclamation under a Derelict Land Reclamation Scheme primarily

16 R6

17 R9 (although I note that one of the photographs reappears at R 10 where its date is said to be

uncertain) 18 B55

19 B55

8

as amenity open space but possibly to a limited extent for certain light industrial or

storage uses…”

1983

[28] In 1983, the Council purchased the Lovel Triangle. The bulk of it was

purchased from the British Railways Board for £40,000 and the balance (comprising

most of the Hale Road frontage) was purchased from Samuel Evans for £40,000. The

land purchased from the Board is registered under title no CH223535 and is shown

marked 2908 on a plan produced by the Council20. The land purchased from Mr

Evans is registered under title no. CH223539 and is shown marked 2909 on the same

plan. The two parcels of land were purchased with the help of a government grant

under the derelict land scheme. The grant has to be repaid when the land is sold or let.

Neither transfer was produced to the public inquiry, but the unchallenged evidence of

the Council was that (a) there was no resolution identifying the statutory power under

which the land was purchased, (b) the transfers did not specify the statutory power

under which they were entered into by the Council and (c) there has never been any

appropriation of the land to any new statutory purpose.

[29] On 11th April 1983, the Council wrote to all the occupiers of Lovel Terrace

21.

The letter explained that the Council had purchased the British Rail land and the

scrapyards and that the scrapyards would be cleared from the site. The letter

continued:

“Following the Council’s acquisition of the land, a scheme for its reclamation

will be drawn up. This will involve some redevelopment of the site for, perhaps light

industrial factory units, but the bulk of the land is likely to be used for open space

purposes. No detailed proposals have yet been prepared, however, and all local

residents will be consulted when a planning application for the scheme is put

forward.”

[30] It seems that the scrapyards were quickly cleared. An aerial photograph of

198322 appears to show the scrapyards cleared to the bare earth. The rest of the Lovel

Triangle seems to be rough scrub criss-crossed by numerous informal paths which are

linked with the shorter mown grass area of the Clap Gate Amenity Land.

[31] The Council produced an undated photograph23 which was stapled to a letter

dated 9th September 1983 and so was probably taken about that date. It shows a car

driving southwards down Hale Road close to the junction with Lovel Terrace, with

the Lovel Triangle in the background. The scrapyard behind the Arthur Maiden

hoardings appears to have been cleared leaving only some low piles of rubble on the

ground.

[32] The Council produced an extract from a microfiche case file24 which must date

from about 1983. The precise source and purpose of the document is unclear, but it

20 B14B

21 B(S)15

22 R32

23 B(S)14

24 B28

9

seems to be an internal Council memorandum discussing the future of the Lovel

Triangle. The document says:

“The purchase of land adjacent to Lovel Terrace has now been completed

with derelict land funds, and two unsightly scrapyards have been removed. Approval

has been given in principle by the Department of the Environment for associated

reclamation works. It is subject to the condition that some part of the reclaimed site

be made available for some commercial or industrial development.

It is proposed that the following works be carried out:-

(i) 10 acres of the land be cleared, drained and reshaped and

covered with top soil and be made available for public open space.

(ii) A new access be made to Hale Road, and about one acre be

made available for industrial development.

(iii) Lovel Terrace be made up and the site immediately fronting it

be cleared and at this stage, two options are kept in hand:-

1. That subject to further site investigation, the site be

developed for housing; or

2. That landscape and moulding screen the Lovel Terrace

part of the site and be made available for commercial use such as a garage

showroom.

[33] On 26th July 1983, the Council was granted planning clearance for land

reclamation works25. The planning clearance included not only the Lovel Triangle but

also the Clap Gate Amenity Area.

[34] On 23rd November 1983, the Council was granted planning clearance to erect

a garden centre and nursery on the Lovel Triangle26.

1984

[35] Three photographs27 of 1984 show two children and a man playing in the

snow in Clap Gate Crescent. The visible parts of the Clap Gate Amenity Land appear

still to be level grass unfenced from Clap Gate Crescent. Part of the Lovel Triangle

can be seen in the background. There is no evidence that reclamation works had

started on the visible part of the Lovel Triangle. One of the photographs appears to

show some fence posts on the boundary between the Clap Gate Amenity Land and the

Lovel Triangle.

1985

[36] It appears from correspondence produced from the Council’s files28 that on 2

nd

August 1985, the council instructed Mason Owen & Partners, commercial property

consultants, to act on the advertising and disposal of five sites, including the Lovel

Triangle. The advertising plan included placing boards on the sites, advertising in

25 B21 & 74

26 B21 & 72

27 R14

28 B(S)7-10

10

local newspapers and specialist property journals, aerial photography and the printing

of fliers. The Council produced an example of the flier29. It is headed:

“WIDNES, Hale Road

DEVELOPMENT LAND FOR SALE”

There is an aerial photograph of Lovel Fields, with the Lovel Triangle outlined in

white. The flier offers the land for sale freehold with vacant possession. It suggests as

possible uses: nursery and garden centre, leisure use, camping showground, light

industrial/warehouse.

1986

[37] Although there was no evidence as to when the reclamation works started or

as to the precise sequence and nature of the reclamation works, the Council produced

a manuscript works diary of Mr Robert Pugh, a senior engineer with the Council,

which recorded the final stages of the reclamation works. Topsoil arrived on site in

late May 1986 and was all spread by 4th June 1986. The surface was then disked on 5

th

and 6th June 1986 to remedy compression of the topsoil. Between 23

rd June and 2

nd

July 1986, there was final preparation before seeding, which included rotovation and

stone picking. Seeding started on 3rd July 1986 and continued on 4

th July 1986. A

diary entry of 7th July 1986 recorded:

“All works now completed by Lanes Landscapes. DJ Fencing have a small

amount of fencing to complete then contract completed.”

[38] On 7th October 1986, the Amenities Committee of the Council recorded that

the reclamation works were complete and that it was proposed, by way of

enhancement of the derelict land scheme, to provide screen planting along the railway

boundary and amenity tree planting to the Hale Road frontage. It was also recorded

that the site was currently available for freehold purchase. The committee approved

the enhancement scheme which was designed:

…to make the site more visually appealing to prospective developers and to

improve the general amenity of the site should it remain vacant.

[39] Despite the terms of the 1983 planning clearance, it does not appear that any

reclamation works were carried out on the Clap Gate Amenity Land. Indeed, no such

work was necessary as the Clap Gate Amenity Land had been levelled, grassed and

mown and used as amenity and recreation land since Clap Gate Terrace was built in

the 1960s. This view seems to be supported by an entry in a 1991 pamphlet published

by the Council and entitled “The Halton Legacy” which describes the reclamation

works at page 4930:

“Ditton Junction, Halebank, Widnes

9.5 acres – scrap yard and lime beds

Purchased by Halton Borough Council

29 B(S)16

30 B316

11

Acquisition and reclamation costs - £382,809

(100% DoE Grant Aid)

Enhancement costs - £3,776

(Halton Borough Council)

After use – Commercial and open space

1983-1986”

1987

[40] On 14th May 1987, an application by the Halebank Community Association

for planning permission to build a community centre at the western end of the Clap

Gate Amenity Land was refused31.

[41] The marketing of the Lovel Triangle seems to have attracted little interest.

There was a meeting with DJ Fencing on 11th February 1987

32. DJ Fencing were

interested in buying the land as a site for a garden centre, but the parties were far apart

on price. The Council could produce only two letters of inquiry about purchasing the

land, one dated 4th September 1987 from a resident of Clap Gate Crescent

33 and one

dated 17th September 1987 from a local business

34. Neither showed any further

interest in buying the land.

1989

[42] Mason Owen & Partners wrote to the Council on 4th July 1989 to confirm that

they continued to market the site as a potential nursery/garden centre, leisure

orientated use or possibly good quality industrial development35. There appear only to

have been two further expressions of interest from prospective purchasers, one of

whom proposed use as a forestry and tree nursery36, and the other as a golf driving

range and clubhouse37. Neither came to anything.

[43] An aerial photograph of 198938 shows the Lovel Triangle as a single open

grassed area, much as it is today. The Clap Gate Amenity Land is distinguishable only

by a different grass colour.

1991

[44] An aerial photograph of 199139 shows much the same picture as the 1989

aerial photograph, although the difference in grass colour between the Lovel Triangle

and the Clap Gate Amenity Land is much less marked.

1992

31 B21 & 75

32 B14J

33 B(S)6

34 B(S)4

35 B14K

36 B14M

37 B14O

38 B33

39 B34

12

[45] The draft Halton Local Plan was subject to public consultation in the summer

of 1992. The frontage of the Lovel Triangle to Hale Road was allocated for light

industrial and business uses. The western end of the Lovel Triangle and the Clap Gate

Amenity Land were allocated as urban greenspace40.

1993

[46] The deposit version of the Halton Local Plan was approved by the Council on

9th March 1993. The whole of Lovel Fields was now shown as urban greenspace

41

[47] On 20th April and 14

th October 1993 the Council refused an application by Mr

K Murray for planning permission to construct a golf driving range on the Lovel

Triangle42. As part of the planning process, local residents were consulted. Mrs P Tran

of 8, Lovel Terrace wrote an undated letter objecting to the application43. She wrote:

“Myself and lots of other people use the proposed site as a park, to walk their

dogs and children play on it, flying kites, football, rounders, or they sometimes just sit

and talk. This is the only large open green area that we have in Halebank and we

wish to keep it that way.”

1994

[48] Mr Murray appealed against the refusal of planning permission and his appeal

was dismissed by a decision letter of 18th July 1994

44. The inspector described the

appeal site as:

“…part of a much larger open and mainly featureless area of grassland

situated between housing and the Widnes to Liverpool railway line, with a long

frontage to Hale Road.”

[49] There are three photographs dating from 1994. The first45 shows two boys

standing on the Clap Gate Amenity Land. The end of Lovel Terrace is behind them to

the right. The other two photographs46 are taken looking north west and north east

from a front garden in Clap Gate Crescent. It appears from the photographs that the

Clap Gate Amenity Land and the Lovel Triangle had become a single undivided

expanse of open mown grassland stretching from Clap Gate Crescent to Hale Road on

the east and the railway on the north.

1996

[50] The Halton Local Plan was adopted in July 1996 with Lovel Fields shown as

urban greenspace. The plan period was to end in 200147.

40 B27A

41 B27A

42 B22, 22, 77 & 79

43 R77

44 B81

45 R12

46 R13

47 B27A

13

[51] It seems to have been in 1996 that, with the help of an association called

Landlife48, part of the north western section of the Lovel Triangle was sowed as a

cornfield annual wildflower meadow as part of a community project with Hale Bank

residents. The meadow was unsuccessful and was abandoned by 2000.

[52] There are two photographs dating from 1996:

• The first49 is a view from Clap Gate Crescent across the Clap Gate Amenity

Land to the Lovel Triangle. The Clap Gate Amenity Land is an expanse of flat

mown grass. The Lovel Triangle is similar except for an area of longer grass

in the middle where children are seen planting wild flowers as part of the

Landlife scheme. There is a strip of bare earth just to the north of the boundary

between the Clap Gate Amenity Land and the Lovel Triangle and there appear

to be three posts along that boundary although not forming a continuous fence.

• The second50 is also a picture taken from the Clap Gate Amenity Land looking

across the Lovel Triangle towards the railway. The Clap Gate Amenity Land

and the Lovel Triangle appear to be a single unenclosed expanse of level

mown grassland.

1997

[53] There is an aerial photograph dating from 199751. Both the Clap Gate Amenity

Land and the Lovel Triangle appear as similar mowed grassland. There are some

patches of bare earth on the Clap Gate Amenity Land and a strip of bare earth just

north of the boundary between the Clap Gate Amenity Land and the Lovel Triangle

(as shown in the first 1996 photograph) but I heard no evidence to explain what they

were.

2000

[54] In 2000, the original cornfield annual wildflower meadow was abandoned and

replaced by a new wildflower meadow closer to Hale Road on the site of the former

scrapyard. Some notes made by a nature conservation officer of the Council52 explain

that the project involved spraying out some of the “amenity grassland” with

glyphosphate in April 2000 and sowing a mixture of seeds in May/June 2000. The

meadow is maintained by cutting once or twice a year.

[55] There is an aerial photograph of 200053. The Clap Gate Amenity Land and the

Lovel Triangle appear to form a single expanse of grassland. The bare patches on the

Clap Gate Amenity Land and along the north side of the boundary shown on the 1997

aerial photograph have disappeared. In the centre of the Lovel Triangle there is what

appears to be an area worn by use as an informal football pitch. A large square area to

the north of Lovel Terrace is bare earth, which I assume to be the land sprayed out for

48 R89F-G

49 R5

50 R11

51 B35

52 R89G-H

53 B36

14

planting with wild flowers. There is also bare ground at the end of Clap Gate Crescent

where some flats had been demolished in February/March 200054.

[56] In September 2000, the Halton Draft Unitary Development Plan 1st Deposit

version was published for public consultation. Lovel Fields were shown in the Unitary

Plan as included in the Hale Bank Regeneration Action Area subject to the draft Hale

Bank Renewal Plan. This showed Lovel Fields as suitable for a range of new

development subject to a more detailed supplementary planning guidance plan55. The

Council commissioned a consultant to draw up proposals for the development of what

was called the Hale Bank Urban Village. The consultant’s plan dated 18th September

200056 envisaged that the whole of Lovel Fields together with the recreation ground

would be developed for housing.

[57] On 4th October 2000, the Council circulated all residents in Hale Bank with a

copy of the Draft Hale Bank Renewal Plan, invited residents to an open day to discuss

the plan and asked for comments57.

[58] According to a bundle of comment forms and letters produced by the Council

to the public inquiry, the residents of Hale Bank were generally opposed to the use of

Lovel Fields for housing development. A petition against the housing proposal was

signed by numerous local residents58. A letter dated 27

th October 2000

59 from Mrs

Tran of 8, Lovel Terrace gives a flavour of the objections:

“This area Clapgate/Lovel Terrace field is used by all residents weather

permitting, the local children use it for playing cricket, flying kites, playing football

on the football pitch which has recently been erected by the council. The local under

16s train outside Lovel Terrace and in the summer parents get together with the local

children to play rugby, residents of Halebank also use this area to walk their dogs.”

[59] In late 2000, various house builders were approached through Widnes

Regeneration Ltd in relation to the proposed housing development, including

Barratt60, Bellway

61 and Beazer

62. Only Beazer expressed much interest.

2001

[60] In the light of the adverse reaction of local people to the proposals for

residential development of Lovel Fields, the plans were redrawn in 2001 to provide

for more open amenity land to the north of Lovel Terrace and Clap Gate Crescent63.

[61] In March 2001, the Council commissioned the Environmental Advice Centre

Ltd (“EAC”) to undertake a study of Lovel Fields and the formal recreation ground at

54 R89G

55 B27A

56 B(S)127

57 B(S)65

58 B(S)50-52

59 B(S)79

60 B(S)37

61 B(S)38

62 B(S)35

63 B(S)33

15

the end of Blackburne Avenue to assess the suitability of the sites for residential

development. EAC produced a Report dated April 200164. The Report describes the

sites as “public amenity open space” (para 1.1). It says that the majority of the site

was used as “public open space” accessible from Clap Gate Crescent and Hale Road

(para 2.3). EAC reported that Lovel Fields (and in particular the site of the former

scrap yard) was contaminated and required remedial treatment before it would be

suitable for residential development. Only the formal recreation ground was

considered suitable for houses with gardens. In August 2001, the Report was split into

two reports, one dealing with the former scrapyard area and the other dealing with the

rest of Lovel Fields and the recreation ground65. Presumably, this was in an attempt to

facilitate sale of the less polluted parts of the land. However, it appears that there was

no interest from developers in residential development of Lovel Fields or the formal

recreation ground.

2005

[62] In recent years, yet another potential use for Lovel Fields has emerged. The

Council (as planning authority) published a plan to use the railway and surrounding

land at Ditton as a strategic rail freight park. This is a depot used for transferring

freight from rail to road. The scheme has been christened the Mersey Multimodal

Gateway or “3MG”. It is proposed that the northern part of Lovel Fields should be

used for infrastructure and other works in connection with 3MG. The proposals were

set out in the Ditton Strategic Rail Freight Park Draft Supplementary Planning

Document Public Consultation Draft September 200566.

[63] At the same time, the Council (as planning authority) published the Halebank

Regeneration Action Area Draft Supplementary Planning Document Consultation

Draft September 200567. The plan proposes use of the Clap Gate Amenity Land for

housing, land to the north west of Lovel Fields for car parking in connection with a

re-opened Ditton Station and the rest of Lovel Fields as greenspace. However, the

plan recognises that part of Lovel Fields may be required in connection with the 3MG

scheme (para 7.3.2). Lovel Fields is described (para. 3.2.2) as being

“…currently set out for informal open space”

The plan clearly recognises that Hale Bank constitutes a distinct community within its

own distinct neighbourhood (see paras 2.3.2., 2.3.5, 3.2.6, 7.6.1, & Appendix paras 13

& 14)

2006

[64] An aerial photograph of 200668 shows Lovel Fields as it is today, i.e. a single

expanse of mowed grass stretching from Clap Gate Crescent to Hale Road and the

railway.

64 B103

65 B138 & 197.

66 B/G

67 B/H

68 B37

16

[65] On 31st January 2006, the Council granted itself planning permission to create

a landscaped openspace corridor with related earthworks etc on Lovel Fields69. I

understand that this is directed to landscaping works ancillary to the use of part of

Lovel Fields in connection with 3MG.

[66] It was against this background of proposals for use of Lovel Fields in

connection with 3MG that Mrs Hurley applied on 29th September 2006 to register

Lovel Fields as a new green70.

4. Evidence for Applicant

General Issues

[67] Before turning to consider in detail the evidence adduced to the public inquiry

by the applicant, it is necessary to deal with some general issues about the preparation

and presentation of that evidence.

[68] Mrs Faulkner gave evidence about this. There was a group of about 15 local

people who actively supported Mrs Hurley in her proposed application to register

Lovel Fields as a new green. They were helped pro bono by Mr John Maxwell, a

barrister specialising in criminal law, who lives in Hale Gate Road. Based on the

information given to him by the group, Mr Maxwell drafted a standard form of

witness statement which read as follows:

“Name:……

Address:……

Post Code: ……

This statement is true to the best of my knowledge and belief.

Signed ……

1. I have lived in Halebank since……

2. I have been shown a plan marked “Halebank Village Green”. And

confirm that this statement is made in respect of that part of the plan marked out in

red which I shall now refer to in the remainder of this statement are [sic] “the

Green”.

3. In all of the time I have lived in Halebank the Green has been enjoyed

by myself and my neighbours for recreational purposes. People have walked their

dogs, children have played informal and organised games both amongst themselves

and with their parents.

4. For myself, I have used and continue to use the Green in the following

ways…..

Signed…..Dated….

69 B 22 & 85

70 R1

17

[69] During the first week in August 2006, pairs of volunteers from the group

knocked at every door in Lovel Terrace, Clap Gate Crescent (except the flats),

Blackburne Avenue, Baguley Avenue, Heathview Close, Heathview Road, Kenview

Close, Hale Road, Hale Bank Road and Hale Gate Road asking residents to complete

and sign the standard form of witness statement. They were shown a copy of the

proposed application map71. It was explained that the form would help to protect the

green open space by securing its registration as a green. At one point, Mrs Faulkner

said that some people approached did not want to become involved. At another point,

she said that nobody who answered their door refused to complete and sign the form.

Some people submitted additional statements in their own words.

[70] In my view, the wording of this standard form of witness statement was

potentially misleading. In the case of signatories who had lived in Hale Bank since

before 1986, the statement did not mention (a) the obvious distinction between the use

and condition of the Clap Gate Amenity Land and the Lovel Triangle before 1983, (b)

the fact that part of the Lovel Triangle was inaccessible before 1983 for recreational

use because it was used as a scrapyard, or (c) the interruption to recreational use

caused by the reclamation works themselves between 1983 and 1986. I should make it

clear that I make no criticism whatsoever of Mr Maxwell. There is no evidence that he

was personally acquainted with the history of Lovel Fields and he doubtless drafted

the standard form of witness statement in good faith on the basis of what he was told

by Mrs Hurley and her supporters. Mr Maxwell did not submit any evidence himself.

[71] Mr Maxwell also helped with the drafting of fuller witness statements for

witnesses who gave evidence to the public inquiry. He drafted a full witness statement

for Mrs Hurley72. This was then used as a template for a full witness statement by Mrs

Pamela Tran73. One can tell this from (a) the spelling mistakes carried forward such as

“pubic inquiry” (para 2) and “Shelia Falkner” (para 3(c)), (b) the fact that Mrs Tran

refers to “my application” (para 2), and (c) the general similarity in wording, in

particular the two concluding paragraphs. Mrs Tran’s witness statement was then used

as a template for a witness statement by Miss Gemma Tran74 in which one can see the

same spelling and punctuation mistakes carried forward (“Shelia Falkner,.”) and

similarity of wording, especially in the last two paragraphs. There was some criticism

by the objector at the public inquiry of this practice. I do not think that there is

anything wrong with using a template witness statement, provided that the witnesses

go through it carefully enough to ensure that they agree with what it contains and

delete or amend anything with which they do not agree. However, there is an obvious

danger that a careless witness will sign a statement containing material which she

cannot support from her own knowledge.

[72] Against this background, I consider that it is necessary to approach the written

evidence submitted on behalf of the applicant with particular caution. It is also

necessary to consider with special care the oral evidence of witnesses who have

signed misleading witness statements. I begin by dealing with the witnesses for the

applicant who gave oral evidence.

71 R16

72 R27

73 R35

74 R34

18

Mrs Florence Hurley

[73] Mrs Hurley signed a standard form witness statement on 20th September

200675. She produced and verified a longer unsigned and undated witness statement

76.

Mrs Hurley was born in 1941 and, apart from 18 months in the early 1960s, has lived

in Hale Bank all her life. She now lives in Blackburne Avenue. She remembered

playing as a child in the lime pits and making daisy chains on the land owned by the

railways. In the 1950s, a maypole was set up on the land. There were some allotments

on the land at the end of Lovel Terrace. She recalled that in the late 1960s or early

1970s, there was a scrap yard on the railway land. She said that, in 1977, Jubilee

celebrations were held on the land in front of Lovel Terrace. However, I think that it

is more probable (as Mrs Faulkner recollected) that these celebrations were held on

the Clap Gate Amenity Area which was then level grassed amenity land.

[74] Mrs Hurley said in her second witness statement that, in the 1980s, the

scrapyard was closed down and the area was renovated and “made safe”. She

exercised her Jack Russell dog “on this part of Lovel Fields ever since it was safe to

do so.” In her oral evidence, she said that she “slightly remembered” the reclamation

work. While the land was being cleared it was still accessible and that she never really

stopped going onto the land. The contractors really only worked where the old

scrapyard was. She could not remember whether she used the reclaimed part of the

land while the contractors were carrying out the reclamation work. She could not

remember the sludge beds being filled in. There was not really a gap in the use of

Lovel Fields. “People just carried on as before”.

[75] She did not know who the owner of Lovel Fields was and no one ever told her

not to walk on Lovel Fields. She never asked for or was granted permission to walk

on Lovel Fields. She walked all over the land. There were usually local people on

Lovel Fields, adults walking dogs, children playing, fathers playing with their young

children. Users came from Lovel Terrace, Hale Road and all over Hale Bank. They

came on foot.

[76] I am bound to say that I found Mrs Hurley’s evidence about the use of Lovel

Fields before and during the reclamation works rather vague. In particular, she did not

distinguish between the pre reclamation use of the Clap Gate Amenity Land and of

the Lovel Triangle. Although I accept that she played on the lime pits as a child, I was

left with no real impression of the amount and intensity of recreational use of the pre-

reclamation Lovel Triangle, or how much it was affected by the scrapyard. Her

evidence about the reclamation works seemed to me to play down the extent of the

works. It seems clear from the aerial photographs that the whole of the Lovel Triangle

was subject to reclamation works and I cannot accept that it did not interrupt any

existing recreational use of the land. On the other hand, I do accept her evidence that,

since the reclamation works, the whole of Lovel Fields has been used extensively by

local people from Hale Bank for informal recreation and that she has never asked for

or been granted permission to use it.

Mrs. Marian Allen

75 R26

76 R27

19

[77] Mrs Allen lives in Baguley Avenue. She was born in 1943 and has lived in

Hale Bank all her life. She filled in and signed a standard form of witness statement

on 2nd August 2006

77. When asked, she was rather confused about what land was

shown marked “Halebank Village Green” on the plan referred to in para. 2. At first,

she said that it was a rectangular area between Lovel Terrace and the railway, not

including the Clap Gate Amenity Land or the lime pits area. Then she said that she

had been referring to the land edged red on an aerial photograph in the applicant’s

bundle78 which included not only Lovel Fields but also the site of the demolished flats

at the west end of Clap Gate Crescent. She also signed an undated supplemental

witness statement79.

[78] At the end of para. 4 of her standard form of witness statement, Mrs Allen

added manuscript recollections of playing on Lovel Fields as a child, although it is

unclear from the notes on what part of the land she played. In her supplemental

witness statement, she said that she played on the lime pits at the age of 7 in 1950.

Other children played there. She recalls allotments and Sam’s Scrapyard on the land

north of Lovel Terrace. She and the other children did not play in the scrapyard.

Before the reclamation works, any formal games were played on the Clap Gate

Amenity Land but people used the rest of Lovel Fields (excluding the scrapyards) for

informal running and training.

[79] In the early 1980s, Sam’s Scrapyard was removed and the land was grassed

over. It was not possible to use the land when the diggers were there. Since

reclamation, the people of Hale Bank have used the land for recreational and sporting

activities. It was used by local football teams and rugby teams for training. Mrs Allen

was a playschool leader from the mid 1980s until 1994 and used to take the children

on the land for walks, play and picnics. Her son rode his pony on the land in the

1980s. Since the playschool closed in 1994, Mrs Allen has walked her dogs on the

land most days. She sees children playing all over the land, e.g. 5 a side football and

building dens in the undergrowth. Since the land was cleared, there has never been

any fence which obstructs her usual route via Clap Gate Crescent onto the field. It is

only fenced along Hale Road and Lovel Terrace. Mrs Allen considered that the

recreational users of Lovel Fields were predominantly from Hale Bank.

[80] I accept the thrust of Mrs Allen’s evidence that:

(a) there had been some informal recreational use of the Lovel Triangle

(excluding the scrapyards) for many years before the reclamation works,

(b) the Clap Gate Amenity Land had been used for recreation before the

reclamation works on the Lovel Triangle,

(c) recreational use of the Lovel Triangle was inhibited by the carrying out of

the reclamation works and

(d) after completion of the reclamation works, Lovel Fields have been

extensively used for recreation by residents of Hale Bank.

Mrs Lilian James

77 R19

78 R74

79 R20

20

[81] Mrs James lives in Hollins Way, which is near the Hale Road end of Clap

Gate Crescent. She signed a standard form of witness statement dated 11th August

200680. She said that she had lived in Hale Bank since 1944. She said that she

remembered playing on the green when she was younger and now enjoys walking her

dog on the green. However, she was very vague about what land was included in the

plan marked “Halebank Village Green” mentioned in para. 2 of the witness statement.

She could not remember what plan she was shown. She thought that it was a plan of

land in front of Lovel Terrace. She was generally so vague that I did not find her

evidence to be of much help.

Mr. Michael Egan

[82] Mr. Egan produced a written witness statement dated 9th. May 2007

81. Mr

Egan was not a resident of Hale Bank but he had lived in Hale from 1979-1992 and

had been councillor for Hale Ward of the Council from 1986-1995. He was a

governor of Hale Bank Church of England Primary School during that period.

[83] When Mr Egan was elected as a councillor in 1986, the Lovel Triangle had

recently been reclaimed and was a green area joined to the Clap Gate Amenity Land.

He was aware that the reclamation work had been carried out with a derelict land

grant and that the grant envisaged that the land should be used for some form of

employment use. However, the land was accessible to the public and was immediately

used as an informal recreation and amenity area. There was no fencing or signage to

inhibit or discourage public access. The land looked much the same at all times after

1986. In his oral evidence, Mr Egan made it clear that (despite assertions in his

witness statement about use of the land) he did not have personal knowledge of the

post reclamation recreational use of Lovel Fields, but relied on what he was told by

Hale Bank residents.

[84] Mr Egan accepted that some efforts were made by the Council to market

Lovel Fields in the 1980s, but his view was that marketing efforts were not pursued

into the 1990s. He recalled the planning applications relating to a garden centre and a

golf driving range, but said that they were opposed by local residents who wished to

preserve Lovel Fields as an open space. He suggested that the Council was content for

Lovel Fields to remain as amenity land for local residents but had to make token

marketing efforts to avoid repayment of the derelict land grant.

[85] I find Mr Egan’s evidence about recreational user of Lovel Fields to be of

limited value. He was never a local resident and his evidence about recreational use of

Lovel Fields was all hearsay. However, he was a councillor from 1986 to 1995 and I

accept that his impression was that (a) the Council’s public stance was to treat Lovel

Fields throughout as land for sale for development purposes, but (b) the efforts to sell

the land were not very energetic..

Mr. Bernard Allen

80 R29

81 R21

21

[86] Mr Allen completed a standard form of witness statement82 . He said that he

had lived in Hale Bank since 1948. He has lived in Foundry Lane (which is just east

of Hale Road), Blackburne Avenue and Clap Gate Crescent. He now lives in Baguley

Avenue. Mr Allen was involved with the Hale Bank Football Club for many years

until 1990. Members of the club used to train by running on the old lime pits area

before they were reclaimed. They used the ex scrapyard area as soon as they were

safely able to get into it after reclamation in 1986. He assumed that this was soon after

the contractors moved off the land. The reclamation works were not fenced and the

contractors were only on parts of the land. As soon as there was space where the

contractors were working, the club would use it. He would say that the club started

using the reclaimed land in August 1986.

[87] Since reclamation, Lovel Fields have been used for children’s games, dog

walking, informal football games and football and rugby training. Mr Allen himself

walks his dog on the land four or five times a week, depending on the weather. All the

land is used. A few dog walkers come by car but predominantly the dog walkers and

children come from Hale Bank.

[88] I accept Mr Allen’s evidence of pre-reclamation use of the lime pits for

training by the football club. I also have no hesitation in accepting his evidence that,

since reclamation, there has been general informal recreational use of Lovel Fields by

residents of Hale Bank. However, I have more difficulty in accepting his evidence

that post-reclamation football training use started in August 1986. It seems to me that

it would be a remarkable feat of memory to recollect, after more than 20 years, the

precise month in which football training started on the reclaimed site in 1986. I bear

in mind that Mr Allen signed the standard form of witness statement which did not

mention the scrapyards or the reclamation works at all and put forward the misleading

impression that the whole of Lovel Fields had been used for local recreation in the

same way since 1943. He produced no supplemental witness statement dealing with

the timing of the reclamation works or post-reclamation recreational use. In cross-

examination, his evidence on the topic was rather generalised and imprecise. It was

only in re-examination (by which time the relevance of the issue whether recreational

use had started more than 20 years before the date of Mrs Hurley’s application had

become obvious) that he came up with the precise month. I accept that the football

club started using the reclaimed land for training shortly after the reclamation works

were completed, but I am not convinced that Mr Allen was able accurately to recall

the precise month.

Mrs Florence Woodward

[89] Mrs Woodward has lived in Hale Bank for 38 years. She now lives at 38, Hale

Bank Road. She signed a standard form of witness statement83. She said that she had

used Lovel Fields for “walking the dog, taking grandchildren for walks to see wild

flower and trains going by, birds and playing football”.. She did not give any dates

when she engaged in these activities. She said that there were always children on the

site. She thought that they were mostly from Clap Gate Crescent. Most of her

evidence was taken up with explaining the procedure adopted for drafting and

82 R18

83 R71

22

obtaining signatures to the standard forms of witness statement. I have dealt with this

above.

[90] Mrs Woodward did not specifically address pre-reclamation use in her

evidence, or tie in her evidence to any particular dates. However, I accept her

evidence of current recreational use of Lovel Fields.

Mrs Pamela Tran

[91] Mrs Tran produced a signed but undated typed witness statement84. She was

born in Hale Bank in 1959 and has lived there all her life. Since 1982, she has lived at

8, Lovel Terrace. The land facing Lovel Terrace was railway land comprising a

scrapyard and lime pits. At about the time she moved to Lovel Terrace, the scrapyard

was removed and the area renovated and made safe. “Ever since it was safe to do so”

she has walked her dog on the reclaimed land. Many other local people do the same.

When her children were young they played on Lovel Fields. She often saw other

children playing on Lovel Fields. She described the recreational usage as “very

significant”. Usage was by the whole of Hale Bank. She wrote to the Council to

object to the application for planning permission to use Lovel Fields as a golf driving

range because that would interfere with informal recreational use of the land by local

people85. She wrote again in 2000 to object, on the same grounds, to the proposed

residential development of Lovel Fields86.

[92] Mrs Tran also produced a letter dated 2nd May 2007. She mentioned playing

on Lovel Fields as a child (although without identifying the parts used). Since living

in Lovel Terrace she has seen local people enjoying a wide variety of recreational

activities on Lovel Fields. Over the last three years, she has been taking autistic

children onto Lovel Fields to play.

[93] As I have mentioned above, Mrs Tran’s first witness statement was obviously

based on Mrs Hurley’s witness statement which was prepared by Mr Maxwell.

However, when she gave oral evidence, Mrs Tran claimed that she had drafted and

typed her witness statement herself without any help from Mr Maxwell and that any

resemblance to Mrs Hurley’s witness statement was purely coincidental. However,

later in the public inquiry, Mrs Tran submitted a letter dated 23rd May 2007

87

apologising for misleading the inquiry and admitting that Mr Maxwell had prepared

the first witness statement, based on an interview with her. She said that she had not

wanted to get Mr Maxwell into trouble. The contents of the witness statement were

true.

[94] I accept that Mrs Tran lied to the public inquiry in a misguided attempt to

protect Mr Maxwell. I say “misguided” because I can see nothing wrong in what Mr

Maxwell did. However, the fact remains that she did lie to the public inquiry, and this

must place a question mark over the value of her evidence. If this case turned on Mrs

Tran’s evidence alone, I would feel great difficulty in giving any weight to it.

However, it does appear to me that Mrs Tran’s evidence as to post reclamation

84 R35

85 R77

86 R78

87 R36B

23

recreational use of Lovel Fields is broadly in line with the evidence of other witnesses

whose evidence I do accept. In those circumstances, I do accept the accuracy of her

evidence on this topic.

Miss Gemma Tran

[95] Miss Tran is the daughter of Mrs Tran. She was born in 1982 and has lived all

her life at 8, Lovel Terrace. She produced a signed but undated typed witness

statement which appears to me clearly to have been based on her mother’s statement

(which was itself based on Mrs Hurley’s statement). Miss Tran gave evidence that her

mother had prepared both witness statements without any help from Mr Maxwell. As

her mother later admitted, this was untrue.

[96] Miss Tran could not remember Lovel Fields before the reclamation work.

From about the age of 5, she played on Lovel Fields as did her brother and friends.

She walked the family dogs on the land. There were always other people walking

dogs on the land. In her witness statement she said that she had owned a horse and

ridden it on Lovel Fields since the age of 7. In her oral evidence, she said that she had

not ridden on Lovel Fields since she was 14 (1996). She was unable to explain the

discrepancy.

[97] In view of the uncorrected lie about preparation of the witness statements

submitted by Miss Tran and her mother, and the unexplained discrepancy about her

use of Lovel Fields for riding her horse over the last decade, I do not think that I can

place any reliance on Miss Tran’s evidence.

Mrs Sheila Faulkner

[98] Mrs Faulkner produced (a) a standard form witness statement made jointly

with her husband88 and (b) the first page of a letter written by herself and her husband

and dated 9th May 2007

89. The other page or pages were never found and submitted to

the public inquiry. Mrs Faulkner moved into 78, Clap Gate Crescent in 1964. When

she first moved in, there was not even a road at Clap Gate Crescent. There were piles

of earth on which children played. Finally, the playing field was landscaped and the

Council put swings, roundabouts, seesaws and a climbing frame on it. I think that Mrs

Faulkner must be referring here to the Clap Gate Amenity Land rather than the Lovel

Triangle. In contrast to Mrs Hurley, she said that the 1977 Jubilee celebrations were

held on the Clap Gate Amenity Land rather than in front of Lovel Terrace.

[99] Mrs Faulkner did not deal with the reclamation of the Lovel Triangle in her

written statement (or at least in that part which could be found). However, in her oral

evidence she said that she could remember (a) the scrap yard between Lovel Terrace

and the railway and (b) the lime pits on the Lovel Triangle. She could remember when

the scrapyard and the lime pits were cleared away and it was all laid down to grass.

For a while it was muddy and there were machines and landfill was put down.

However, she did not think that use of the land for dog walking or children’s play

really stopped.

88 R44

89 R24

24

[100] Mrs Faulkner gave evidence of extensive recreational use of the whole of

Lovel Fields, most of which is visible from her house in Clap Gate Crescent. She

mentioned children’s play, informal games of football, use for training by the Hale

Bank football and rugby squads. Although some recreational users come by car, she

thought that recreational users predominantly came from Hale Bank. I think that all

this evidence was directed to post reclamation use of Lovel Fields.

[101] Subject to one qualification, I accept the evidence of Mrs Faulkner. The one

qualification concerns her evidence about recreational use of the Lovel Triangle

during reclamation works. I do not see how she can be accurate in saying that use by

dog walkers and children never really stopped. First, the scrapyard area cannot have

been used for dog walking or children’s play before reclamation. Second, I find it

hard to believe that parents allowed their children to play on the Lovel Triangle or

that local people walked their dogs there while the scrapyard was being cleared and

machinery used to fill the land and level the surface. It seems to me that the

reclamation works on the Lovel Triangle must have seriously inhibited recreational

use of the land until after the works were completed.

Mrs Dorothy McCombie

[102] Mrs. McCombie produced (a) a standard form witness statement90 and (b) a

written statement (not in the standard form) dated 10th May 2007

91. She lives at 56,

Clap Gate Crescent. She was the fourth person to move into Clap Gate Crescent when

it was built in the 1960s. In her written statement, she recalled her children playing

football in what she called “Clap Gate Field”. Her daughter referred to Clap Gate

Field as “the park” because there were swings, roundabouts and climbing frames on

the field. Clap Gate Field was used for community gatherings, they would put up tents

on it and have parties for the children. Although she claimed in cross examination

that, to her, the whole of Lovel Fields were known as the Clap Gate Field, I think that

Mrs McCombie was here referring to the Clap Gate Amenity Land rather than the

Lovel Triangle.

[103] In her oral evidence, Mrs McCombie said that she remembered the scrapyard

and the lime pits. Children played in the northern part of the Lovel Triangle even

before the reclamation works. She remembers the Lovel Triangle being reclaimed and

laid to grass. As soon as the reclamation work was finished, local people used the

reclaimed land for recreation. She did not suggest that the reclaimed land was used for

recreation while it was being reclaimed. She recalls the planting of the wildflower

meadows. They were kept long and so you could not play ball games on them.

However, children played in the wildflower meadows and dog walkers continued to

use them. Personally, she walks around the side of the existing wildflower meadow

although her dog uses it. She considers that the recreational users of Lovel Fields

predominantly live in Hale Bank.

90 R56

91 R30

25

[104] Subject to the qualification that I think that her evidence of pre-reclamation

recreational use concerned the Clap Gate Amenity Land rather than the whole of

Lovel Fields, I accept Mrs McCombie’s evidence.

Mr. Derek Whitley

[105] Mr. Whitley gave oral evidence but did not submit a written witness statement.

He was born in 1947 and lived either in Blackburne Avenue or Baguley Avenue until

1983-4 when he moved to Widnes. However, he has worked all his life in one of the

factories across Hale Road from Lovel Fields. He has been a member of Hale Bank

Football Club since 1968, originally as a player and later as an officer.

[106] Mr Whitley said that children played in the Lovel Triangle before its

reclamation, and even before part was used for a scrapyard. Children played in the

lime pits and in the ditches which crossed the site.

[107] When the Lovel Triangle was being reclaimed and landscaped, the football

club used the Clap Gate Amenity Land for training. Mr Whitley could not say when

the reclamation work ceased. When the grass seed had come through, the club used

the reclaimed land. It was rough for years after. The land was not fenced off, there

were no “Keep Out” signs and the club did not ask permission although he knew that

it was owned by the Council. Mr Whitley could not be confident that the club used the

reclaimed land between July and September 1986.

[108] On one occasion before the wildflower meadow was planted, the club

informally approached the Council to discuss using some of the land near Hale Road

as a football pitch. This would have involved erecting a fence around the pitch. The

Council though that the goal posts would be too close to Hale Road and no formal

application for permission was ever made.

[109] Mr Whitley struck me as a particularly frank and reliable witness and I

entirely accept his evidence.

Mrs. Monica Hodges

[110] Mrs Hodges has lived at 5, Lovel Terrace since 2000. She produced a written

statement dated 11th May 2007

92. Her daughter and grandchildren have played on the

field outside her house. She has had a stroke and is housebound: accordingly she

spends time looking out at the field. She sees footballers and rugby players training by

running around the outside of the field. She sees local people walking their dogs on

the field. Recreational use has been much the same as long as she has lived in Lovel

Terrace. I accept the evidence of Mrs Hodges.

Mrs. Marie Speed

[111] Mrs Speed lives at 11, Lovel Terrace. She produced an undated written

statement produced jointly with Mrs J Woods of 2 Lovel Terrace93. She said that it

92 R25

93 R38

26

was written 3 or 4 weeks before the public inquiry. It seemed easier to make a joint

statement because Mrs Speed and Mrs Woods are both busy people. It was prepared

rather quickly because of their commitments. Mrs Speed actually drafted the

statement.

[112] Mrs Speed has lived in Lovel Terrace only since 1992 and has not known

Lovel Fields for 20 years. Lovel Fields have been used while she has known them for

recreation by her and her family and friends for informal ball games, children’s play

and picnics. The field is in great demand for walking dogs, flying kites and sledging

in the snow. Footballers train there. There was a summer fete in 1997 between Lovel

Terrace and the railway in aid of Hale Bank Church of England Primary School (of

which Mrs Speed is a governor). There have been bonfires on Lovel Fields on bonfire

nights. The people who use Lovel Fields come predominantly from Hale Bank.

[113] Mrs Speed wrote in the joint statement that Gemma Tran rode in Lovel Fields

when Mrs Speed’s children were younger. She wrote:

“Even today as an adult she still rides her horse on this field”

This was a very odd remark bearing in mind that Miss Tran herself gave evidence that

she had not ridden on Lovel Fields for more than 10 years. Mrs Speed was wholly

unable to explain this comment. The only explanation that I can think of is that Mrs

Speed had sight of Ms Tran’s witness statement94 (which incorrectly suggested that

she still rode in Lovel Fields) before she drafted her own witness statement and

simply adopted the evidence without knowing whether it was true or not.

[114] In these circumstances, I do not see how I can treat Mrs Speed as a reliable

witness. It is interesting to note that Mrs Woods was due to give evidence

immediately after Mrs Speed but, having heard Mrs Speed cross-examined about her

evidence concerning Gemma Tran, declined to give oral evidence. In the

circumstances, I feel that I can place no weight on the joint statement of Mrs Speed

and Mrs Woods.

Mrs Deborah Yates

[115] Mrs Deborah Yates did not produce a written statement. She was born in

1967. One set of grandparents had a shop in Hale Road and the other set of

grandparents lived in Baguley Avenue. Her uncle and aunt took over the shop and she

lived with them over the shop for three years when she was small. Until 2001, she

lived in Liverpool Road, about 1 ½ miles from Hale Bank but went to Hale Bank to

visit her grandparents and her uncle and aunt. She remembers as a child walking in

the field with her uncle and playing on the swings and slides, but her childhood

recollections are rather hazy.

[116] In 2001, she moved to 14, Lovel Terrace, where she now lives. Her children

and grandchildren play on the field, kicking a ball about. One has practiced golf on

the field. Some adults play football using the goalposts erected in the field. Plenty of

94 R34

27

people use the field. They use it all the time. Some come by car but most are from

Hale Bank. Children and adults play on the flat land in front of her house.

[117] Mrs Yates’s childhood memories about Lovel Fields were rather unclear. In

particular, it was not certain that she was referring to anything other than the Clap

Gate Amenity Land. However, I accept her evidence about post 2001 use of Lovel

Fields.

Written evidence

[118] The applicant also submitted a body of written evidence from witnesses who

did not give oral evidence to the public inquiry. I cannot place a great deal of weight

on this evidence for the following reasons:

• Most witnesses used the standard form of witness statement which did

not address the reclamation works of 1983-1986, the pre 1983

scrapyard, or the pre-1983 distinction between the Clap Gate Amenity

Land and the Lovel Triangle and was couched in rather vague and

generalised language

• The way in which the evidence was gathered largely depended on the

presentation of a pre-prepared statement to potential witnesses

• I had no opportunity to see the witnesses in order to assess the

reliability of their evidence

• The objector had no opportunity to test the evidence by cross-

examination.

[119] I summarise the written evidence as follows:

Name Address Dates Comments Bundle

Mr SRL Allen Baguley

Avenue

1978-2006 Standard form R39

P Butter Clap Gate

Crescent


Marjorie

Carter

Clap gate

Crescent


M Connor Clap Gate

Crescent

38 years Standard form R42

J Currie Clap Gate

Crescent


Rita Fagan Clap Gate

Crescent


Thomas

Fagan

Clap Gate

Crescent


Miss J

Faulkner

Clap Gate

Crescent


Mrs S Foster Baguley

Avenue

“all my

life” dates

unspecified

Standard form R49

Mark Hodson Baguley

Avenue


28

Teresa

Hornby

Widnes 1965-? Lived in Clap Gate

Crescent for unspecified

period after 1965.No

reference to scrapyard or

reclamation works

R48

Mrs M

Hughes

Hale Road 1936-2006 Standard form R51

Agnes Jeffery Clap Gate

Crescent


Mrs L Lee Lovel Terrace 1954-2006 Standard form R53

Angela Lewis Clap Gate

Crescent


Glenys Lewis Baguley

Avenue


Stephen

McGrady

Clap Gate

Crescent


M O’Brien Clap Gate

Crescent


Angela

Pearsall

Clap Gate

Crescent

1976-2007 1. Standard form

2. Supplemental statement

re use as child


re importance of open

fields to Hale Bank

1. R59

2.

R59A

3. R60

Anthony

Pearsall

Clap Gate

Crescent

1970s -

2007

Played on “the Limy”

(lime beds?) with bikes as

child in 1970s & early

1980s. The Limy, reed

beds and ditches bulldozed

over and turned into a

field in the mid 1980s. No

mention of scrapyards

R59B

Emma

Pearsall

Clap Gate

Crescent


Keith Pearsall Clap Gate

Crescent

62 years Proposed green was

farmer’s field when he

was a child. Local children

played on it. Remembers

allotments, pigsties, lime

pits and ditch but not on

this field. Landscaping

done “many years ago has

now matured”. Seems

confused between Clap

Gate Amenity Land and

Lovel Triangle

R59C

Margaret

Pearsall

Clap Gate

Crescent


2. Supplemental

statement: no reference to

scrapyards, reclamation or

1. R31

2. R62

29

distinction between Clap

Gate Amenity Land and

Lovel Triangle

Angela

Richards

Hale Road 1978-2007 Used Lovel Fields for

recreation from 1978.

Recalls closure of

scrapyard and land being

laid with land drains and

grassed. Walked dogs on

land since then. Many

other people use land.

R32

Mrs JA Ridge Clap Gate

Crescent


Mrs D

Shakeshaft

Clap Gate

Crescent



1. R64

2. R65

Miss J

Shakeshaft

Clap Gate

Crescent


Paul Speed Lovel Terrace 1968-2006 Standard form R33

Mr L

Stevenson &

Miss A

Hammell

Lovel Terrace 2006 Standard form R67

Mrs E

Tunnicliffe

Clap Gate

Terrace


Mr L Whitley Blackburne

Avenue


RJ Whitley unspecified 63 years Children played on land at

Lovel Terrace when it was

railway land. Council

levelled and planted it

with grass seed and then

Hale Bank Football Club

started to have training

sessions and play practice

games on it. No mention

of scrapyards

R89E

Michelle

Williams

Hale Gate

Road

1970-2007 Used field as child and

now. No mention of

scrapyard or reclamation

works or distinction

between Clap Gate

Amenity Land and Lovel

Triangle

R37

Jenny Woods Lovel Terrace 1958-1993 1. Standard form

2. Joint statement with

Mrs Speed (see above)

1. R70

2. R38

John

Woodward

Hale Bank

Road

All my life

(dates

unspecified)

Standard form R72

Mr J Wright Clap Gate 1974-2006 Standard form R73

30

Crescent

[120] The applicant also submitted a number of undated photographs95. They were

not explained at the public inquiry. Some show adults and children playing on the

post-reclamation Lovel Fields. Some show the wildflower meadow. Some show

ponies being ridden along Lovel Terrace with Lovel Fields in the background, looking

much as they do today.

5. Evidence for Objector

Robert James Charles Barnett

[121] Mr Barnett produced a written statement96. Mr Barnett has been employed by

the Council as Group Solicitor (Policy and Regeneration) since 1998. He had no

personal knowledge of Lovel Fields before 1998, he had no personal evidence about

use of Lovel Fields since 1998, and all his evidence was based on documents found in

the Council files. I have summarised all the important documents which he produced

or mentioned in Part 3 of this report. There is no issue about the genuineness of the

documents. He had come across no document in the Council files in which it was

resolved to grant permission to anyone to use any part of Lovel Fields for recreational

purposes, whether permanent or temporary .pending other uses. Mr Barnett was

questioned at some length about his views on the effect of the documents which he

produced. However, it seems to me that the documents speak for themselves and that

Mr Barnett’s views on their effect, however interesting, are not relevant evidence.

Jeremy Goacher

[122] Mr Goacher has been employed by the Council in a property management

capacity since June 1987 and is now the Operational Director – Property Services. He

has been familiar with Lovel Fields and involved with its management throughout his

employment by the Council.

[123] Mr Goacher produced a written witness statement97. It contained a number of

errors:

• In para. 7, he said that Lovel Fields had a post and rail fence around it. It was

common ground at the public inquiry that the only boundaries ever fenced

during Mr Goacher’s time with the Council with post and rail were the Hale

Road and Lovel Terrace frontages and that the frontage to Clap Gate Crescent

has never been fenced since the reclamation of the Lovel Triangle whether

with post and rail or otherwise.

• He admitted in cross-examination that his account of the golf driving range

proposal in para. 8 was incorrect. In fact, planning permission was refused by

the Council.

95 R79-89

96 B12

97 B15

31

• In para. 9 he was wrong in saying that no planning application was made to

use Lovel Fields as a garden centre: outline planning clearance was given in

198398

• In para 10, he said that the only community activity of which he was aware

during his employment with the Council has been by local youths building

unofficial bonfires. In para. 11 he said that, as far as he was aware, the site has

never been used by the local community for any community or social activities

during the last 20 years. Yet the Clap Gate Amenity Land was set out by the

Council with children’s play equipment and goalposts were erected by the

Council in the Lovel Triangle.

I cannot accept Mr Goacher’s evidence that Lovel Fields have not been used for

recreation by the local community since 1987. There is overwhelming evidence to the

contrary from the applicant’s witnesses, it is obvious from looking at the land that it

would be so used and Mr Goacher himself accepted in his oral evidence that

recreational use of the land by local people was reasonably to be expected..

[124] Mr Goacher produced documents from the Council’s files to show that the

Council have been actively marketing the Lovel Triangle on and off since

reclamation. I have summarised these documents in part 3 of this report. It was not

suggested that the documents were not genuine. Mr Goacher said that, from the time

of the reclamation of the Lovel Triangle onwards, the Council have always held that

land with a view to eventual resale and not with a view to providing long term

amenity land to local residents. He said:

“The land was fenced and grassed as [were] all derelict land schemes. We

were “greening” the borough. The sites were fenced and grassed for the purpose of

marketing not for use by local people…The fence is not intended to keep people off-

anyone can hop over. [There was a ] reasonable expectation that people in the area

would use the land for recreation of some sort…So long as [recreational] use did not

preclude end use of [the] land, I did not mind how it was used… There is an

inevitability of public use of unused land”

Mr Goacher thought that the post and rail fence was probably erected to deter

vehicular incursion by travellers rather than recreational use by local people. I accept

Mr Goacher’s evidence as mentioned in this paragraph. I think that it is consistent

with the documents that he produced.

[125] Mr Goacher gave evidence that, when he took up his post in 1987, there was a

board erected on the Hale Road frontage by Mason Owen & Partners, the Council’s

agents. It was about 5’ x 3’ and advertised the Lovel Triangle for sale with the words

“Land for Sale”. Mr Goacher ordered that the board be taken down. At one stage, Mr

Goacher said that the board was taken down when the Council terminated Mason

Owen & Partners’ instructions in 1990/1991. Later, he said that it was taken down in

1989. I accept that there was a “Land for Sale” board on the Hale Road frontage of the

Lovel Triangle for at least a year.

[126] Mr Goacher explained his understanding of how the derelict land grant system

of the 1980s worked. It was a scheme to provide an incentive to reclaim derelict land.

98 B72

32

There is no timescale for repayment. The grant has to be repaid out of any receipts

from the land. If the land is sold the grant is repayable on completion. If the land is

leased, it is paid back over 7 years. The amount of repayment is certified by a

Department of Environment surveyor. The Council would not have to repay the grant

if it were never able to dispose of the land. However, the grant would be repayable if

the Council removed it altogether from sale. A formal appropriation of the land to a

use precluding disposal would trigger repayment. This evidence was unchallenged

and I accept it. This supports Mr Goacher’s evidence that the Council always intended

to sell the Lovel Triangle and that recreational use by local people was seen simply as

an inevitability pending sale.

Andrew Pannell

[127] Mr Pannell is a planning officer employed by the Council. He produced a

witness statement99 summarising the history of planning applications in relation to

Lovel Fields since 1974 and a supplementary witness statement100

summarising the

planning policy history since 1986. This evidence was unchallenged and I have

incorporated it into part 3 of this report.

[128] Mr Pannell said that there was no legal requirement to advertise planning

applications on site although neighbours immediately affected ought to be notified.

He could not say in relation to the planning applications mentioned in his evidence

whether notices were placed on Lovel Fields or what neighbours were notified of

them.

[129] Mr Pannell agreed that the Council’s functions as planning authority and as

landowner of Lovel Fields are and have always been quite distinct and that one cannot

infer from the planning policies of the Council what are the intentions of the Council

as landowner in relation to its own land.

Alan Lane

[130] Mr Lane did not produce a written witness statement. He is the proprietor of

Lanes Landscaping Ltd. His company contracted with the Council for topsoiling and

grassing the Lovel Triangle reclamation land. The company took possession in late

1985. Progress was low because of a wet winter and he thought that he completed the

contract in the summer of 1986 although he could not recall precise dates. He

supervised the job. He could not remember seeing anyone else on the site when he

was there:

“but it inevitably happens. You can’t keep people off. If people want to play on it they

will play on it”.

His company’s contract included aftercare He thinks that he would have cut the new

grass in mid to late September 1986. He would have cut again in 1987.

99 B18

100 B27A

33

[130] Mr Lane was asked in chief at what stage after seeding the land would the

grass have grown to be safely trampled upon. He replied that it would normally take

three months depending on the weather. I asked him to express a view on when one

would expect people in practice to use the land if it was seeded in early July. He

replied that it would be in late August or early September.

“It is inevitable that people use it as soon as the grass shows. That is my

experience as a contractor.”

[131] Mr Lane was a transparently honest and reliable witness.

Derek Sutton

[132] Mr Sutton is an officer of the Council concerned with the 3MG project. He

produced a written witness statement101

summarising the 3MG project and its

potential impact on Lovel Fields. I have summarised his evidence, insofar as relevant

to this report, in part 3 above.

Patricia Bickerstaffe

[133] The objector produced a written witness statement of Patricia Bickerstaffe102

but did not call her to give oral evidence. Ms Bickerstaffe has been employed by the

Council since 1976 in a property management capacity and is now Office Manager –

Property Services. She lived in the area of Lovel Fields from 1959-1980. She

remembers the disused railway sidings and scrapyard in the early 1960s although she

cannot recall any community activities taking place there. However, she seems to

have been referring to organised community activities such as carnivals. Since she did

not give oral evidence she could not be asked about informal recreational use. She

was involved in the purchase of the site in 1983. She recalls that it was purchased

with “derelict land act” monies as the site was a scrap yard. The Council cleared and

reclaimed the site with a view to disposing of it for commercial purposes. The

Council employed Mason Owen & Partners to market the site. There was some

interest but none which came to fruition. Since the Council owned the site it has

always been grassed and fenced with a view to eventual disposal. Ms Bickerstaffe

said that so far as she was aware the site has never been used by the local community

for any community or social activities during the last 40 years.

[134] I do not place any reliance on Ms Bickerstaffe’s evidence for the following

reasons:

• She did not give oral evidence and so I could not assess her as a witness

• Her evidence could not be tested by cross-examination.

• She appears to have overlooked the fact that the Clap Gate Amenity Land was

part of the site subject to the town green application

• She misleadingly states that the site was fenced whereas the Clap Gate

Crescent frontage was not fenced

• She does not say whether and, if so, how often, she visited Lovel Fields after

1980

101 B320

102 B330

34

• Her evidence of lack of community and social activities on Lovel Fields is

hard to reconcile with the children’s play equipment on Clap Gate Amenity

Land and the goal posts on the Lovel Triangle

6. Evidence of Public

Margaret Fahey

[135] Mrs Fahey gave evidence as a member of the public. She moved to the area in

1988 and lives in Hale Gate Road. She was a local councillor in the mid 1990s. Her

evidence was that she had seen some recreational use of the Clap Gate Amenity Area

although it was not very busy. Although she frequently walks past the Lovel Triangle,

she has never seen any recreational use of it except for two poorly attended shows

organised by Landline in about 2000 and 2001. I do not accept her evidence about

recreational use of Lovel Fields and I prefer the overwhelming body of evidence to

the contrary adduced by the applicant.

Derek Mellor

[136] Mr Mellor began to give evidence about his research into accessible green

spaces in town and cities and the need for green areas. However, this was not relevant

to the public inquiry and I stopped him.

7. Findings of Fact: the Broad Picture

[137] Having carefully considered all this evidence, I have little difficulty in finding

the broad picture of the facts in this case. It is convenient to break down these

findings chronologically.

1940s-1960s

[138] During this period, the site of the subsequent Clap Gate Amenity Land formed

part of several fields lying between Lovel Terrace and Blackburne Avenue. I heard no

evidence which persuaded me that this land was subject to any material recreational

use by local people. The Lovel Triangle was disused railway land. There was

evidence of children playing in the lime pits and elsewhere on this land. I accept that

children did play there, but I am not persuaded that this was more than occasional and

sporadic trespass such as one might find on any long disused land.

1960s

[139] In the early-mid 1960s, Clap Gate Crescent was built and the Clap Gate

Amenity Land was laid out as an amenity area in association with the new housing. In

1967, part of the Lovel Triangle received planning permission for scrapyard use and a

scrapyard started functioned on the eastern part of the Lovel Triangle.

1960s to 1983

35

[140] I find that from the time it was laid out in the 1960s, the Clap Gate Amenity

Land has been used without interruption for informal recreation by local people. For

at least part of these years, the Council provided children’s play equipment on this

land. As for the Lovel Triangle, I consider that the part used as a scrapyard was no

longer accessed by local people. No witness spoke of playing or enjoying recreation

in the scrapyard. There was no evidence to enable me to ascertain the precise

boundaries of the scrapyard and, indeed, it seems that it gradually expanded

unlawfully over the years. However, I find that use of the rest of the Lovel Triangle,

especially the lime pits, increased after the construction of Clap Gate Crescent,

probably because it brought a large new population into the immediate vicinity of the

Lovel Triangle, with immediate access via the Clap Gate Amenity Land. The increase

in informal use of the non scrapyard parts of the Lovel Triangle is supported by the

aerial photographs of 1971 and 1983 as contrasted with the aerial photograph of 1945.

I find that there was a substantial amount of informal recreational use by local people

of this part of Lovel Triangle during this period.

1983-1986

[141] Although there is no evidence to fix precisely when the reclamation works

commenced, I find that, between 1983 and 1986, the Lovel Triangle was reclaimed by

contractors for the Council. I find that the works were extensive over the whole of the

Lovel Triangle, involving the clearance of the scrapyard, the filling of the sludge

lagoons, levelling, topsoiling and grass seeding. It is clear from the 1989 aerial

photograph that the whole of the Lovel Triangle was reclaimed. Heavy machinery

(including diggers) was used and the total cost, as recorded in the Halton Legacy,

indicates extensive reclamation works. There was a remarkable silence in the written

statements of the applicant’s witnesses about the reclamation works and their oral

evidence about recreational use during reclamation was contradictory. I am not

satisfied that there was any material recreational use of the Lovel Triangle during the

progress of the reclamation works. However, I am satisfied that the reclamation works

did not involve the Clap Gate Amenity Land and that this land continued to be used

for recreation by local people during the reclamation works on the Lovel Triangle.

1986-2006

[142] I find that recreational use of the Clap Gate Amenity Land did not cease

during the reclamation of the Lovel Triangle and continued without interruption until

today. After the end of the reclamation works on the Lovel Triangle, I find that the

Lovel Triangle formed a single open grassed field with the Clap Gate Amenity Land

and that local people began to use both as a single recreational area for such activities

as dog walking, children’s play and informal ball games. I find that they have used it

as such ever since. I deal below in more detail with the ascertainment of the date

when qualifying use of the Lovel triangle started after the end of the reclamation

works.

Council’s Intentions

[143] I find that the Council’s intentions as to use of Lovel Fields have varied from

time to time. From the time of the creation of the Clap Gate Amenity Land in the

1980s, that land seems to have been perceived as amenity land associated with the

36

local housing. When the Council originally purchased the Lovel Triangle, it had in

mind that part would be developed (presumably to repay the derelict land grant) and

part used as open space. From 1985 to the late 1980s or early 1990s, the Council was

trying to sell the whole of the Lovel Triangle for development. Marketing seems to

have been abandoned during the 1990s, apart from the golf driving range project of

the mid 1990s, but was revived in 2001-2 with a scheme to sell the whole of Lovel

Fields (including the Clap Gate Amenity Land) for residential development. That

marketing exercise was unsuccessful and the current thinking is to use part of the

Lovel Triangle for works associated with the 3MG project and to use the rest of Lovel

Fields either as amenity land or for housing or for parking in connection with a re-

opened Ditton Station.. I see no evidence that the Council has ever made an

irrevocable decision to use the whole or any particular part of Lovel Fields as land

dedicated to recreational use. On the other hand, the council clearly laid out the Clap

Gate Amenity Land in the 1960s and the Lovel Triangle in the 1980s in a manner

intended to be suitable for recreational use by local people until the Council sold the

land or put it to some other use.

Knowledge of Local People

[144] I consider that local people must, in general, have known that the Council

from time to time had plans for Lovel Fields which were inconsistent with permanent

recreational use by local people. The Lovel Triangle was advertised for sale in local

papers in 1985. Mason Owen & Partners were marketing the Lovel Triangle in the

second half of the 1980s and there was a “Land for Sale” board on the Hale Road

frontage of the Lovel Triangle. There was the golf driving range project of the mid

1990s which attracted some local opposition. In 2000, the Council circulated all

residents of Hale Bank with copies of proposals for residential development of Lovel

Fields, including the Clap Gate Amenity Land and attracted considerable opposition.

8. New Greens: Law and Procedure

The Law

[145] The CRA 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

31st July 1970 for the registration of greens. By s. 1(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.

[146] 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).

37

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 twice, first, by the Countryside

and Rights of Way Act 2000 (“CRoW 2000”) and second, by the Commons Act 2006

(“CA 2006”).

[147] Until 30th January 2001, the first definition of a prescriptive green was:

“land…on which the inhabitants of any locality have indulged in [lawful]

sports and pastimes as of right for not less than twenty years”.

[148] As from 30th January 2001, this definition was replaced, pursuant to s 98 of

CRoW 2000, by the following second definition:

“…land on which for not less than twenty years a significant 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 ever been made to implement para. (b) of the second definition

and it seems unlikely that any will now be made.

[149] Section 15 of the CA 2006 was brought into force on 6th April 2007 and

contains the following 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), (3) or (4) applies.

(2) This subsection 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 at least 20 years; and

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

(3) This subsection applies where-


neighbourhood within a locality, 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 period of two years beginning with

the cessation referred to in paragraph (b),

(4) This subsection applies (subject to subsection (5)) where-


neighbourhood within a locality, indulged as of right in lawful sports and pastimes

on the land for a period of at least 20 years;

38

(b) they ceased to do so before the commencement of this section; and

(c) the application is made within the period of five years beginning with

the cessation referred to in paragraph (b)

However, by para 4 of the Commons Act 2006 (Commencement No 2, Transitional

Provisions and Savings) (England) Order 2007, an application made before 6th April

2007 to register a new green continues to be governed by the pre CA 2006 law.

The Legal Issues

[150] The main legal issues concerning prescriptive greens that have been decided

by the courts are as follows:

What is a Town or Village Green?

[151] A town or village green is land which is subject to the right of local people to

enjoy general recreational activities on it. There is no legal requirement that it should

consist mainly of grass, be situated in or in reasonable proximity to a town or village,

or be suitable for use by local inhabitants for traditional recreational activities103

.

What is the Effect of Non-Registration?

[152] Greens which were not registered by 31st July 1970 ceased in law to be town

or village greens and, so long as they remain unregistered, local people have no

recreational rights over them104

.

What is the Effect of Registration?

[153] 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 registration105

.

• Land becomes a new green only when it is registered as such106

.

• Registration as a new green confers general recreational rights over the

green on local people107

• Registration as a new green subjects the land to the protective

provisions of s. 12 of the Inclosure Act 1857 and s. 29 of the Commons

Act 1876, which in practice preclude development of greens108

Which definition applies?

103 Oxfordshire County Council v Oxford City Council & anor [2006] 2 AC 674 per Lord

Hoffmann at paras 3-16, & 37-39, Lord Rodger at para 115 & Lord Walker at paras 124-128 (Lord

Scott dissenting at paras 71-83) 104 Oxfordshire per Lord Hoffmann at para. 18.

105 Commons Registration Act 1965 s. 10

106 Oxfordshire per Lord Hoffmann at para 43, Lord Scott at para 110, & Lord Rodger at para

116 (Lady Hale dissenting at para 142 in relation to original definition) 107 Oxfordshire

108 Oxfordshire

39

[154] In the case of any application to register a new green made after 30th January

2001, and before the CA 2006 comes into force, only the second definition applies109

.

This, therefore, is the relevant definition in the present case.

What is the meaning of the second definition?

[155] The meaning of the second definition has also been extensively considered by

the courts.

Land…

…on which for not less than 20 years…

[156] The 20 year period must be the 20 years immediately before the s. 13

application110

.

…a significant number…

[157] “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 trespassers111

.

…of the inhabitants of any locality……

[158] A “locality” cannot be created by drawing a line on a map112

. A “locality”

must be some division of the county known to the law, such as a borough, parish or

manor113

. An ecclesiastical parish can be a “locality”114

but it is doubtful whether an

electoral ward can be a “locality”115

. 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. The House of Lords in the Oxfordshire case recognised

and upheld the narrowness of this definition of “locality” and said that it was qualified

only by the fact that it was sufficient if the recreational users of the green came

“predominantly” from the relevant locality116

.

...or of any neighbourhood within a locality…

109 Oxfordshire per Lord Hoffmann at para 43, Lord Scott at para 110, Lord Rodger at paras 117-

123 & Lord Walker at para 124. Lady Hale dissented at para 147. 110 Oxfordshire case per Lord Hoffmann at para s 41-42 & 60, Lord Rodger at para 114 & Lord

Walker at para 124. Lady Hale dissented at para 147. 111 R (McAlpine) v Staffordshire CC [2002] EWHC 76 (Admin) at para. 77

112 R (Cheltenham Builders Ltd) v South Glos, DC [2004] 1 EGLR 85 at paras 41-48

113 Ministry of Defence v Wiltshire CC [1995] 4 All ER 931 at p 937b-e, R (Cheltenham Builders

Ltd) v South Glos. DC at paras 72-84 and see R (Laing Homes Ltd) v Buckinghamshire CC [2003] 3

EGLR 69 at para. 133 114 R (Laing Homes) Ltd v Buckinghamshire CC

115 R (Laing Homes) Ltd v Buckinghamshire CC

116 Oxfordshire per Lord Hoffmann at para. 25 applying the ruling of the House of Lords in R v

Oxfordshire County Council ex. p. Sunningwell Parish Council[2000] 1 AC 335.

40

[159] A “neighbourhood” need not be a recognised administrative unit. A housing

estate can be a neighbourhood117

. However a neighbourhood cannot be any area

drawn on a map: it must have some degree of cohesiveness118

. A neighbourhood need

not lie wholly within a single locality119

.

…have indulged in lawful sports and pastimes…

[160] The words “lawful sports and pastimes” form a composite expression which

includes informal recreation such as walking, with or without dogs, and children’s

play120

. It does not include walking of such a character as would give rise to a

presumption of dedication as a public right of way121

.

…as of right…

[161] Use of land “as of right” must be use which is without force, stealth or

permission (“nec vi nec clam nec precario”) and does not turn on the subjective

beliefs of users122

. Further, use “as of right” must be use as a trespasser and not use

“by right”, i.e. pursuant to a legal right123

.

[162] “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 protest124

. There is a dictum in the Beresford case125

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 Oxfordshire case that a prohibitory notice prevented user as of right. This

proposition was not questioned by the House of Lords, although it is fair to say that

the accuracy of the proposition did not arise on the view taken by the House of Lords

since the signs were erected after the date of the application.

[163] “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

landowner126

. The effect of permissive signs to preclude continuing user as of right

will, in the case of post 6th April 2007 applications, be affected by CA 2006 s.

15(7)(b).

[164] I therefore conclude that user “as of right” means user which is:

117 R (McAlpine) v Staffordshire CC

118 R (Cheltenham Builders Ltd) v Sth Glos. CC at para 85

119 Oxfordshire case per Lord Hoffmann at para 27 disapproving R (Cheltenham Builders Ltd) v

Sth. Glos. CC at para. 88 120 R v Oxfordshire CC ex p. Sunningwell PC at pp 356F-357E

121 Oxfordshire CC v Oxford CC [2004] Ch 253 at paras 96-105

122 R v Oxfordshire CC ex p Sunningwell PC

123 R (Beresford) v Sunderland CC paras 3, 9 & 30

124 Newnham v Willison (1987) 56 P&CR 8

125 para. 72

126 R (Beresford) v Sunderland City Council [2004] 1 AC 889

41

• trespassory and not pursuant to a legal right, i.e. “as of right” as

opposed to “by right”,

• not forcible, secret or permissive (“nec vi nec clam nec precario”).

…and continue to do so.

[165] The most important point decided by the House of Lords in the Oxfordshire

case is that the relevant user need continue only down to the date of the application:

user need not continue down to the date of registration127. This point decided by the

House of Lords 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 cannot take steps, e.g. by fencing the land or erecting notices on the

land, to prevent user “as of right” from continuing. The House of Lords overruled the

decision of the Court of Appeal that recreational user must continue down to the date

of registration, a decision which appeared to give every landowner a cast-iron method

of defeating any application to register a new green.

Human Rights

[166] The majority view of the House of Lords in the Oxfordshire case was that the

creation of a new green by prescription did not infringe the landowner’s human rights

under art. 1 of the 1st Protocol to the ECHR.

Procedure

[167] Procedure on applications to register new greens under the CRA 1965 is

governed by The Commons Registration (New Land) Regulations 1969. These

regulations have proved quite inadequate to resolve many disputed applications and

registration authorities have had to resort to procedures not contemplated by the

Regulations to deal with such applications.

Who can apply?

[168] 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.

[169] Application is made by submitting to the registration authority a completed

application form in Form 30. 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”.

127 Oxfordshire case: Lord Hoffmann at para 44, Lord Rodger at para 114, Lord Walker at para

124 & Lay Hale at para 143. Lord Scott, at para 109, would have allowed recreational use to cease

shortly before the date of the application provided that the application was made reasonably promptly

after interruption.

42

• Part 4 asks the applicant to state on what date the land became a green. This

question is now hard to answer in the light of the House of Lords’ ruling that

land does not become a new green until it is registered. Probably the correct

answer is the date of the application.

• Part 5 asks how the land became a green. This question is now also hard to

answer in the light of the House of Lords’ ruling that land does not became a

new green until it is registered. Probably it means: how did the land become

land which qualifies for registration as a new green?

The House of Lords in the Oxfordshire case has emphasised that the procedure is

intended to be simple and informal and that applications are not to be defeated by

technical objections to the form of applications provided that the applications are

handled in a way which is fair to all parties128

. The form has been replaced in relation

to post 6th April 2007 applications.

Accompanying documents.

[170] 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.

[171] 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.

[172] 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 in some material respect, 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.

[173] 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

128 Lord Hoffmann at paras 60-62, Lord Scott at para 110, Lord Walker at para 124 & Lady Hale

at para 144.

43

• By erecting notices on the land if it is open, unenclosed and unoccupied.

Objectors.

[174] 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.

[175] 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.

[176] 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 Commissioners129 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 House

of Lords in the Oxfordshire 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. In some cases, procedural fairness

will make an oral hearing not merely an option but a necessity130

. In the Whitmey

case, it was held that the procedure by non statutory public inquiry did not infringe

art. 6 of the ECHR because any decision of the registration authority is subject to

review by the courts. 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.

[177] 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 would put 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. However, in McLaren v Kubiak [2007]

EWHC 1065 (Ch) it was held that the reasoning in the Whitmey case had been

overtaken by the analysis in the Oxfordshire case and that it was now an abuse of

process to bring legal proceedings for a declaration as to the registrability of an

alleged new green

Procedural issues.

[178] A number of important procedural issues have been decided by the courts:

129 [2005] 1 QB 282.

130 Oxfordshire case per Lord Hoffmann at para 29 approving Sullivan J in R (Cheltenham

Builders Ltd) v South Gloucestershire District Council

44

• 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”131

. 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 House of Lords has held in the Oxfordshire 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 House of Lords also held in the Oxfordshire 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. Indeed, the

House seemed to think that a larger or different area could be registered if there

was no procedural unfairness132

.

9. The Application and Objection

The Application

[179] Mrs Hurley’s application133

was dated 20th September 2006. It contained the

following:

• It was addressed to the Council as registration authority.

• Part 1 gave Mrs Hurley’s name and address as applicant

• Part 2 is only relevant if the applicant is represented by a solicitor, which Mrs

Hurley was not.

• Part 3 described the land to be registered as “Lovel Fields, Hale Bank as

marked in red border on enclosed plan”. A plan was enclosed in which the

boundaries of Lovel Fields were somewhat crudely but, in my view,

adequately drawn.

• Part 4 stated that Lovel Fields became a new green in January 1970

• Part 5 stated that Lovel Fields became a new green by actual use of the land by

local inhabitants for more than 20 years as of right

• Part 6 stated that the Council was believed to be the owner of Lovel Fields

• Part 7 was nor relevant and so was not completed

• Part 8 listed the documents sent in support of the application

[180] Although not included within the applicant’s inquiry bundle, the application

was supported by the prescribed statutory declaration made by Mrs Hurley.

Amendment of Application

131 R v Suffolk CC ex p Steed (1996) 75 P&CR 102 at p 111 per Pill LJ approved by Lord

Bingham in R (Beresford) v Sunderland at para. 2 132 Lord Hoffmann at paras 61-62, Lord Scott at para 111, Lord Rodger at para 114, Lord Walker

at para 124 and Lady Hale at para 144. 133 R1

45

[181] At the beginning of the public inquiry, Mrs Hurley applied to amend Part 4 of

her application by substituting the date of her application. The objector did not object

to the application and sought no adjournment of the public inquiry, but raised the

issue whether such an amendment was permissible. The objector pointed out that the

date specified in Part 4 was earlier than the closing date for original registration and

queried whether an amendment could be allowed now that CRA 1965 s. 13 was

replaced by CA 2006 s. 15. I consider that the effect of para 4(4) of the 2007 Order is

that the present application has to be treated as governed by the CRA 1965. The

reasoning in the Oxfordshire case indicates that amendment should be allowed where

it causes no unfairness. The objector did not oppose the amendment and did not

suggest that the amendment would cause it any prejudice. I therefore recommend that

the proposed amendment should be allowed.

The Objection

[182] On 15th January 2007, the Council (as landowner) lodged a written objection

statement. In relation to the Lovel Triangle, the objection stated that recreational user

since reclamation has been with the implied permission of the Council as landowner

since the Council intended to sell it with vacant possession. In relation to the Clap

Gate Amenity Land the objection appears to be primarily on policy grounds, i.e. that

the community has sufficient recreational facilities without the Clap Gate Amenity

Land. The objection also takes the point of policy that registration will impede the

3MG project. I do not think that these policy considerations are relevant.

10. Applying the Statutory Definition

[183] I now turn to apply the relevant statutory definition to the facts of this case.

Land…

[184] The area identified as a new green in Mrs Hurley’s application is clearly

“land”. Although the application plan is somewhat rough and ready, I do not think

that there are any practical difficulties in identifying the land subject to the application

on the ground. I have described the boundaries above.

…on which for not less than 20 years…

[185] The application to register Lovel Fields as a new green was made on 20th

September 2006. The relevant 20 year period is the 20 years immediately before the

date of the application. Mrs Hurley, as applicant, has to prove that Lovel Fields was

subject to qualifying recreational use from 20th September 1986 until the 20

th

September 2006.

[186] In relation to the Clap Gate Amenity Land, I have no difficulty in finding that

Mrs Hurley has proved 20 years use immediately before 20th September 2006. I

consider that the evidence shows that the Clap Gate Amenity Land has been in

unbroken recreational use by local people since the mid 1960s. I find that the

reclamation works of 1983-1986 were confined to the Lovel Triangle and did not

affect the Clap Gate Amenity Land.

46

[187] However, the position of the Lovel Triangle is much less clear. The land was

subject to reclamation work from 1983 to 1986. There is unchallenged evidence that

final grass seeding was not completed until 7th July 1986 and, even then, some

fencing work was outstanding. The applicant has a very narrow time window between

7th July 1986 and 20

th September 1986 to prove the commencement of recreational

use by a significant number of Hale Bank inhabitants.

[188] I have thought long and hard about this critical point and my view has

fluctuated during the course of the public inquiry. However, I have reached the

conclusion that the applicant has failed to prove, on the balance of probabilities, that

Lovel Fields were subject to qualifying user by 20th September 1986.

[189] In reaching this conclusion, I have taken account of the following

considerations:

• The comments of Pill LJ in Steed and of Lord Bingham in Beresford that the

law requires all the elements of a new green to be “properly and strictly

proved”.

• Although the evidence of the applicant’s witnesses was contradictory on the

point, it seems to me most unlikely that the Lovel Triangle was subject to any

material recreational use by local people during the period of reclamation.

Although there was no evidence that the reclamation works were fenced off, it

does appear to me that the works were extensive, involved the use of heavy

machinery and involved resurfacing of the whole of the Lovel Triangle. As a

matter of common sense, it is improbable that the land was subject to the type

of recreational use relied upon in this case during the reclamation period. I

cannot envisage parents allowing their children to play, football club members

training or local people walking their dogs in the midst of such reclamation

works. No doubt, isolated acts of trespass continued, but this is not enough for

the applicant’s purposes.

• It appears to me as a matter of common sense that there must have been some

interval between the date when the reclamation work was completed and the

date when it can be said that the reclaimed land was being used by a

significant number of local people for recreation. The land had been

transformed from derelict land and scrapyards into an open grassed area by the

Council. The Council did not invite local people to use the land for recreation.

It was not advertised as land for recreation. There was no grand opening. It

seems to me that what would have happened is that, after reclamation and

when the contractors had left the site, the grass grew, a few local people would

have begun to enter the land to walk their dogs or play with their children,

and, finding that those activities were unchallenged, others would have been

encouraged to do the same. There would have been a gradual build-up of

recreational use.

• The evidence of Mr Lane was helpful in giving some time frame to the

grassing of the reclaimed land. He thought that, if seeding was completed on

7th July 1986, he would expect people to be going on the land in late August or

early September, the grass to be ready for cutting in mid to late September and

the grass to be fit for recreational use by early October. However, Mr Lane

could give no evidence on actual use because he was not on site in the relevant

period.

47

• Mr Allen thought that the Hale Bank Football Club was training on the land in

August, but Mr Whitley (whose evidence I prefer on this point) could not be

confident of use by that date. Even if the club were training on the land by

August, it does not follow that other people were also using the land for

recreation by that date.

[190] In the end, I have to weigh up all the evidence and ask myself whether I am

persuaded, on the balance of probabilities, that the reclaimed land was being used by a

significant number of local people for recreation by 20th September 1986. It is

certainly possible that it was. However, I consider that the time window between 7th

July 1986 (when the seeding was completed but some fencing work remained

outstanding) and 20th September 1986 (20 years before the date of the application) is

just too short, and the relevant evidence too weak, to be able to say that it is probable

that by 20th September 1986 the reclaimed land was being used by a significant

number of local people for recreation.

[191] I therefore conclude that the applicant has proved 20 years’ qualifying use in

relation to the Clap Gate Amenity Land but not the Lovel Triangle.

…a significant number…

[192] I am quite satisfied that for many years (although, in the case of the Lovel

Triangle, not the full 20 year period) Lovel Fields has been used for informal

recreation by a significant number of local people. In my view, the use has been such

as to signify that it is in general use by the local community for informal recreation,

rather than occasional use by trespassers. On this point, I strongly prefer the evidence

of the applicant’s witnesses to that of the objector’s witnesses and that of Mrs Fahey.

...of the inhabitants of any locality…

[193] In my view, recreational use of Lovel Fields has been predominantly by the

inhabitants of Hale Bank. However, Hale Bank is not a “locality” because it is not at

present, and has never been, a division of the county known to the law. I was told at

the public inquiry that it is to become a civil parish.

…or of any neighbourhood within a locality…

[194] However, I consider that Hale Bank is clearly a neighbourhood within the

locality of the borough of Halton. Hale Bank forms a small cohesive community of

which the entire residential core is within a short walking distance of Lovel Fields.

…have indulged in lawful sports and pastimes…

[195] In my judgment, the recreational activities described by the witnesses as

having been enjoyed on Lovel Fields, such as dog walking, children’s play, informal

ball games and football training all amount to “lawful sports and pastimes” as that

expression was construed by the House of Lords in the Sunningwell case.

…as of right…

48

[196] First, it is necessary to consider whether recreational use of Lovel Fields was

“by right”. The objector, in my view rightly, disclaimed any argument that local

inhabitants have ever had any legal right to enjoy recreation on the land. None of the

land was purchased under a statutory power imposing a trust for public recreation

(e.g. s 10 of the Open Spaces Act 1906) or appropriated to any such statutory purpose.

In my view, recreational use of Lovel Fields has never been “by right”.

[197] Second, there is the question whether recreational use of Lovel Fields has been

forcible (vi). I do not think so. The land has been open at all material times to Clap

Gate Crescent and the post and rail fence on the Hale Road and Lovel Terrace

frontages was to deter travellers rather than to prevent pedestrian access by local

people for recreation.

[198] Third, I consider it clear that recreational use of Lovel Fields during the

material time was not secret (clam). The land is flat grassed land clearly visible from

the surrounding roads and recreational use by local people was, in my judgment,

obvious to everyone who chose to look.

[199] It is the fourth issue arising from the “as of right” requirement that calls for

more detailed consideration. This is the issue whether recreational use of Lovel Fields

was permissive (precario). The central pillar of the objector’s case was that user was

permissive. It was conceded that the Council never granted local people express

permission to use Lovel Fields for recreation. However, it was strongly submitted that

the Council granted implied permission. It was argued that permission can be implied

from the facts (a) that the Council always intended to sell the land for purposes other

than recreational purposes and (b) that local people were aware of this. Therefore, it

was argued, local people must have known that they had only temporary use of the

land for recreation until sale or development.

[200] I cannot accept this argument. In my judgment, it is inconsistent with the two

recent House of Lords authorities on the meaning of “as of right”, i.e. the Sunningwell

and Beresford cases.

[201] In Sunningwell the House of Lords held that the test whether user was “as of

right” turned not on the subjective intentions and beliefs of the users but on whether

their conduct objectively had the appearance to the landowner of the exercise of a

legal right. If local people appear objectively to be exercising a legal right of

recreation on land for more than 20 years, the landowner must not acquiesce in the

user if it is to avoid being saddled with a prescriptive right. For the purposes of this

test, it is immaterial what use the landowner intends for the land in the future or

whether the users know of that intention. Of course, user does not have the objective

appearance of the exercise of a legal right if it is by permission of the landowner.

[202] In Beresford the House of Lords held that:

• Permission to use land for recreation can be granted expressly or impliedly

• Such permission only precludes user as of right if it is temporary or revocable

permission and not if it is permanent or indefinite permission

• Permission cannot be inferred from acquiescence or acts of encouragement

49

[203] In the present case, I cannot see any evidence from which permission can be

inferred. All the overt acts of the landowner were acts of encouragement, i.e., the

reclamation of the Lovel Triangle, the grassing and maintenance of the Clap Gate

Amenity Land from the 1960s onwards and the similar treatment of the Lovel

Triangle from 1986 onwards, the installation of swings and slides on the Clap Gate

Amenity Land and of goalposts on the Lovel Triangle. I do not see how the fact that

the landowner had long term plans to sell the Lovel Triangle for development can

give rise to an inference that the landowner actually granted local people revocable

permission to use the land: only that the landowner should have done so to protect its

long term plans.

[204] It seems to me that the facts of this case are really on all fours with the facts in

Beresford. In that case, a council purchased land with long term development plans

and meanwhile acquiesced in and encouraged recreational use by local people by

laying out the land with grass, mowing it and installing benches. The House of Lords

held that there was no implied permission.

[205] In its skeleton argument, the objector sought to rely on the old cases such as

Leigh v Jack (1879) 5 Ex D 264 relating to the acquisition of title to land by adverse

possession in circumstances where the landowner had long term plans for the land

which were not inconsistent with the use made of the land by the alleged adverse

possessor. The tortuous history of this line of authority in case law and statute is

usefully reviewed in Beaulane Properties v Palmer [2005] 4 All ER 461. However, I

am not convinced that there is a close enough analogy between the law of adverse

possession and the law of prescription to be helpful in the present case, since we have

recent House of Lords authority on the very point in issue.

[206] I therefore conclude that recreational user of the Clap Gate Amenity Land has

been “as of right” since the 1960s and that recreational user of the Lovel Triangle has

been “as of right” since reclamation.

…and continue to do so.

[207] I am satisfied that qualifying user was continuing at the date of Mrs Hurley’s

application on 20th September 2006.

11. Conclusions and Recommendation

[208] For the reasons explained above, I recommend that the applicant should be

given permission to amend her application by substituting the date of the application

in Part 4

[209] In relation to the Clap Gate Amenity Land, I conclude that the applicant has

proved that the land has become a new green and I recommend that it should be

registered as such.

[210] In relation to the Lovel Triangle, I conclude that the applicant has not proved

20 years qualifying user because I am not satisfied that qualifying user started on or

before 20th September 1986. I therefore recommend that the application should be

50

rejected in relation to the Lovel Triangle. Under reg. 8(1) of the 1969 Regulations it is

necessary for the registration authority to give written reasons for rejection of the

application. I recommend that the reasons are stated to be “the reasons set out in the

inspector’s report of 1st June 2007”.

12. Acknowledgements

[211] I would like to express my particular appreciation to the following people:

• Mr John Egan, who presented the applicant’s case at short notice and with

courtesy and clarity,

• Mr Michael Johnson, counsel for the objector, who presented the objector’s

case with equal clarity and courtesy,

• Mr John Tully, of the registration authority, who made the administrative

arrangements for the public inquiry with great efficiency, and

• Ms Alison Culley, of the registration authority, who gave me invaluable

administrative assistance throughout the public inquiry.

Vivian Chapman QC

1st June 2007

9, Stone Buildings,

Lincoln’s Inn,

London WC2A 3NN

appendix 2 in the matter of an application to registercouncillors.halton.gov.uk/documents/s4474/town...

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