in the matter of: an application to register ......of rowena meager (inspector) dated 30 june 2014...
TRANSCRIPT
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IN THE MATTER OF:
AN APPLICATION TO REGISTER LAND ADJACENT TO
CHURCHDOWN COMMUNITY CENTRE, CHURCHDOWN,
AS A NEW TOWN OR VILLAGE GREEN
REPORT
OF ROWENA MEAGER (INSPECTOR)
Dated 30 JUNE 2014
Gloucestershire County Council
Legal Services
Quayside House
Quay Street
Gloucester
GL1 2TZ
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1. I have prepared this report following an application received by
Gloucestershire County Council (“the Council”) on 13 August 2012
(“the Application”) to register land adjacent to Churchdown
Community Centre, Churchdown (“the Application Land”), as a new
town or village green (“TVG”) which application was the subject of a
public inquiry over which I presided from Wednesday 7 May 2014 to
Friday 9 May 2014, held at Churchdown Parish Council’s Offices in
Churchdown.
2. At that Inquiry the Applicants were represented by Peter Bryant and
Charlie Robinson. In objection to the Application Churchdown
Community Association (“CCA”), the lessee of the Application Land
under a lease dated 25 September 1989 for a term of 60 years beginning
on 1 June 1985, was represented by Richard Smith. Churchdown Parish
Council, also an objector to the Application, was represented by Ruth
Warne who is the Clerk to the Parish Council. There were further
objections lodged by Cheltenham Borough Council and Gloucester
City Council (joint freehold owners of the Application Land) but these
objectors did not participate in the Inquiry relying solely upon their
written objections.
THE APPLICATION LAND
3. The Application Land is moreorless rectangular in shape (save for a
small section in the southern corner where there is a small diagonally
cut off section), it is adjacent to the Churchdown Community Centre,
the proper means of access to it is directly from the Community Centre
car park, the boundaries (save for the boundary with the school
playing field to the north which is fenced albeit in a state of disrepair)
are lined with trees that vary in terms of how well established they are
and the main area of the land can be best characterised as flat
grassland. By the time of the Inquiry I understand that the Application
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Land had not been mowed for the preceding year or so. However, for
the duration of the Application Period I understand that the grass was
regularly mowed and the land maintained generally by the CCA.
There are benches located on the perimeter of the Application Land
and bins have been provided for the disposal of dog waste.
THE APPLICATION TO REGISTER A TVG
4. The Application to register the Application Land as a new TVG
pursuant to section 15(2) of the Commons Act 2006 (“the 2006 Act”)
was received by the Council, which is the relevant Commons
Registration Authority, on 13 August 2012. The relevant period for the
purposes of the Application is the preceding 20 year period, therefore
being 14 August 1992 to 13 August 2012 (“the Application Period”).
The Application was publicly advertised in accordance with the
procedure laid down by the 2006 Act on 27 June 2013 and objections
were received from the parties referred to in paragraph 2 above
together with a substantial number of objections (in a standardised
format) from members of the public. The advertisement of the
Application also generated a further 37 letters of support (in addition
to the supporting statements submitted with the Application).
5. As noted above, the Application was made pursuant to section 15(2) of
the 2006 Act. The relevant parts of the 2006 Act provide:
“15 Registration of greens
(1) Any person may apply to the commons registration authority to register
land to which this Part applies as a town or village green in a case where
subsection (2), (3) or (4) applies.
(2) This subsection applies where –
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(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.”
6. In order to succeed in an application to have land registered as a new
TVG each and every part of the statutory test must be satisfied. Whilst
applications to register land as a new TVG are often motivated by a
desire to prevent development (including a change of permitted use)
and / or to protect wildlife, habitats, the open aspect of the countryside
and for many other reasons, such issues form no part of the statutory
criteria that an applicant must satisfy.
THE STATUTORY TEST
… a significant number …
7. “Significant” does not mean that a considerable or substantial number
of people must have made TVG type use of the land. It simply means
that the number of people using the land in question has to have been
sufficient to indicate to the landowner that the land has been in general
use by the local community for informal recreation as distinct from
occasional use by individuals as trespassers1. It is not necessary for the
recreational users to come predominantly from the relevant locality or
neighbourhood2. However, only recreational users from the relevant
locality or neighbourhood will contribute to the “significant user” test.
1 R (McAlpine) v Staffordshire County Council [2002] EWHC 76 (Admin), para [77]. 2 R (on the application of Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxford County Council [2010] EWHC 530.
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… of the inhabitants of any locality …
8. A “locality” must be an area known to the law such as a borough,
parish or manor3. It cannot be created by simply drawing a line on a
map4.
… or of any neighbourhood within a locality …
9. A “neighbourhood” need not be a recognised administrative unit. A
housing estate can be a neighbourhood 5 , as can a single road 6 .
However, a neighbourhood cannot be just any area drawn on a map. It
has generally been accepted that it must have some degree of
cohesiveness7. Furthermore, its boundaries must be ascertainable given
that the effect of registration as a new TVG is to confer upon the
inhabitants of the locality or neighbourhood relied upon general
recreational rights8. It is, therefore, necessary to be able to identify
those who are possessed of the right to use the land and those post-
registration users who continue to be trespassers and against whom
the landowner would be entitled to bring proceedings. A
neighbourhood need not be within a single locality and an applicant
can rely upon more than one neighbourhood9.
10. The cases have provided some guidance on the approach to be adopted
when considering whether or not an area identified for the purposes of
a TVG application crosses the ‘neighbourhood threshold’. Lord
Hoffmann in Oxfordshire County Council v Oxford City Council [2006] 2
3 Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, 937. 4 R (Cheltenham Builders Limited) v South Gloucestershire District Council [2004] 1 EGLR 85, paras [41] – [48]. 5 R (McAlpine) v Staffordshire County Council [2002] EWHC 76 (Admin). 6 R (on the application of Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxford County Council [2010] EWHC 530. 7 R (McAlpine) v Staffordshire County Council [2002] EWHC 76 (Admin). 8 Oxfordshire County Council v Oxford City Council & Another [2006] 2 AC 674. 9 Leeds Group plc v Leeds City Council [2011] 2 WLR 1010.
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AC 674, para [27], observed that “’[A]ny neighbourhood within a locality’
is obviously drafted with a deliberate imprecision which contrasts with the
insistence of the old law upon a locality defined by legally significant
boundaries …”. In R (Cheltenham Builders Ltd) v South Gloucestershire DC
[2003] EWHC 2803 (Admin); [2004] 1 EGLR 85 Sullivan J (as he then
was) identified the need for a neighbourhood to have a “sufficient
degree of cohesiveness” at para [85] of his judgment. However, there was
no elaboration in the judgment as to what might constitute
“cohesiveness”.
11. The question what constitutes a neighbourhood was revisited in Leeds
Group Plc v Leeds City Council [2010] EWHC 810 (Ch) by HHJ Behrens
sitting as a High Court Judge who, at para [36] of his judgment, set out
the approach that had been adopted by the Inspector, with which he
approved, as follows:
“[36] In paragraphs 13.25 to 13.32 [the Inspector] considered the relevant
law. In so doing he referred to the observations of Lord Hoffmann in the
Oxfordshire case, the dicta of Sullivan J (as he then was) in the Cheltenham
Builders case [2004] JPL 975 at 996 and the definition of ‘neighbourhood’ in
the Shorter English Dictionary. In paragraph 13.31 he expressed the view that
on the ordinary understanding of the word in an urban context a
neighbourhood is often just a collection of streets where people live near to
each other. In paragraph 13.32 he expressed concern over the requirement
(expressed in the dicta of Sullivan J) that a neighbourhood must have a
sufficient degree of cohesiveness. After pointing out the possible conflict
between these dicta and Lord Hoffmann’s reference to the ‘deliberate
imprecision of the term’ and after giving examples of what in his view
Parliament cannot have intended to be a necessary ingredient of a
neighbourhood he went on to say:
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It seems to me that the ‘cohesiveness’ point cannot in reality
mean much more, in an urban context, than that a
neighbourhood would normally be an area where people might
reasonably regard themselves as living in the same portion or
district of the town, as opposed (say) to a disparate collection
of pieces of residential development which had been ‘cobbled
together’ just for the purposes of making a town or village
green claim”.
12. At paragraph 103 of his judgment HHJ Behrens then says “I shall not
myself attempt a definition of the word ‘neighbourhood’. It is, as the Inspector
said, an ordinary English word and I have set out part of the Oxford English
Dictionary definition. I take into account the guidance of Lord Hoffmann in
paragraph 27 of the judgment in the Oxfordshire case. The word
neighbourhood is deliberately imprecise. As a number of judges have said it
was the clear intention of Parliament to make easier the registration of Class C
TVGs. In my view Sullivan J’s references to cohesiveness have to be read in
the light of these considerations”.
13. Ultimately, whether or not the claimed neighbourhood satisfies the
statutory test is a matter for an Inspector to be assessed by reference to
the evidence produced in support of the existence of a neighbourhood.
… have indulged as of right …
14. User “as of right” means user that has been without force, without
secrecy and without permission (traditionally referred to by lawyers as
nec vi, nec clam, nec precario). The basis for the creation of rights through
such user is that the landowner has acquiesced in the exercise of the
right claimed (in the case of applications to register a new TVG the
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period of user required is twenty years)10 and the user can rely upon
their long use to support a claim to the right enjoyed.
15. The landowner cannot, of course, be regarded as having acquiesced in
user unless that user would appear to the reasonable landowner to be
an assertion of the right claimed11. User is, therefore, “as of right” if it
would appear to the reasonable landowner to be the assertion of a legal
right. If the user is by force, is secret, or is by permission, (ie vi, clam, or
precario) it will not have the appearance to the reasonable landowner of
the assertion of a legal right to use the land.
16. “Force” is not limited to physical force. User is by force not only if it
involves the breaking down of fences or gates but also if it is user that
is contentious or persisted in under protest (including in the face of
prohibitory signage) from the landowner12.
17. User that is secret or by stealth will not constitute user as of right
because such use would not come to the attention of the landowner
and he could not, therefore, be said to have acquiesced in such use.
18. Use that is permissive is ‘by right’ and in light of the recent decision of
the Supreme Court in R (on the application of Barkas) v North Yorkshire
County Council and Another [2014] UKSC 31, the earlier decision in R
(Beresford) v Sunderland City Council [2004] 1 AC 889 that appeared to
accept that the possibility that even use that on the face of it might
appear to be permissive was also capable of constituting use ‘as of
right’ is no longer to be relied upon. The question to be addressed
regarding whether or not use was permissive needs to be looked at in
the context of each case, particularly if the relevant land is held
10 Dalton v Angus & Co (1881) 6 App Cas 740, 773. 11 R (Lewis) v Redcar & Cleveland Borough Council [2009] 1 WLR 1461. 12 Smith v Brudenell-Bruce [2002] 2 P & CR 4.
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pursuant to statutory purposes. However, that is not the case in the
present Application.
19. Is well established that use by the landowner alongside use by
recreational users will not automatically prevent land qualifying for
registration as a new TVG if the co-existing uses are not incompatible
with each other13.
… in lawful sports and pastimes on the land …
20. The term “lawful sports and pastimes” is a composite phrase that
includes informal recreation such as walking, with or without dogs,
and children playing14. It does not, however, include walking of such
character as would give rise to a presumption of dedication of a right
of way15.
… for a period of at least twenty years …
21. In the case of an application under section 15(2) of the 2006 Act the
relevant period is the twenty year period immediately preceding the
application, the final day of the period being that upon which the
application is made. In the present case the relevant application period,
as noted above, is 14 August 1992 to 13 August 2012 (“the Application
Period”).
13 R (Lewis) v Redcar & Cleveland Borough Council [2010] 2 AC 70. 14 R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335, 356F-357E. 15 Oxfordshire County Council v Oxford City Council & Another [2004] Ch 253, paras [96]-[105].
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PROCEDURAL MATTERS
22. The burden of proof that the Application Land meets the statutory
criteria for registration as a new TVG lies with the Applicant. It is no
trivial matter for a landowner to have land registered as a TVG and all
the elements required to establish a new green must be “properly and
strictly proved”16. The standard of proof is the usual civil standard of
proof on the balance of probabilities.
23. An application will not be defeated by drafting errors or defects in the
application form17. The issue for the Commons Registration Authority
is whether or not the application land has become a new TVG by virtue
of the statutory test being met.
EVIDENCE FOR THE APPLICANT GIVEN ORALLY
24. Having set out the law as it relates to the test for registration of a new
TVG I now turn to consider the witness evidence produced on behalf
of the Applicant. I will deal first with the witness evidence given orally
to the public inquiry which was subjected to cross examination by both
the CCA and the Parish Council. I will summarise the evidence that I
heard in the order in which the witnesses gave their evidence.
However, what follows is not intended to be a verbatim account, or
even necessarily a complete account, of the evidence given to the
inquiry. It is simply a précis of some of the more salient issues dealt
with in evidence that is intended to be sufficient for the Commons
Registration Authority to understand the reasons and reasoning
behind my conclusions.
16 R v Suffolk County Council, ex parte Steed (1996) 75 P & CR 102, 111, per Pill LJ, approved by Lord Bingham in R (Beresford) v Sunderland City Council, para [2]. 17 Oxfordshire County Council v Oxford City Council & Another [2006] 2 AC 674.
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Joyce Matthews
25. Joyce Matthews lives at 7 Lysander Court, Churchdown, and has
previously lived at 38 Dowding Way, Churchdown. She has lived
continuously in the claimed neighbourhood of the Parton Mead Estate
since 1987. She produced a witness statement dated 27 March 2014, an
evidence questionnaire (jointly with her husband) dated 12 January
2013, and two letters dated 19 January 2013 and 30 July 2013.
26. It was Mrs Matthews’ evidence that she has used the Application Land
throughout the Application period around 2 – 4 times per week mostly
for dog walking but when her daughter was younger she used to take
her there for picnics after school sometimes (her daughter was 8 at the
beginning of the Application period and by the time she was around 11
she would go there on her own and she stopped using the Application
Land at the age of around 13 or 14).
27. When Mrs Matthews uses the Application Land for dog walking she
uses it as part of a route around the roads but she told the Inquiry that
on a warm day she sometimes stops and sits on one of the benches. She
has entered the Application Land through the entrance from the car
park or through gaps in the hedge when walking along Parton Road.
Mrs Matthews has also attended car boot sales, bonfire parties and
Round Table fetes on the Application Land.
28. Whilst in her evidence questionnaire Mrs Matthews said in answer to
question 28 that she did seek permission to use the Application Land,
that she sought that permission from Churchdown Community Centre
(question 28a) and that permission was given (question 29) for the
purposes of dog walking (question 29a), in her oral evidence she said
she was “mistaken” about that. I can understand that one might be
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mistaken in one’s answer to a single question, but a series of four
connected questions is something quite different. I do not consider that
dismissing the answer as a “mistake” is a satisfactory explanation for
the very obvious conflict in the written and oral evidence.
29. Mrs Matthews was asked if she witnessed others using the Application
Land. As well as making reference to seeing a local falconer there (as so
many other witnesses did) she said that she usually sees other dog
walkers when she visits the Application Land but that when she has
been driving past she had seen “a couple of children from nearby houses I
expect”. When asked by me what proportion of the people she has seen
were engaged in activities other than dog walking Mrs Matthews said
“a few” and she recalled that “on one occasion children were playing with a
bat and ball and on another children were running through the gaps in the
hedge”. She said that she had no idea whether the other users were
members of the CCA or if any of the other dog walkers had permits. It
is also clear to me from Mrs Matthews’ remark about children she had
seen playing there probably coming from nearby houses that it is quite
possible that some of the users she has seen on the Application Land
may not come from the claimed neighbourhood.
30. Mrs Matthews told the Inquiry that she had never been challenged in
her use of the Application Land, she thought the land was open to
everyone and that she had never noticed any signs prohibiting use of
the Application Land. She had also never considered joining the CCA
as she did not think she had any need to.
Charlie Robinson
31. Mr Robinson is one of the Applicants and he lives at Besinci, Parton
Road, Churchdown, where he has lived since December 2002. He
produced a witness statement dated 1 April 2014 to which he had
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exhibited a number of photographs and an evidence questionnaire
(jointly with his wife who is the only signatory to it) dated 14 January
2013. Mr Robinson became a member of the CCA in 2012.
32. It was Mr Robinson’s evidence that he gained access to the Application
Land through holes in the hedge and through the main gate. He has
used the Application Land from 2003 to 2013 for various activities with
his family (including skipping, cycling, football, cricket, frisbee,
boomerang, picnics, snow games) and since the summer of 2008 for
dog walking. He also uses it as a means of accessing the school field for
Panthers football coaching, something that he has done since 2010. He
has seen various other activities on the Application Land including a
falconer flying his birds, other dog walkers, school children using it as
a short cut to school, children playing generally and he saw a dog
show in June 2012.
33. Mr Robinson was unable to say whether the other users he had seen
were members of the CCA. He was also unable to say whether the
users were entitled to use the Application Land having acquired
specific permission to do so. I also heard no evidence about who the
other users were and, in particular, whether they came from the
claimed neighbourhood. Mr Robinson accepted that organisations such
as the Panthers were members of the CCA and that some of the events
he had seen were probably authorised by the CCA.
34. Mr Robinson told the Inquiry that he had never been challenged about
his use of the Application Land. He could not recall any signs. He said
they may have been there but he doesn’t remember them. The reason
he became a member of the CCA was to keep informed of the CCA’s
plans in relation to the Application Land. He said that he did not
receive any information telling him what membership entitled him to
receive but he did look on the CCA’s website and was able to see the
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CCA’s constitutional document. The CCA’s objectives include “to
promote the benefits of the inhabitants of Churchdown …”. Mr Robinson
said what struck him was that he “had been using the field as an
inhabitant of Churchdown” and he went on “to me that implies I can use the
field as an inhabitant of Churchdown”.
Joan Rowley
35. Mrs Rowley lives at 6 Cochran Close, Churchdown. She has lived at
that address within the claimed neighbourhood since 1 June 1990,
throughout the whole of the Application Period. She produced a
witness statement dated 4 April 2014, an evidence questionnaire dated
15 January 2013 and a letter dated 1 August 2013. She is a member of
the CCA and has a life member permit for dog walking which she
acquired in 1999 as part of her life membership of the CCA. She says in
her evidence questionnaire that her use of the Application Land has
been permissive since 27 August 1999. Mrs Rowley was asked if she
had been a member of the CCA since she had lived at her present
address to which she replied that she had but later she was less sure
about the first date upon which she actually became a member. She
was, however, certainly a member by 1999. During her evidence Mrs
Rowley referred to herself as a resident of Parton Mead.
36. Mrs Rowley has used the land moreorless daily for dog walking and
less frequently for personal recreation, taking grandchildren there and
for fruit picking in the summer. She has gained access to the
Application Land both through the hedge and the main gate. She said
that twenty years ago the trees that form the hedge were just small
saplings, not the fully grown hedge that it is now.
37. Even prior to 1999 Mrs Rowley says that she was never challenged in
her use of the Application Land. She is aware that there is a sign on the
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main gate into the car park and there is also a sign about dog walking
but she said it was “obliterated some years back” and she said it had been
unreadable for “a very long time”. The sign has only become visible, she
said, since the village green application.
Celia Arnold
38. Mrs Arnold lives at 10 Harris Close “on the Parton Mead
neighbourhood” and has done so since March 1994 to present. She also
lived there previously from December 1990 to 13 September 1991. Mrs
Arnold said that Parton Mead was identified on the plan in the deeds
to her house. She has produced a witness statement dated 6 April 2014
and a handwritten letter dated 7 August 2013. Mrs Arnold is not and
never has been a member of the CCA.
39. Her use of the Application Land has been mainly for dog walking.
During the Application Period she walked her own dog there twice
daily from 1998 to 2008 (early morning and last thing) and during
other periods she has walked friends’ dogs there but I do not know
how frequently she has done that. Mrs Arnold has also collected fallen
apples and mushrooms in the field (only since her dog passed away in
2008) and since 2006 she has taken her grandchildren there to picnic
and play although I do not know how frequently. She has never been
challenged about her use of the land and she was not aware of any
signs having used the two gaps in the hedge to gain access to the
Application Land.
40. Mrs Arnold was asked who she had seen using the Application Land.
She said she had seen Mr Robinson there a while back. She also said
there is a lady in Melville Road that goes there regularly 3 times a day.
Melville Road is, however, outside the claimed neighbourhood. Mrs
Arnold was unable to name other people but she said she did see other
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people there and that her impression was that they came from
“anywhere and everywhere”.
Peter Bryant
41. Mr Bryant lives at 42 Dowding Way, Churchdown, and has done since
December 1992. He produced a witness statement dated 5 April 2004
and an evidence questionnaire (jointly with his wife (he is the only
signatory to it) dated 24 January 2013. Mr Bryant was a member of the
CCA for one year only from 1993. He joined the CCA having seen
signage that said dog walkers needed a permit but then decided that it
was not necessary, he not being aware that anyone was challenged for
using the Application Land without one, so he did not renew his
membership and permit.
42. Mr Bryant says he used the Application Land from 1992 to 2009 (he
said 2008 in his oral evidence) daily for dog walking. Since his dog
died in 2008 he has used the land less regularly. He also used the land
with his children between around 1993 and 1996 to play games during
the evenings. He told the Inquiry they would be on the land for around
an hour or so on those occasions. I do not know with what frequency
those visits occurred. Mr Bryant gained access to the land through the
gaps in the hedge or the main gate.
43. Mr Bryant has also given evidence in relation to the use he has
witnessed others making of the land which use he says has occurred on
a daily basis. He says he has seen teenagers’ gatherings and he has
witnessed walking and training dogs, building snowmen, playing
football and cricket, mushroom picking and children using the land as
a short cut to school, to name a few of the activities. He was unable to
say if the people he witnessed using the land were there with
permission. Moreover, I do not know where the people that Mr Bryant
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witnessed using the land had come from. They may or may not have
come from within the claimed neighbourhood.
44. Whilst Mr Bryant had seen signs that referred to the need for a dog
walking permit, he said that he did not consider those signs to be
“prohibitive” of use and he said the sign was also badly faded in any
event. He also pointed out that anyone entering the Application Land
through the hedge would not see any signs at all. Mr Bryant has never
been challenged about his use of the Application Land.
Jan Robinson
45. Mrs Robinson is the wife of Charlie Robinson and she has lived at
Besinci, Parton Road, Churchdown, since December 2002. She
produced a witness statement dated 7 April 2014 and a questionnaire
(jointly with her husband) dated 14 January 2013 to which she was the
sole signatory. She has been a member of the CCA since 2012 but for
the preceding 10 years she had not been a member.
46. She has used the Application Land for all sorts of activities (those
already identified in her husband’s evidence) with her family since
2003 and since 2008 has used the land daily to walk the family dog
(although she did tell me that if it was wet she would not use the field
and she referred to the flooding in 2007). She has gained access to the
Application Land both through the gaps in the hedge and the main
gate. As well as being aware of the large events organised by the CCA
she says she has also witnessed others using the land daily for a variety
of activities including ball game, kite flying, family activities and so on.
What I do not know is who those other users are, whether they had
permission to use the land or if they came from the claimed
neighbourhood.
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47. Mrs Robinson was asked whether she was aware that attempts to close
up the gaps in the hedge had been made. She said a couple of spindly
bits of tree had been put in the gaps but had gone within 24 hours. She
was also asked about signs and said that one of them had been
unreadable for the period they had lived there (until recently, post
application) and she had also only become aware of the sign on the
gate recently.
Sally Walker
48. Sally and Matthew Walker have lived at 2 Chesford Drive,
Churchdown, since June 2007. They have produced a joint witness
statement dated 27 March 2014 and a joint questionnaire dated 21
January 2013 (signed only be Sally Walker) and it was Sally Walker
that gave oral evidence to the Inquiry. They are not members of the
CCA.
49. Mr and Mrs Walker are not dog owners. According to their evidence
they use the Application Land infrequently. Perhaps two or three times
a year in the summer months for the purposes of playing outdoor
games with their young son. They gain access to the land via the
entrance from the car park and sometimes the gap in the hedge. Mrs
Walker said that she had seen no signs and her use has never been
challenged.
50. In the written evidence there was reference to seeing other activities
taking place on the land. Some of those were organised activities (for
example overflow car park, dog show, use by Guides and Brownies).
In her oral evidence Mrs Walker said she had seen lots of people using
the land but she did not elaborate upon their use or how frequently she
had seen that. It is also not possible to glean from her evidence
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whether such use was permissive or whether the users came from
within the claimed neighbourhood.
51. Mrs Walker was asked whether she had come across the concept of the
“Parton Mead neighbourhood” in any other context besides the TVG
Application. She said that she had not. She also said, when asked, that
there was no shop, doctors’ surgery or church within the claimed
neighbourhood.
Weston Piper
52. Mr Piper has lived at Summerland’s, Parton Road, Churchdown, from
1992 to present. He produced a witness statement dated 9 April 2014,
an evidence questionnaire dated 20 January 2012 and a letter dated 21
July 2013. Mr Piper was a Trustee of the CCA for 15 years until 2012
and from 2003 to 2011 he was its Honorary Secretary. He was a
member before he became a Trustee for about 2 to 3 years after he and
his family moved in to Summerland’s from around 1995.
53. Mr Piper has used the Application Land throughout the Application
Period but he accepted that during his membership and then his
period as a Trustee he was a permissive user. Both he and his family
have used the Application Land and they have gained access to it
through the main gate into the car park. Mr Piper has used the land for
exercise or golf practice. His children’s use (with and without parental
involvement) was mainly during the 1990s and early 2000s. Such use
was more frequent during the summer months (weekly) and in
particular throughout the school summer vacation. About 2 years ago
Mr Piper started to walk his dog on the Application Land but that
ceased when the CCA stopped mowing the grass following the TVG
Application.
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54. Mr Piper was able to give some insight into the CCA’s activities and
perceptions of users of the field. He told the Inquiry that the facility
was there for community use. He said that other than in the context of
antisocial behaviour no use of the Application Land was challenged by
committee members. He told the Inquiry that he had been involved in
one unsuccessful attempt to fill the gaps in the hedge (in 2006) and that
the gates were generally open and pushed right back so the sign would
not have been visible although it had been there for some time. On
occasions the gates would be shut and locked but that, he said, would
be in response to joy riders or perceived threats of travellers moving
onto the site.
55. Mr Piper confirmed that there was no set of rules given out to people
that became members of the CCA and that membership was more
relevant to users of the building and facilities rather than the grounds.
He also confirmed that a number of the users of the Application Land
were permitted to use it in addition to the building’s facilities (such as
Guides and Brownies and other affiliated groups) albeit with no extra
charge. Indeed, he said they were actively encouraged to do so. He did
also say that he would not be able to differentiate between members
and non-members if he saw them on the land.
Christopher Bullock
56. Mr Bullock has lived at Wellesley House, Barnes Wallis Way,
Churchdown, since December 1986. He produced a witness statement
dated 5 April 2014 and an evidence questionnaire dated 21 January
2013. He has never been a member of the CCA.
57. Mr Bullock’s evidence was that the majority of his use was with his
children although he has used the Application Land much more
recently with his grandchild (4 weeks prior to the Inquiry so that use is
21
outside the Application Period). That use included activities such as
picnics and picking wild flowers and in his written evidence he said he
used the land in this way “a number of times”. On one occasion he took
a large group of German exchange students to the Application Land
but that was the only occasion upon which he said he went there for an
informally arranged group activity.
58. Mr Bullock accepted in cross examination that much of his use of the
Application Land pre-dated the Application Period and that about 3
years of his use (or thereabouts) was during the relevant time. He told
the Inquiry that between about 1996 and 2012 he had not used the
land. On the occasion that he took the group of German students to the
Application Land they entered through gaps in the hedge.
59. As well as telling the Inquiry of his own and his family’s use of the
Application Land he said that on occasion when he was driving past he
had seen school children taking shortcuts across the land. He also said
that whilst the gates to the car park were usually open he had seen
them shut on occasion.
Roger Peel
60. Mr Peel has lived at 56 Bader Avenue, Churchdown, since 1986 when
he moved there with his wife and two young children. He produced a
witness statement dated 6 April 2014 and an evidence questionnaire
dated 18 January 2013. He described the area where he lives as a large
estate that is part of Churchdown but he said that the name of it had
“gone out of his head”. He was a member of the CCA from 1995 to 2003
but he did not have a dog walking permit.
61. Mr Peel said he used the Application Land as open space (along with
the open land at Barnes Wallis Way) for walking dogs and to take his
22
children and then his grandchildren to play. In his evidence
questionnaire he says he uses the land about once a month. He has
gained access to the land through the gaps in the hedge and through
the gate but he does not recall seeing the signs although he does not
deny that they have been there. He said they were just part of the
“furniture”.
62. He also recalls that the Application Land has been used by other
people for walking dogs as well as for bonfire parties and as an
overflow car park. I did not get any sense of how often or during
which part of the Application Period Mr Peel saw these activities. I also
do not know if any of the informal use was by people that are members
of the CCA or that come from the claimed neighbourhood.
Glenys Bryant
63. Mrs Bryant has lived at 42 Dowding Way, Churchdown, since
December 1992. She produced a witness statement dated 1 April 2014
and an evidence questionnaire (jointly with her husband, Peter, who
was the signatory). She was a member of the CCA for one year from
December 1992 to December 1993 and had a dog walking permit but
that permit was not renewed thereafter.
64. It was Mrs Bryant’s evidence that she used the Application Land daily
between December 1992 and January 2009 to walk her dog. She gained
access to the land via the main entrance but occasionally exited
through the gaps in the hedge. She told the Inquiry that when her
children were younger they used to use the Application Land to play
cricket and football. She did not elaborate upon this use during her oral
evidence but her husband, Peter, had done so.
23
65. Mrs Bryant said that she sometimes sat on the benches with another
dog walker who did not have a permit. She also said she had seen
other people on the land picking mushrooms. I do not, however, know
if they are people that came from the neighbourhood although it may
well be that the person picking mushrooms was Mrs Arnold. Mrs
Bryant has also attended fireworks displays and fetes on the land.
66. Mrs Bryant said she saw other people using the Application Land
including families, Rainbow and Brownie groups, a falconer and
young people gathering near the benches.
67. Mrs Bryant said she had never been challenged in her use of the
Application Land. She did recall the sign regarding the need to have a
dog walking permit which is why she joined the CCA and acquired a
permit. She also recalled the sign on the gate when she was taken to a
photograph of it but she said that when one is used to something one
does not always register its presence. She also told the Inquiry that
sometimes the gate was pushed right back and the sign was not then
readily visible. She said the sign did get into a state of disrepair and
was replaced recently.
WRITTEN EVIDENCE FOR THE APPLICANT
68. In addition to the Applicant’s written evidence that was elaborated
upon at the Inquiry in oral evidence the Applicant also submitted and
relies upon a number of other statements, letters and evidence
questionnaires. To assist the Applicant also produced a simple
spreadsheet style analysis of the evidence upon which reliance is
placed in this Application.
69. It would unnecessarily lengthen this report to analyse all of the
additional written evidence questionnaires, statements and letters on a
24
person by person basis. However, I can confirm that I have read all of
the other witness evidence provided in support of the Application but
in respect of which I have not heard oral evidence. I attach less weight
to that evidence given that I have not had the benefit of hearing that
evidence in person and it has not been tested by cross examination. It
is, however, useful in corroborating evidence of people that I have seen
and heard in person. However, the evidence inevitably has its
limitations because it does not always give a very clear impression of
the precise use made of the Application Land over the full 20 year
period. By way of example, evidence that refers to “a number of visits”
or “many a time” really does not give any clear impression whether use
over the full period amounts to a handful of visits in total, very
frequent visits, say weekly or daily, or something in between.
GENERAL OBSERVATIONS ABOUT THE APPLICANT’S WITNESSES
70. My general impression of the Applicant’s witnesses that gave oral
evidence to the Inquiry was that they were being honest and
straightforward and were doing their best to assist the Inquiry in
providing factual information about the activities that had taken place
on the Application Land during the Application Period. However,
despite having heard from eleven witnesses in support of the
Application I was struck by the lack of detail that was conveyed about
various issues that are relevant to the statutory test.
71. For example, I heard very little on the subject of the neighbourhood.
Where an Applicant seeks to rely upon a neighbourhood (which is a
much more imprecise concept that a locality) it is necessary for the
Applicant to demonstrate that any claimed neighbourhood is capable
of being a neighbourhood for the purposes of the statutory test.
Further, whilst there was reference to other people’s use of the land,
25
for the most part I have little idea whether the other users came from
within or outside the claimed neighbourhood.
72. These are matters that will become relevant once I make my findings of
fact and apply the statutory test to those findings.
EVIDENCE FOR THE OBJECTOR(S) GIVEN ORALLY
73. Only the Churchdown Community Association produced evidence
that was given orally at the Inquiry. The Parish Council adduced no
live witness evidence and whilst it participated fully in the Inquiry
through cross examination of the Applicant’s witnesses it otherwise
relied upon its written submissions and opening and closing
statements. Both Cheltenham Borough Council and Gloucester City
Council relied upon their written objections and supplementary
materials only.
74. I will deal with the Objector’s (CCA’s) oral evidence in the same way
that I have dealt with the Applicant’s. As with the foregoing, my
review of the Objector’s evidence is intended to be nothing more than a
précis, not a complete transcript of everything that was said by each
witness. I will address that evidence in the order in which it was
presented to the Inquiry.
Derek Fisher
75. Mr Fisher lives at 17 Goodmoor Crescent, Churchdown, and has done
so since 1962. He was a founder member of the CCA in 1965. He served
on its Management Committee and later as a Trustee until around
1998. In addition Mr Fisher has, at various times, served as both a
Parish Councillor and a Borough Councillor, including serving on the
Borough’s Planning Committee. Much of Mr Fisher’s evidence
26
concerned the historic background as to how and why the CCA was
established and the Application Land’s status as privately owned land.
He also dealt with issues regarding membership and the way in which
such membership was structured.
76. Mr Fisher was asked about the name “Parton Mead Estate”. In his
evidence he referred to the “Bader Estate” and in oral evidence he said
that whilst the development might have been known as the Parton
Mead Estate at the time of the application for planning permission it is
not a name by which he recalled the estate being known. In cross
examination Mr Fisher was taken to the planning permission that
described the land the subject of the permission as “Parton Mead,
Parton Road, Churchdown” but Mr Fisher was adamant that whilst it
may have been known as that at that time, it was not a currently
recognised name as far as he was aware.
77. There was much discussion and questioning regarding the Application
Land’s allocation as amenity open space and land to be used as a
children’s play area. There is no dispute that that is what the historic
documents say.
78. Mr Fisher confirmed that the dog walking permit system was
introduced in around 1990 to 1991 and the sign relating to the need for
a permit to walk dogs on the Application Land were first erected in
1995. These measures were introduced to address problems of dog
fouling. He did, however, confirm that dog walkers without permits
but who were members of the CCA were not regarded as trespassers
but simply people contravening the rules or ethos of the Association.
79. In terms of membership Mr Fisher said that there were no leaflets or
notes setting out the rules of membership but he did say that
information would have been provided (he just did not say how). He
27
referred to the fact that the Churchdown Magazine refers to the CCA
but the examples I have seen make no reference to rules or terms of
membership.
80. I asked Mr Fisher if he recalled there ever being discussions at
meetings about people walking their dogs on the Application Land
without permits or what the CCA would do in the event of breaches of
the requirement to have a permit. He said that he had no recollection of
any such discussions.
Richard Smith
81. Mr Smith has lived in the Brookfield Ward of Churchdown since 1962.
He became involved with the CCA in the early 1990s and became
Chairman of the Ways and Means Committee of the CCA in 1996. He
was elected Chairman of the Executive Trustees of the CCA in 1997. In
addition he has served on the Parish Council and was a Borough
Councillor from 2000 to 2012.
82. Like Mr Fisher’s evidence, Mr Smith recites some of the CCAs history
in some detail. Mr Smith was asked about the name of Parton Mead
and taken to some of the documents in the Applicant’s Bundle. He
nevertheless maintained that the Parton Mead Estate was not a widely
recognised area or neighbourhood.
83. Mr Smith was asked about challenges to users of the Application Land.
There is only one piece of correspondence relating to a dog on the land.
Otherwise, Mr Smith says he challenged a small number, say 3 or 4
times in a year. I do not know, however, whether this is said to be
throughout the whole period or just in more recent times. In relation to
other activities he said that he challenged people that were riding
motorbikes, people kicking footballs against the building, people
28
driving too fast in the car park and people doing wheelies on the grass.
It is clear to me that these complaints do not all relate to use of the
Application Land as some of them clearly relate to use in the car park.
Mr Smith also acknowledged that issues regarding challenging users
were not discussed at committee meetings. He also confirmed that
there had been no challenge to the school children that use the
Application Land as a short cut.
84. In terms of membership it was Mr Smith’s view that members of the
Panthers Football Club that used the land to train and stayed on
afterwards were there under the authority of the Panthers Football
Club and were, therefore, not trespassers. It was confirmed that there is
no membership leaflet and no set of formal rules as such.
Roger Streatfield
85. Dr Streatfield lives at 65 Parton Road, Churchdown, where he has
lived since about 1976. He is a life member of the CCA and an elected
Trustee and a Director of the Community Centre Social Club
(Churchdown) Ltd. Dr Streatfield has served as both Secretary and
Chairman of the CCA, most recently from 1993 to 1997 (within the
Application Period).
86. Much of Dr Streatfield’s evidence is related to the history of his
involvement with the CCA and the acquisition of the Application Land
by the CCA and its status. He also addresses recent proposed plans for
a new doctor’s surgery.
87. Dr Streatfield sets out some of the issues that have been experienced
with unauthorised use and the steps that have been taken to tackle the
same, both historically and post Application. He recalled the letter that
29
was sent to Mr Baxter and said it had probably been discussed at a
committee meeting.
88. Dr Streatfield accepted that there are no signs on the Application Land
telling people to desist from using it for lawful sports and pastimes.
Joan Trinder
89. Mrs Trinder has lived in Churchdown for 48 years and is employed in
the office of the CCA as she has been for the past 26 years. Prior to that
she was involved with the CCA Playgroup that ran on 4 mornings per
week at the Community Centre. In this capacity she was involved in
taking the children to the Application Land for outdoor activities.
90. Mrs Trinder was also a Guide leader for 30 years and the CCA building
and Application Land were used by the Guides both for fundraising
events and regular Guide activities. Mrs Trinder also gave evidence
about the other organised and permitted activities that take place on
the Application Land.
91. In her oral evidence Mrs Trinder was asked what happens when
someone asks about membership. She said that they would be told
about the centre and possibly what events are held there but they are
not told about any restrictions that might apply to them and they are
not provided with or given the detail of any rules or beefits.
92. She said she would not know how many members have dog walking
permits but only 5 or 6 have been issued in the last 2 or 3 years. She
says she has never approached or challenged anyone walking dogs on
the land. The only people she has ever challenged are people behaving
antisocially.
30
WRITTEN EVIDENCE ON BEHALF OF THE OBJECTOR (CCA)
93. In addition to the evidence that was given orally and subjected to cross
examination the CCA relies upon 4 other statements / representations
which appear behind Tab 3 of the CCA’s bundle, 3 of whom are CCA
or Parish Council employees and the final one is Ruth Warne, the
Parish Clerk. I have read and had regard to those statements /
representations.
94. The CCA has also produced a number of other documents, all of which
I have read and taken account of in drawing my conclusions, including
the large volume of objection statements that were sent in standard
form to the Council in around July and August of last year.
GENERAL OBSERVATIONS ABOUT THE CCA’S WITNESSES
95. The CCA’s witnesses who gave evidence in person were all people
who have had a very long association with the CCA. I found them all
to be witnesses that were straightforward and keen to assist the
inquiry. Some of the evidence strayed some way from the issues that I
need to focus on and determine but I accept the evidence they
provided.
EVIDENCE OF THE OTHER OBJECTORS
96. As previously noted, there was a further Objector that actively
participated in the Inquiry: Churchdown Parish Council. Whilst the
Parish Council did not produce any witness evidence at the Inquiry it
has made written representations as well as both opening and closing
submissions, all of which I have taken into account in coming to my
conclusion.
31
97. I have also read and have taken into account the written
representations made by Cheltenham Borough Council together with
the witness statement of David Roberts and the representations made
by Gloucester City Council together with the witness statement of
Richard Webb and the further documents submitted.
MEMBERS OF THE PUBLIC
98. Three members of the public spoke to the Inquiry with my permission,
as follows.
Councillor Bill Whelan
99. Councillor Whelan produced a written note of what he wanted to say
to the Inquiry. He dealt with three broad issues: (1) the claim that
Churchdown Park is unsafe for young children, (2) safety issues to do
with the physical state of the land at Churchdown Park (ie earth
cracking), and (3) issues regarding youths intimidating other users of
Churchdown Park.
100. His note then goes on to deal with the neighbourhood, which he
says is known as the Barnes Wallis Estate, not the Parton Mead Estate,
his experience of the Application Land as a Parish Councillor and
through his involvement with the CCA’s youth group and the
significance of membership of the CCA.
101. Councillor Whelan agreed to be cross examined by the
Applicant. Some of the questions were related to issues raised
regarding Churchdown Park, there was reference to the Parish Plan
and Local Plan and finally Councillor Whelan was challenged on his
statement that when he had been using the Application Land with the
youth club he had not seen dog walkers or others on the land but he
32
did accept that there was dog mess on the land indicating that dogs
had been there.
Kenneth Hodnett
102. Mr Hodnett provided a handwritten note of what he wanted to
say to the Inquiry. The points he made were that when he attended
mobility classes for 2 or 3 months in 2010 he did not see members of
the public using the Application Land, he advocated the benefits of the
open space provision at Churchdown Park, he considers that this
Application has little to do with preserving open space and everything
to do with preventing development of a medical centre which would
provide a benefit to the ageing community and that there would be no
traffic problems as a result of the proposed medical centre.
103. Mr Hodnett also indicated that he was prepared to answer
questions from the Applicant. As a result it was apparent that Mr
Hodnett’s attendance for mobility classes extended over about 8 weeks
between around 10 – 11.30 on a Tuesday and Wednesday. Mr Hodnett
could see the Application Land from the room in which the classes
took place because he saw the falconer with his birds of prey.
Ann Smith
104. Dr Smith is a Churchdown resident and she produced a short
written note of what she wanted to say to the Inquiry. She said that
during the 22 years that she (and her family) have lived in the
community in which they have been active participants she has only
once been invited to use the Application Land for a community event.
She said that Churchdown Park is the focal point for village green
activites . She said she had never know the Application Land could be
used without invitation or permission and has never seen signage
33
inviting people to use it. A local dog walker told her the land was
private and could only be used with permission.
105. During questions by the Applicant Dr Smith accepted she had
not seen any signage denying public access to the Application Land.
She confirmed that she had used the playgroup 15 – 20 years ago at the
CCA.
SITE VISIT
106. As is usual practice in inquiries of this nature I undertook a site
visit. This took place on the afternoon of the first day of the Inquiry. I
was accompanied by Carrie Denness of the Council together with
representatives of the parties. During my site visit I heard no evidence
but I was mindful of the evidence that I had seen and heard. I took
account of the fact that it was common ground that the Application
Land had not been maintained as previously over the year or so
preceding the Inquiry.
107. During my site visit I not only walked around the whole of the
Application Land but I viewed the full extent of the claimed
neighbourhood and its boundaries as well as Churchdown Park.
THE PARTIES SUBMISSIONS
108. The parties submissions ranged far and wide. The Applicant’s
submissions require little in the way of summary given that it is,
inevitably, contended that each and every part of the statutory test
under section 15(2) of the 2006 Act is met. The Applicant says the
evidence demonstrates on the balance of probabilities that a significant
number of the relevant local inhabitants have indulged in qualifying
34
use of the Application Land for at least 20 years prior to the
Application being made.
109. For clarity I will deal with each of the Objector’s submissions
separately. The CCA, in closing, made the following very broadly
summarised submissions. The Application Land does not form part of
the claimed neighbourhood. Rather, it is said that the Application Land
is within an area known as Parton Court as identified in the lease.
Much of the evidence referred to activities on the Application Land
that were permissive and any residual (non-permissive) use does not
meet the “significant number” requirement. Further, people that were
members of the CCA were permissive users and their use was,
therefore, not qualifying use. It was submitted that there was not
evidence of continual use of the whole of the Application Land for the
totality of the Application Period. People that accessed the land via
gaps in the hedge were trespassers and therefore not users as of right.
The CCA has made clear by signage and maintenance that the
Application Land is private and for use only by its members. Further,
use by dog walkers other than by those with dog walking permits was
prohibited by signage which the CCA says was visible for most of the
period following the sign’s erection in 1995. Finally, it was submitted
that the Application was triggered by a proposal to develop the
Application Land as a new medical centre and the Application is
simply vexatious.
110. Churchdown Parish Council’s closing submissions were,
broadly, as follows. The Applicant made misleading statements about
Churchdown Park in that it is not a dangerous place. It is unlikely that
the Application Land has been used by a significant number of the
inhabitants of the claimed neighbourhood given the proximity of other
green spaces, particularly at Barnes Wallis Way and Churchdown
Park. Further, the evidence of qualifying use (as distinct from use by
35
members of the CCA) indicates that the significant number test has not
been met. It was also submitted that the claimed neighbourhood is not
a valid neighbourhood as has not previously been identified as a
separate entity in connection with any community activity, scheme,
project or in any other way. It was contended that some of the uses
referred to are not qualifying lawful sports and pastimes. Reference
was made to use of the Application Land as a short cut together with
antisocial behaviour and underage drinking. Further, all organised
events occurred with the permission of the CCA. Use that has been
facilitated by breaking through the hedge was use by force as was use
in the face of the signage. It was also submitted that dog walkers who
walked without a permit knowing that a permit was required knew
that they were in the wrong and such use was not therefore user as of
right. In contrast, those users that were members of the CCA were
clearly permissive users. The CCA did sometimes lock the gates and
the Application Land was, therefore, not accessible for use in a
qualifying manner continuously throughout the whole of the relevant
20 year period.
111. Cheltenham Borough Council’s written objection raises the
following points. It is arguable whether the Parton Mead Estate is a
recognisable neighbourhood, use in the face of signage or through the
hedge is not use as of right, much of the evidence of use was
permissive use (through membership or attendance at permitted
community events) and any use in breach of the terms of the lease is
not use as of right.
112. Gloucester City Council’s written objection to a large extent
echoes that submitted by Cheltenham Borough Council. It is said that
access gained thorough the hedge or in the face of signage is not use as
of right as it amounts to trespass, anyone attending authorised
36
community events is a licensee and there is a much larger public open
space on the opposite side of Parton Road.
FINDINGS OF FACT
113. I find that people have used the Application Land for all sorts of
activities, some organised, some through their membership of or
affiliation to clubs and organisations such as the brownies or Panthers,
for example, and some simply using it informally. I also accept that
there has been use of the Application Land as a means of gaining
access to other land such as the school playing field. I find that such
use has continued throughout the whole of the Application Period and
any interruption to that use by the closure of the car park gates was, in
my view, de minimis. Whether or not that use was qualifying use is
something that I will deal with when I address the legal test in light of
the evidence I have read and heard.
114. I find that there has been a sign at the entrance to the
Application Land from the CCA car park and that it was erected at
some point in the early to mid 1990s (there is evidence that it was by
1993 and other evidence that suggests 1995). However, I find that for a
significant part of the Application Period (since at least 2002) that sign
was illegible until after the date of this Application when the sign was
replaced or renovated.
115. I also find that there was a sign on the gate to the main entrance
into the car park. It is not absolutely clear whether that sign has been
replaced recently. However, I also find that for the majority of the
Application Period the gates were open, often pushed right back, and
the sign was, therefore, not readily visible to anyone entering the CCA
car park from the Parton Road.
37
116. It is not surprising that a piece of apparently open land such as
the Application Land which is in close proximity to residential
development, particularly land that is well maintained and hospitable,
is used by the local community for all sorts of activities. The pertinent
question, however, is whether that use was qualifying use and that is a
matter I shall deal with when I address the various components of the
statutory test.
APPLYING THE LAW TO THE FACTS
117. I turn now to the legal test that I set out at the beginning of this
report and apply that test to the evidence I have heard and the facts I
have found. I will do so by reference to the various components of the
legal test set out in the relevant sections of the 2006 Act.
… a significant number …
118. Given the number of witnesses whose evidence I have read or
heard, I have no difficulty in concluding that a significant number of
the inhabitants of the claimed neighbourhood have given evidence of
their use. However, whether or not the claimed neighbourhood is a
neighbourhood for the purposes of a TVG application and whether the
use by that significant number was qualifying use are matters I shall
deal with below.
119. One further point is worthy of mention. Many of the Applicant’s
witnesses gave evidence that they had seen other people using the
Application Land for informal recreation. To the extent that those
people were not specifically identified as coming from within the
claimed neighbourhood I have not taken account of their use because it
is quite conceivable that the users referred to may not have come from
the claimed neighbourhood itself.
38
… of the inhabitants of any locality or of any neighbourhood within a
locality …
120. The Applicant relies upon the Parton Mead Estate
neighbourhood within the locality of the Churchdown Brookfield
Ward. The burden of proving that a claimed neighbourhood is capable
of being a neighbourhood for the purposes of a TVG application is on
the Applicant. At paragraphs 9 – 13 above I have set out the approach
that the courts have adopted when dealing with this question.
121. I have, in fact, heard very little about the basis for claiming that
the Parton Mead Estate is a neighbourhood. The question I have to ask
myself is whether it is a pre-existing neighbourhood or an artificial
construct for the purposes of this TVG Application.
122. The Applicants have produced some documentary evidence
that suggests “Parton Mead” is a recognised area of Churchdown. In
particular the front sheet of an old conveyance (1983), the planning
permission for the original development (1983), a list of local postboxes
and a letter of objection to the TVG Application dated 20 July 2013
from an E Bilbruck.
123. Whilst it is clear from the dicta of the cases recited above that
the concept of ‘cohesiveness’ is to be read in light of the observations
by Lord Hoffmann that the concept of a neighbourhood is deliberately
imprecise for the purposes of a TVG application, I do not think that the
need to show some form of cohesiveness, a generally accepted
component of the legal test for a neighbourhood, can be dispensed
with altogether.
39
124. Whilst many of the Applicant’s witnesses produced statements
confirming their address and that their house is “on the Parton Mead
neighbourhood”, I heard nothing more in evidence about why the
witnesses considered themselves to be inhabitants of that
neighbourhood. Mr Robinson (one of the main participants in the
Application), when answering a question posed by me in relation to
the objects of the CCA said what struck him was that he had been
“using the field as an inhabitant of Churchdown”.
125. I walked around the entirety of the claimed neighbourhood of
the Parton Mead Estate during my site visit and whilst I can see the
relatively neat physical delineation of the area, it is clear that the
claimed neighbourhood is not a single unit of development but is
made up of a variety of old and new, built at various times over the
decades.
126. Further, other than the CCA facility there is, to my knowledge,
no other community facility within the claimed neighbourhood and
the CCA is clearly targeted at and used by a much wider audience than
the claimed neighbourhood in any event. I do not know of any
community activities that are directed purely at Parton Mead residents
or indeed any residents’ associations or neighbourhood watch
schemes, all of which are typical of distinct communities or
neighbourhoods.
127. It is, of course, for the Applicant to prove each and every part of
the statutory test of which the existence of the claimed naighbourhood
is one part. On the evidence before me, which really is extremely
slender and not at all convincing as to the existence of a specific
neighbourhood, it is my view that the Parton Mead neighbourhood is
an artificial construct for the purposes of this Application, quite
possibly considered necessary to avoid the likely points that might
40
have been raised in relation to the significant number test had the
Application been made on behalf of, say, the much larger Parish of
Churchdown.
128. My conclusion in relation to the claimed neighbourhood is,
essentially, an end to the Application. It is not, therefore strictly
necessary to deal with the other parts of the statutory test but for
completeness I shall. Had I considered the claimed neighbourhood to
be a neighbourhood for the purposes of this Application I would have
been satisfied that the locality of Churchdown Brookfield Ward was a
locality for the purposes of the 2006 Act.
… have indulged as of right …
129. I find that there has been some qualifying “as of right” use of
the Application Land; that is use that was nec vi, nec clam, nec precario.
However, attendance at organised community events such as bonfire
parties, fetes, dog shows and the like does not amount to qualifying
use. Such events were organised with the permission of the CCA and
the general public was invited to attend. Therefore, attendees were
there by right and not as of right.
130. Further, any users from organisations such as the Brownies or
the Panthers, for example, were also users by right (when in
attendance for those clubs’ purposes and activities) given that those
organisations are members of the CCA and are there by permission.
131. Dog walkers that have a dog walking permit are also clearly
permissive users, having been licensed to use the Application Land for
that purpose. The much more difficult question is whether members of
the CCA are licensees as well.
41
132. When a person joins the CCA they are not provided with any
rules or descriptions of the benefits they receive as a result of their
membership. Indeed, it was Mrs Trinder’s evidence that even before
people joined the CCA there was no indication given of the benefits of
membership. There is certainly nothing to say that members of the
CCA are permitted to use the Application Land. It is true that the CCA
maintained the Application Land. That is hardly surprising given that
over the Application Period there were a number of affiliated groups
that did use it such as the Guides and Brownies, Panthers, Youth Club
and Playgroup (when it existed). Moreover, to let the Application Land
for use for community events (eg bonfires, fetes, shows, etc) it would
be necessary for the land to be tidy and accessible.
133. However, those points do not meet the question whether CCA
members used the Application Land with permission. Those witnesses
that are or were members of the CCA accepted that they were
permissive users. Whether or not there is a formal set of rules telling
people they can use something is not conclusive as to whether or not
they are licensed to use it. Given that the ethos of the CCA, according
to Mr Piper, was to encourage use by the community, I accept that
anyone that is or was a member of the CCA using the Application
Land was doing so with the permission of the CCA, whether they
appreciated it or not (and I doubt it is a matter to which anyone gave
very much thought before this Application). To the extent that any of
the Applicant’s witnesses were members of the CCA their use of the
Application Land does not amount, in my view, to qualifying use
because it cannot have been use as of right. It was use by right.
134. On behalf of the Objectors it is said that any use made of the
Application Land as a result of gaining access through the gaps in the
hedge was not qualifying use. It has been suggested that such use
amounts to trespass. The reality, of course, in applications of this
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nature is that only use by people that are trespassing is going to
contribute to the qualifying use. In actual fact, the point that really
arises is whether or not such use was by force.
135. Whilst I accept that the initial breaking down of trees or
branches would constitute access and subsequent use by force, such
use not contributing the qualifying use, it seems clear on the evidence
that such use by force would have been extremely limited (and may or
may not have been by inhabitants of the claimed neighbourhood). In
the early part of the Application Period the hedge was far less
established and it is unlikely that there would have been any need to
break down trees or branches to gain access to the Application Land
then. In recent years people talked about established gaps in the hedge
that facilitated access and I did not get any impression that people
were regularly crashing through the hedge to make their way onto the
Application Land. It is also noteworthy that there appear to have been
extremely limited attempts to close the gaps by the CCA. According to
Mr Piper just one unsuccessful attempt in around 2006. It is my view
that any use that might be considered to be use by force as a result of
gaining access through the hedge is extremely limited and is de
minimis.
136. It is also said by the Objectors that use in the face of prohibitory
signage was use by force. There are two signs that require
consideration. The first is the sign relating to dog walking permits that
was erected in the gap leading from the CCA car park onto the
Application Land. That sign was, I understand, erected in or around
1995 according to the evidence of Mr Fisher. I have some doubts about
the accuracy of this date given that it was Mr and Mrs Bryant’s
evidence that they acquired a dog walking permit for a year from 1993
having seen the signs. However, it was the evidence of the Applicant’s
witnesses that the sign had been illegible for years and that it was only
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after the submission of the TVG application that the sign was restored
to its present condition as seen in the photographs produced by the
CCA. By way of example, Mrs Robinson who moved to her home in
2002 said the sign had not been legible for the whole of the time that
she has lived it her address until after the Application was submitted.
137. I do not accept that the presence of that sign, even for part of the
period, prevented use of the Application Land from being as of right.
Whilst the sign might have indicated a need for permits for dog
walking it is clear that the CCA Committee did absolutely nothing of
any significance to try and enforce the purported requirement for a
permit for dog walking. Indeed, it was Mr Piper’s evidence that
enforcement of the permit system was not something that the
Committee was ever actively concerned with and there is only one
piece of correspondence dated 10 April 1995 produced on the topic of
canine use and that was a dog that was on the Application Land
without supervision. Mr Smith did say that he challenged 3 or 4 dog
walkers a year but I do not know if that was throughout the whole of
the Application Period. None of the Applicant’s witnesses had been
challenged and it is possible that anyone Mr Smith did challenge might
not necessarily have come from the claimed neighbourhood in any
event.
138. There is also a sign on the gate into the main car park. That sign
says “Private Car Park and Grounds”. Whilst the evidence indicated
that the gates were sometimes closed that appears to have been the
exception rather than the norm. The gates were generally closed in
response to concerns about isolated matters such as joy riders or the
prospect of travellers coming onto the site and it is my understanding
from the evidence tat that tended to be at night, after the social club
had closed, the gates being opened early the next day by caretakers.
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139. The sign certainly makes no reference to use of the Application
Land although clearly the “Grounds” must incorporate the Application
Land. The general thrust of the evidence was that most people had not
seen the sign and that is perhaps unsurprising given that when the
gates were open (which was the vast majority of the time) they were,
according to the evidence I heard, often pushed right back and the sign
would not, in those circumstances, have been so readily visible to
anyone entering the car park. Moreover, anyone entering and exiting
through gaps in the hedge would not see the sign in any event. I am
not satisfied that the presence of this sign has caused unauthorised use
of the Application Land for informal recreation to be user that could be
construed as being by force.
140. A number of witnesses referred to school children using the
Application Land as a short cut to gain access from the Parton Road to
the school playing field. That use is not TVG type use but thoroughfare
type use and does not contribute to any qualifying use of the
Application Land. I have therefore discounted that use.
141. Finally, any use that was illegal (ie underage drinking) or
antisocial is not use that could be considered qualifying use.
142. As a consequence of the foregoing it is my view that a
substantial proportion of the use referred to by the Applicant’s
witnesses must be discounted due to its being permissive and all use of
the Application Land as a shortcut must also be dismissed as not
constituting qualifying use. The question then arises, what use is left
for the Applicant to rely upon? The view I have formed is that once a
significant proportion of the use in respect of which I have heard
evidence is discounted for all of the reasons referred to above
(including the fact that I cannot consider use by others witnessed by
those that I have heard from if I do not know whether those users come
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from the claimed neighbourhood) the overall use by the Applicant’s
witnesses, when viewed as a whole, is not sufficient to amount to
qualifying use by a significant number of the claimed neighbourhood
for the purposes of this Application throughout the whole of the
Application Period.
… in lawful sports and pastimes on the land for a period of at least 20 years
and continue to do so at the time of the application …
143. The activities in respect of which I have heard evidence, save for
those referred to at paragraphs 140 and 141 above, all fall within the
definition of lawful sports and pastimes for the purposes of the 2006
Act.
144. The use that I have heard evidence of (whether qualifying or
otherwise) has spanned the full 20 year period right up to the date of
the Application, as required by section 15(2) of the 2006 Act.
OTHER MATTERS
145. For completeness I will address the other matters that were
aired at the Inquiry and in submissions notwithstanding that they do
not form any part of the statutory test.
146. The fact that in earlier planning documents the Application
Land was identified as being land that should be designated as open
space and used for recreational purposes is irrelevant as to whether or
not land qualifies for registration as a TVG. The same is true of the
motivation for making such an application, whether to prevent
development or otherwise. In this latter context the extent of its
relevance is solely whether that fact has caused the evidence to be
distorted or exaggerated, which is not a finding that I make.
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147. The fact that there is other public open space in the close vicinity
is also irrelevant to an application to register a new TVG. All that
matters in an application such as this is whether qualifying use that
satisfies the entirety of the statutory test has been made of the
Application Land.
ACKNOWLEDGEMENTS
148. Before I set out my final conclusion which by now will have
become apparent I would like to express my thanks to the Commons
Registration Authority for their efficient organisation of the Inquiry
and the assistance that was provided to me. In particular I would like
to express my gratitude to Carrie Denness who dealt with all matters
arising throughout the process in a very helpful and highly efficient
manner. I would also like to express my thanks to the witnesses and
members of the public who attended and spoke to the Inquiry. Finally,
I was greatly assisted by the parties’ representatives, none of whom
were lawyers, and who all took on an extremely daunting task
presenting their respective cases. They did so with extreme courtesy
and professionalism and I am grateful to them for their thoughtful
analyses and submissions on the issues before the Inquiry.
FINAL CONCLUSION AND RECOMMENDATION
149. I conclude that the Application fails and recommend that the
Application to register the Application Land as a new TVG pursuant to
section 15(2) of the 2006 Act should be rejected. The reasons for
rejection, subject to the relevant committee following my
recommendation, can simply be stated to be those set out in this report.
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Rowena Meager
No 5 Chambers
30 June 2014