The Assistant Director of Organisation and Governance submitted a report informing Members of the findings of the Inspector appointed by the Council regarding the application to register land at Marton Avenue, Middlesbrough, as a village green and to seek a decision as to whether or not to register the land as a village green.
The Chair introduced those present and explained the procedure to be followed at the meeting. Five members of the public were in attendance at the meeting and two advised that they would present the case on behalf of the Marton Avenue residents.
The Head of Legal Services presented the report setting out the circumstances of the case.
As Commons Registration Authority (CRA) for Middlesbrough, the Council received an application to register land at Marton Avenue as a village green, on 23 November 2011. The Council was also the landowner of the site and initially objected to the application, however, this was later withdrawn.
In light of rapidly developing case law, the CRA decided to hold a non-statutory Public Inquiry into the application and appointed an impartial Inspector. The Inspector did not consider a Public Inquiry to be necessary and produced a report detailing her advice and findings in relation to the matter. This was attached at Appendix 1 to the submitted report. The Inspectors recommendation was as follows: "It is my view that the Registration Authority should reject the application."
Within the relevant legal framework, the application sought the registration of the land by virtue of the operation of Section 15(2) of the Commons Act 2006. Under that provision, land was to be registered as a village/town green where:-
a) A significant number of the inhabitants of any locality or 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.
Definitions of 'by right' and 'as of right' were provided. It was explained that land used 'as of right' was without the permission of the landowner and, therefore, not 'by right' but the use was actually carried on as if it was by right. Land used 'by right' was the use of privately owned land with permission from the landowner.
The Inspector had concluded that the land in question was public access land and was therefore being used 'by right' and, as such, did not qualify for use as a village green. The Inspectors conclusions were detailed at paragraph 6 of her submitted report (Appendix 1).
Members were asked to note that the CRA could not lawfully abrogate its decision-making duty to a third party and consequently Members were required to consider the report and background papers and decide whether or not the land should be registered as a village green.
Mr Gardner and Mr McGee, representing the applicant (Marton Avenue residents), were in attendance at the meeting and Mr Gardner proceeded to present the case in support of the application.
The applicant explained that Marton Avenue was made up of 31 households and was physically isolated -bordered by the railway on one side, and fencing on the two other sides to the Prissick area and Ladgate Lane. The applicant stated that the land was a key part of the communitys cohesiveness. It provided a safe area for the children to play and various family events had been held there. This was threatened in February 2011 when the Council had advised that the land would be potentially used for housing development. The underlying agreement of the land owner was that the land would always be used for recreation. The residents of Marton Avenue subsequently submitted an application to register the land as a village green in November 2011.
The applicant stated that the process had taken three-and-a-half years, to date, and had been very frustrating. The initial one-line objection had been made by the Council, as landowner, and stated that, as landowner, the Council had not consented to the use of the land and also that the use of the land did not demonstrate that the land users had enjoyed the land 'as of right'.
The applicant advised that there were three criteria to meet the definition of using the land 'as of right', they were:-
Use without force.
Use without secrecy.
Use without permission.
The Council had stated that the land had been used without permission, yet it was considered that the land had not been used 'as of right'. The applicant felt that this did not make sense and was conflicting. The applicant considered that there had been no effective pressure applied by the CRA to the landowner to provide justification of its objection.
The applicant believed that the CRA had not acted as required (seeking to arrive at an impartial decision) and referred to paragraph 4.7 of the Inspectors advice which stated "...It is critical that in circumstances where application land is owned by the same public body which is also the registration authority that the two different elements of that body remain at arms length and that the discussions do not take place between the two to which the applicant is not also a party." The applicant believed that the CRA had not honoured this duty.
The applicant highlighted that the Inspector had mentioned information and letters exchanged between the landowner and CRA and, as explained in 4.9 of her advice, it became clear that her instructions included issues that were only relevant to the landowner. The applicant stated that they had been refused sight of this information and felt this was unfair.
The applicant made reference to a document on dealing with village green applications, compiled by Vivian Chapman QC. The applicant stated that the applicants had written to the CRA stating that they were not confident that their application would be considered impartially and had supported this by providing numerous examples of collusion between the CRA and landowner and requested that the determination of the application be delegated to another authority. The applicant stated that no response was received in relation to this request and that the request was not referred to within the Inspectors advice and that he was unsure as to whether it had simply been omitted by the Inspector or whether it was not included within the paperwork passed to the Inspector.
The applicant expressed concerns in relation to the delays incurred with dealing with the application and advised that he had emailed the CRA several times with requests for information and that it had taken months for replies to be received.
The applicant stated that they were advised of a Hearing date with the Inspector in July 2013 and had put a great deal of work into preparing their submission, only to be advised one month prior to the Hearing date that there would be no need for a Hearing as the objection had been withdrawn. The applicants were subsequently advised that registration of the land would follow within the next few weeks. The one-year delay in the withdrawal of the objection proved critical as the Inspector had taken into account Barkas case law which had affected the legal basis on which the current application was determined. The Inspector advised that any decision made in relation to an application must be made on the basis of the law as it now stood at the date of decision.
The applicant reiterated that the residents of Marton Avenue had used the land on a regular basis for more than 20 years and wanted to continue to enjoy the use of the land without fear of it being developed, hence the application to register it as a village green. The landowner had since withdrawn the objection and the applicant had been advised that the land would be registered, however, this had not happened.
A discussion ensued and the following issues were raised:-
In response to a query, the applicant confirmed that the activities and use of the land by the residents continued, to date, and that residents had not been prevented from using the land.
The applicant provided information in relation to the location and size of the land and confirmed that it would still be open for public access even if it was registered as a village green.
The Head of Legal Services clarified that there was no dispute over the type of use of the land, the length of time it had been used or the number of users. Paragraph 5.19 of the Inspectors report set out the permission for the land use in detail. It was a key point that the land was not being used in a qualifying way which meant that it was not legally qualified to be a village green. It was highlighted that there had been delays incurred on the part of the Inspector.
The Head of Legal Services responded to a point made previously by the applicant regarding a request for the application to be determined by another authority and clarified that the Council did not have the legal powers to do such a thing.
The applicant referred to the Councils minutes from the 1970s determining that the land be retained as an informal childrens play area and pointed out that the Council then advised they intended to build on it in 2011.
The applicant also suggested that the CRA had a duty to ensure that the submitted objection, leading to the 12 month delay, had some substance. In addition, the applicant considered that the CRA should have referred the application to the Planning Inspectorate for determination as the CRA had an interest in the outcome of the application. The applicant felt strongly that after the 12 month period, it was clear there was no impartiality and felt that there had been collusion between both arms of the Council - the CRA and the landowner.
The Head of Legal Services wished to record that the applicant appeared to be suggesting that the Officer acting on behalf of the CRA had deliberately worked with the land owner, which was not the case, and that this was a serious allegation bringing the officers integrity and professionalism into question. The applicant withdrew the use of the word 'collusion' and confirmed that he had no evidence of contact between the CRA and the landowner and was not questioning the officers integrity.
Several Members of the Committee commended the residents of Marton Avenue for their efforts in continuing to promote community spirit and their perseverance during the application process.
It was confirmed that there were no further questions and the applicant, members of the public and officers of the Council, other than representatives of the Councils Legal Services and Members Office, withdrew whilst the Committee sought several points of clarification.
All interested parties returned and the Chair invited the Committees comments on the application. It was subsequently moved and seconded that the application for Village Green status be granted and a vote was taken.
ORDERED that the application, to register land at Marton Avenue, be granted.