APPENDIX 7 Cumbria County Council Commons Registration Lady Gillford’s House Petteril Bank Road Carlisle Cumbria CA1 3AJ T: 01228 221026 E: [email protected] Mr I Brodie Rowan Gardens Natland Cumbria LA9 5th November 2019 Your reference: Our reference: CA13/19 Dear Mr Brodie CA13/19 – Application to correct non-registration or mistaken registration (“the Application”) CL413 – Whelpside, Steel End, West End Armboth and Bleaberry Fells (“the Application Land”) Applicant: Ian Brodie (“the Applicant”) Commons Registration (England) Regulations 2014 (the “Regulations”) We write further in relation to the above matter. The Registration Authority has now had the opportunity to consider the Application, taking into account all of the material provided to date. References to regulations are to relevant provisions of the Regulations. Pursuant to regulation 26(1)(a), the Application must now be determined by the Registration Authority. The Registration Authority has considered its obligation under regulation 26(3) to refer an application to the Planning Inspectorate, where it considers that it has an interest in the outcome, such that confidence in its ability to deal with the Application impartially will be undermined. The Registration Authority does not consider it has such an interest in the outcome within the meaning of regulation 26. The Registration Authority has also considered its obligations under regulation 27(2) and does not consider it necessary to hold a public inquiry in this instance. Cases where it is not appropriate to hold a public inquiry are governed by regulation 27(7) which is considered below. The determining body for this type of applications is the Council’s Development Control and Regulation Committee and the Officers will prepare a report of recommendation for the Committee’s consideration. At the present time, the Officers are minded to recommend that the Application is refused. The reason for this is that, in the Registration Authority’s opinion, there is insufficient evidence to demonstrate that the criteria set out in paragraph 2 of Schedule 2 of the Commons Act 2006 are satisfied. In particular, the Officers are of the opinion that there is insufficient documentary Serving the people of Cumbria cumbria.gov.uk evidence to prove that the Application Land is land which is specified in Schedule 2(2)(2)(b) (i) to (iv). The Officers’ points of concern were set out in my letter to you dated 19th June 2019. Whilst you did provide an explanation on each of those points in your reply email dated 29th July 2019, you have not provided any documentary evidence to support your assertions. DEFRAs Guidance to Registration Authorities 2015 states: The registration authority should be particularly cautious in accepting the applicant’s assertion as to the facts, without supporting evidence. Convincing evidence is evidence of a kind which gives rise to a prima facie presumption of the correctness of the evidence. It should not give rise to significant doubts in the mind of the registration authority about the correctness, robustness or validity of the evidence. We note the point you make in your reply that United Utilities do not question the provenance of the maps or the accuracy of the line drawn for the boundaries of the claimed lands in their objection. We also note that you have tried to obtain a full copy of the map from United Utilities but this was without success. In reply to this I would like to again refer you to DEFRAs Guidance which states: It is up to the applicant to prove that the application satisfies all of the criteria. If any evidence is missing, or nobody has opposed an application, [the registration authority] must not assume that the applicant has met all the criteria. You must refuse an application if the applicant cannot supply all the required evidence. Given the Registration Authority’s position, it is a requirement under regulation 27(7) that you are offered an opportunity to make oral representations to deal with the points raised in this letter and in my letter to you dated 19th June 2019. Of course, you are not required to take up that opportunity. You may choose to make written representations and the Registration Authority confirms, in this instance, it will consider and take into account those representations. If you do require an oral hearing, please note that this is not an occasion for the presentation of evidence. If you have further evidence you think materially affects the Application, please provide that without delay. Please confirm by 5pm on 20th November 2019 whether you require the opportunity to make oral representations. If the Registration Authority does not hear from you within this timescale, the matter will proceed to determination without the convening of an oral hearing. Please note that the outcome of the oral hearing might be a recommendation that the Application be refused or granted. I look forward to hearing from you. Yours sincerely Svetlana Bainbridge Commons Registration Officer Oral representations for applications CA13/19 & CA13/20 Oral representations for applications CA13/19 & CA13/20 were heard on 21st November 2019 at Lady Gillford’s House, Carlisle. In attendance were: Mr Ian Brodie: Applicant (“the Applicant”) Ms Svetlana Bainbridge: Commons Registration Officer (“SB”) Mr Ben Spencer: Group Lawyer/Manager – Governance & Commercial Team (“BS”) Mr Jason Weatherill: Commons Officer (“JW”) A summary of the oral representations is provided below. After introductions SB provided a brief overview of the applications. As part of the overview SB stated that the Applicant claimed that the land should be registered because it is recognised as common land by or under the Manchester Corporation Waterworks Act 1879. The Applicant briefly interjected to say “or recognised by Parliament in the process of making the Act” SB went on to explain the two main issues that Officers had with the application: 1. There are no annotations on the map described at 2 above (“the Map”) which would establish its link to the 1879 Act and prove that it is what the Applicant claims it to be. 2. No case has been made to prove on the balance of probabilities that the 1879 Act and the Map (and the two other maps submitted in relation to CA13/20) designate or recognise the Application Land as common land. The 1879 Act itself does not mention the application land or any common land whatsoever and did not have a purpose to designate or recognise land as common land. No accompanying reference books which explain what is shown on the Map or confirm that the application land was recognised or designated as common land under the 1879 Act were provided with the Map. The Applicant was invited to address these points of concern. The Applicant began by addressing point 2, and provided a bit of history behind the making of the 1879 Act. The Applicant explained that Manchester City Council lodged a bill with Parliament in the 1870’s, but that this initial bill did not succeed as Parliament required more information. The Applicant claimed that the resubmission of the bill was accompanied by more evidence, including the maps which he had provided copies of. The Applicant explained how these maps showed the tenements in colour, with the surrounding common land remaining white. The Applicant claimed that several committee hearings were held in which the bill was discussed before being passed. The Applicant acknowledged that common land was not referenced in the Act itself, apart from inferences to it within Clause 62, with regard to protecting natural beauty. The Applicant acknowledged that it was for Officers to interpret whether or not that was enough to satisfy the legislative criteria under which the applications were made, but pointed out that the evidence was accepted by Parliament before the 1879 Act was established. BS pointed out that the registration authority has very little leeway when assessing applications and referred back to the wording of Schedule 2(2)(iv) to the Commons Act 2006 which the applications were made under. The Applicant accepted that the land doesn’t qualify for registration “by” an act of Parliament, but argued that it qualified “under” an act of Parliament, as in the Applicant’s opinion, Parliament had recognised the presence of the common land as part of the process leading to the enactment and creation of the 1879 Act. BS agreed that the land did not qualify to be registered “by” an enactment, but questioned the level of evidence suggesting it could be registered “under” an enactment. BS explained that Officers had to be satisfied ‘on the balance of probabilities’ and that circumstantial evidence was not enough. BS highlighted that there didn’t seem to be anything linking the plans back to the Act itself. The Applicant found it strange that a link between the submitted plans and the Act could not be established. The Applicant explained that the solid features and boundaries marking the extent of the common(s) are still in place to this day, and, to the best of his knowledge, were faithfully recreated by the application maps submitted with the applications. The Applicant explained that there was only one piece of common not reflected on his maps, as this section had been inundated when the levels of Thirlmere reservoir were increased and it was now underwater. BS asked again what evidence there was to draw an evidential link between the submitted plans and the Act. The Applicant explained that the plans were direct copies of those submitted to Parliament during the creation of the 1879 Act. The Applicant again explained that the coloured areas of the plans denoted ownership, whilst those uncoloured (white) sections denoted common land.