Application Decision Hearing held on 18 February 2015 by Heidi Cruickshank BSc MSc MIPROW Appointed by the Secretary of State for Environment, Food and Rural Affairs Decision date: 21 April 2015 Application Ref: COM 575 Tremedda, Tregerthen, Wicca and Treveal Cliff, Zennor, Cornwall Register Unit No: CL7041 Commons Registration Authority: Cornwall Council The application, dated 26 March 2013, is made under paragraph 4 of Schedule 2 of the Commons Act 2006. The application is made by Mr D Coles on behalf of Save Penwith Moors. The application is to register waste land of a manor in the Register of Common Land. Decision 1. The application is approved in part. The land outlined and cross-hatched in red on the plan attached to this decision shall be added to the Register of Common Land (“the RCL”). Preliminary Matters Guidance 2. The applicants, Save Penwith Moors (“SPM”), argued that the Department for Environment, Food and Rural Affairs (“defra”) guidance that should be referred to in this case was that which was extant at the date of their application. The application was received by Cornwall Council, the Commons Registration Authority (“the CRA”) on 10 April 2013. 3. Cornwall was one of the pilot areas and, therefore, the “Part 1 of the Commons Act 2006, Guidance to commons registration authorities and the Planning Inspectorate for the pioneer implementation” was relevant guidance. Revisions have been made, with the latest, published in December 2014 (“the guidance”). “Part 1 of the Commons Act 2006, Guidance to commons registration authorities and the Planning Inspectorate”, version 2.0 relates to the full implementation of Part 1 of the Commons Act 2006 (“the 2006 Act”) in a minority of registration authorities and the partial implementation in remaining registration authorities through The Commons Registration (England) Regulations 20142. This came into force on 15 December 2014. 4. As set out in the guidance3, pioneer authorities, such as Cornwall, were subject to the Commons Registration (England) Regulations 20084 and the Commons Registration (England) (Amendment) Regulations 20095. These have been revoked and replaced by the 2014 Regulations; all applications made to pioneer 1 Original common land register number 2 SI 2014 No. 3038 3 References to ‘guidance’ in this decision relate to the December 2014 defra guidance 4 SI 2008 No. 1961 5 SI 2009 No. 2018 http://www.planning-inspectorate.gov.uk Application Decision: COM 575 authorities under the 2008 Regulations automatically switch to the equivalent stage in the 2014 Regulations. 5. I am satisfied that it is the current Regulations and guidance which are relevant. Given that SPM were aware of the changes to the guidance, and able to comment on it, I am satisfied that no prejudice has arisen. Interpretation 6. It was the view of SPM that there had been a change in the way in which Inspectors were interpreting the guidance, which they felt was to their disadvantage. Decisions do not set a precedent; although there should be some consistency, every decision will be taken on the basis of the evidence and arguments presented in relation to that particular case, against the background of the relevant legislation, case law and guidance. This may mean that some, apparently similar, circumstances lead to, apparently, differing outcomes but does not, in my view, represent a change in interpretation. Status of Commissioners’ decisions 7. Decisions relating to disputes arising from the Commons Registration Act 1965 (“the 1965 Act”) were dealt with by the Commons Commissioners (“the Commissioners”). Defra abolished the Commissioners in 2010, with decisions relating to the 2006 Act now taken by the Planning Inspectorate on behalf of the Secretary of State. There was disagreement as to the weight to be given to Commissioners’ decisions, with the objectors6 seeking to rely on Commissioners’ decisions and SPM suggesting that they were irrelevant. A paper entitled ‘Briefing Notes’ was presented by SPM in support of their case. 8. I do not consider that the argument that the Commissioners’ decisions predate Hampshire County Council v. Milburn [1990] 7 (“Hampshire v Milburn”) means that they have no value. They may provide assistance on certain points, however, I take account that they were made in relation to the 1965 Act, not the 2006 Act, and provide no legal precedent in the way that a court decision does. As a result, I am satisfied that I must give greater weight to the current Act, guidance and relevant case law. The original application to register the land 9. SPM argued that the land had been provisionally registered as open, unoccupied and uncultivated under the 1965 Act and that the withdrawal of that application had been based on misleading information. There was no information as to the reason for the withdrawal of the application by the West Cornwall Footpaths Preservation Society (“the WCFPS”) and so I do not place weight on this argument. It needs to be shown that the land should be registered on the basis of the situation at the time of the SPM application. Public Interest 10. SPM believe that the decisions on these applications should be taken on an administrative basis, with a particular weight given to the public interest, not as a legal argument between the parties. I have been appointed to deal with 6 Unless otherwise stated, where I refer to ‘the objectors’ in this decision I am referring to those who attended and gave evidence to the hearing, in particular the owners of Wicca Farm and Tremedda Farm, supported by the Country Land and Business Association and the National Trust. 7 [1990] 2 WLR. 1240, [1991] 1 AC 325 – often referred to as the Hazeley Heath case http://www.planning-inspectorate.gov.uk 2 Application Decision: COM 575 the application in relation to the legislation, including the regulations and guidance, under which it was made. Whilst of course seeking to register land which should be registered, in my view it is for the parties to provide the relevant evidence regarding their cases. Procedural Matters 11. I made an unaccompanied site visit on 17 February 2015 and held a hearing at the Centre of Pendeen on 18 February 2015. A request was made for an accompanied site visit following the close of the hearing and I made this visit on 27 February 2015, accompanied by representatives of the CRA, the National Trust (“NT”) and the owners of Wicca Farm and Tremedda Farm. The Application Land 12. The application relates to a strip of land on the north8 Cornish coast in the parish of Zennor. To the south are enclosed fields of the farms who own or rent the application land. The north-eastern part is Treveal9 Cliff, which is bounded by the River Cove to the north-east. Wicca Cliff runs from Wicca Pool with Tregerthen10 Cliff south-west of the stream which marks the boundary. Another stream marks the south-western boundary of Tregerthen with Tremedda11 Cliff. Zennor Cliff, to the west, is not part of this application but it includes a small area south of Zennor Cliff, belonging to Treveglos Farm. 13. The South West Coast Path runs on the north-western side, generally following the line of existing public footpaths. The land is registered as access land under the Countryside and Rights of Way Act 2000 (“the 2000 Act”). Main Issues 14. The application has been made in accordance with the provisions of paragraph 4 of Schedule 2 to the 2006 Act. The CRA have confirmed that the application has been processed in accordance with the relevant regulations. 15. The main issue is whether the land is waste land of a manor, at the date of the current application, and whether before 1 October 2008: a) the land was provisionally registered as common land under section 4 of the 1965 Act; b) an objection was made in relation to the provisional registration; and c) the provisional registration was cancelled in the circumstances specified in sub-paragraphs (3), (4) or (5). Sub-paragraph (5), on which SPM relies, requires that the person on whose application the provisional registration was made requested or agreed to its cancellation (whether before or after its referral to a Commons Commissioner). 16. By reference to Attorney General v Hanmer (1858)12 (“Hanmer”) ‘waste land of the manor’ was defined as “the open, uncultivated and unoccupied lands parcel of the manor other than the demesne lands of the manor”. Whilst the Briefing Notes suggest that Hanmer should not apply, because land intended for 8 Generally orientated north-westerly 9 Also spelt ‘Trevail’ and ‘Travail’ 10 Also spelt ‘Tregarthen’ and ‘Tregurthen’ 11 Also spelt ‘Tremeader’ 12 2 LJ Ch 837, 4 De G & J 205, 28 LJ Ch 511. http://www.planning-inspectorate.gov.uk 3 Application Decision: COM 575 registration would have been enclosed and so cease to qualify under the 1965 Act, this is the definition referred to in the guidance. I am satisfied that it is relevant to the matters before me in relation to the 2006 Act. 17. The objectors argued that the application land was not common land as it failed to meet some or all of the necessary criteria to qualify as waste land. Reliance was placed upon the land being enclosed, cultivated, owned and/or occupied. Reference was also made to it being demesne land in the past and, therefore, incapable of being waste land currently. 18. SPM argued that they only needed to show that the land was once ‘of a manor’ and relied on the physical appearance of the land to show that it was ‘waste land’ at the date of their application. The burden of proof in such cases is the civil standard, namely, the balance of probabilities13.