DEVELOPMENT CONTROL AND Paper REGULATION COMMITTEE No. Meeting date: 25 November 2004

From: HEAD OF LEGAL SERVICES AND 7 DIRECTOR OF COMMUNITY ECONOMY & ENVIRONMENT

APPLICATION TO REGISTER LAND AT THE CLOFFOCKS, AS A TOWN OR VILLAGE GREEN – NL0036

1.0 EXECUTIVE SUMMARY

1.1 Mr P C Shepherd of Hillcrest, Northside, Workington has submitted an application to register land known as The Cloffocks, Workington as a town or village green. In support of his application Mr Shepherd has submitted eight completed evidence questionnaires.

1.2 Following public advertisement of the application in late April 2004 and service on the landowner, Allerdale Borough Council, two letters of objection were received dated 1 June 2004 from the Borough Solicitor, Allerdale Borough Council and 7 May from Mrs J Mercia Haughan. As required by the Regulations, the applicant was given the opportunity to comment on these objections and did so briefly through his solicitors.

1.3 It now falls to the Committee to determine the application on behalf of the County Council as the Commons Registration Authority.

2.0 POLICY POSITION, BUDGETARY IMPLICATIONS AND LINKS TO CORPORATE STRATEGY

2.1 This matter is a decision making process of a quasi-judicial nature. There should be no policy or political consideration given and any potential financial implications should be ignored. It is a merely a matter of weighing the strength of evidence and if sufficient to meet the legal tests set down by statute and case law then the applicant is entitled to have his application accepted.

1 RHC/Reports/DC&R The Cloffocks 251104 3.0 RECOMMENDATION

3.1 That the application (NL0036) dated 14 April 2004 for the registration of land at The Cloffocks, Workington as a town or village green be rejected for the reasons set out in para 10.4 of this report.

4.0 BACKGROUND

4.1 The land subject to the application is shown hatched black on the plan attached to this report, with copy application (Appendix A). The great majority of it has a tarmacadam surface and was formerly Allerdale Borough Council’s lorry park, having a dust and gravel surface until a year or so ago. The application plan also appears to include part of the footway and road which provides access from William Street down the side of Allerdale House to the car park to the east. To the north it includes a stream and the track adjacent to it, which has already been the subject on an unsuccessful application made in 2000 by Mr J Bracken, and to the west it appears to include the area between the tarmaced area and Allerdale Borough Council’s car park at the rear of its offices which consists of a raised soil and grassy bank planted with trees. Photographs will be available at the meeting.

4.2 Mr Shepherd’s application states that the land subject to his application has become a town or village green on 1 August 1990 and was bought from the former landowner for that purpose in the early 1900s for the people of Workington.

5.0 EVIDENCE AND OBJECTIONS

5.1 Evidence

Copies of the eight evidence questionnaires are attached (Appendix B).

5.2 Mr W T Lannaghan’s evidence covers from 1940 until this year. He says he has used the land everyday since 1970 for dog walking. He has seen children playing, fishing, other dog walkers, team games being played, blackberries being picked, community celebrations, , bird watching, picnicking, people walking and bonfire parties taking place on the land, together with uppies and downies, fairs and circuses.

5.3 Mr & Mrs J Lannaghan’s evidence is that they also have known the land from 1940 and used it from 1970 as of right for dog walking on a weekly basis. They have seen identical activities taking place to Mr W T Lannaghan, together with , kite flying and bicycle riding.

5.4 Miss R Lannaghan gives evidence over a similar period of time. She has gone onto the land for dog walking, bird watching, football and uppies and downies and confirms similar activities to her namesakes. She also believes the people of Workington own the land and that there is no occupier of it.

5.5 Karen Harris has known and used the land from 1967 to date, weekly for horse riding and dog walking. Her immediate family have used it for playing football as have others. She has seen others dog walking, picking blackberries, children playing, community celebrations, cricket, bird watching, people walking and bicycle riding.

2 RHC/Reports/DC&R The Cloffocks 251104 5.6 Tracey Mawson’s evidence is that she has known the land from 1960 to the present day and has used it from 1970 weekly for recreation. She, as with others, makes reference to uppies and downies games and the activities she has seen taking place on the land are children playing, drawing and painting, dog walking, team games, community celebrations, football, cricket, kite flying, people walking, bonfire parties and bicycle riding.

5.7 Peter Mawson has known the land since 1939 and has used it from 1970 weekly for dog walking. He has seen others playing on the land, refers to uppies and downies, the carnival and some similar activities to the other supporters.

5.8 Denise Mawson has known the land from 1940 and used it from 1970 for daily dog walking. She has seen others playing games and also a number of the same activities as detailed by others.

5.9 Mrs D Bateman says she has known the land from 1940 and used it since 1970 weekly for watching grandchildren on swings, enjoying walking by the beck and watching ducks. Twice a year the fair comes. It is used by uppies and downies, cyclists and children’s games, it is used a starting place for town carnivals, trade union marches and a Lions Charity Fun Day. As with others she believes she may go on the land as of right because a 1904 legal document from Lord Lonsdale said she had a right to do so.

5.10 THE OBJECTIONS

5.11 Allerdale Borough through their Borough Solicitor’s letter dated 1 June 2004 objected to the application (Appendix C). Mrs J Mercia Haughan of Brow Top, Workington also did so by letter dated 7 May 2004. (Appendix D)

6.0 THE LAW

6.1 The Commons Registration Act 1965 introduced a scheme for registering commons and town or village greens (“greens”). The scheme is contained in the Act and in Regulations made under section 19 of the Act, of which the most important are the Commons Registration (New Land) Regulations 1969. Land may be capable of being a town or village green if it falls within one of three definitions of which the relevant one here is the definition of a class [c] green which, following amendment by section 98 of The Countryside & Rights of Way Act 2000, is land on which for not less than 20 years a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful and pastimes as of right, and either –

[1] continue to do so, or

[2] have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.

Limb [c] is known as a prescriptive green and is in effect a customary green without immemorial origin.

6.2 What has to be proved?

(1) The land must be clearly identified.

3 RHC/Reports/DC&R The Cloffocks 251104 (2) It must be shown it has been used for “lawful sports and pastimes” which can include walking, with or without dogs, as the principal form of recreation, providing regular use for lawful sports and pastimes can be established over the whole of the site and not merely part of it.

(3) The majority of those using the land must be inhabitants either of a particular locality, or a particular neighbourhood within a locality, rather than the public at large.

(4) A minimum of 20 years use must be proved and frequently evidence is produced for a period stretching back over 20 years from the date of the application.

(5) The use of the land by local inhabitants for lawful sports and past times must be “as of right” ie, “not by force, nor stealth, nor the licence of the owner”. The House of Lords in the case of R v City of Sunderland ex parte Beresford in November 2003 held that an application which had been rejected, because use of a sports arena had been found to be by implied permission of that Council, should be registered . Positive overt acts of encouragement to use lands for recreation, as in that case, could not amount to implied permission to use the land and so make its use “with the licence of the owner”.

6.3 BURDEN AND STANDARD OF PROOF

6.4 The burden of proof lies upon the person seeking registration, the grounds of which must be “properly and strictly proved”. The standard of proof is on the balance of probabilities.

7.0 ANALYSIS OF EVIDENCE AND OBJECTIONS

1. Evidence in Support

7.1 All of the evidence and questionnaires appear to refer to the land as one unit, whereas in practice it can be seen as made up of almost entirely of a tarmacadamed parking area, with to the north a beck/stream and track, to the west an earth bank, planted with trees, separating it from Allerdale’s staff car park and to the south the highway and footway. Inevitably, therefore, not all of the activities claimed can have taken place on all of the land, but providing a significant number of inhabitants of the locality have indulged in a variety of lawful sports and pastimes on the whole of the area it could be capable of registration.

7.2 While case law indicates an application should not be rejected solely because the requisite grounds cannot be satisfied for all of an application site, nevertheless in this case the very great majority of the area is that which is currently tarmaced and used, Allerdale say, for parking. Some evidence relates to the use of the beck/stream and adjoining track . In 2001 the finding of the Inspector appointed to hold a public inquiry into the first Cloffocks application was he heard no evidence of recreational use of it since the 1965 diversion. That is not to say, of course, that further evidence might not be available.

7.3 The public road and footway to the south of the tarmaced area are unlikely to have been used for any lawful activity in view of traffic passing to and fro other than crossing the road or walking along the footway as part of a journey from one point to another.

4 RHC/Reports/DC&R The Cloffocks 251104 7.4 It is suggested the main consideration in deciding whether or not a prima facie case has been made out is whether or not the claimed activities have been exercised, by significant number of persons in the locality, on the claimed area as of right for a period of at least 20 years.

7.5 Allerdale Borough Council’s case is that they have not. The use for organised events such as circuses, fairs, meeting place for processions has been with Allerdale’s formal consent and the land has been set out and used, regulated by statutory Order, for the parking of vehicles for the last 30 years. In relation to the beck/stream and adjoining track, Allerdale would dispute that fishing has taken place sufficient to meet the required test.

2. Allerdale Borough Council’s Objection

7.6 Allerdale owns the land which was a housing area until a slum clearance programme commenced about 1949. Around 1964 the whole area was increased in height be approximately seven feet by the use of industrial slag and from that time on lorries were allowed to park across all of the site. In the mid 1970s the area between the present car park and the area where Allerdale House now stands was divided by posts and height barriers in a measure to prevent travellers. A former engineer would confirm throughout his period of employment from December 1974 until July 1997 the land was used as a lorry park. In 1990 Allerdale House was erected and two years later the Allerdale Borough Council (Off Street Parking Places) Order 1992 made provision for the area subject to the application to be a free park for lorries. The area has continued to be regulated since then.

7.7 On 31 March 2004 lorries were excluded from the site leaving in place the pay and display conditions for motor vehicles which had been included in 1992 Order. The land has been regulated certainly during the last 20 years for the parking of lorries, by parking orders, and has not been used for recreational purposes as claimed. Activities such as uppies and downies and the holding of fairs are allowed with express consent of the Council.

7.8 In relation to some of the other claimed activities:-

Picnicking – the land is surfaced with tarmacadam, previously covered with a hard cracked gravel surface and totally unsuitable for picnicking. There is only one very small bramble bush located on the bank of the beck which is extremely inaccessible. The beck is small, narrow and largely overgrown with weed and the evidence of fish using it or fishing is disputed.

Community celebrations on the land have always been with the express approval of the Council.

The history of the site indicates the property has been used and managed by the Council for its own purposes and has not been enjoyed by the populace at large as a town or village green. Many activities have been allowed to take place, but with express permission.

3. J Mercia Haughan’s Objection

7.9 A resident of the ward for 75 years she does not consider that this, or any section of The Cloffocks, has been considered a recreational area. The adjacent small , created and maintained by the local authority, is used occasionally for organised

5 RHC/Reports/DC&R The Cloffocks 251104 games but not as a general play area. Children are seen there but rarely. The playing field is used extensively by dog walkers. The previous public inquiry found against a village green on adjacent land and the reasons and facts for this finding still apply.

4. Comments of Applicant on Objections

7.10 By letter dated 22 July 2004 (see Appendix E) the applicant, through his solicitors, took issue with the contents of both letters of objection in their entirety. He submitted that it would be necessary for a hearing to be convened where all evidence can be provided, subjected to cross examination and then formal submissions made and sought confirmation by return that this would occur. He contended that both the letters of objections had no evidential weight as they principally consisted of hearsay and supposition.

8.0 COMMENTS ON DRAFT COMMITTEE REPORT

8.1 None received from the applicant or the objectors.

9.0 OPTIONS

(a) Members could accept the applicant’s request that a hearing be held and consider whether an Inspector be appointed, or a Panel of Members, to report back with recommendations.

(b) Members could decide to hold a site visit before deliberating further.

10.0 CONCLUSION

10.1 Evidence and questionnaires not surprisingly replicated some of the evidence presented at the public inquiry in June 2001, and the subsequent application by Mrs J Macleod considered by the Committee on 28 March 2002, although both of these applications related to primarily grassed areas, ie in Mr Bracken’s application the sports pitch and surrounding area and, in the case of Mrs MacLeod’s application, also the embankment area to the south of this application. In respect of the stream/beck and adjacent area the legal doctrine of res judicata, which means that the same case cannot be litigated more than once, might arguably operate to defeat this claim submitted just four years after a previous unsuccessful claim where generally similar evidence is provided, albeit by different witnesses, and the area in question is also a relatively small part of the application site.

10.2 The applicant through his solicitors has requested a hearing be set up so that evidence be given and tested under cross examination. It is fair to say that this is now fairly accepted practice in determining applications for registration of town or village greens, especially so where there are contentious issues which require to be addressed.

10.3 In this particular case, however we do not recommend that Members should convene a hearing for the following reasons:-

(a) This is the third application for registration of land at The Cloffocks. The two previous application sites are shown in Appendices F and G respectively. As in the previous two cases some new land has been identified, but the application has, as with the previous one, included an area of land previously

6 RHC/Reports/DC&R The Cloffocks 251104 dealt with. The evidence forms not surprisingly deal with the same or very similar activities having taken place. Assuming such activities can be established, as they were at the first public inquiry insofar as the sports pitch was concerned, there may still, however, be reasons why the application will not succeed. In that case the Inspector was clear that the primary recreational use of the sports pitch was permissive rather than “as of right” and so the application must fail. We suggest this application is also unlikely to be able to satisfy all the required limbs of the statutory test (see 6.1).

(b) The applicant now appears to be unwilling or unable to proceed with his application. On 6 August a letter was written to his solicitors inviting comments on several matters which would assist in advising the Committee how to determine this application (Appendix H). Despite reminders of 16 September and 15 October, the latter following receipt of a letter from Allerdale Borough Council complaining that the continued delay of bringing this matter to a resolution was causing serious detriment to that Council, no response has been received, other than acknowledgements from the applicant’s solicitors

(c) Members will see that on the second page of the letter of 6 August it was pointed out that, while clearly rebuttable, Allerdale’s contention that the greater part of the site had been used for lorry parking, controlled by formal Order from mid 1992, might be presented as persuasive evidence that the land was not used “as of right” for lawful sports or pastimes, or indeed for lawful sports or pastimes at all during such times as lorries and/or cars were parked on the land. Any use has to be continuous, ie not interrupted for any period of time by the land being taken out of use so that such lawful sports or pastimes cannot be exercised. The Borough Council appears to be saying that the same argument which the Inspector accepted in 2001 should also prevail in respect of this application ie that the tarmaced area has been held and managed for that Council’s own, if different, purposes, with activities claimed as being “as of right” by the proponents having, on the contrary, been with express permission.

(d) Since it seemed unlikely that a number of the activities claimed would have taken place on a gravel or tarmaced lorry/car park and/or the land now highway the applicant was requested to clarify but no response has been received.

(e) If the land was a housing area until 1949 as Allerdale claims, the witnesses who believe it was given to the people of Workington by Lord Lonsdale in 1904 appear to be mistaken about its previous history and perhaps the boundaries of the application site?

(f) By letter of 15 October the applicant was invited to withdraw his application, in view of our conclusion that he is now either unwilling or unable to proceed with it. Because of the absence on leave of his solicitor there has been a delay in taking his instructions, but if he declines to withdraw his application then it requires to be determined by the Committee.

10.4 We recommend that this application be refused:-

(a) In respect of the stream/beck and the adjoining track at the north of the tarmaced area because this area has already been the subject of a Public Inquiry

7 RHC/Reports/DC&R The Cloffocks 251104 in 2001 when the Inspector found no evidence of recreational use had been produced and this area should not be reconsidered again. (res judicata)

(b) In respect of the highway and footway to the south of the tarmaced area because there is no realistic possibility of the standard of proof being satisfied regarding the exercise of lawful pastimes and activities on this land.

(c) In respect of the tarmacadamed area because the submission by Allerdale Borough Council that it has been set aside and used as a lorry/car park for many years has not been contradicted by the applicant. Unless this is incorrect, the applicant is unlikely to be able to reach the required standard of proof of showing that any lawful sports and pastimes which have taken place on the land will have either been continuous for a period of at least 20 years, in view of the use of the land by vehicles, or, in the alternative, “as of right” because of Allerdale’s express permission.

Richard Claydon, Assistant Head of Legal Services Anne Wallace, Commons Registration Officer November 2004

APPENDICES

Appendix A - Site plan and application Appendix B - Evidence questionnaires Appendix C - Objection – Allerdale BC - 1.6.04 Appendix D - Objection – J Mercia Haughan - 7.05.04 Appendix E - Letter from applicant’s solicitors - 22.7.04 Appendix F - Plan of application by J Bracken Appendix G - Plan of application by J MacLeod Appendix H - Letter from Head of Legal Services - 6.8.04

IMPLICATIONS

Staffing: Nil Financial: Nil unless a public hearing is convened Electoral Division(s): St Michael’s, Workington

* Please remove whichever option is not applicable

Executive Decision No

Key Decision No

If a Key Decision, is the proposal published in the current Forward Plan? N/A

Is the decision exempt from call-in on grounds of urgency? No

If exempt from call-in, has the agreement of the Chair of the relevant N/A Overview and Scrutiny Committee been sought or obtained?

8 RHC/Reports/DC&R The Cloffocks 251104

N.B. If an executive decision is made, then a decision cannot be implemented until the expiry of the eighth working day after the date of the meeting - unless the decision is urgent and exempt from call-in and the Head of Member Services has obtained the necessary approvals.

PREVIOUS RELEVANT COUNCIL OR EXECUTIVE DECISIONS

DC&R – 26.9.01 – Application by Mr Bracken DC&R - 28.3.02 – Application by Mrs McLeod

BACKGROUND PAPERS

None

RESPONSIBLE CABINET MEMBER

Kevan Wilkinson.

Contact: Richard Claydon, telephone : 01228 607363 e-mail: [email protected]

9 RHC/Reports/DC&R The Cloffocks 251104