The Cloffocks, Workington As a Town Or Village Green – Nl0036
Total Page：16
File Type：pdf, Size：1020Kb
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, WORKINGTON 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, football, 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 cricket, 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 sport 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 sports 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.