REGULATORY BOARD COMMONS AND RIGHTS OF WAY COMMITTEE 22nd SEPTEMBER 2005

AGENDA ITEM:

Application for Registration of Land known as Roebuck Field, Woodside as a Town or Village Green

Commons Registration Act 1965

Report of the Head of Legal and Democratic Services

1. Purpose of Report

To consider the following application:

Nature of Application: Application for the registration of land at Roebuck Field, Ruardean Woodside as a Town or Village Green.

Parish: Ruardean Woodside

Name of Applicant: Ruardean Woodside Millennium Committee

Date of Application: 24 October 2003

2. Recommendation

That the application by the Ruardean Woodside Millennium Committee for the registration of land at Roebuck Field, Ruardean Woodside (which is shown edged red on the map annexed hereto numbered …..A) as a Town or Village Green pursuant to Section 13 of the Commons Registration Act 1965 should be refused for the reasons set out in the Inspector’s report dated 28 July 2005.

3. Resource Implications

The legal cost in taking each application to the Committee is in the region of £1,000. In addition, there are administrative costs in processing the application and the giving of the requisite statutory notices. Should any of the parties desire a “non statutory public inquiry” before final determination by the Registration Authority, the costs will be significantly increased. In this case, such an inquiry did in fact take place and the Inspector’s costs were in the region of £6,500 plus VAT. However, this cost needs to be balanced against the costs of a potential judicial review which could exceed £10,000.

4. Sustainability Implications

No sustainability implications have been identified with respect to this application. jpmms123.doc 1

5. Statutory Authority

Section 13 of the Commons Registration Act 1965 provides for the amendment of the registered Town or Village Greens maintained by the County Council as Registration Authority, where “any land becomes ….. a Town or Village Green”. Any person may make an application to the Authority for the amendment of the Register provided that the criteria set out in Section 22 of the Act for the establishment of a Town or Village Green is met. The County Council is obliged to consider any such application, duly made, in accordance with the relevant application and to register any land should that statutory criteria be met.

6. Departmental Contact

Mrs June Moores, Lawyer, Highways, Legal & Democratic Services. Telephone: Gloucester (01452) 425099 Email: june.moores@.gov.uk

7. Report Description

7.1 The land, the subject of the application, is known as Roebuck Field. This is an area of some 4 acres in size and bounded on the south by the Memorial Hall, Roebuck Meadows and Marfell’s Way; on the north by The Patches a public highway; between residential premises fronting Wesley Road on the western side, and premises fronting Duttons Lane on the east. The new development at Roebuck Meadows and Marfell’s Way stands roughly on the location of the former Roebuck Inn, demolished as a precursor to this development. At present the only formal access to this field lies along Marfell’s Way which abuts the field, ending at a vehicular gate and a stile. There was until a few months ago, an easy pedestrian access into the field along the side of the memorial hall. This has now been fenced off by the objector. The field itself slopes down from the east. It is grassed with the western most half being cut fairly short, whilst the eastern half being rather scrubbier in appearance. Three mature Sycamore trees stand in a line at the entrance to the field off Marfell’s Way marking the division between cut grass and scrub.

8. General

8.1 This is an application under Section 13 of the Commons Registration Act 1965 which provides for the amendment of the Register of Town or Village Greens maintained by the County Council where “any land becomes …. a Town or Village Green”. Under the provisions of the 1965 Act this could happen in any one of several ways but the only one of relevance in the present day is the actual use of the land by local inhabitants for lawful sports and pastimes as of right for not less than 20 years.

8.2 The Countryside and Rights of Way Act 2000 has amended the definition of Town and Village greens currently contained in Section 22 of the 1965 Act and which came into force on 13 January 2001. The section introduces

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reference to a “neighbourhood” and provides that the use of the land for lawful sports and pastimes must be by a significant number of people from the locality or neighbourhood, rather than simply by the “inhabitants”. This section will provide for regulations to be made in due course regarding the details of procedures to be followed in the event that a time limit for lodging applications is introduced.

9. Background

9.1 The aim of the Commons Registration Act 1965 was to establish registers to be maintained by the County Council as registration authority for common land or Town/Village Greens and which would contain information about the status of the land, any rights over it and ownership of the land in question. However, under the legislation, any land which was not registered during the relevant registration period (which expired on 2 January 1970) would lose its status and any unregistered rights would be unenforceable. The area of land which is under consideration was not registered at that time and is not shown on the Council’s Registers as either Town or Village Green or Common Land.

9.2 Section 13 of the Act permits applications based on claimed use for 20 years or more to be considered and, if appropriate, for the land to be included in the register thus protecting its status for the future. The procedure which has to be followed is set out in the relevant regulations which are the Commons Registration (New Land) Regulations 1969.

9.3 Members should be aware of the difference between Common Land and Village Green. By statutory definition, contained in Section 22 of the Act, Common Land means:

(i) land subject to rights of common whether those rights are exercisable at all times or during limited periods.

(ii) waste land of the manner not subject to rights of common: but does not include Town or Village Green or any land which forms part of a highway.

Town/Village Green is defined in Section 22 as land “on which the inhabitants of any locality having indulged in lawful sports and pastimes as of right for not less that 20 years”. As indicated above, this definition has been amended by the Countryside and Rights of Way Act 2000. Rights of Common (for example grazing) can be registered over either category of land but normally only exists over common land.

10. The Application and Background

10.1 Dr Steve Gibbons, Secretary of Ruardean Woodside Millennium Committee, made an application for the registration of an area of land known as Roebuck Field, Ruardean Woodside, in the County of Gloucestershire as a Town or Village Green pursuant to Section 13 of the Commons Registration Act 1965. By the application dated 24 October 2003 made on Form 30, Dr Gibbons jpmms123.doc 3

requested the Commons Registration Authority of Gloucestershire County Council to register Roebuck Field as a Town or Village Green on the basis that the inhabitants of the locality have indulged in lawful sports and pastimes as of right for not less than 20 years on the Roebuck Field, the land becoming registerable on 1 August 1990.

The Authority advertised for objections to the application through the local newspaper on 25 March 2004. An objection dated 30th April 2004 to the application was raised by K W Bell & Son Limited.

10.2 K W Bell & Son Limited is a well known development company within the and owns the freehold interest of Roebuck Field and the surrounding land since 1992. Mr Keith Bell, the guiding force behind the Company and who is the objector in this matter, has since late 1995 carried out a significant house building programme on land near and adjacent to Roebuck Field.

10.3 The history behind the relevant buildings within the area is that Roebuck Public House is shown on an ordnance survey map of 1878. It appears to have been demolished or rebuilt at some time subsequently – the later Roebuck Inn is in a slightly different location. Roebuck Fields are shown marked on Ordnance Survey Grid 527 and 528 and being reached (on their northern boundary) by a highway. On the eastern, southern and western side the fields are shown bounded by other properties or closes, save that on the south west boundary it is shown as abutting on rough ground which it is itself crossed by a track.

The Memorial Hall is a substantial building built on waste ground to the south west of Roebuck Fields and was constructed in about 1922. It comprises a main hall to the front with a proscenium stage. It has a rear door leading to the field. The hall has ancillary rooms to the rear, which the applicant suggests were intended to provide changing rooms relating to the sports on the field.

The Roebuck Public House was sold to Mr K W Bell, the objector, in 1992 and demolished. The highways called Roebuck Meadow and Marfell’s Way and the 17 dwellings fronting them were built on the site, together with other land to the south of Roebuck Field between 1994 and 1997.

10.4 The regulations referred to above prescribe a procedure for dealing with applications for new Town or Village Greens. Notice of the application must be given to the owner/occupier of the land and anyone likely to object to it. A Notice has to appear in the local paper and be advertised locally. In addition, unless the Authority feel that it is not reasonably practicable, a Notice has to be affixed to any part of the land which is “opened, unenclosed and unoccupied”. There is a period of not less than 6 weeks for objections to be made to the Registration Authority. It is then required to consider any statement in objection if it is made in writing and signed by that person. The Authority may consider any statement it receives before finally disposing of the application and if statements are received, each party has to be given the jpmms123.doc 4

opportunity to comment on the representations received. Subsequently,a Report is prepared by the Head of Legal and Democratic Services for the members of the panel to consider in the usual way. It should be noted that there is no right of appeal against the Authority’s decision laid down in the legislation.

10.5 In this case, formal notice of the first application was given on the25th March 2004 and served in accordance with the requirements of the regulations.

10.6 When the application was first received my colleague Miss. Smith a Lawyer with this authority rejected the application, the reason being that the provisions of the 1965 Act do not apply to the Forest. Miss Smith went onto explain that we have no registered commons or village greens within the statutory Forest boundary and thereby believed that she was correct in first refusing the application.

10.7 Dr. Gibbons subsequently consulted the Crown direct on whether greens can now be claimed over the Forest of Dean and he was informed that the Forest of Dean was not exempt from applications for new village greens.

10.8 The Ruardean Woodside Millennium Committee on the 3rd November, 2003 renewed their application for the land known as Roebuck Field to be registered as a Town or Village Green.

11. Objections/Representations

11.1 Case law is changing all the time and a recent Court of Appeal case decided in February of this year (the “Trap Grounds” case in Oxfordshire) may prevent most greens from being registered because landowners can defeat applications for new village greens being registered by taking action after the application and before final registration by the Authority. We are still waiting to hear whether leave to appeal to the House of Lords has been granted.

11.2 In response to the Notices given by the Registration Authority an objection dated 30th April 2004 was lodged by K W Bell and Son Ltd, the owners of the land in question. The basis of their objection:-

(i) Mr. Bell states that the land is private land owned by K.W.Bell and Son Ltd. The company purchased the land in 1992 from Whitbread Brewery. The land the subject of this application was described in the particulars as pastureland. At the time of the purchase the land was fenced and gated and during construction which ended in 1997 a robust and stock proof fence was erected between the properties and the field. (ii) The development work undertaken received a lot of opposition therefore at the request of Drybrook Parish Council Mr. Bell arranged a meeting in which all the detractors could attend and voice their concerns. Mr. Bell explains that at no time was the ownership of the land or the right to use their land was brought into question.

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(iii) The land has remained idle in the intervening years apart from the cutting and removing of hay on a annual basis. There was a short period when a Mr. Cross from Ruardean Woodside was permitted to graze his horse on the land and it was stock proof then. (iv) Mr. Bell says that when the land was used for sporting events it was always by permission of the landlord of Roebuck Inn and subsequently Mr. Bell’s company. Mr. Bell enclosed correspondence between his company and Management Committee permitting continued use but it was always with a proviso that they would vacate on request and the permission was not transferable. (v) Permission has never been refused for the ground to be used in connection with carnivals. Mr. Bell has been invited as a guest to previous carnivals and has presented prizes. (vi) Mr. Bell says that he has been generally sympathetic to requests for support when approached by the village. He has donated land for a car park but had to refused some land for a children’s play area when the request became unreasonable. (vii) Mr. Bell is also concerned regarding maintenance of the land should the application be granted. In 1997 an area of open land was given by the Company in accordance with planning permissions for seating and a play area and was then unable to get this adopted by the Parish of District Council. Mr. Bell is therefore concerned that if the application is granted will be required to maintain it. (viii) Mr. Bell explains that the land is not open for public use, but in the spirit of good relations with the neighbours has not instigated any trespassing proceedings.

11.2 Dr Stephen Gibbons’ response to the objection by K. W. Bell and Son Ltd.

(i) The Ruardean Woodside Millennium Committee (“the Committee”) do not dispute paragraphs 1,2,3,5,7,8,9,10 and 11 of the objector’s letter. (ii) Paragraph 4 of objectors letter – the Committee’s response out of 43 evidence forms supplied only a minority have any reference to permission being sought and four of these refer specifically to a period later than that specified (2000 millennium party). The Committee do not dispute that occasionally and especially in recent years, permission might have been requested to comply with insurance needs and out of courtesy. (iii) Paragraph 6 of the objector’s letter – the Committee’s response is that the copy correspondence from Mr. Bell postdate the 1970-1990 period and are thus not strictly relevant to the application. They represent just part of the activities which have taken place in the years since 1990 and the Committee’s contention is that the traditional usage by the villagers has continued alongside any of the activities mentioned in the correspondence. (iv) The Committee says that K.W.Bell & Son Ltd indicate a willingness and eagerness to accommodate the requests regarding the Roebuck Field. The Committee says that the village is grateful for this but that the

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willingness is to be interpreted as acquiescence in a long established customary right as much as an expression of goodwill.

12. Decision to hold Public Inquiry

12.1. As the issue as to the nature of its assent of the use of Roebuck Field between the Applicant and the owner was disputed, Dr Stephen Gibbons (the Applicant) and K W Bell (the objector) requested an oral hearing in order that an independent adjudicator could reside over the hearing and listen to arguments from both sides and give an impartial recommendation to the Authority.

12.2. Further, a recent case R (on the application of Cheltenham Builders Ltd) v. South Gloucestershire District Council 2003 where South Gloucestershire District Council erred in allowing an area of land to be registered as a Village Green as the evidence did not show that the whole of the land had been used for sports or pastimes for the required period. There had been no oral hearing to test the evidence and the area defined was not a “locality under the legislation”.

12.3. The hearing took place at the Memorial Hall, Ruardean Woodside commencing on the 16th February, 2005 and was chaired by a barrister experienced in this area of law to listen to both parties and adjudicate on the evidence.

13. Legal Comments

13.1 Having complied with the procedural requirements, it is the County Council’s duty to consider the application, the objections received and to dispose of the applications by acceptance or rejection. To do this the Panel must consider the statutory criteria contained in Section 22(1) of the 1965 Act as defined above.

As from 30 January 2001 the definition was replaced by the following:

“Land falls within this sub section if it is land on which for not less than 20 years, a significant number of inhabitants of any locality, or of any neighbourhood within the locality, having indulged in lawful sports and pastimes as of right, and either

(a) continue to do so, or

(b) have ceased to do so for not more than such a period as may be described in the regulations.”

As indicated above, no such recollections have been brought into force which will indicate when that cut off period is.

No guidance is given to the Act or subsequent regulations as to how that test should be met, so the three main elements have been analysed and

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considered by the Courts over the years and these are more specifically detailed below.

13.2 Until June 1999, it is fair to say that the judicial decisions have effectively precluded any successful Village Green claims from being made. The principal case which prevented this is the Court of Appeal decision in Crown v. Suffolk County Council Ex Parte Steed . The Court ruled that the term “as of right” meant that the right must be exercised in the honest belief that it is the legal right enjoyed only by the inhabitants of a village to the exclusion of any other person.” This effectively proved to be a test that no witness was able to substantiate. This however, has been overturned in the important House of Lords case R v. Oxfordshire County Council Ex Parte Sunningwell Parish Council (judgment given on 24 June 1999).

13.3 As mentioned above there are three main elements to the requirements for an application to register a town or village green and it is important to consider each separately.

13.3.1 Inhabitants of the Locality

By its definition, this does not mean the public at large and until recently it would appear that the Courts took a fairly restrictive view of the term locality. In the Sunningwell case it was argued that the evidence of users submitted in support of a Parish Council’s claim was too broad and the evidence showed that the Glebe land (i.e. the area under consideration) was also used by people who were not inhabitants of the village. However, the Court decided the definition did not say user “only” by the inhabitants of the locality, although, in that case there was little evidence of anyone other than the Villages using the Glebe for games or pastimes. The position was summed up as follows:

“The evidence of the Applicant’s witnesses and of members of the public who gave evidence was that informal recreation on the Glebe as a whole (as opposed to use of public footpath across it) was predominantly, although not exclusively, by inhabitants of the Village. This makes sense because there was nothing about the Glebe to attract people outside the village. The Court decided that it is sufficient that the land is used predominantly but not exclusively by inhabitants of a village was capable of being “a locality”.

13.3.2 Lawful Sports and Pastimes

The type of activity which historically was accepted had to be something more than a mere wandering as it is “local sports and pastimes” required to satisfy the tests and not “exercise or recreation”. The types of activity which was historically accepted included “dancing around the maypole and otherwise enjoying recreation, organised racing, dancing, horse riding, playing cricket, practicing archery and “playing all lawful village sports, games and pastimes”. However, for a jpmms123.doc 8

rate of recreational use to be upheld there has to be no commercial activity.

As for types of activity that now constitutes sports and pastimes, the House of Lords in the Sunningwell case rejected the argument that these need to be communal or to include formal sports or organised events in order to justify registration. The informal modern activities such as dog walking and playing with children are as relevant for this purpose as traditional ones such as maypole dancing. So long as evidence is available of the clear pattern of recreational use, principally by local inhabitants, it does not matter what types of lawful sports or pastimes are indulged in. In the Sunningwell case, the evidence showed The Glebe had been used for solitary or family pastimes such as walking, tobogganing or family games but not for anything which could properly be called a sport. As a matter of language, the Court decided that “sports and pastimes” is not 2 classes of activity but a simple composite class which uses 2 words in order to avoid arguments over whether an activity is a sport or pastime.

13.3.3 Twenty Years Use as of Right

It is necessary to show on the evidence submitted that the land has become a Village Green after January 1970 and thereafter has been used for 20 years as of right. Under the case law before the “Steed” case, to be “as of right”, a person had to believe that they were exercising their public right as opposed to something which the witness felt the owner would not stop but would tolerate if it did not harm him. The previous understanding of the law, which has now disappeared, had been that for users to demonstrate they had indulged in lawful sports and pastimes “as of rights” involved proving, that they had used the land in the honest belief that they, and only they, i.e. not the public at large, had the right to do so. The House of Lords in the Sunningwell case drew on legal principles going back to Roman times and reasserted an ancient principal namely that if sufficient people carried on an activity openly and for long enough without anyone trying to stop them, it is right and proper that the activity should be treated by the law as having a lawful origin. The House of Lords held that it is only necessary for the inhabitants to prove that for up to 20 years they have used their Green for lawful sports and/or pastimes without result to force, secrecy and as if they had a right to do – that is, without having been granted any licence by the landowner to do so. This bring the legal tests of “as of right” very much in line with that required to establish public rights of way either under provisions of Section 31(1) of the Highways Act 1980 or at Common Law.

14. Inspector’s Report and Recommendation

14.1 As the recommendation is this particular case is based on the Inspector’s recommendation (the Inspector is a Barrister highly qualified in this area of law), contained in a very comprehensive report which we received on 28 July jpmms123.doc 9

2005, the report is attached in its entirety annexed hereto (numbered B).

14.2 That report set out a detailed analysis of the evidence put forward in support of the application, comments by the Applicant, Mr. Bell was represented by his solicitor, and other representations, together with a large number of legal submissions put forward by the parties. The Inspector’s conclusions and recommendations are contained in page 53 and 54 of his Report.

14.3 He concludes that the Authority should dismiss the application to register the Roebuck Field, Ruardean Woodside because:

(1) It does not have jurisdiction to consider the application or make the registration by reason of the provisions of Section 11(1) of 1965 Act.

Section 11 (1) of the Commons Registration Act 1965 says “ The foregoing provisions of this Act shall not apply to the New Forest or Epping Forest nor to any land exempted from those provisions by an order of the Minister, and shall not be taken to apply to the Forest of Dean”

(2) The Applicants have failed to establish any continuous period of 20 years user of the field for local sports and pastimes between 1970 and the date of the Inquiry. This was because:

(i) the user was not as a matter of fact sufficient to bring to the attention of the landowner of the field a claim to a public right;

(ii) user by the neighbourhood of Ruardean Woodside was from time to time by permission of the owner, permission having been granted for carnival use;

(iii) the Applicants have not proven that the user was by the residents of the locality being a locality known to law.

14.4 On the evidence that the Applicant has not made out the necessary requirements to satisfy the County Council that the parcel of land known as Roebuck Field, Ruardean Woodside and identified within the application ought not to be registered as a Village Green pursuant to the Commons Registration Act 1965 and I recommend to the County that they do not grant the application.

14.5 A very thorough and comprehensive examination of all the evidence has taken place with regard to this Application. As the registration itself does not provide a right of appeal, it is felt that offering a non statutory hearing was the most fair way of examining the evidence, especially in the recent case mentioned above of Cheltenham Builders Ltd v. South Gloucestershire District Council 2003, before final determination by members and to minimise the chance of a challenge by means of a Judicial Review in the High Court.

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14.6 It is therefore recommended that the reasons set out in the Inspector’s Report that the Application to register a Town or Village Green should not be granted.

14.7 It should be noted that the affected parties have already been supplied with a copy of the Inspector’s Report.

Background Documents

Documents Received From

Application Dr. Gibbons for the Ruardean Woodside Millennium Committee

Objection K.W.Bell and Son Limited

Response to objection Dr. Gibbons for the Ruardean Woodside Committee

Inspectors Report Mr. Leslie Blohm

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