AGENDA ITEM 8a......

DR/23/11

committee DEVELOPMENT & REGULATION date 27 May 2011

VILLAGE GREEN APPLICATION

Application to register land at Bowes Field, Ongar as a town or village green

Report by County Solicitor Enquiries to Jacqueline Millward Tel: 01245 506710

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1. PURPOSE OF REPORT

To consider two applications made by Ongar Town Council to register land at Bowes Field, Ongar as a town or village green pursuant to Section 13 of the Commons Registration Act 1965 as amended,(“the 1965 Act”) and Section 15 of the Commons Act 2006 (“the 2006 Act”).

2. BACKGROUND TO THE APPLICATIONS

Two applications were made by Ongar Town Council for registration of land to the south of Bowes House, Chipping Ongar as a town or village green. The first application, dated 8 August 2005, was made under Section 13, Commons Registration Act 1965 (“the 1965 Act”) and the second application dated 11 December 2007 was made under Section 15(4) of the Commons Act 2006 (“the 2006 Act”). The application plan is at Appendix 1. This report addresses both applications but concentrates on the application made under the 2006 Act as agreement was reached between the applicant and the objectors as to the effect of the application made under the 1965 Act.

Essex County Council is the Commons Registration Authority in relation to both the 1965 and the 2006 Act and caused a public local inquiry to be held over a period of four days, namely 14, 15 and 16 December 2010 and 6 January 2011. At the inquiry, evidence and submissions were given in support of the applicant and on behalf of the objector, City and Country Residential Limited. At the inquiry, Nigel Farthing of Birketts LLP presented the case for the applicant and the objector was represented by Mr Douglas Edwards QC of Counsel.

The Inspector made a preliminary and unaccompanied site visit on 13 December 2010 before the start of the inquiry and made a further accompanied site visit with representatives of the parties on the morning of 6 January 2011.

In addition to the oral evidence at the inquiry, both parties had exchanged documentary evidence in advance of the inquiry date and written submissions were provided by the applicant on 21 December 2010 in relation to Mr Reynolds‟ written evidence, which is dealt with later in this report.

Both parties have had sight of the inspector‟s report and have made no additional comments.

3. THE APPLICATION UNDER SECTION 13 OF THE 1965 ACT

The requirements for this application are that the land must be used for not less than 20 years by a significant number of the inhabitants of any locality or of any neighbourhood within a locality for lawful sport and pastimes and either the use continues or that it has ceased for a period less than the prescribed period. As no such period was prescribed, then the usual expectation for 1965 Act applications is that use continues at the date of the application. The application form was silent on this particular point, but at the inquiry the applicant accepted that use had ceased on an unspecified day in April 2003 and it was common ground between

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the parties that a stock-proof fence was erected within the land in early 2004. That being the case, it was accepted by both parties that the application under the 1965 Act could not succeed as use of the land as a town or village green had ceased prior to the application being made. The application was made on 8 August 2005 and the relevant 20 year period would have run from 9 August 1985 to April 2005. As use ceased in April 2003, evidence of the use of the land would be deficient of the 20 year period by 2 years and 4 months. If use was ceased later by the erection of the stock-proof fence, then this would still remain deficient by 18 months. It is therefore not possible for the 1965 Act application to succeed.

The remainder of this report is therefore related to the 2006 Act application.

4. DESCRIPTION OF THE LAND

The land is known locally as „The Bowes Field‟ as it is situated to the southwest of Bowes House and was until 1997 part of that property. Bowes Field is located to the west of High Street, Ongar. It is an irregular shaped parcel of undeveloped grassland enclosed by fencing and hedges. It is bounded on its northern, western and southern sides by the fences and hedges which separate it from adjacent property and on its south eastern side by the rear boundaries of some of the residential properties situated on Great Lawn and Mark‟s Avenue. The easternmost section of Bowes Field is bounded by that part of High Street immediately to the south of the Four Wantz roundabout.

The land formed part of Bowes House which until 1994 was part of Great Stoney School. This was owned by the Inner London Educational Authority (ILEA) and subsequently by the London Borough of Hackney (LBH) and was a residential school for children with learning difficulties. During that time the land was maintained as part of the schools grounds although the principal playing fields were elsewhere. The school closed in 1994. Bowes House was sold to the objector in 1997 for conversion to provide several dwellings within the original buildings. The objector is the leaseholder of the land with a 999 year lease from LBH. It is proposed to develop the land.

Since 3 April 2003 the land has been subject of a grazing licence although it was not in fact grazed until the summer of 2004. There is a post and barbed wire fence running around the perimeter of the land to stock proof it which was erected in 2004. At the southern boundary of the land this fence is set approximately 3 metres in from the boundary hedge and permits pedestrian travel within the land on the northern side of the boundary hedge. Access to this part of the land is via a gap in the southern boundary hedge. In the northern most part of the site there is a chain link fence approximately 2.5 metres in height which runs parallel to walls which form part of the north eastern and north western boundary of the site.

The plan on the first page of this report Appendix 1 shows the layout of the site which is claimed to be the village green. The land which is shown with an „A‟ on Appendix 1 was agreed to no longer form part of the application as at the date of the inquiry.

A public footpath runs in a roughly north west to south east direction on the

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southern side of the southern boundary hedge and provides a link between the Epping Road (A414) and Mark‟s Avenue, Ongar. 5. AMENDMENTS TO THE APPLICATION

As indicated above, at the inquiry it became common ground between the parties that an area of land should be excluded from the area for which registration was sought. The area marked „A‟ on the plan was an area to the rear of Bowes House and which had been used exclusively by Great Stoney School prior to the school closing. No evidence of use of this land by the public was submitted to the inquiry and the applicant conceded that if the application was successful then the land shown as „A‟ should not be registered.

6. THE EVIDENCE IN SUPPORT OF THE APPLICATION

The applicant‟s representative made opening submissions on behalf of the applicant and called 13 people to give oral evidence in support of the application. All those who appeared at the inquiry produced a witness statement and some of those had also completed an evidence form included with the application.

In addition, 84 user evidence forms were produced in support of the application. The predominant response on these forms was with regard to the respondents‟ use of the land was that the land had been used for dog walking and recreational walking. Additional responses were that other recreational users such as games of football (both impromptu with the respondents‟ children and organised matches between teams) cricket, kite flying, picnics and other activities which can be classified as lawful sports and pastimes had been participated in or had been observed taking place on the land. Many respondents noted that community events organised by the Round Table or the Scouts had also taken place on the land from time to time. The evidence forms were given less weight by the Inspector because they were untested user evidence.

The applicant produced witness statements from 15 witnesses together with further letters of support from two of those witnesses. Of the 15 witnesses who provided a written statement 13 gave evidence at the inquiry and one additional person gave evidence at the inquiry (Mr Wise) in support of the application although not called by the applicant.

The summary of the evidence given, in the Inspector‟s words, is at Appendix 3 to this report

The knowledge of some of those relating to the land went back to 1950s/1960s and users set out how they had used the land, for what purposes and what they had observed taking place during their period of use. The Inspector noted that the oral evidence indicated that one of the principal activities undertaken on the land had been dog walking. Apart from four witnesses, all the witnesses giving evidence in support of the application had used the land for that purpose. Three witnesses had all seen dog walking taking place on the land. The land was also used by a number of witnesses as part of a short cut between Marks‟s Avenue and the facilities found near the Four Wantz Roundabout. One person had also used it as a cut-through to and from the bus stop and an additional one to get to their

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Many of the witnesses gave evidence as to the use of the land for informal games of football and cricket with their children and spoke of having seen other families engaged in similar activities. Children appear to have used the land as an extension of their own back gardens, but the use of the land for games of football was not limited to those who were resident at Great Lawn.

Evidence was also given regarding organised games of football having taken place on part of the land that had been marked out as a football pitch. Teams from Shelley Football Club and Ongar Juniors would make use of the pitch for competitive games against each other‟s sides or for training. A number of the witnesses recalled having spectated at such matches. There was also evidence that the land had been used for formal activities organised by the local Round Table to raise funds for charitable causes and a bonfire had been organised by the Scouts and by Great Stoney School.

Overall, the impression that the Inspector had from the oral evidence is that recreational walking, with or without a dog, took place on the land prior to the erection of the fence belonging to Mr Fenech, in connection with the grazing land. The evidence he heard of other recreational uses was that informal family activities took place on a reasonably frequent basis whilst the land was owned and maintained as part of Great Stoney School. The maintenance regime involved regular cutting of the grass across the whole of the school, resulting in the short turf shown on many of the photographs submitted by the applicant and witnesses. This short turf would lend itself to informal sports and games and was described as being ideal for picnics. The closure of the school in 1994 and the ending of the intensive mowing regime led to a reduction in the quantity of use of the land for informal games as the land reverted to rough pasture. Evidence was given that an area of ground immediately to the rear of properties at Great Lawn had been mowed to provide a space for their children and others to play football. This suggested after the school had closed the vegetation cover on the land was less conducive to informal pastimes other than dog walking.

Overall, the Inspector felt that dog walking was the predominant use of the land claimed in the period immediately before the erection of the fence. He accepted that walking with or without dogs is a lawful recreational pastime and he was satisfied that the land had been used for lawful sports and pastimes during the 20 year period immediately before the erection of the fence.

The Inspector did, however, identify some additional issues in relation to the nature of those uses.

Firstly, he was looking for a sufficient degree of frequency and extent throughout this 20 year period so that a reasonable landowner observing that use would have become aware that a public right to recreation was being asserted against him. It was common ground that the use of the football pitch on the land by Shelley FC for competitive matches had been with the permission of the Headmaster of the school. Given that permission was granted to one local team, it is more likely than not that use of the same pitch by Ongar Juniors was also with the permission of

5 the school. Permission to use one part of the school grounds is likely to have been treated as extending to other parts of the school grounds and such use would not qualify for the purposes of establishing a town or village green as use with permission is not use as a right.

It was also accepted by the parties that events such as those organised by the Round Table on an annual basis during the 1980s and also the bonfires organised by the Scouts took place with the permission of the school. These events are therefore also to be discounted.

Organised activities took place on the land and the applicant‟s witnesses did not engage in their own recreational activities when the permitted events had taken place. The objector argued that this was an “interruption” of use. For the applicants, it was stated that the public merely behaved with “courtesy and common sense” towards the owner in their use of its land. They resumed their use for the remainder of the year. The Inspector considered that he had observed from the evidence that there was no actual interruption and, once the event had ended, the residents resumed their use of the land for informal pastimes and that their approach demonstrates that there was peaceful co-existence between the owners use of the land and the use to which the land was put by residents. The same occurred in relation to the competitive games of football which no one sought to interrupt or walk over the pitch while a game was in progress. He took authority for this view from the Redcar Case (R on the application of Lewis v Redcar and Cleveland Borough Council [2010] UKSC11). That case concerned a golf course where the Judge recorded that the users there “simply acted (as all members of the Court agree, in much the same terms) with courtesy and common sense” and this did not defeat a village green application.

Finally on this point, he looked at the events organised by the Round Table and the Scouts which were limited and fairly few in number. Again, he concluded that recreational use of the land was not interrupted nor were the residents showing deference to the owner‟s periodic authorisation of the land being used for particular events.

He also considered the linear use of the claimed land as a shortcut to various facilities which the objector submitted would have instead led an observer to believe that a right of way was being asserted not a right of recreation. The Inspector took guidance from the Oxford County Council -v- Oxford City Council (Trap Grounds) case of 2004 in which one of the Judges observed that “walking a dog…. on a defined track which is situated on or traverses the potential green may be recreational use of land as agreed and part of the total such recreational use if the use is in all the circumstances is such to suggest to a reasonable landowner the exercise of a right to indulge in lawful sports and pastimes across the whole of the land. If the position is ambiguous, the influence should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the public right to use as a green)”. He also observed that worn tracks created by use were evident from an aerial photograph taken in 1999. Others said they followed no particular route but overall considered that while some dog owners may have wandered the defined path in pursuit of their dog, the majority followed the identifiable track around the field. Applying an “ambiguity of user” test

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to the available evidence, he considered that a reasonable landowner observing use of the paths around and through the land would have viewed such use as the exercise of a potential right of way as opposed to dog walkers asserting a right of recreation over the land as a whole. He therefore considered that the evidence of walking, with or without dogs, should be discounted in assessing the extent of use.

Finally, the inspector looked at the remaining elements of use. This was the evidence of use of the land for informal games by and with children. With the exception of perhaps one witness, the majority of the evidence heard at the inquiry was from residents whose property backed onto the land or who lived in the adjacent streets of Marks‟s Avenue and Bowes Drive. The limited evidence of use of the land by a restricted number of individuals for informal games was, he considered, insufficient to have demonstrated to a landowner observing such use that a right of recreation over the whole of the land by the local community was being asserted. He therefore did not consider that the applicant had demonstrated that use of the land for lawful sports and pastimes had been carried out to a sufficient extent for that use to have established the land as a town or village green.

7. THE OBJECTOR’S CASE

The objector wrote and objected to both applications by letters dated 5th December 2006 in relation to the 1965 Act application and 2nd September 2008 in relation to the 2006 Act application. At the inquiry, counsel called six witnesses on behalf of the objector. In addition, the objectors also provided a number of photographs, plans and documents relating to the objector‟s work programme undertaken on the land during its ownership and occupation of the site since 1997. An aerial photograph of the site taken in 1999 showed a number of wear lines in the ground around the perimeter of the site and crossing the site. The Inspector also observed the wear lines around the perimeter of the site at the time of his inspection.

His analysis of the evidence submitted by the objector‟s witnesses appears in Appendix 4 to this report. This included confirmation that the land had been acquired on 16 March 1998 by the company, specialising in the conversion and subdivision of substantial listed buildings into smaller individual residential units. They acknowledged that quite often such buildings were set in significant grounds and it was their practice to survey the grounds to identify whether there had been trespass onto the property and also to secure and maintain the boundaries in line with the requirement of the company‟s insurers. They had been aware of a number of “gate licences” regulating access from the houses on Great Lawn that backed onto it. This was supported by physical evidence of gates and tracks that they observed. The company was under no doubt that some people were accessing the land but believed that such use had been with the permission of the school or the local education authority landowner. Steps were taken to secure Bowes House from vandalism and trespass between November 1997 and completion of the transaction in March 1998 with further works thereafter. Two of those occasions in 2000 and 2001 were supported by a surveyor who also gave evidence; a property manager confirmed that fencing had been addressed in 1998, 2000, 2001 and 2003.

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Whilst some of the residents had indicated that they were prepared to enter into further licensing arrangements, the company had not pursued this matter as it had decided to lease the land for grazing and did not want the potential for grazing to be compromised by the existence of other authorised users. The company therefore entered into an agreement for grazing the land in 2003 but it did not come into effect until 2004 as there had been problems in securing a water supply to the site. The fence required for the grazing was therefore not installed until 2004. One additional witness for the objector who lived at Bowes Drive, Ongar, indicated that he had used the land as a shortcut but recalled being chased off the land by staff at the school and on other occasions playing football with friends when they had not been challenged but when they saw a member of staff, they were asked to leave. He also recalled the permission given by the headmaster to the Scouts in relation to the bonfires and the temporary barriers erected to prevent access when Round Table events were held.

There were also a number of statutory declarations made by supporters for the objector and three evidence forms which indicated use with permission of the education authority or the school. Again, the Inspector gave these slightly less weight.

8. ISSUES RELATING TO THE USER EVIDENCE AND THE STATUTORY GROUNDS

Mr Reynolds was one of the witnesses for the applicant. He produced a manuscript statement of four pages at the inquiry which he read and had previously submitted a written statement which had been exchanged prior to the hearing. In those documents, he made different comments in relation to whether or not he had permission to access the fields. He accepted at the inquiry that permission had been given to him in the 1980‟s.

The Inspector considered that the applicant‟s case would not have been assisted by Mr Reynolds evidence of his use having been with the permission of the landowner. Whilst he had been given permission to use the field or had understood from his conversation with the secretary of the school that his use was with the school‟s permission, this would have had little impact on the evidence of those other individuals who claimed to have used the land as a right. However, the attempt of substitution of one statement for another which said something different was an attempt to mislead the inquiry as to the nature of his use of the land. The Inspector therefore considered that the registration authority should treat the evidence offered in support of the application with caution particularly with regard to the question as to whether the use of the land was without permission.

Although he therefore found the witnesses who spoke at the inquiry to have been open and honest, the credibility of the applicant‟s witnesses (and particularly their evidence on the permission issue) is undermined by the actions of the applicant in relation to Mr Reynolds. He agreed with the objector that this incident demonstrates that the applicant was prepared to actively suppress evidence which did not help its case. He also agreed that the remainder of the evidence offered in support of the application is tainted by that incident and there remained a doubt in

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his mind as to how many other statements regarding permissive use may have been substituted to give a more beneficial picture of the usage of the land.

In the inspector‟s view, the evidential weight that could ordinarily be attached to the user evidence had been undermined by the applicant‟s action and the user evidence has to be treated with caution.

9. THE RELEVANT 20 YEAR PERIOD FOR THE 2006 ACT APPLICATION

An application made under Section 15 (4) of the 2006 Act should define the date when use ceased and use has to have ceased within a period of five years before the application. The application satisfied this test in that use was said to have ceased in April 2003 and as the application was made on 7 December 2007, it was made within five years of the claimed cessation.

There was a dispute between the parties as to whether April 2003 was the correct date. It seemed to revolve around the issue of the grazing licence granted in April 2003 and the requirement for the Licensee to fence the land within three months of the date of the Licence. It was submitted by the applicant that if use had not ceased in April 2003 as stated, then an amendment to the application should be made to allow a fresh terminal date (eventually assessed as 10 March 2004, when Mr Fenech had erected his fence) to be substituted. The applicant stated that this would not prejudice the objector in terms of his presentation of the case.

The Inspector accepted that the requirement to fence the land indicated that it was an action that had to be taken at some point after the date of the Licence, but does not specify when that date was. As the application was made on 11 December 2007, at that date the applicant had the benefit of access to those user evidence forms submitted in support of the application under the 1965 Act. The user forms had been completed in November and December 2004 and whilst many do not indicate that there had been any impediment or obstruction to use of the land, a number indicate that fencing had been erected in 2004 which prevented access. It is therefore evident from at least some of the user evidence that use had been prevented by the fence and that the fence was erected in 2004. It should therefore have been evident to the applicant that use had not ceased in April 2003.

The Inspector therefore had to consider whether the wrong date being stated was fatal to the application. He took the view, based on some of the comments in the Oxfordshire case, that the requirements of Section 15 (4) introduced a degree of flexibility and what was required is that the use terminated before the coming into operation of the section, which would have been satisfied by either 30 April 2003 or 10 March 2004 being the relevant date, and that the application had to be made within five years of whichever was the date of cessation.

His overall conclusion was that it would be open to the Commons Registration Authority to accept that the terminal date for the purpose of the application should be altered to 10 March 2004. He considered that to do otherwise would in all probability lead to a subsequent application being made based on the same evidence, but with an amended terminal date. He also considered that it was unlikely that the objector‟s case would have differed greatly in its thrust, if the later

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date had been specified in the application. This is because the objector‟s case was that use post-1997 was by force (in relation to the breaches of the boundary fences that were erected) and that use pre-1997 had been with permission (by the school etc.) or had been interrupted and that the spread of users across the chosen locality was insufficient. These are not matters which he considered would be materially affected or prejudiced by the movement forward in time from 2003 to 2004 of the terminal date.

Whilst other options were also explored in his report by the Inspector, in the light of his conclusions on the issues surrounding the use of the land for lawful sports and pastimes, these do not have to be considered further at this time.

10. AS OF RIGHT

The essential elements of use “as of right” are that it is a use which is without force, without secrecy and without permission.

In relation to the first of these there were issues which arose in relation to the fences around the site.

During the time that the school was in occupation, it seemed that the school fenced an area of land near Bowes House for the safety of the school‟s pupils and did not attempt to preclude access to the remainder of the land. Some suggest that the headmaster had been closely involved with the local community and was apparently content for the public to use those parts of the land which were not used by the school. This toleration may not be adequate to demonstrate that such acceptance was permission. The evidence produced by the objector showed that on acquisition they took steps to secure the boundaries by closing any gaps with fencing. There is evidence that the southern boundary fence was secured in 1998, 2000 and intact in 2003. There is evidence that the boundary along the High Street was secured in 1997, 1998, 2000 and 2001. The oral evidence regarding the erection of fencing to block gaps in the southern boundary hedge was supported by the work records and purchase orders in 1998. Although other dates are not corroborated by documents, the Inspector considered it unlikely that the company would not have secured the boundaries on subsequent occasions, given their contractual obligations and the importance attached by the company to preventing third party rights being acquired over the land.

The fact that the applicant‟s evidence was that members of the community using the land did not observe or come across any of the fences does not indicate that the witnesses were being untruthful. However that the fences were not seen by the users does not mean that the fences had not been present at some time or had not been erected. The inspector felt it was highly likely that the fences were removed by persons whose identity remains unknown, but who found a much used access blocked up.

On behalf of the applicant it was submitted that the actions of the owner should make the users unequivocally aware that their use is being challenged. The inspector analysed the evidence on this point. It was clear that post-1998 the owner recognised that there was unauthorised access to the land occurring and

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repeatedly took steps to curtail this usage. That the fences were removed does not detract from the fact that the objector had erected fences to keep the public out of the property. The effect of sealing the gaps in the southern boundary fence in 1998 and the subsequent renewal of those fences is to render any use of the land after 1998 use by force. Use by force is not use as of right and as use as of right could not be demonstrated from September 1998, use of the land between 1998 and April 2003 or March 2004 would not satisfy the requirement of Section 15 (4). In short terms, the inspector considered that the 2006 Act application fails on this ground.

The evidence of the potential additional Licences to the occupiers of Great Lawn, the company having written to them in 2000, indicated that the company did not view a right of recreation over the land as existing. Use can be forceful if it is contrary to the clearly expressed view of the landowner. Consequently the Inspector considered that evidence of use after 2000 put forward by the residents of Great Lawn, whose property backs on to the land, could not be counted as use as of right.

The available evidence heard by the Inspector established that the applicant had not demonstrated that the use of land for lawful sports and pastimes occurred “as of right” throughout the 20-year period in question. This was irrespective of whether that 20-year period ended on 30 April 2003 or 10 March 2004 and he recommended that the application fails on this ground.

The Inspector summarised the position on permission as follows. He felt that the evidence of Mr Reynolds had to be discounted as his use was with the specific permission of the school. He considered that other evidence submitted in support of the application demonstrated that other residents had received or obtained the permission of the owner to access the land and some of the use by residents of Great Lawn was pursuant to “gate licences” issued by the landowner. It was therefore clear that there had been permission to some of the supporters of the application. He also considered that the circumstances regarding Mr Reynolds‟ evidence was such that little confidence could be placed in the remainder of the applicant‟s evidence regarding use having occurred without permission.

11. LOCALITY

The locality was identified in the application as the administrative district of Ongar Town. It was common ground that the locality was a recognised area known to law and was adequate to serve as a locality for the purposes of the application. The locality is shown on Appendix 2.

The Ongar Town area comprises the former separate parishes of Chipping Ongar, Greenstead and Shelley. The current town also incorporates part of Marden Ash, which was previously part of High Ongar Parish. This includes a significant rural element with the principal residential areas of the town being on a north-south access at either end of the High Street. There is a high concentration of housing in Marden Ash to the south of the centre of Chipping Ongar and similar concentration in Shelley to the northwest of the Four Wantz Roundabout. The remainder of the town area is predominantly rural with houses and farms scattered throughout the

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area.

The concentration of users was in the immediate vicinity of the application site, namely in Great Lawn and Marks‟s Avenue. There were a few users from the eastern side of the High Street near Great Stoney Park and a small concentration in the part of Shelley closes to the Epping Road. There were no users from the centre, north or western parts of Shelley. There was a scattering of users from the northern part of Marden Ash closest to Chipping Ongar. There were no users from the central and southern parts of Marden Ash. There was only one identified user resident in Chipping Ongar. There were none from any of the rural parts of the town. One resident of Greenstead attended the inquiry, but offered no evidence of use of the land during the 20 year period prior to either April 2003 or March 2004.

The Inspector concluded that the claimed use of the land for recreational purposes was therefore predominantly from the residents in the immediate vicinity of the land and could not be said to represent a proper spread of uses throughout the chosen locality because there is no evidence of use of the land by those residing in the northern part of Shelley, the southern part of Marden Ash, from that part of Chipping Ongar between the railway and the Cripsey Brook or from the rural parts of the administrative area of Ongar Town.

Applying the comments of the Judge in the Laing Homes case, he considered that he had to assess whether “the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than use by individuals as trespasses”. As the local community here is the administrative area of Ongar Town, he did not feel there was evidence of use by the residents of all parts of Ongar Town so it would not be possible to say that there had been general use of the land by the local community. He therefore did not feel that the locality established the right criteria for the application to succeed.

12. LOCAL MEMBER NOTIFICATION The local member was consulted after the inspector‟s report was received and comments that whilst the inspector‟s conclusions will cause disappointment locally it seems in line with the evidence.

13. INSPECTOR’S CONCLUSION AND RECOMMENDATION

The Inspector concluded that the 1965 Act application should be rejected as the applicant could not demonstrate the land had been used for a full period of 20 years prior to the date of the application. Use had ceased on 30 April 2003, deficient by 2 years and 4 months, or on 10 March 2004, deficient by 17 months.

In relation to the 2006 Act application he concluded that the application should be rejected for three reasons. Firstly, the evidence does not show that the use of the land had been „as of right' during the whole of the 20 year period, irrespective of whether this is calculated to 30 April 2003 or 10 March 2004. Secondly, the evidence does not show that use has been by a significant number of the inhabitants of the claimed locality. Thirdly, the evidence of use is insufficient to establish that the land has been used to a significant extent as a town or village

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green.

The Inspector therefore recommended that both applications were rejected.

14. RECOMMENDED

That:

1. The Inspector‟s analysis of the evidence in support of the applications made in relation to Bowes Field, Ongar is accepted and that the application made by Ongar Town Council on 8 August 2005 under Section 13 of the Commons Registration Act 1965 is rejected, and:

2. In relation to the second application by Ongar Town Council dated 11 December 2007, made under Section 15 (4) of the Commons Act 2006, that 10 March 2004 is accepted as the substitute date for the purpose of section 15(4) and;

3. The 2006 Act application is rejected for the reasons set out in the summary of the inspector‟s report as set out above, and;

4. No change is made to the Register of Town or Village Greens consequent upon this public local inquiry.

BACKGROUND PAPERS

Applications dated 4 November 2004 with supporting papers. Consultation responses. Inspector‟s report.

Ref: Jacqueline Millward CAVG/19

LOCAL MEMBER NOTIFICATION

Ongar & Rural

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