ITEM PN14
PLANNING & REGULATION COMMITTEE – 21 JULY 2008
COMMONS ACT 2006: IN THE MATTER OF AN APPLICATION TO REGISTER THE Mercury close play park, bampton IN OXFORDSHIRE AS A TOWN OR VILLAGE GREEN
Report by County Solicitor and Head of Legal Services& Democratic Services
Introduction
1. On 31 May 2007, an application to register a Town or Village Green at the Mercury Close Play Park, Bampton in Oxfordshire was received. The County Council are the Registration Authority appointed under the Commons Act 2006 to register Commons and Town or Village Greens. This application a copy of which is attached at Annex 1 (download as .pdf file), was submitted formally in pursuance of the Act and has now to be determined by the County Council.
2. The Planning & Regulation Committee have delegated powers to determine such applications.
3. The application was considered by an independent barrister experienced in the law of commons and village greens, who acted as Inspector. The issues raised by the application and objection were ones mainly of law and therefore a public inquiry was not held. Further written information and submissions were sought from the Applicants and Objector and these were taken into account in the Inspector’s Report. The results of the Inspector’s Report are set out in this report and the appropriate recommendation follows.
4. A copy of the Inspector’s initial Opinion is appended at Annex 2 (download as .pdf file). The main points which the Inspector raises are summarised below.
5. By submissions dated 12 and 17 April 2008 respectively the Applicant and the Objector each made further submissions on points of law and fact in response to matters raised in the Inspector's Opinion dated 5 March 2008.
6. The Inspector thereafter submitted his Report dated 27 May 2008 addressing the further issues and containing his recommendation. A copy of the Report is appended at Annex 3 (download as .pdf file).
Mercury Close Play Park
7. The application land is a small area of land in the village of Bampton which has for several years been available for use by the public for recreation and has play equipment installed on it.
8. The land was originally purchased in 1962 by the Secretary of State for War, who laid it out as a play area for the benefit of the Mercury Close housing development which was built to house armed forces personnel and their families.
9. By the mid 1980’s the housing had all been sold to private owners and the Ministry of Defence therefore agreed to sell the application land to Bampton Parish Council. The sale was effected by a Conveyance dated 29 January 1987.
10. The 1987 Conveyance contained no statement setting out the statutory power under which the Parish Council acquired the application land.
11. Further detail of these features can be seen on the plan (download as .doc file) annexed to the application at Annex 1.
The Town Or Village Green Application
12. On 31 May 2007, Mr Paul Simmons, Mr Gary Gummer and Ms Rosa Snow applied to the County Council under Section 15(2) of the Commons Act 2006 to register the Mercury Close Play Park as a Town or Village Green since by their assertion, the land had become eligible to be registered as such a green by that date. They alleged that (a) local residents had used the application land for lawful sports and pastimes as of right (without obstruction, permission, stealth or force) for an unbroken period of twenty years and (b) they continue to do so until the date of the application.
13. The application contained an additional statement of justification (included at Annex 1) giving more detail of the nature of the land and its usage. The statement in particular contained representations by the applicants concerning use of the application land ‘as of right’. The applicants contended (in summary) that the land had always been available for and used by local people for recreation, that there was play equipment on the land maintained by the landowner for this purpose and that the landowner had never by signage or otherwise indicated that the use of the land by the public was subject to revocable permission. The applicant therefore contended that the circumstances of this case were essentially the same as those in R (Beresford) v Sunderland City Council [2004] 1 AC 889 in which case town or village green status was granted to the land in question.
14. The County Council duly publicised the application and invited objections. One objection was received from Bampton Parish Council, the relevant landowner.
15. The County Council appointed very experienced Counsel – Mr Vivian Chapman QC to consider the application and to report as Inspector in writing with a recommendation as to whether the County Council should approve the application.
16. The Inspector subsequently issued an initial Opinion dated 5 March 2008 which raised 3 main aspects of the application and objection: the existence and wording of signs on the application land (the signage issue), the statutory power under which the land was acquired (the ‘by right’ issue) and whether the circumstances indicated that the landowner had granted any express or implied permission for the use of the land (the permission issue). He also issued Directions relating to further submissions by the parties.
17. The Applicants and Objector each lodged further submissions in response to the three issues raised by the Inspector. These were dated 12 April 2008 and 17 April 2008 respectively.
18. The Inspector then issued his Report dated 27 May 2008 on the basis of the written submissions. The Report is appended at Annex 3. A public inquiry was not considered necessary in this case.
Findings of Fact
19. There are essentially no disputes as to fact in this case. The parties both accept that the land has been used for lawful sports and pastimes by residents of the locality for at least 20 years, which use continued up to the date of the application.
20. One factual issue which did arise concerned signs on the application land (the signage issue referred to in paragraph 16 above). It was not clear precisely what the signs said from the initial application and objection. However the Applicants’ further submissions dated 12 April 2008 indicate that the wording of the sign is now settled. This factual issue was not however central to the determination of the application.
The Determination of the Application
21. The Inspector in his Report considered the further submissions made by the Applicants and Objectors as regards the ‘by right’ issue and the permission issue.
22. As regards the ‘by right’ issue, the Inspector in his Opinion dated 5 March 2008 highlighted that the 1987 Conveyance did not specify any statutory power for the acquisition by the Parish Council and discussed three possible statutory powers. In his Report dated 27 May 2008 and in light of the further submissions by the parties, he concluded that the most appropriate statutory power was either section 9 Open Spaces Act 1906 or section 164 Public Health Act 1875 which create a statutory trust for public recreation for land acquired in this way. For this reason, the use of the application land by the public has been pursuant to a statutory right to do so and is not therefore ‘as of right’ as required by the statutory definition.
23. As regards the permission issue, the Inspector in his Opinion dated 5 March 2008 discussed the application of the Beresford case to these circumstances. If permission is given by the landowner to use of the land for lawful sports and pastimes then that use cannot therefore be ‘as of right’ for the purposes of the legislation relating to town or village greens. Such permission could be express or implied from the surrounding circumstances and must be revocable.
24. The Inspector discussed aspects of the land such as the relevant signage, the presence and maintenance of children’s play equipment and the prohibition of cycling and dogs on the application land. He concluded in all the circumstances that there is nothing which indicates that a revocable implied permission was granted by the landowner and that user ‘as of right’ could therefore be inferred from these circumstances, were it not for his findings on the ‘by right’ issue.
The Inspector’s Recommendation
25. In the opinion of the Inspector therefore, the landowner has given no permission to local people to use the land for lawful sports and pastimes. However, in light of the statutory power under which the land was acquired all such use of the land was in any event made pursuant to a statutory right to do so. He therefore concludes that the use of the land cannot be ‘as of right’ and the application must fail.
26. Having read the recommendation, the County Solicitor concurs with the view expressed by the Inspector.
RECOMMENDATION
27. The Committee is RECOMMENDED to REJECT the application for registration of the Mercury Close Play Park, Bampton as a new town or village green pursuant to the Commons Act 2006 as described in the application dated 31 May 2007 by Mr Paul Simmons, Mr Gary Gummer and Ms Rosa Snow for the reasons given in the Inspector’s Opinion dated 5 March 2008 and his Report dated 27 May 2008.
PETER CLARK County Solicitor and Head of Legal & Democratic Services
Background papers: Objection by Bampton Parish Council - dated 1 October 200. Applicant's comments on Objection dated 29 October 2007, Applicant's further comments dated 5 November 2007, Applicant's comments in response to Counsel's Opinion dated 12 April 2008, Objector's comments in response to Counsel's Opinion dated 17 April 2008.
Contact Officer: Richard Goodlad, Solicitor Tel: (01865) 815612
June 2008
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