Agenda item

Report by the County Solicitor & Head of Law & Governance (Legal Services) (PN10).

In June 2010 an application was made by Norman Boardman, Simon John Davis and Susan Daenke for registration of land known as the Duck Pond, North Lane, Weston-On-The-Green in Oxfordshire as a Town or Village Green under the Commons Act 2006. The land is in unknown ownership but is in part recorded as public highway.

The County Council is the Commons Registration authority with statutory responsibility for determining such applications.

Objections were received by the Commons Registration Authority to the application and after submissions on points of law the application was referred to Counsel for an Opinion containing a recommendation to the Council.

There are no delegated powers to officers to determine such an application and therefore the Members are requested to determine the application.

Having received the Advice of Counsel set out in Annex 4 to this report, the Committee is RECOMMENDED to:-

(a)          APPROVE the application for registration as a new Town or Village Green of that plot of land known as North Lane Pond, Weston-On-The-Green, Oxfordshire that site being identified coloured pink on the map appended to this report;

(b)          REJECT the application for registration as a new Town or Village Green that plot of land known as North Lane Pond, Weston-On-The-Green, Oxfordshire that site being identified coloured brown on the map appended to this report.

The Committee considered (PN10) a report by the County Solicitor and Head of Law and Governance setting out the terms of an application for the registration of land known as the Duck Pond, North Lane, Weston-on-the-Green under the Commons Act 2006.  Objections had been received to the application and as a result Counsel’s opinion sought.

Sam Cook a resident of Weston-on-the-Green had objected to the application on the basis that it was highway.  He considered the application had been submitted to stifle planning permission for land to the rear of the green which would require a vision splay as part of its access.

Bob Hessian, Weston-on-the-Green Parish Council stated that most parish councillors were familiar with the area having resided in the village for 30/40 years. He had been familiar with the land for 26 years during which time the parish council had cleared and maintained the pond and at no time over those 26 years had anyone queried the right to use it as a village green.  The parish council’s concerns centred on the comments by Charles Mynors QC and the lack of definitive maps.  The pink area contained very little of the green which was considered integral to the use of the pond and he supported registration of the land in its entirety so that it could continue to be looked after and nurtured for future generations.

Susan Daenke stated that the object of the application had been to protect the area for future generations.  It had been part of the village for over a century and in living memory since the 1920s.  It was not a straightforward case and there had been a long evaluation of the application over 3 years.  She referred to clause 4.10 of Counsel’s opinion which suggested that the boundary was negotiable and that had been the line the village had maintained.  The pond area was a cherished place and Norman Boardman a co-applicant had cared for ducks for many years.  There had been 44 letters of support and 145 signatures on a petition reflecting the importance of the site to local residents  and localism initiatives.  They were not asking for resources but merely the opportunity to continue to enjoy this area.

Norman Boardman endorsed those views and confirmed he had been involved in maintaining the pond for 25 years during which time the highway authority had never challenged that work.

Responding to a question from Councillor Armitage Mr Boardman confirmed the duckhouse had been erected on stilts within the pond.

Sue Parker on behalf of the highway authority outlined the history surrounding the application site and confirmed that highway records had it shown as publicly maintained highway since the late 1940s/early 1950s. She outlined the highway authority’s legal position, future maintenance needs and its operational position, which was to assert and protect the highway and its users. Registration of the whole site could restrict its ability to do that which was why an objection to the registration of the verge had been lodged but not to the pond itself which had been enlarged over the years.  The highway authority had wished to accommodate the applicants as far as was practicable and had suggested to them that part of the verge could be protected using certain provisions of the Oxfordshire Act 1985 but the applicants had not regarded this as sufficient. A formal application received to vary the highway record so as to exclude the application area from the highway had been considered in depth but in the authority’s view insufficient evidence had been presented to warrant such a variation.

Councillor Reynolds referred to the anomalous situation whereby there were lots of areas of highway which would never be used again as highway and, whilst he had every sympathy with Weston-on-the-Green Parish Council, the highway authority were required to protect the highway and the County Council could leave itself open to legal challenge by going against a recommendation to achieve that.  He proposed that the officer recommendation be approved as set out in the report.  Councillor sanders seconded.

The Committee were advised that as there was one application it should vote on the recommendation in the officer’s report as a whole.

The motion by Councillor Reynolds was then put to the Committee and –

RESOLVED: (by 10 votes to 4) that having received the advice of Counsel as  set out in Annex 4 to the report PN10 to:-

(a)          approve the application for registration as a new Town or Village Green of that plot of land known as North Lane Pond, Weston-On-The-Green, Oxfordshire that site being identified coloured pink on the map appended to the report PN10;

(b)          reject the application for registration as a new Town or Village Green that plot of land known as North Lane Pond, Weston-On-The-Green, Oxfordshire that site being identified coloured brown on the map appended to the report PN10.

Agreed