Agenda item

The committee is asked to consider whether or not to register the land the subject of this application as a Village Green.

Application for Village Green status by Jill Sanders dated 7 October 2011 relating to land at Molesey Hurst: Hurst Park, Hurst Meadows, Little Hurst Meadows, Graburn Way, East Molesey.

The County Council is the Commons Registration Authority under the Commons Registration Act 1965 and the Commons Act 2006 which administers the Registers of Common Land and Town or Village Greens. Under Section 15 of the 2006 Act the County Council is able to register new land as a Town or Village Green on application.

The recommendation is to REJECT the application.

It was agreed to take the Village Green applications next as there were officers in attendance specifically for these items.

Declarations of interest:

None.

Officers:

Helen Gilbert, Commons Registration Officer

Joanna Mortimer, Principal Lawyer

The Principal Lawyer outlined the legislative background for applications to register land as a Village Green, emphasising the need to prove every part of the statutory requirements.  She explained the difference between ‘as of right’ and ‘by right’.  The evidence in this case shows that inhabitants used the land in question ‘by right’ as the land had been lawfully allocated to the purpose of public recreation.  The Commons Registration Officer went on to introduce the application to register land at Molesey Hurst, Molesey as a Village Green.

Speakers:

Ernest Mallett, the local Member, had registered to speak and would be standing down from the committee and declining to vote for the duration of the item.  The following points were made:

·         He had spoken with the applicant and their supporters.  He understood the legal position but wanted to ensure that local views were also understood by the committee.

·         He provided a summarised history of the use of Hurst Park for public pastimes since the seventeenth century. 

Key points raised during the discussion:

·         The Principal Lawyer informed the committee that the lengthy history of pastimes was not relevant to the decision-making process.  The committee could only take into account evidence that proves each part of the statutory conditions.  Key to the debate is that the public had the right to use the land rather than using it ‘as of right’.

·         A Member queried the relevance of the Barkas case given that it was concerned with private land this application was concerned with public land.  The Principal Lawyer informed the committee that the Barkas case follows on from other legal case which came to the same conclusion.  There was no difference between cases concerned with private land or public land.  Documentation has been reviewed and it has been established that Elmbridge Borough Council holds the land in question under the Open Spaces Act 1906.

·         Members commented that the report was sparse for such complex issues.  It was suggested that it was worrying if local authorities could acquire land by statute and therefore extinguish any rights of local residents.  It was queried whether by obtaining this land, Elmbridge Borough Council extinguished an existing right.  The Principal Lawyer reiterated that section 15(2) of the Commons Act 2006 requires the committee to look only at the 20 years immediately preceding the application. Anything that happened before that time is irrelevant.  The land had been held by Elmbridge Borough Council during those 20 years under the Open Spaces Act 1906.  She also advised Members that the covering report was succinct because a full report based on the submissions had been attached.

·         The Commons Registration Officer informed the committee that the applicant had been told that a public inquiry could be held.  No response had been received other than an acknowledgement and so the case was dealt by written representations. 

·         The Principal Lawyer confirmed that bye-law signs had been in place during the 20 year period. 

·         A Member suggested that the interest shown in having the land registered as a Village Green was limited and could have numbered thousands of representations.  The lack of a public inquiry was queried and it was also asked if the officer recommendation was always no to these types of applications.  The Principal Lawyer informed the committee that every application is considered on the facts of the case.  Officers have sometimes collected evidence which allowed them to recommend approval.  The offer of a public inquiry is always made, however, there are costs involved for the applicant and so they do not always take that route.

·         Members asked if a different application should have been made to a different organisation to achieve a similar desired outcome.  The Principal Lawyer stated that she was not qualified to advise applicants on this. 

·         Members queried why Village Green applications come to committee if they cannot go against the officer recommendation.  The Chairman informed the committee that he had asked officers similar questions and whether these applications could be dealt with under delegated powers.  There was support from some Members for contentious applications to continue to come to committee.  The Principal Lawyer informed the committee that originally all Village Green applications had come to committee.  It was then decided to delegate to the Director of Legal & Democratic Services all the non-contentious applications.  It was suggested that a report could be brought to committee to review officer delegations.  If it was decided to make a change to the Scheme of Delegation, the committee would need to take a report to Council.

Actions/Further information to be provided:

Officers to bring a report to committee on the options for dealing with contentious Village Green applications.

 RESOLVED:

That the application for Village Green status by Jill Sanders dated 7 October 2011 relating to land at Molesey Hurst: Hurst Park, Hurst Meadows, Little Hurst Meadows, Graburn Way East Molesey, be REJECTED.