Agenda item

The committee is asked to consider whether to amend the register of common land relating to register unit CL196 by the removal of a strip of land at Rangers Cottage, Ewhurst Road, Peaslake identified on the application plan (Annex A).

Officers:

Catherine Valiant, Countryside Access Officer – Commons

Judith Shephard, Senior Lawyer

Speakers:

None.

Key points raised during the discussion:

1. The Senior Lawyer stated that, following the publication of the agenda, on Saturday, 18 February,a request was received from the applicant to withdraw the application as the applicant considered that they had not had the opportunity to challenge the recommendation and considered the process unfair.
2. The Senior Lawyer further stated that, current government guidance to registration authorities on requests to withdraw applications was that applicants did not have an automatic right to withdraw applications if an applicant asked to do so, and that it must be decided whether or not it was reasonable. Further to this, case law had shown that a registration authority should be guided by the general principle of being fair to those whose interests may be affected by a decision. The request to withdraw the application was considered by officers and officers responded to the applicant on 20 February 2023 explaining that permitting the withdrawal of an application was a matter for the registration authorities’ discretion. In this case, officers considered that the discretion could not be exercised to permit the withdrawal of the application, as the Council must balance the interests of all parties.
3. The Senior Lawyer explained that other parties had made representations on the application. The Council had also expended resources including obtaining counsels’ advice on the application, and that there would be a reasonable expectation that the application should now proceeded to determination by the committee. Further correspondence had been received from the applicant the morning of the committee stating that they did not believe that the committee had the power to refuse their request to withdraw the application and, to do so, would leave the decision open to challenge. The applicant considered that the way the application had been dealt with was unfair and that they should have had an opportunity to challenge counsel’s advice and the recommendation.
4. In regard to the process on an application of this type, the Senior Lawyer said that it was for the applicant to ensure that their application was accompanied by evidence showing that it met the relevant statutory criteria. The applicant had been given opportunities on several occasions to submit additional evidence to support their application.
5. Officers had Instructor counsel, an expert in this field, to provide advice to the registration authority on the merits of the application. Counsel visited the site, and the applicants were able to provide Counsel with further information. Counsel’s advice was to inform the registration authority and the registration authority was not obliged to share this advice. The appropriate course of action was then for the application to be referred to the committee for the termination. It was not considered that it met the threshold for an inquiry. It was further noted that the applicant had the opportunity to make representations at the committee which was not taken. It was therefore for the committee to consider the applicant’s request to withdraw the application.
6. Members noted that, if the application was withdrawn, the applicant would not have a final determination on the matter, and in the light of the recommendation, it would allow the applicant to further consider the evidence required. Further to this, objectors would not have a final determination. If the application was to be withdrawn, it was noted the land would retain its status as common land.
7. The Chairman stated that his view was that, if it was a planning application, then the applicant would have the legal right to withdraw.
8. The committee agreed unanimously to withdraw the application.

Actions / further information to be provided:

None.

Resolved:

The Application was withdrawn.