Agenda item No .
HERTFORDSHIRE COUNTY COUNCIL
DEVELOPMENT CONTROL COMMITTEE
TUESDAY 23 JULY 2013
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APPLICATION FOR THE REGISTRATION OF LAND KNOWN AS
WESTFIELD PLAYING FIELDS, HARPENDEN, AS A TOWN OR VILLAGE
GREEN
Report of the Chief Executive and Director of Environment
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Author: Ian England
– Definitive Map Officer,
Rights of Way Service
Tel: 01992 556185
Local Member: Cllr. David Williams.
1. Purpose of the Report
1.1 To inform Members of the Committee of an application to register land known as Westfield Playing Fields, Harpenden (the Land), as a town or village green.
1.2 To inform Members of the findings and recommendations of an independent Inspector following a non-statutory public inquiry.
1.3 To seek a decision from Members on whether to accept or reject the registration.
2. Summary
2.1 An application to register the Land as a town or village green, was formally received by Hertfordshire County Council (HCC) on 8 August
2010.
2.2 The application has been processed by the Rights of Way Service for
HCC as Registration Authority, in accordance with section 15 of the
Commons Act 2006.
2.3 The Land was owned by St Albans City and District Council (SADC) at the time of the application. Ownership of the Land has since been transferred to Harpenden Town Council (HTC) on 24 April 2012.
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2.4 After the application was advertised objections were received from SADC on 4 November 2011 and HTC on 8 November 2011. No other objections have been received.
2.5 Following the necessary gathering and exchange of information, it was decided that the evidence should be considered at a non-statutory public inquiry. The inquiry was held at All Saints Church, Station Road,
Harpenden between 10 and 11 December 2012. The independent inspector appointed by HCC was a barrister experienced in this area of law. Following the inquiry the Inspector prepared a response in the form of a Main Report (see weblink and copies in the Members’ Room) and a
Summary Report (Appendix 2).
2.6 The Main Report , dated 26 February 2013, concludes
: “…that it is my recommendation that the Council reject the application, on the basis that use of the Land for lawful sports and pastimes during the Relevant Period was not carried on as of right, but was instead carried on ‘by right’.”
2.7 The Inspector also added: “The only further observation which I would make in this context is to note that the recommendation I have made is based largely on the decision of the Court of Appeal in Barkas. The
Council should be made aware that that decision is currently the subject of an application for leave to appeal to the Supreme Court, and as such the Barkas litigation has not necessarily ‘concluded’.”
2.8 The application for leave to appeal to the Supreme Court in the Barkas case was granted on 3 May 2013. The case is not expected to be heard before 2014.
2.9 The Inspector recommended that the application should be rejected.
3 Background
3.1 The Land is broadly rectangular in shape and 1.15 hectares in area. To the northwest the Land is bounded by residential properties in Westfield
Place. To the south west, the Land abuts residential properties facing onto Hyde View Road, whilst to the north east there is a fenced area of scrubland, which was formerly used as allotments. To the south east of the Land lie residential properties on St James Road. Access to the Land is readily available from a number of points, notably along a path from
Westfield Place, by means of a footpath from Hyde View Road and up a bank leading from Willoughby Road.
3.2 The majority of the Land comprises a cut grass field, with the appearance of an urban park.
There is a rectangular fenced area located towards the south western corner with children’s play equipment. There is additional play equipment located towards the north eastern boundary (see map attached at Appendix 1).
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3.3 The Land forms part of the Westfield Estate. It was acquired in various plots and at various times pursuant to or under a combination of section
164 of the 1875 Public Health Act, section 10 of the 1906 Open Spaces
Act and section 59 of the Housing Act 1925. The Land was acquired between 1928 and 1947 by the Urban District Council of Harpenden which was the predecessor authority of the SADC. Ownership of the
Land was transferred to HTC in 2012.
4. The Process
4.1 An application for registration of land as a town or village green can be made under section 15(1) of the Commons Act 2006 where any of the following apply:
15(2) This subsection applies where:
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in sports and pastimes on the land for a period of at least 20 years; and
(b) they continue to do so at the time of the application.
15(3) This subsection applies where:
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in sports and pastimes on the land for a period of at least 20 years; and
(b) they ceased to do so before the time of the application but after the commencement of this section; and
(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b)
15(4) This subsection applies (subject to subsection (5)) where:
(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in sports and pastimes on the land for a period of at least 20 years; and
(b) they ceased to do so before the commencement of this section; and
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).
15(5) Subsection (4) does not apply in relation to any land where:
(a) planning permission was granted before 23 June 2006 in respect of the land;
(b) construction works were commenced before that date in accordance with that planning permission on the land…; and
(c) the land:
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(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.
4.2 Applications to register town or village greens are made to HCC as the
Registration Authority for Hertfordshire.
4.3
As HCC is a pioneer authority of the Commons Act 2006, the procedure for dealing with such applications is laid down in the Commons
Registration (England) Regulations 2008, as amended by the Commons
Registration (England) (Amendment) Regulations 2009.
5. Application
5.1
The application dated 5 August 2010, was made by Mrs Carol Hedges to
HCC as the Registration Authority. The application was made pursuant to section 15(2) of the Commons Act 2006.
5.2 The application was supported by 23 completed evidence forms from local people, describing the recreational activities they have enjoyed over the Land and the periods of time those activities have taken place.
5.3 The appropriate procedures were followed by the applicant for making the application and by HCC for the notification of interested parties and advertising the application.
5.4 Two objections were received; one from SADC on 4 November 2011 and the other from HTC on 8 November 2011. Both objections were on the basis that use of the Land had not been carried on ‘as of right’, but rather
‘by right’, an important legal distinction.
5.5 HCC considered that due to the legal complexity of the case, and the conflict in evidence between the applicant and objector, a non-statutory public inquiry needed to be held. Mr Alexander Booth was appointed by
HCC as an independent inspector and an inquiry was held on 10 and 11
December 2012 at All Saints Church, Station Road, Harpenden.
5.6 The Inspector’s Main Report, dated 26 February 2013, concluded: “…that it is my recommendation that the Council reject the application, on the basis that use of the Land for lawful sports and pastimes during the
Relevant Period was not carried on as of right, but was instead carried on
‘by right’.”
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5.7 The Inspector also added:
“The only further observation which I would make in this context is to note that the recommendation I have made is based largely on the decision of the Court of Appeal in Barkas. The
Council should be made aware that that decision is currently the subject of an application for leave to appeal to the Supreme Court, and as such the Barkas litigation has not necessarily ‘concluded’.”
5.8 In an email dated 12 March 2013, the applicant requested that HCC postpone the determination of the village green application and stated;
“ The Open Spaces Soc recommends that I lobby you / HCC to stay the decision on the Inspector's report until the outcome of the Barkas appeal is decided”.
5.9 On 4 April 2013, officers decided that it was reasonable to stay its decision on this application pending the outcome of the application for leave to appeal to the Supreme Court in the Barkas case, as the decision was expected shortly. Both the applicant and the objector were informed in writing of this decision.
5.10 On 22 April 2013, a letter was received from HTC who had sought
Counsel’s advice regarding the decision by HCC to stay its decision of the application. The advice HTC received indicated that local authorities must proceed on the basis of the legislation as it stands. The letter went on to ask for the application to be determined at the first available opportunity.
5.11 On 3 May 2013, the Supreme Court Appeal Panel granted permission to appeal to the Supreme Court in the Barkas case. However the appeal is unlikely to be heard until 2014. Officers therefore considered HCC’s legal position as Registration Authority and sought legal advice. Based on that advice HCC decided that it needed to proceed with the determination of the village green application as further delay could be deemed unreasonable.
5.12 On 24 May 2013, a letter was sent to all parties informing them that HCC had considered its legal position and had taken the view that the matter should be referred to the Development Control Committee for determination at the next available opportunity.
6. Conclusion
Th e Inspector’s Main Report recommends that the application for registration of the Land as a town or village green should be rejected, on the basis that use of the Land for lawful sports and pastimes during the relevant period was not carried on as of right, but was instead carried on
‘by right’. The reasons for this recommendation are fully set out in the
Main Report (see weblink and copies in the Members’ Room) and in the summary report (Appendix 2).
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7. Financial Implications
7.1 None, but should the applicant seek judicial review of the procedures and processes that have been used by the Registration Authority in determining this application, such review procedures could incur costs for the Registration Authority that may not be covered by existing budgets.
Recommendation
It is recommended that Members reject the application by Mrs Carol
Hedges, received by HCC on 8 August 2010, to register the land as a town or village green, for the reasons set out in the Inspector’s Report.
Appendices
Appendix 1: Map of the Land.
Appendix 2: Summary Report of Inspector Mr Alexander Booth dated 26 th
February 2013.
Background information used by the author in compiling this report
Commons Act 2006.
The Commons Registration (England) Regulations 2008 No.1961.
The Commons Registration (England) (Amendment) Regulations 2009.
Reports of Mr Alexander Booth dated 26th February 2013.
If you require any further information on the items referred to in this report, please telephone Ian England on 01992 556185.
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