APPLICATION BY WELWYN PARISH COUNCIL TO REGISTER
LAND AT DIGSWELL AS A TOWN OR VILLAGE GREEN
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INSPECTOR’S REPORT
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Introduction
1. I am instructed by Hertfordshire County Council (‘the Council’) to advise it in its capacity as
registration authority, regarding determination of the application dated 1 July 2011 (‘the
Application’) submitted by Welwyn Parish Council (‘the Applicant’) seeking the registration
of land at Digswell (‘the Land’) as a town or village green pursuant to section 15(2) of the
Commons Act 2006 (‘the 2006 Act’).
2. The Application is the subject of objections from various parties that own areas of the Land
(together, ‘the Objectors’).The Objectors comprise Welwyn Home Farm Enterprises Ltd (‘the
First Objector’), Network Rail (‘the Second Objector’) and Mathilde Robert & Charalambos
Kyrillou (‘the Third Objectors’).
3. I held a public inquiry (‘the Inquiry’) between 14 – 16 January 2013 in the Digswell Village
Hall, Harmer Green Lane, Digswell. At the Inquiry, the Applicant’s case was presented jointly
by Mr Peter Neville and Mr Barry Glynn. The First Objector was represented by Mr Philip
Brown, of counsel, the Second Objector participated only in writing, and Ms Robert
represented the Third Objectors. I am grateful to all parties for the helpful and courteous
way in which they endeavoured to assist me during the Inquiry.
4. In the course of the Inquiry I conducted an accompanied site visit which took place on 16
January 2013, at which both the Applicant and the First and Third Objectors were
represented.
The Land
5. The Land subject to the Application extends to approximately 15 acres. It is broadly and
irregularly rectangular in shape. On its northern and western flanks, it borders open
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agricultural fields. To the south and east lie residential dwellings. The east coast mainline
railway line runs broadly north-south through a tunnel constructed underneath the Land.
6. In terms of the various elements that comprise the Land, there are four separate ‘holdings’
which are identified on the plan attached to this Report as Annex 2 and which can be
described in the following terms:
(i)
‘The Woods’
The Woods comprise mature woodland which is flat in places, but in others slopes
steeply away to the south and west. The area extends to approximately 12 acres,
and forms part of 126 acres of woodland on Lockley Farm, which is owned by the
First Objector and managed by its director, Mr Marinus Busiman.
(ii)
‘The NE Woods’
This area of woodland is indistinguishable from the Woods in appearance, but lies in
the north eastern corner of the Land, on the eastern side of the Tunnel Land (see
below). It is owned by a company known as McManus Associates.
(iii)
‘The Tunnel Land’
The Tunnel Land comprises a strip of land directly above the railway line, along the
eastern edge of the Land. It is owned by the Second Objector.
(iv)
‘The Eastern Area’
The Eastern Area comprises land between the Woods and the Tunnel Land. It is
largely covered in trees and scrub of varying maturity, and has an overgrown
appearance. The Eastern Area is owned by the Third Objectors.
7. There are various paths which run through the Land, to which I will make reference later in
this Report. Certain of the paths are registered on the Definitive Map. During the course of
the Inquiry, the Applicant (through Mr Barry Glynn) provided a plan depicting what it
regarded as an approximate record of the paths lying across the Land, referred to hereafter
as ‘the Path Plan’.
8. Access to the Land can currently be gained from a number of different points.
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The 20 Year Period
9. The Application was made pursuant to section 15(2) of the 2006 Act, so that the relevant 20
year period for the purposes of the Application is that culminating on the date of the
Application (ie 11 July 1991 - 11 July 2011; ‘the Relevant Period’).
The Applicant’s Evidence
10. Mr Neville made opening submissions, following which he called 15 people to give oral
testimony in support of the Application. All those who appeared at the Inquiry in support of
the Application, produced a witness statement and/or an ‘evidence form’.
11. In addition, the Applicant relied upon written evidence from a further 52 individuals who did
not appear before me at the Inquiry1. I have studied all this written evidence and had regard
to it in preparing this Report2.
12. The Applicant had also submitted a considerable amount of additional documentary
evidence in support of the Application. I have studied all this documentary evidence, and
had regard to all of it in preparing this Report.
13. In the following paragraphs, I summarise the evidence given by those of the Appellant’s
witnesses who did appear before me at the Inquiry. This section of my Report is not a
precise minute of each witness’s evidence, but rather a general record of what I considered
to be the thrust of their testimony (both written and oral).
Mrs Shirley Butler (Carleton Rise, Welwyn3)
14. Mrs Butler had made use of the Land since 1976 until moving away from the area in 2009,
but even now frequently came back to visit it – say once a fortnight. She began using the
Land shortly after arriving in the area, typically using it 2-3 times a week. This level of use
increased to become daily, on her acquiring a dog in the 1980s.
1
At the outset of the Inquiry there was some discussion as to its duration, and the time available for calling
witnesses. However, following that discussion, at various times during the course of the Inquiry I emphasised
to Mr Neville and Mr Glynn that they should call as many witnesses to give oral evidence as they wished.
2
As stated elsewhere in this Report, and as notified to the parties during the course of the Inquiry, I consider
that I can only attach limited weight to written statements of evidence in respect of which the opposing party
has not had an opportunity to cross-examine the author.
3
During the Relevant Period she lived at 22 Mornington
3
15. Mrs Butler walked her dog on the Land, and also painted there, since she was a keen
amateur naturalist. She had seen various other people in the Woods, mostly walking dogs.
Her own children had used the Land for walking and mountain biking when she first came.
16. Her recollection was that there had always been paths through the Woods, but she had not
always stuck to them. Towards the northern end of the Woods she might have made more
use of the tracks, but as regards the southern end (and in particular the ‘looping path’ in that
area) she had sometimes stayed on the path, and sometimes not.
17. She had never been challenged when using the Land, and had never seen any signs
restricting her use. She felt that she had not used the Land ‘secretively’, neither had she
employed force or violence.
Dr Dennis Barr (33 Harmer Green Lane)
18. Dr Barr had made use of the Land since shortly after moving to the area in 1960, until the
present day.
19. During the 1960s, when his children were young, he and they had used the Woods a great
deal. He had not been aware of footpaths at that time, but had instead felt that people went
everywhere. As regards more recent times, he felt he visited the Land every two weeks or
so.
20. During the Relevant Period he had seen others using the Land, either birdwatching,
blackberrying, picnicking, walking dogs or walking with their children, and children playing
with bikes. He had never seen anyone painting there. Activities such as picnicking and
blackberrying he had only seen on the Eastern Area.
21. He thought that in recent times there were many paths on the Land, some of which were
obvious, and some less so. He said that he would usually walk on the paths, but would walk
to the side of them when they got muddy. He felt that the representation of the paths on
the Path Plan was a reasonable impression of the path network, but that people left paths if
necessary to follow their dogs.
22. He felt that the Woods had remained much the same, but that the Eastern Area – which had
historically been open – had become overgrown
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23. Dr Barr stated that had never been challenged when using the Land, and had never seen any
signs restricting use until 6 months ago. He felt that he had not used the Land ‘secretively’,
nor had he employed force or violence to do so.
Mrs Hilary Winter (Okehampton)
24. Mrs Winter had used the Land regularly when younger, between 1955 and 1979, either
walking, picking flowers, picnicking or making dens. She had used the Land as a Brownie
during this period.
25. She used the land more occasionally between 1979 and 2011, during which time she would
have used it as a visitor (she now lived in Devon, but still had family in the Digswell area).
She had had her daughter in 1990, and her son in 1993. In the 1990s she visited roughly five
times a year, and subsequently only once or twice a year.
26. She was aware that there was a right of way running roughly north-south across the Land,
but was not aware of other rights of way. She did not recall seeing signs in the wood, and
never saw a ‘private property’ sign. Rather, she only saw a sign at the stepped access point4,
which confirmed the existence of a right of way. She was not sure when the ‘finger posts’
had arrived.
27. Mrs Winter’s use of the Land had been on the network of paths, but also off the paths as
well. The Eastern Area had been readily usable when she was young, but in more recent
times it had become overgrown. In general, she felt that she stuck more to the paths in
summer – owing to the level of vegetation – but traversed off the paths more readily in
winter.
Mr Eric Watterson (55 Warren Way)
28. Mr Watterson had lived at his current address since 1987, though had used the land since
the mid 1960s when he had lived at Old Welwyn.
29. As regards the Relevant Period, Mr Watterson had tended to make use of the Land every
two weeks or so in the years 1990-95. However, on buying a dog in 1995 he then began
visiting twice a day until the dog died in 2010, since when his use had become occasional.
His use had mostly been for dogwalking, but he and his 10yr old son had once been involved
4
This is the access off Harmer Green Lane, to the south east of the Land.
5
with a ‘Wide Game’ which involved boys scattering all over the Woods. The majority of
activity by others which he had witnessed also comprised dog-walking.
30. He himself had run youth groups from Welwyn Garden City (comprised mostly of children
from WGC) which carried on overnight activities in the Woods, whilst he was aware that
Guides or Brownies also made use of the area. He had seen them passing his house making
for the Woods once or twice a year, and his own daughter had been involved until 1995. He
also thought that children had ‘illicit parties’ in the Woods from time to time, as evidenced
by the beer cans and packets of sweets which he saw there.
31. Mr Watterson thought there were many well-defined animal tracks in the Woods, and felt
that the Path Plan was a fair representation of them. He felt the most well used routes were
the ‘main’ routes shown on the Path Plan5, but that people wandered all over the place. He
said that paths “come and go”, although some were more long-lasting such as the ‘southern
loop’.
32. He had seen signs and ‘way-markers’, but was not sure when they had been installed. He
had never seen a sign stating ‘private – keep out’.
Mr Alan Sparshott (18 Cubitts Close)
33. Mr Sparshott moved to his current address in 1984, when his children were 10 or 11 years
old (they had moved out in the early-mid 1990s). He had made use of the Land since 1980,
and since 1999 had kept a dog, which had meant that he had used the Land quite frequently
(2-3 times a week). He had engaged in occasional picnics on the Eastern Area, had picked
fruit there and had on 3 or 4 times taken pictures of trains.
34. When they were young, he had encouraged his children to use the Woods as a local play
area, and even now his grandchildren make use of the Land 3 or 4 times a year. He had
mostly seen people using the Land for dog-walking and picking wild fruit (raspberries,
blackberries, sweet chestnuts and crab apples) – which was on the boundary of the Wood,
on the Eastern Area. Otherwise, on rare occasions he had seen people train spotting, and
had twice seen groups cycling through the Wood (he didn’t know whether these people
were local, and did not recognise them).
5
During the Inquiry, these ‘main routes’ were referred to as ‘purple routes’, owing to the fact that on the large
diagram erected at the Inquiry venue, such routes were delineated in purple.
6
35. He was aware of the footpath which ran East-West across the northern portion of the
Woods and the NE Woods (which was well-signed), and would generally follow routes/paths
although on a number of occasions he would not. Mr Sparshott felt that at certain times of
the year the footpaths were not clear, so that people would explore the whole wooded area.
He didn’t agree with the lines of the various routes shown on the Path Plan, but felt that
they were approximately correct in terms of the number/direction of paths.
36. He had never sought or been given permission to use the Land so far as he was aware. He
had never seen ‘private property’ signs, and had only seen the ‘finger posts’ in the last two
years or so.
Mrs Margaret Goodchild (79 Warren Way)
37. Mrs Goodchild had made use of the Land since 1959, especially when her children were
young. She had gained access by means of a gate at the end of the garden of her property,
which abutted the Land. Her used had involved picnicking and playing cricket on the Eastern
Area, although her level of use had been less in winter.
38. She continued to use the Land currently, visiting with her grandchildren (the youngest of
whom was now 3, the oldest now being 22) to walk or climb trees. Mostly she made use of
the southern area.
39. She had seen others making use of the Land, including Guides, Brownies and groups of
ramblers. She felt that when she visited she would usually meet someone walking a dog. On
occasion she had seen the odd horse-rider in the Woods, although she did not know who
they were. Other activities she had seen, taking place on the Eastern Area, included
blackberrying and picnicking, and also children playing on bikes.
40. She agreed that there were a network of paths on the Land, but said that these were not
clearly defined and that when conditions became muddy, people would ‘step off’ them. She
herself would walk where ever there was least mud – whether on the path or off it.
41. She had not noticed signs on the Land until recently, but recalled that her husband had
mentioned seeing a ‘private property’ sign the previous summer. She had very recently
noticed the ‘way-marking’ routes.
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Mr John Robinson (5 Harmer Dell)
42. Mr Robinson had begun using the Land soon after he arrived at his current home in 2004,
and still visited approximately once a week. In the first years after moving to Digswell, he
had sometimes used the Land with 2 of his children (who left home in 2006 and 2009).
43. Generally he used the Land for walking, mostly on the paths although he would leave them
depending on the mud. He felt that there were defined paths at certain times of the year,
but that it was possible to go anywhere. He agreed that the network of paths was broadly as
indicated on the Path Plan, but felt that he would leave the paths if he had a reason to –
such as if he wanted to find a particular bird.
44. Mr Robinson never believed that he had had permission to use the Land, and did not recall
seeing signs erected until recently. He had never felt his use of the Land to have been carried
on secretly or by force.
45. In terms of others using the Land, Mr Robinson had seen people walking (with and without
dogs), bird-watching and cycling, although he had never seen anyone riding horses on the
Land. The blackberrying had been taking place in the Eastern Area. He accepted that he did
not know where the cyclists whom he had witnessed actually lived, or whether they were
local.
Mr Michael Carlin (62 Warren Way)
46. Mr Carlin had lived in his current address since 1998. He felt that he had used the Land most
days, sometimes as frequently as 3 times a day. Since 2000 he had used the area to walk his
dog, and felt that he still visited 2 or 3 times a day, either with a friend and their dog, or else
with his daughter’s dog which he often looked after.
47. He primarily used the Land for walking, sticking largely to the ‘main’ routes as shown on the
Path Plan. He felt that very often he (and his visiting grand-children) would stick to the
paths, although the children might venture all over to play hide and seek. He too would
sometimes deviate from the paths – for example to look at badger sets.
48. He had seen people walking dogs on the Land many times, also people taking photographs
and the occasional cyclist, who would sometimes be a local person and sometimes would
not.
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49. He did not recall seeing signs in the Woods, other than one outside the western fringe which
read ‘private land’.
Mr Ronald Maddox (21 New Road)
50. Mr Maddox had begun using the Land in 1958, and still used it in the present – visiting every
2 or 3 weeks.
51. Mr Maddox was the President of the Royal Institute of Painters/Watercolours, and was a
vice president of a number of such organisations. He often walked in the Woods, making
drawings or notes for his landscape compositions. He felt that he positioned himself all over
the Land, both on and off the paths, both in the Woods and in the Eastern Area. He said that
he did not draw on every occasion that he visited the Land, estimating that he did so once
every 3-6 visits.
52. He recalled seeing other people on the Land walking with dogs, and also on occasion people
blackberrying or bird-watching. He remembered that the Eastern Area had been home to
many wildflowers in the 1980s, before it had become overgrown.
Mr Barry Glynn (32 New Road)
53. Mr Glynn had used the Land since 1988, when he had moved to his current address. He was
a coordinator of the Digswell Green Residents Association
54. He had prepared the Path Plan, and felt that it indicated where footfall was heaviest on the
Land. He had tried to ignore animal tracks when preparing the document. He thought there
were lots of different routes throughout the area, and felt that dogs roamed all over, and
that the paths varied from one week to the next. He was aware that there were registered
footpaths in the Wood, though he had never felt that these routes were ‘marked’.
55. He accepted that the Land was uneven, but did not think it could all be described in that
way; it was not all steep banks.
56. As to his own use of the Land, Mr Glynn felt that he had generally used it once or twice a
week for dog-walking, since for all but 3 years of the Relevant Period he had either had his
own dog or been responsible for his daughter’s dog. He had also taken his grandchildren in
the Woods during the last 3 years or so, and had had picnics with them. He walked both on
and off the paths, and kept mostly to the southern area
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57. He had seen other people using the Land, mostly walking dogs, but some blackberrying
(mostly on the Eastern Area). He had also seen people jogging (whom he had not
recognised) and cycling (including a group called the “Welwyn Wheelers”, who were from
Hertfordshire and met at Gosling). He had also seen people taking photographs. He felt that
people were off the paths 50% of the time.
58. Mr Glynn felt that the signs were largely new, and had never noticed the sign on the western
boundary before the week prior to the Inquiry.
Mr Denis Watts (97 Warren Way)
59. Mr Watts had moved to his current home in 1960, and had begun using the Land that year.
During the Relevant Period of 1991- 2011, he felt that he had visited the Land every day, as
many as 3 or 4 times a day, in order to walk his dog.
60. Generally he would walk a circular route/circuit round the Land with his dog, and in the last
4 years had taken to walking through the Woods at night with a neighbour, looking for
animals such as Muntjack Deer.
61. He felt that he normally used the three ‘main’ paths, and had seen other people walking,
bird-watching, picking blackberries or cycling on the Land.
Mr David Glikman (26 New Road)
62. Mr Glikman had begun using the Land in 1999, when he moved to his current address. At
this time his children were aged 9 and 4, and it was a good place to go out with them. These
days Mr Glikman feels that he personally visits the Land roughly once a week, although his
wife visits more often. He would tend to run across the Land as part of a longer route, whilst
his wife uses the area for cycling.
63. He had also seen other people walking their dogs in the Woods, and had seen children
playing on the Eastern Area. He felt that he had not used the Woods himself since about
2001, since when he had stayed in the Eastern Area, in which area he had played with his
son.
64. He did not recall ever having been given permission to use the Land, or having ever seen a
sign. He had assumed that the major route heading north-south through the Eastern Area
was an ‘official path’.
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Mr Hugh Wiltshire (6A Harmer Green Lane)
65. Mr Wiltshire moved to the area in 1993, although he had become familiar with it during the
1980s, when on running excursions from Welwyn.
66. His use of the Land had largely been for running and walking, for which purposes he had
largely stayed on the tracks, using them to make a circuit. He felt that some of these tracks
were well-defined, and some less so. He would step off the paths on occasion, to take
photographs – particularly of orchids either side of the paths. He estimated that when he
had still been working, he had visited the Land roughly once a week, but since retiring in
2005 this had risen to 3 times a week
67. As regards others’ use of the Land, Mr Wiltshire felt that he had occasionally seen people
out dog-walking, but since he tended to visit it during the early morning (say 7am) he had
not seen many. He had seen the odd other person running, and the odd bird-watcher. His
mother went walking in the Woods in the summer, keeping to the tracks (not simply those
marked on the Definitive Map, but also other tracks as well).
68. Mr Wiltshire was not aware of every having met the landowner, and stated that he had
never been given permission to use the Land.
Mr Trevor Land (9 Station Road)
69. Mr Land had used the Land since 1983, and felt he had visited to walk his dogs 3 or 4 or even
5 times a week. He sometimes went in the Woods, and sometimes in the Eastern Area.
When dog-walking he generally stayed on the informal routes/paths.
70. Other activities he had engaged in included supervising youngsters playing in the Woods and
collecting leaves with his daughter as part of an expedition with the Brownies (he had last
helped with the Brownies in 1995). Also on one occasion he had been to the Woods to sing
carols with a group from his church, the group being about 5 adults and 15 children.
71. He had seen other people walking dogs, picking blackberries or running. In particular, he was
aware that there were two groups of ‘Hashers’ who ran there, but they were not from
Disgswell. He had also seen children playing in the southern area. His impression was that
the local school, the local Sunday School and the local Brownie group each visited the
Woods twice a year. On occasion he had seen people picnicking or flying Kites in the Eastern
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Area, and people drawing/painting with their easels set up just off the side of the paths in
the Woods.
72. Mr Land felt that there was a network of paths, but was not sure which were formal public
rights of way. He had not noticed any signs on the Land until 18 month ago, when the finger
posts had been erected.
Mrs Liz Johnson (1 Station Road)
73. Mrs Johnson had used the Land since 1988, but had only moved to the area (and her current
address) in 1994. The frequency of her visits has varied, but on average she felt that she
would go to the Land once a week on average. Typically she should wander around after her
dog, and would mainly keep to the tracks, but these tended to vary.
74. Her family had also used the Land, her daughter had been born in 1990 and had visited it
since 1993. Her daughter had been a Brownie, and had used the Land under supervision
when younger and then on her own when she was older.
75. Mrs Johnson had seen a lot of people walking dogs, children hiding and even building treehouses in the northern area of the Woods. She had also seen people blackberrying.
76. As regards signs, there had always used to be a post with a disc saying ‘footpath’ located to
the south of the Land. She felt that other signs had been put up recently. In respect of
tracks, her impression was that they tended to appear and then disappear – she felt that
during Autumn it was difficult to see where they were.
The Objector’s Evidence
The First Objector
77. The First Objector called 10 witnesses to give oral evidence at the Inquiry. It also provided to
the Inquiry 27 written statements from other witnesses, as well as various photographs,
plans and documents in support of its objection. I have had regard to all this written and
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documentary material in preparing this Report, as well as to the oral evidence given at the
Inquiry6
78. The following paragraphs are intended to summarise the testimony given by the First
Objector’s witnesses. They do not represent a comprehensive record of the totality of their
evidence.
Mr Marinus Buisman
79. Mr Buisman is a director of the First Objector, and has managed the farm on its behalf (or on
behalf of the predecessor company of the First Objector) since 1991, when that predecessor
company7 purchased the freehold of the majority of the Land (including the Woods).
Subsequently, when the Forestry Commission in 1997 indicated that it wished to sell its
leasehold interest in the Woods, then the predecessor to the First Objector purchased that
also.
80. Mr Busiman had always been aware that there were public footpaths which ran across the
Land (and through the Woods). Indeed, in 1992/3 he had walked the Woods with an
employee of the Council (Mr Ian Steele) to verify the route of the various paths. Mr Steele
had determined where the footpaths were8, since at that time there were no finger posts in
place. Five of these had been erected in 1993.
81. Mr Buisman’s understanding was that the route of the footpaths had to be confirmed every
10 yrs; he had confirmed the route with the Council in 1995 and again in 2005.
82. As regards signage currently in the Woods, he stated that the fingerposts had recently been
replaced recently by the Council – these had a tendency to rot or get pulled out.
Photographs of ‘replaced’ sings/posts were contained in the Objector’s bundle9. However,
certain of the photographs in the First Objector’s bundle depicted signs that were not on the
6
As stated elsewhere in this Report, and as notified to the parties during the course of the Inquiry, I consider
that I can only attach limited weight to written statements of evidence in respect of which the opposing party
has not had an opportunity to cross-examine the author.
7
Bukonro UK BV
8
The statement pursuant to section 31(6) of the Highways Act 1980 in respect of this inspection is document
OB4.
9
See pages 122, 131, 140.
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Land10. Other signs, which stated that the Land was private property and that people should
keep to footpaths, had been erected in May 2012.
83. Mr Buisman had erected two signs which read “Private Property – Keep Out” in the early
1990s. These were located on the western flank of the Woods. Mr Busiman explained that at
least one of these signs was intended to stop people walking in the fields adjacent to the
Woods, rather than with the intention of controlling activity in the Woods themselves. To
this end, Mr Busiman had at around the same time put up barbed wire at certain points on
the south-western corner of the Woods, with a view to preventing people walking out of the
Woods and into the fields.
84. Mr Busiman had tended to visit the Woods only once or twice a year in the period 19911997, but following the First Objector11 taking back the leasehold interest from the Forestry
Commission, he had gone there more regularly – typically about once a month. These
monthly visits were generally for maintenance purposes, and would involve him walking
through the Woods for some 10 minutes. Every six months or so, he would spend half a day
in the Woods with a contractor, carrying out more significant maintenance. Since 2006 he
had kept a log detailing such maintenance.
85. Mr Busiman felt that generally when he visited the Woods he would see no-one there.
However, he did sometimes see people walking (with or without dogs) or running, but this
had always been on paths. He did not recall every really seeing children there, nor did he
recall every having seen people picnicking, bird-watching or lighting bonfires. Certain local
painters had asked his permission to paint on the Land in the 1990s, as had the Scouts. He
was not really aware of the Brownies having used the Land.
86. He felt that the network of paths depicted on The Path Plan was a fair reflection of the
position, but felt that paths moved, disappearing and then returning depending on use.
Mrs Elizabeth Buisman-Gaze
87. Mrs Buisman-Gaze had had no involvement with the Land until 1994, when she came to the
area. Since that time she had supported her husband in his farming enterprise – she is a
farmer’s daughter herself, and as such had taken an interest in the Farm. This involved her
sometimes accompanying her husband on visits to the Woods.
10
11
See inter alia pages 14, 148, 149.
In fact, its predecessor.
14
88. In addition, Mrs Busian-Gaze regularly went running in the Woods. She ran every day, but
her route would only take her into the Woods approximately once a month. On these
occasions she would not spend longer than 15 minutes in the Woods
89. On occasion she saw other people in the Woods, but sometimes she ran there early in the
morning, and whether or not she saw people depended somewhat on the time of day. She
had seen walkers (with and without dogs) and other people running, but these had always
been on designated footpaths. She did not recall every having seen people off the paths in
the Woods, and had never seen activities such as cricket, blackberrying, drawing/painting,
picnicking, bonfires or cycling.
90. However, she was aware of other activities taking place in the Woods, and had seen
evidence of it in the form of a wigwam. She presumed that children were making use of the
Woods.
Mr J R Mancer
91. Mr Mancer had worked for the Forestry Commission until 2006, and had had visited the
Woods at various times since 1961.
92. As regards the Relevant Period his involvement with the Woods comprised the years 19901996, during which time he had held responsibility for the area in which the Woods were
situated. Latterly (from 1994 onwards) his job title had been ‘Operations Manager of the
South East England Forest District (Chilterns)’.
93. Mr Mancer was unclear whether he would have visited the Woods during this period 19901996, but thought that he would have done so once or twice. He had visited the Woods last
year, and felt that they were in decline through lack of management. He did not recall seeing
people do anything in the Woods other than walk through them (with or without dogs).
Mr Rodney Herd
94. Mr Herd has worked at Lockley Farm as a part-time gamekeeper since 1990, but has known
it for some 60 years since his uncle previously worked at the farm, and when he left school
in around 1960 he began working there also.
95. Mr Herd’s gamekeeping work involved him keeping an eye on the Woods, and ensuring that
dogs were kept under control, and on paths. Typically, during the early months of the year,
15
he would visit the Woods 2 or 3 times for vermin control purposes, such as shooting
squirrels. There was no game in the woods, owing to the presence of dogs.
96. On two occasions he had chased people out of the Woods who had lit fires there – once in
the early 1990s, and once slightly later. He had seen people in the Woods walking dogs,
running and sometimes cycling bikes, but this was generally on the main paths. He had seen
people on other tracks about 3 times a year, and had told them to get back on the main
paths.
Mr Alexander Gardner
97. Mr Gardner had moved to his current address at 9 Lockleys (close by Lockley Farm) in July
2010. He had become familiar with the Woods at that time, since he would walk through
them on his way to or from the railway station 2 or 3 times a week. Typically, he would walk
to the station before 9am, and return from it sometime after 1pm. He also sometimes
walked with his girlfriend through the Woods at the weekend, as part of a walk to get to the
pub.
98. Mr Gardner stated that he had seen other people in the Woods, either walking dogs or
commuting like himself, but had only seen them on the main paths; indeed he queried
whether there were in fact any paths other than the main ones. He did not recall every
seeing any other activities in the Woods.
Mr Richard Baron
99. Mr Baron was born locally in 1950 and has known Lockley Farm and the Woods all his life.
His uncle had farmed Lockley Farm for many decades, prior to his death in the 1980s.
100.
In recent years he has worked on Lockley Farm for Mr Busiman, drilling and
combining fields such as the one next to the Woods. The combining would take place over a
week in August, and the drilling over a week in either September or October.
101.
He felt that he wandered into the Woods “not that often”, probably only once or
twice a year to stretch his legs whilst taking a break from combining. He recalled having a
fairly good view into the Woods when working in the field, because of the break in the tree
canopy, and occasionally would see someone on the northern/western part of the Wood.
Both when combining/drilling and when he was actually inside the Woods, he occasionally
saw other people, who were on the footpaths walking dogs. He had on certain occasions
16
gone into the Woods and told people to stay on the paths, and to keep their dogs under
control.
Mr Colin Lambert
102.
Mr Lambert currently lives in Hatfield, however he has known the Woods for some
50 years and during the 1990s he lived in Welwyn.
103.
During this period he had a dog, and would often visit the Woods to walk, say about
20 times a year. When there was a shoot, he would help to beat the Woods during the
morning, an activity he engaged in 3 or 4 times a season. He has been beating for the local
shoot for the last 20 years, although he has not been involved for the last 3 or 4 years. On
these occasions he would walk up to the Woods from Lockley Farm.
104.
Mr Lambert would also walk through the Woods to visit his sister. He would always
walk on the defined paths, and even when on casual walks with his children he insisted that
they too stay to the tracks. He did not think that the Path Plan accurately reflected the
routes through the Woods, and felt that there were no tracks other than the main paths
owing to the fact that undergrowth on the Land was fairly dense
105.
“Now and again” he would see other people in the Woods, walking with or without
dogs, but these people were on the paths.
Mrs Sarah Hunt
106.
Mrs Hunt lives in Welwyn, and has known the Woods for 12 years. She visits roughly
once every 2 or 3 weeks, sometimes more in the Summer, for recreational walking. She
mostly confines herself to the northern edge of the Woods, which she walks across as part
of her route. However she did on one occasion get lost and walk right through the Woods by
mistake.
107.
Her recollection was that she rarely saw anyone else, though on 2 or 3 occasions she
has seen someone walking (with or without a dog). Her walk in the northern part of the
Woods only involves her spending 5 minutes there, but she has never heard any activity
from the area to the south.
17
Mr Richard Sheppard
108.
Mr Sheppard lives locally, and is familiar with the Woods and Lockley Farm. Indeed,
for the last 21 years or so has carried on building and plumbing work at Lockley Farm for Mr
Busiman.
109.
When growing up he would come trainspotting in the Woods with his brother, but
by the early 1990s his visits were not frequent, so that he would only come once every now
and again.
110.
He moved away some time in the early 90s, before moving back to the area in 1997,
since when he has visited the Woods approximately once a month. In February and April he
tends to look after a dog belonging to a friend, and sometimes walks with it in the Woods.
Twice or three times a year he also walks through the Woods to go to Lockley Farm, which
he uses as a ‘collection point’ for vehicles that he repairs. He also beats the Woods for
shoots, an activity he engages in twice a year.
111.
In addition, Mr Sheppard has also helped Mr Busiman carry out maintenance of the
Woods, when minor coppicing is needed to clear the route of the footpaths, although he has
not done this for the last 3 years. When he helps Mr Busiman in this way, his job is largely to
keep watch whilst Mr Busiman cuts down the branches.
112.
He felt that there had sometimes been notices in the Woods, and sometimes not.
He had first noticed them in around 1997, and felt that generally “wherever you look” there
are signs telling people to keep to the footpaths. Of the two signs that stated “Private
Property – Keep Out”, one was by the arable field telling people not to go into the field, but
one was in the Woods, in the middle-south area.
Miss Penny Shephard
113.
Miss Shephard had moved to her current property in 2003/4, and explained that she
was accustomed to take dogs for a walk through the Woods a couple of times a week. She
would generally walk straight through, either between 10am-11am, or between 1.30pm2pm. Prior to 2003/4 she had lived in Old Welwyn, only a couple of miles away. She had
known the Woods for some 57 years.
18
114.
She did not recall ever seeing anyone in the Woods when going for these walks (she
is a professional dog-walker), but accepted that there may have been people using the
Woods that she hadn’t seen.
The Second Objector
115.
The Second Objector was not represented at the Inquiry, and called no witnesses.
However, the position of the Second Objector was provided to the Inquiry in Inquiry
Documents OB5 and OB6, which comprise letters dated 10 April 2012 and 11 January 2013.
The Third Objector
116.
Miss Mathilde Robert spoke on behalf of herself and her partner Mr Kyrillou, who
live at 9 Sherman’s Close and who had purchased the Eastern Area in May 2010.
117.
They had moved to their current home at 9 Sherman’s Close in 2004, and kept 4
small dogs. They had never really ventured into the Woods, and had always used the path
which ran through the Eastern Area or that running along the Tunnel Land.
118.
Miss Robert did not believe that since 2004 people had ever played cricket or had
picnics on the Eastern Area or the Tunnel Land, since it had always been “very overgrown”
since that time.
Inspector’s Discussion & Conclusions
119.
The Application was made on the basis of section 15(2) of the 2006 Act. So far is
relevant, section 15 provides as follows:
(1) Any person may apply to the commons registration authority to register land to which
this Part applies as a town or village green in a case where subsection (2), (3) or (4)
applies.
…
(2) This subsection applies where-
19
(a) a significant number of the inhabitants of any locality, or of any neighbourhood
within a locality, have indulged as of right in lawful 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.
120.
Accordingly, in order to make out the Application, it is necessary that the Applicant
demonstrate that throughout the 20 years prior to the date of the Application (that being
11th July 1991 – 11th July 2011, ‘the Relevant Period’), the Land was used:
(a) by a significant number;
(b) of the inhabitants of a qualifying locality or neighbourhood within a locality;
(c) for lawful sports and pastimes;
(d) as of right.
121.
It is the Applicant’s case that such use of the Land has taken place. The Objectors
dispute that this is so.
122.
The burden of proof in the context of the Application is in the first instance on the
Applicant, who must discharge it to the civil standard. That is to say that the Applicant must
succeed in satisfying the various requirements of section 15(4) of the 2006 Act on the
balance of probabilities. As a general rule, in considering the extent to which the Applicant
has made out his case in respect of these issues, I must have regard to how matters would
have appeared to a notional landowner, observing events12.
123.
The discussions in the remainder of this Report relates to the Application in general
terms and the entirety of the Land, save where reference is made to a specific part of it.
Neighbourhood/Locality
124.
In the circumstances of the Application I consider it appropriate that the first matter
that should be addressed is the question of whether use of the Land has been carried on by
the inhabitants of a locality, or alternatively of a neighbourhood within a locality, for the
purposes of section 15(2) of the 2006 Act.
12
See, inter alia, R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P&CR 573, per Sullivan J at
paragraph 82.
20
125.
The Application was submitted on the basis of claimed user by the inhabitants of the
Digswell ward of Welwyn Civil Parish (‘the Ward’).
126.
It formed no part of the case of any of the Objectors that the Ward was not capable
of amounting to a locality for the purposes of the 2006 Act, and I accept the Ward comprises
a suitable locality since it satisfies the requirement that it be an administrative unit
“recognisable by the law”, consistent with the decision in Ministry of Defence v Wiltshire
County Council [1995] 4 All ER 931.
127.
Accordingly, the Application satisfies this element of the statutory test.
128.
The only further point to note in this context however, is that a number of the
witnesses in support of the Application gave evidence regarding use of the Land by persons
who were not inhabitants of the Ward13, or persons whose origin was unknown14. Such use,
it seems to me, cannot be relied upon as supporting registration, since only user by
inhabitants of the administrative area relied upon as the locality for the purpose of the
application can contribute to an applicant’s case.
Significant Number
129.
I have not been provided with information regarding the number of inhabitants of
the Ward. However, having had regard to the plan delineating the extent of the Ward15, I am
content that I have sufficient understanding of the extent of the residential development
within it.
130.
Having regard to the number of dwellings within the Ward, I am satisfied that the
Land has been in use throughout the Relevant Period by a significant number of its
inhabitants.
131.
In so concluding I note that the requirement as to ‘significant number’ is not an
onerous one for an applicant to discharge. In particular, I note that in R (on the application
13
This would include use by Mrs Winter when not resident in the Ward, as well as use by bodies such as the
church group from Welwyn referred to by Mr Watterson, the ‘Hashers’ referred to by Mr Land and the
‘Welwyn Wheelers’ referred to by Mr Glynn.
14
These would include the cyclists referred to Mr Sparshott and the horse-riders referred to by Mrs Goodchild.
15
Applicant’s Bundle, page C1.
21
of McAlpine Homes Ltd) v Staffordshire County Council [2002] EWHC 76 Sullivan J observed16
that the term “significant” in village green legislation is not intended to connote a ‘large’ or a
‘substantial’ number, but instead only one sufficient to signify to a landowner that village
green rights are being asserted by the inhabitants of an area. In this case, I heard direct
evidence from 15 people, all of whom claimed to have used the Land, and who similarly
claimed to have seen others using it. Further, I was also provided with substantial written
evidence from witnesses who did not attend the Inquiry to give oral evidence, who also
claimed to have used the Land and who likewise claimed to have seen others do the same.
132.
Given that this latter category of evidence was only available to me in written form,
so that it was not open to the Objector’s representatives to test it in cross-examination, I can
only attach limited weight to it. However, it nevertheless serves to corroborate the evidence
that was given by those witnesses who did speak at the Inquiry.
133.
I recognise that some of the witnesses called on behalf of the First Objector gave
evidence to the effect that use of the Land was materially less intensive than had been
suggested by those speaking in support of the Application. However, all these witnesses
(with one exception17) accepted that they had seen others making use of the Woods when
they themselves had been visiting, to a greater or lesser extent. Further, their visits to the
Woods were relatively short in duration18.
134.
In these circumstances, I conclude that the Land has been used by a ‘significant
number’ of the inhabitants of the Ward. However, the extent to which a significant number
of such inhabitants carried on use ‘as of right for lawful sports and pastimes’ remains a moot
point, turning as it does on the issues discussed in the following sections of this Report.
16
At paragraph 71 of McAlpine.
17
Miss Shephard contended that she had never seen anyone else on the Land. However, I note that this
evidence conflicts with her written statement (at Objector Bundle p. 82), and in any event her visits to the
Land were fleeting; (in answer to a question which I put to her she stated that when walking through the
Woods she would be there for no longer than 5 minutes).
18
This might fairly be said of Mrs Hunt and Mrs Busiman-Gaze.
22
As of Right
135.
I turn now to consider whether use of the Land was carried on ‘as of right’ for the
purposes of the 2006 Act. In order for use to have been carried on ‘as of right’, it must not
have been carried on by force (‘nec vi’), secretly (‘nec clam’) or with permission (‘nec
precario’). Further, such use must not be carried on pursuant to a lawful right, since in such
circumstances it would amount to user ‘by right’ as opposed to ‘as of right’19.
136.
Firstly in this context, I consider the issue of ‘secrecy’. I heard no evidence to suggest
to me that use of the Land was carried out ‘in secret’, that is with the intention that the
Landowner not be aware of it. Accordingly I accept that use was not carried on ‘secretly’.
137.
Secondly, it appeared to me that little user had been carried out ‘with permission’.
Mr Busiman did confirm that he had given consent to certain local painters in the early
1990s, and also stated that the Scouts had liaised with him when using the Woods. However,
these instances aside, there was no further evidence from any of the Objectors that
permission had been granted for a particular use, and the matter was not raised in closing
submissions on their behalf. Accordingly I accept that, with very limited exception, use was
not carried on ‘with permission’.
138.
Thirdly, there is the question of whether user during the Relevant Period was carried
on ‘by force’. Notwithstanding there was some suggestion to that effect in the evidence of
some witnesses called by the First Objector, I do not accept that this was the case.
139.
In particular, I did not understand from Mr Busiman that he had made any concerted
attempt to fence any part of the Land so as to prevent access into it, albeit that he had on
occasion erected barbed wire at certain points. Rather, it appeared that the barbed wire had
been intended to prevent people walking out of the Woods and onto his crops in the field
adjacent. Similarly, I do not consider that such signs as were erected during the Relevant
Period had the effect of rendering any use of the Land ‘forcible’. In this context I find:
(i)
Insofar as signs re now visible in the Woods which direct people to keep to the
footpaths, these very largely post-date the Relevant Period.
19
See Barkas v North Yorkshire County Council [2012] EWCA 1373, the leading decision on this issue.
23
(ii)
There were fingerposts erected in the Woods during the Relevant Period; however
thse served as ‘markers’ and did not notify local people that use of the Land off the
paths was prohibited
(iii)
The ‘private property’ sign on the western fringe of the Woods, which I accept was
in situ from the early 1990s, was not intended to prevent people walking off the
paths in the Woods; rather (as Mr Busiman himself stated) it was intended to warn
people from walking out of the Woods onto the arable field adjacent.
140.
To the extent that there does appear to have been one sign within the Woods
(towards the south western area) which also stated that the Land was private property, Mr
Busiman appeared less than sure as to why it was he had erected it. However, even if he had
indeed intended it as a warning to local people to stay on the footpaths, I do not consider
that one such sign in a woodland of 12 acres could be regarded as sufficient to render use of
the Woods (other than the Rights of Way) ‘forcible’.
141.
Further in this context, I note the evidence of Mr Herd and Mr Baron to the effect
that they told various people off for walking in the Woods other than on the formal
footpaths. However, notwithstanding I accept their testimony that such incidents of
admonishing walkers did occur, I conclude that they must have been limited in number.
Certainly none of the Applicant’s witnesses recalled having been so admonished,
142.
Accordingly, taking all these matters in the round, I do not consider that use of the
Land was not ‘as of right’ by reason of having been carried out ‘by force’.
143.
I now turn to consider the question of whether use of the Land was carried on ‘by
right’, as opposed to ‘as of right’. As regards this issue, I can be in no doubt that a large
proportion of the user of the Land was not carried on ‘as of right’, but was rather
undertaken pursuant to the public rights that existed in the form of the rights of way (‘the
Rights of Way’) running across the Land. Any use of those ‘Rights of Way’ cannot contribute
towards the Applicant’s case for registration, and falls to be discounted.
144.
I have been provided with a plan depicting the route of the Rights of Way which
cross the Land, as shown on the Council’s definitive map. There appear to be 5 routes, which
together form something of a loop, running very approximately:
24
(i)
beginning at a point in the south-east corner of the Land, then heading north along
the eastern edge of the Woods;
(ii)
Beginning at the same point as route (i), then moving to the western edge of the
Woods, before turning north along that western edge;
(iii)
Running east/west along the northern edge of the Woods and through the NE
Woods;
(iv)
Beginning on route (iii) where it leaves the Woods and moves into the NE Woods,
then turning north, parallel with the railway line; and
(v)
145.
Running north/south along the Tunnel Land.
It seems to me that any linear activity which took place along these routes, (or
alongside them, within a limited range), such as running/jogging or walking (with or without
dogs) was carried on pursuant to the right of local people to use those Rights of Way and
was thus not carried on ‘as of right’ but rather ‘by right’. As such, it should be disregarded in
the context of the Application20.
146.
Further, it also seems to me that any other activity that took place in the vicinity of
the paths, should also be disregarded on the basis that it too was attributable to those
existing rights. This, it seems to me, is the consequence of the decision in DPP v Jones (1999)
2 AC 240, wherein the House of Lords determined that activities such as sketching, singing
carols, children playing, people picnicking were perfectly common activities on a right of
way, that there was a right to undertake such activities on a right of way, and that such
activities were perfectly lawful so long as they did not obstruct the route in question. In this
context, Lord Irvine stated “The law should not make unlawful what is commonplace and
well accepted”21.
147.
Accordingly, to the extent that local inhabitants stopped on the Rights of Way, or
indeed stepped off them, in order to take a photograph22, paint a picture23, look at a badger
20
In this context, I consider that a large proportion of the user by those witnesses who spoke of having walked
mostly on the ‘main’ routes, such as Mr Land, Mr Gliken and Mr Carlin, would fall to be disregarded, since the
save for the route running north/south through the Eastern Area, these ‘main routes’ broadly reflected the
routes of the Rights of Way.
21
See, by way of example, Lord Irvine at p.255H
22
Such as Mr Wiltshire.
23
Such as the painters observed by Mr Land.
25
set24 or something similar, then it is my view they were engaging in an activity pursuant to
the existing right of way, and were thus not recreating ‘as of right’.
148.
In expressing this view, I make it clear that I do not consider that all the activities
which local people have engaged in on the Land should be regarded as having taken place on
these Rights of Way. Indeed, having walked various routes across the Land I am content
there was some activity which took place that was not ‘on’ the Rights of Way, and therefore
should be regarded as having been undertaken ‘as of right’. However, I consider that such
activity took place only on certain areas of the Land, and even then I have significant
concern as to the intensity with which such ‘non – Rights of Way’ user was carried out.
Certainly, on the occasion of my site-visit it appeared that whilst the formal Rights of Way
(and certain other linear routes) showed signs of very heavy use – being very well worn – the
remainder of the Land showed little evidence of use at all.
149.
With reference to my conclusion in the previous paragraph that user ‘as of right’
took place only on certain parts of the Land I state the following:
(i)
I do not consider that there has been any material user ‘as of right’ of the Tunnel
Land. That area comprise a relatively narrow strip, along which runs one of the
Rights of Way. As noted in the following section of the Report, I heard virtually no
reference to use of this land other than for ‘linear’ (ie walking/jogging) purposes.
Since such use would be carried on pursuant to the public right to use the Land, it
would be ‘by right’ not ‘as of right, with the consequence that there is no material
degree of qualifying user such as might justify registration of the Tunnel Land.
(ii)
Similarly, I heard virtually no reference to use of the NE Woods other than as part of
a walk/run through the wooded area as a whole. Certainly there was no express
reference by any witness called to give evidence in support of the Application, to any
activity taking place on that area of the Land. In these circumstances, it appears to
me that use of the NE Woods was undertaken on the Rights of Way, pursuant to the
right of the general public to make use of those routes. As such, user was not ‘as of
right’ but rather ‘by right’, such that it could not justify registration of the Land as a
town or village green pursuant to the 2006 Act.
24
Such as Mr Carlin.
26
Lawful Sports and Pastimes
150.
I now move to consider whether the use of the land that took place ‘as of right’
comprised ‘lawful sports and pastimes’ such as could justify registration of the Land as a
town or village green, and whether such use as took place does in fact justify such
registration.
151.
Turning to the first of these two matters, I have no doubt that the local inhabitants
of the Ward have engaged in activities on the Land that comprise lawful sports and pastimes
for the purposes of the 2006 Act. Following the decision of the House of Lords in R v
Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335, it is now
well established that activities such as recreational walking, or walking a dog are just such a
‘sport or pastime’ as would justify registration of land as a village green. I heard extensive
evidence from people who claimed to have engaged in running, walking and walking with
dogs, as well as more limited evidence relating to other activities such as children’s play,
blackberrying, picnicking and flying kites. In these circumstances, I am satisfied that the
requisite type of activities have been carried on for the purposes of the 2006 Act, and what
is more that some at least of them were carried on throughout the Relevant Period.
152.
However, whether the recreation that local people have engaged in on the Land has
taken place in a manner and with an intensity that justifies registration is a different
question. Having regard to all the written evidence provided to me, all the oral evidence
given at the Inquiry, and what I gleaned from undertaking my inspection of the Land on the
site visit, I am not satisfied that this is the case.
153.
In reaching this conclusion I have had regard, as the caselaw requires me to do, to
how matters would have appeared to the notional landowner.
154.
Firstly in this regard, it seems to me that the presence of the Rights of Way is
problematic for the Applicant. This is due to the fact that where a landowner is aware of
rights of way across his land, he/she could be forgiven for presuming that use in vicinity of
those rights of way was attributable to them – even when, by way of example, people
venture off the routes. In this context I note that more than one witness spoke of people
leaving the paths to follow their dogs25. Broadly this scenario was commented upon by
25
See evidence of Dr Barr and Mrs Johnson.
27
Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P&CR 573,
where he observed:
The landowner is faced with [a] dilemma if the dog runs away from the footpath and
refused to return, so that the owner has to go and retrieve it. It would be unfortunate
if a reasonable landowner was forced to stand upon his rights in such a case in order
to prevent the local inhabitants from obtaining a right to use his land off the path for
informal recreation…I do not consider that the dog’s wanderings or the owner’s
attempts to retrieve his errant dog would suggest to the reasonable landowner that
the dog walker believed he was exercising a public right to use the land beyond the
footpath for formal recreation”26.
155.
There is also an issue as to how matters would have appeared to the landowner,
insofar as he could be expected to have noted that local people were making use of land
beyond the formal Rights of Way. This is because the vast majority of the use to which the
Land appears to have been put, is linear in character; walking, running and so on. This gives
rise to the query as to whether the activities should properly be regarded as having been
carried out pursuant to emerging rights of way, or a budding village green.
156.
This issue also has been considered by the courts, notably by Lightman J in
Oxfordshire County Council v Oxfordshire City Council & Robinson (2004) Ch. 25327. I do not
consider that the authorities provide determinative guidance for me on this point, and
indeed all decisions recognise that, in any given circumstances, a judgement will have to be
reached on the facts as to how the use of the linear route would have appeared to the
notional landowner – ie whether it would have appeared as use of a right of way or the
exercising of village green rights. However, what I do take from these authorities is the
proposition of Lightman J contained in paragraph 102 of Oxfordshire, namely that:
“if the position is ambiguous, the inference should generally be drawn of exercise of
the less onerous right (the public right of way) rather than the more onerous (the
right to use as a green”.
26
See paragraphs 103 and 104 of Laing. In this regard I note that some of the evidence given by witnesses at
the Inquiry did not relate to ‘retrieval’ of dogs as such, but rather merely ‘following their lead’.
27
See paragraphs 102-105 of the decision of Lightman J in Oxfordshire.
28
The Tunnel Land
157.
As indicated above, I heard very little evidence of user that was undertaken on the
Tunnel Land, save for use of the Right of Way which runs along it (which must be discounted
as having been carried on ‘by right’). Further, it appeared to me on inspection of the Tunnel
Land during my site visit, that the overgrown condition of the areas to either side of the
Right of Way would largely preclude their use for lawful sports and pastimes.
158.
The only ‘non-linear’ activity in respect of which I heard evidence referable to the
Tunnel Land, was train-spotting. This activity, it seemed to me, must for practical purposes
have been undertaken either on the Tunnel Land or on the NE Woods land (see further
below). However:
(i)
there was very limited evidence of such user taking place;
(ii)
to the extent that it did occur, such user would relate to the northern/southern
extremities of the Tunnel Land only; and
(iii)
I consider that such activity would in any event probably be regarded as taking place
pursuant to the existing Right of Way, and as such would not be ‘as of right’ in any
event.
The NE Woods
159.
The position in respect of the NE Woods is similar to that of the Tunnel Land, insofar
as the little reference there was to use of it – as opposed to the bulk of the woodland to the
west of the railway line, or the Eastern Area – involved its use for linear activities (cycling,
walking and so on). Given the existence of the Rights of Way across it, and given the linear
nature of the activities carried on over it, I consider that the notional landowner could not
be expected to have regarded the portion of those activities that took place other than on
the Rights of Way to be such that – if left unchecked – it might potentially result in
registration of the area as a town or village green.
160.
Rather, it seems to me that there was not sufficient intensity of use for lawful sports
and pastimes off the Rights of Way to put a notional landowner on notice that his land was
at risk of registration.
29
The Woods
161.
The position is different as regards the Woods, in that I accept that during the
Relevant Period local people have used that area for lawful sports and pastimes other than
on the Rights of Way across it, such that there has been user for lawful sports and pastimes
as of right. Indeed, it is as a result of such use that some of the various other tracks/routes
have been created.
162.
However, for the most part I do not consider that the use of the Land other than the
Rights of Way was heavy.
163.
There were certain routes which certainly did appear to have been used; however
these were few in number. Further, insofar as they did exist – the looped path at the
southern end of the Woods being a good example of a path that certainly did appear to be in
regular use – the marked contrast between such paths and the undisturbed land around
them and elsewhere in the Woods only serves to emphasise in my mind that most activity in
the Woods which did not take place on (or just off) the Rights of Way was confined to these
other linear routes28. In this context, I note that I do not accept the assertion of Mr Glynn
that 50% of use of the Woods was ‘off the tracks’. Insofar as this assertion referred to Not
only the Rights of Way but also the ‘unofficial routes’, I do not consider that the evidence
supports it.
164.
Accordingly, and having regard to the decision of Lightman J in Oxfordshire, it
appears to me that insofar as there has been user of the Woods other than on the Rights of
Way, such use – if it would have suggested anything to a landowner – would have suggested
the risk of local people establishing a further right of way, rather than that the Land (or any
part of it) was at risk of registration as a town or village green.
165.
In expressing this view I do not doubt that the Woods have been used for other,
non-linear, activies which have taken place over its general extent. However, I consider that
the extent of such use is likely to have been limited. Most of those who spoke of picnicking
and fruit picking (mostly blackberrying) described it as having taken place on the Eastern
28
The presence of such routes would be consistent with users such as Mr Wiltshire, Mr Watts and Mr Glikman,
who spoke of walking circuits or circular routes, and of them and others such as Mr Land, Dr Barr and Mr
Robinson who described themselves as having stayed mostly on routes of one kind or another.
30
Area29, although there were exceptions30. Other activities such as cricket and kite flying
cannot have taken place in the Woods by their very nature, or at least not to any material
degree. Rather, they too must have taken place – insofar as they took place at all – in the
Eastern Area.
166.
There remains the issue of children’s play. I note that certain of the witnesses called
by the First Objector asserted that there was little or no use of the Woods by children.
Although I do not doubt that these witnesses were doing their best to assist me, I accept the
evidence of local people that children have played in the Woods. Quite apart from the fact
that the presence of the ‘wigwam’ at the northern end is strongly suggestive of such activity,
I also accept the veracity of those of the Applicant’s witnesses who stated that the Land had
been used in this way, such as Mr Watterson who referred to the ‘wide game’, those such as
Mr Land who referred to use of the Woods by the Brownies31, and others who spoke of their
children having used the Woods.
167.
However, once again I conclude that such activity was not carried on with any great
intensity, at least not during the Relevant Period. The use of the Woods for events such as
the wide game referred to above, appear to have been few and far between32, and even the
Applicant’s witnesses did not contend that the Brownies visited the Woods more often than
twice a year33. This would explain why none of those witnesses called by the First Objector,
nor any of those who completed written statements that were submitted on its behalf,
reported having seen activity of the sort described34.
168.
For all these reasons, I do not consider that during the course of the Relevant
Period, the Woods have been in use as of right for lawful sports and pastimes for the
requisite intensity and in the requisite manner such as would justify registration of the area
as a town or village green. Rather, to the extent that there has been such use taking place as
29
These included Dr Barr, Mrs Goodchild and Mr Sparshott.
Mr Glynn described himself as having picnicked in the Woods.
31
In this regard I note the letter at page G1 of the Applicant’s Bundle from Mr Jean Dossett (an ex-Unit Leader
of the local Brownies), in which she confirms that the Brownies have indeed been accustomed to using the
Land.
32
Indeed Mr Watterson accepted that the game he referred to had been a ‘one-off’ occurrence, at least
insofar as his involvement was concerned.
33
See evidence of Mr Watterson and Mr Land.
30
34
Such as picnicking, kite flying, etc
31
of right, I consider that it is more suggestive of other public rights of way having been
established (such as the ‘southern loop’), rather than anything else.
Eastern Area
169.
It is my view that the Eastern Area, like the Woods, has been used ‘as of right’ for
lawful sports and pastimes. Further, I conclude that that this part of the Land has been used
for a greater variety of activities than other parts; in particular I accept the evidence of local
residents that they have participated in cricket, kite flying and picnicking on the Eastern
Area, and that local people have picked fruit – primarily blackberries – there 35.
170.
However, at the same time, I observed on the site visit that large parts of the
Eastern Area are very overgrown; indeed so overgrown as to preclude their use for cricket or
to fly kites, even though the vegetation was low owing to the winter season. In this regard I
note the evidence of several witnesses36 to the effect that whilst the area had historically
been open37 (so as to allow games of cricket and also the flourishing of wildflowers), during
the Relevant Period it had progressively become more overgrown so as to limit activity
carried on there. In this context I note that most of those routes that I saw on the Eastern
Area during the site visit did not even appear to be paths worn by people, since the low
vegetation directly above them would preclude such use; rather they appeared to be animal
tracks.
171.
I accept that there are still ‘open’ parts of the Eastern Area, and that in all likelihood
some degree of recreation (of the picnicking, children’s play type) continues to take place.
However it does not seem to me that the condition of the Eastern Area has, throughout the
duration of the Relevant Period, been such as would enable these activities to have taken
place with the requisite intensity to justify registration. The only exception to this finding
might be said to be the pastime of fruit picking (in very large extent blackberries). However,
that this took place on certain limited parts of the Eastern Area during a limited season, doe
not to my mind materially alter the position.
172.
At the same time I do readily accept that, as regards ‘linear’ activities, there has
been user of the Eastern Area for lawful sports and pastimes throughout the Relevant
Period. I consider that so much is evident from the very marked path which runs through the
35
See evidence of, amongst others, Dr Barr, Mr Sparshott and Mrs Goodchild in this regard.
See evidence of, amongst others, Dr Barr, Mrs Hilary Winter and Mr Maddox.
37
Mr Maddox referred to this having been the position in the 1980s.
36
32
Eastern Area in a north/south direction38. However, once again having regard to the
comments of Lightman J in Oxfordshire, I consider that this is suggestive that another right
of way may have been established, rather than that the Eastern Area should be registered as
a town or village green. Of course it is no part of my remit to advise that such route has in
fact come in to being; however I can and do conclude that the activity that gave rise to such
a route would have been more likely to suggest to a notional landowner the emerging
existence of a new right of way, rather than an emerging village green.
173.
Accordingly, as regards this element of the Land also, I find that there has not been
the requisite degree of user for lawful sports and pastimes as of right throughout the
Relevant Period such as to justify the registration of the Eastern Area as town or village
green.
Conclusions
174.
Accordingly, it follows from the above that whilst I find that the Land has been used
by the inhabitants of a qualifying locality throughout a relevant 20 year period for the
purposes of section 15(1) of the 2006 Act, I do not consider that the quality/degree of user
was such as to amount to the requisite of level of use ‘as of right for lawful sports and
pastimes’ in order to justify registration.
175.
It is therefore my recommendation to the Council that the Application be rejected.
Alexander Booth
3 May 2013
Chambers of Andrew Tait QC
Francis Taylor Building
38
I note that certain witnesses called on behalf of the First Objector did not accept the existence of such a
route, or at the least claimed not to have seen it. For my part, I consider that the route could easily be made
out, and showed signs of heavy use.
33