Agenda Item No. 4

The Vale of Glamorgan Council

Public Protection Licensing Committee: 4th July, 2017

Report of the Operational Manager, Legal Services, in Respect of the Vale of Glamorgan Commons Registration Authority

Application 1/2016 - To Register Land at Sully Sports Club, South Road, Sully, as a Town or Village Green under S15 of the Commons Act 2006

Purpose of the Report

1. The Vale of Glamorgan Council is the Registration Authority for the administrative area by virtue of the Commons Act 2006 ("The Act"). This function is carried out by the Council. The Registration Authority has the responsibility under the Commons (Registration of Town or Village Greens) (Interim Arrangements) (Wales) Regulations 2007 ("the Regulations") in determining applications made under the Act. The Council's statutory functions and responsibilities as a Registration Authority are independent to its other statutory and non-statutory functions and the Registration Authority should not therefore consider any impact upon the Vale of Glamorgan Council when considering applications.
2. On 5 August 2016, an application ("the Application") was received by the Registration Authority to register an area of land at Sully Sports Club, South Road, Sully

Recommendations

1. That on the basis of the evidence submitted in support of and against the Application, a non-statutory public inquiry be convened to consider the Application.
2. That the Operational Manager Legal Services be given delegated power to appoint a legally qualified and suitably experienced independent Chairperson to hold a non-statutory public inquiry to consider the Application.
3. The cost of appointing Counsel to chair the non-statutory public inquiry, and his costs ancillary thereto is met from the central fund set aside for specific matters including legal challenges brought against the Council and other ancillary matters.
4. That at the conclusion of the non-statutory public inquiry, the Chairperson shall be requested to produce a report for the Registration Authority which considers the evidence submitted in support and against the Application together with the evidence heard at the enquiry and to provide a recommendation for Licensing Committee whether or not to register the land as Town or Village Green under the Act.
5. That the further report be presented to Licensing Committee upon receipt of the Chairperson's report following the non-statutory public inquiry in order to determine the Application.

Reason for the Recommendations

In order for the Council as Registration Authority to discharge its obligation to adopt a fair and transparent procedure and to determine the Application in accordance with the relevant legislation.

Background

3. The Application is made in respect of land which is owned partly by St. Modwen Developments and partly by Sully Sports and Leisure Limited.
4. The Council as Registration Authority is under a duty to maintain registers of Town and Village Greens. There is no legal difference between a Town and Village Green. The terms merely indicate the physical setting of the green. Registrations under the Act may result from:

(1)      a new green being dedicated by the owner;

(2)      20 years use by local inhabitants before the date of application for registrations;

(3)      corrections to errors made under the Commons Registration Act 1965;

(4)      corrections under the Commons Act 2006; or

(5)      an exchange of land.

5. The Application is made on the basis of 20 years use by local inhabitants before the date of the application and is in respect of the land shown on the plan at Appendix 1 to this Report.
6. The procedure for dealing with the application is set down in the Regulations. The original Application and supporting documentation was forwarded to those interested in the land for consideration of objections. A notice was also placed in local newspapers and on site providing a six week period for objections to be received. One letter of objection was received in respect of this Application and the applicant was subsequently invited to provide further comments on these objections. Further representations have now been received from the applicant as a result. All of the documentation received by the Registration Authority is set out and attached as Appendix 2 to this report for reference.

Relevant Issues and Options

7. The Application is made on the basis that residents in the locality have used the land for local sports and pastimes "as of right" for more than 20 years from the date of the Application. The original Application and supporting documentation together with the relevant objections and further representations are provided in full in Appendix 2.
8. An objection to the Application was received from solicitors acting on behalf of St Modwen and SSL as landowner of the land comprised within the Application. The basis for the objection is that the use of the land for lawful sports and pastimes has been "by right" (i.e. in exercise of a legal right to do so) and not "as of right" as submitted in the Application.
9. The courts have emphasised on a number of occasions the importance of the registration authority adopting a fair procedure. Due to the complexity of the evidence and the complex nature of the law relating to this subject, it is recommended that a non-statutory public inquiry is held to test the evidence and to see if the requirements for registration had been met. The use of a public inquiry for such an Application has been approved of by the courts as being in the interests of openness and fairness.
10. A public inquiry would provide the opportunity for the applicant and the objectors to submit further evidence, call witnesses and cross examine the other party's witnesses. A legally qualified independent chairperson who has experience in town and village green applications would be appointed to hear the public inquiry and submit a report on their findings to the Registration Authority together with a recommendation as to whether to register the whole or any part of the land comprised in the Application as a town or village green.
11. It is recommended that such an inquiry is convened in respect of this Application given the disputed evidence.

Resource Implications (Financial and Employment)

12. Registration of a new Town or Village Green as a Corporate Function. If members are minded to follow the Officers recommendations and resolve that a non-statutory public inquiry should be held, the costs will include those of the appointed independent Chairperson who would be a Barrister specialising in this area of law. The Chairperson's costs including the production of a report for the Registration Authority would be charged on the following basis:

• £200 per hour plus VAT for advisory work and drafting directions
• £1,250 plus VAT per day preparatory work prior to inquiry (estimated 1 to 2 days required)
• £1,000 plus VAT for pre-inquiry meeting with the parties
• £1,250 plus VAT per inquiry sitting days (estimated 1 to 2 days required)
• £1,250 plus VAT per day for writing post inquiry report (estimated 3 days required).

The costs will be met from a central fund reserved for legal matters including legal challenges brought against the Council and other ancillary matters.

Sustainability and Climate Change Implications

13. None.

Legal Implications (to Include Human Rights Implications)

14. The Application has been made under S15 (2) of the Commons Act 2006 and must be considered by the Registration Authority under the procedure set out in the Commons (Registration of Town or Village Green) (Interim Arrangements) (Wales) (Regulations 2007.
15. The Council's power in its capacity as the Registration Authority to register a town or village is a Council (statutory registration) function delegated to the Licensing Committee as set out in the Council's Constitution and in accordance with Schedule 1, Regulation 3 of the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007.

Crime and Disorder Implications

   16. None.

Equal Opportunities Implications (to include Welsh Language issues)

16. None.

Corporate/Service Objectives

17. The Registration Authority is under a duty to maintain a Register of Town or Village Greens and to consider the Application independently.

Policy Framework and Budget

18. This is a matter for Licensing Committee exercising their delegated powers to make arrangements for the discharge of the statutory registration functions of the Council.

Consultation (including Ward Member Consultation)

19. This is a matter reserved for decision by the Public Protection Licensing Committee subject to the procedure set out in the Regulations.

Relevant Scrutiny Committee

20. Corporate Performance and Resources

Background Papers

A copy of the papers referred to in Appendix B will be available in the Member's room and a copy will be available before the Committee.

Contact Officer

James Docherty - Senior Lawyer, Legal Services

Officers Consulted

Responsible Officer:

Victoria Davidson, Operational Manager, Legal Services