Agenda Item No 4
The Vale of Glamorgan Council
Public Protection Licensing Committee: 17th April 2018
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 Field, South Road, Sully as a Town or Village Green Under S15 of the Commons Act 2006
Purpose of the Report
- To consider an application made under the Commons Act 2006 ("the Act") for land known as Sully Sports Field, South Road, Sully ("the Land") to be registered as a Town or Village Green.
- The Council held a non-statutory public inquiry chaired by an independent inspector who considered the application and reported to the Council.
- The Public Protection Licensing Committee is invited to consider the report of the independent inspector, Mr James Marwick, Barrister of St Johns Chambers ("the Inspector"), and determine whether the application satisfies the statutory criteria for registration of the Land as a Town or Village Green and should be included in the register.
- To accept the recommendations in the Inspector's report and to determine that the application to register the Land as a Town and Village Green be refused because the applicant has failed to satisfy the statutory criteria contained in section 15(2) of the Act.
Reason for the Recommendation
- In order for the Council as Registration Authority to discharge its duty to determine the Application in accordance with the Act and the Commons (Registration of Town or Village Greens)(Interim Arrangements)(Wales) Regulations 2007.
- The Council initially received an application to register the Land as a town/village green on the 5th August 2016 but that was not in compliance with the relevant legislation. An acceptable application to register the Land as a Town and Village Green was received on 12th September 2016. A copy of the application Form 44 and plan is attached at Appendix 'A'.
- On 4th July 2017, the Public Protection Licensing Committee considered a report concerning the above application and determined that in view of all the circumstances outlined, a non-statutory public inquiry should be held in order for the Council as Registration Authority to discharge its obligation to adopt a fair and transparent procedure and the determine the application in accordance with the relevant legislation.
- Mr James Marwick a barrister with experience of village green registration matters was appointed as Inspector in relation to the non-statutory public inquiry and to produce a report with recommendations. The inquiry was held over four days, namely between 29th, 30th and 31st January 2018 and 1st February 2018.
- The applicant and objectors were informed of the non-statutory public inquiry.
- The full report of the Inspector is attached at Appendix 'B'. The report sets out the law, the evidence heard and recommendations.
- The Inspectors report was circulated to the applicant and objectors for any comments. Neither the applicant nor the objectors provided any comments on the report.
- Members determining this application have been provided access to bundles of the Public Inquiry including closing submissions.
- The Council cannot delegate the decision making process to the Inspector as the decision is for the Council delegated to the Public Protection Licensing Committee. It should be emphasised that the Inspector's recommendations are not binding on the Committee, and the Committee must consider the Inspectors report and decide whether it agrees with the Inspector's conclusions on the key issues. However should the Committee decide not to follow the Inspector's recommendations it would need to provide detailed reasons for not doing so.
The Inspector's Report
- In the report the Inspector makes clear that the burden of proof of satisfying each element of the statutory criteria rests with the Applicant.
- The application seeks the registration of the Land by virtue of the operation of section 15(2) of the 2006 Act. Under that provision, land is to be registered as a town or village green where:
"(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."
- The Inspector has indicated the following issues to be critical in this case:
i) The quality and quantity of user by a significant number of the inhabitants of any locality; and
ii) The test for use of land "as of right".
- The Inspector confirms that there is no dispute with:
i) the relevant period in this case, the relevant period being 13th September 1996 to 12th September 2016;
ii) the locality being the administrative area of the Sully and Lavernock Community Council.
- The Inspector considered, with reference to relevant case law and the evidence submitted by both the applicants and the objectors in written and oral form, the user for lawful sports and pastimes by a significant number of the inhabitants of any locality and the use of the Land "as of right"..
- In respect of the quality and quantity of user by a significant number of the inhabitants of the locality the Inspector concluded that the qualifying use of the land was limited to occasional mushroom foraging, leisure walking and some other occasional informal activities. The Inspector concluded that some of this qualifying user would have been indistinguishable from permitted use of the land for attendance at organised events or during activities.
- The Inspector concluded that given the locality had a population of in excess of 4,500 the threshold for a significant number of inhabitants was higher than might be the case in other applications. Given that the amount of qualifying user of the land was so limited the Inspector concluded that the Applicant falls "well short" of meeting that threshold.
- In respect of the use of the Land "as of right" the Inspector concluded that on the evidence and in light of the relevant case law the qualifying user of the Land was not carried out "as of right" but rather with implied permission of the owners of the Land.
- The Inspector's overall conclusion is set out in paragraph 126 and states:
"My overall conclusion is the application must fail because a significant number of local inhabitants have not indulged in lawful sports and pastimes during the relevant 20 year period and further that any claimed user in any event was not "as of right" but, on the contrary, by implied permission."
Relevant Issues and Options
- The options available to the Committee are:
i) Accept the Inspectors recommendations and refuse the application;
ii) Not accept the Inspectors recommendations and grant the application in full or in part and register the Land as a Town and Village Green.
Resource Implications (Financial and Employment)
- Significant Costs have been incurred in undertaking the non-statutory Public Inquiry.
- Members should note that if an interested party challenges the Committee's decision legal costs, which could be significant, may be incurred by the Council.
Sustainability and Climate Change Implications
Legal Implications (to Include Human Rights Implications)
- 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).
- 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.
- There is no right of appeal against the Council's decision but interested parties could challenge the decision by applying for Judicial Review. A failure to determine the application in accordance with the law or at all will leave the Council exposed to a Judicial Review or a claim of maladministration by the Public Service Ombudsman for Wales.
Crime and Disorder Implications
Equal Opportunities Implications (to include Welsh Language issues)
- 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
- This is a matter for Public Protection 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)
- 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
Application and Plan - attached at Appendix A
Inspector's Report - attached at Appendix B
A copy of the Public Inquiry background papers will be available upon request from Democratic Services.
James Docherty - Senior Lawyer, Legal Services
Victoria Davidson, Operational Manager, Legal Services