Agenda item

Report by Tracy Carter – Associate Director Environmental Services and

Ian R Gibbons - Solicitor to the Council and Associate Director – Legal and Governance

Public Participation

Mrs Patricia Sheppard spoke in Objection to the application.

Mr David Read spoke in Objection to the application.

Mr Richard Sheppard spoke in Objection to the application.

Mr Glynn Paton spoke in Support of the application.

Mr Michael Morgan Jones spoke in Support of the application.

The Senior Solicitor introduced the application to register land as a Village Green, in relation to Brown Copse Field, Winterslow.  It was explained that in November and December 2014 Wiltshire Council held a non-statutory public

inquiry into an application to register land as a town or village green, under

Sections 15(1) and (3) of the Commons Act 2006, in the parish of Winterslow.

At the inquiry, evidence was given orally by witnesses both in support and in

objection to the application. This evidence was then tested through cross-examination and re-examination of the witnesses. Following the inquiry, the independent Inspector appointed by Wiltshire Council to preside over the inquiry produced a report of his findings and made a recommendation to Wiltshire Council.

At its meeting on 24 September 2015 the Committee decided against the Inspectors recommendation in part and turned down the application to register Browns Copse as a Village Green. The applicant then sought to challenge that decision and proceedings were filed in the High Court on 23 December 2015. Wiltshire Council sought legal advice from a Barrister.  The Council could not defend those proceedings and the decision was quashed by the High Court in March 2016.

The Committee was required to re-determine the application but only concerning Brown’s Copse and the Committee was asked to consider the Inspectors recommendation on the Village Green application again. The application was recommended for approval.

Members of the Committee then had the opportunity to ask technical questions of the Officers. It was noted that the Court had looked at the process in which the Committee had come to its decision. The decision had been quashed on grounds of pre-determination. It was not the role of the Court to look at the inspector’s report but the decision making process. The Committee asked whether the correct advice had been provided at the original meeting, in relation to the options available to them. It was stated that the only test available to Committee was the legal test as set out in s.15 of the Commons Act 2006 that a significant number of inhabitants of any locality or of any neighbourhood within a locality, had indulged as of right in lawful sports or pastimes on the land for a period of at least 20 years.

If the application was approved, the ownership of the land would not change.   The current owners could continue to work the land such as coppicing, as they had previously done as activities undertaken by the landowner such as the coppicing had been undertaken for the last 70 years and had co-existed with the village green activities.  However the landowners would now no longer be able to prevent the public from entering the land.

The public as referred to above, then had the opportunity to present their views to the Committee.

The Unitary Division Member Councillor Chris Devine then spoke on the application noting that in April 2015 he had chaired the Committee meeting when this had come for decision. He had put forward the Inspector’s recommendation to approve the application, but that it had not been seconded. As a representative for Winterslow he felt with a heavy heart that following guidance received by all on determining applications for Village Greens and the law, the Committee had no other choice than to support the recommendation.  Councillor Devine also noted that if the matter went to Court again the Council would lose and risk incurring substantial costs. Councillor Devine also noted that a full 5 day inquiry took place with both parties having legal representation and the evidence was heard by an experienced Inspector.  

Cllr Devine moved the Inspector’s recommendation for approval; this was seconded by Cllr Westmoreland.

The Committee discussed the application noting that it had missed the opportunity to challenge the Inspector’s findings at the first instance through asking questions of the Inspector before making their decision, and were now not in a position to query them as that time had passed. To go against the recommendation a second time would only result in a repeat of the High Court decision, costing the Council a considerable amount of tax payers’ money.

It was felt that the term ‘Village Green’ was misleading and should be more appropriately named as a ‘Village Amenity’ or such. In addition it was noted that the original purpose of the Act was to secure village spaces for future generations and not for the purpose of preventing development, which it was now often used for.

It was questioned that pre-determination was not a valid reason for quashing the original decision, and when the Committee had made the original decision, it asked whether they could legally go against the Inspector’s recommendation, and had been advised that they could, if there was good reason to do so. Two reasons had then been presented by the Committee, however if the Committee had better understood the process then it could have invited the Inspector to review his findings, based on Committee’s observations prior to making a decision.

The Chairman stated that the Committee had to accept that the Committee had got it wrong when they previously made their decision.  The Chairman  apologised to both the land owners for the turn of events which had now left the Committee’s hands tied and the applicants for the delays in the decision making process. 

Councillors West and Edge abstained from voting.

Resolved

The Southern Area Planning Committee APPROVE the Inspector’s recommendation and the application by Winterslow Opposed to Over Development (WOOD) under Section 15(3) of the Commons Act 2006 be approved but only to the extent that Browns Copse is registered as a town or village green in its entirety, other than the north-west corner of the Copse that is owned by Wiltshire Council.