Agenda item

Public Participation

Mr Paul Grace, on behalf of Marlborough College, spoke in objection to the registration of the town or village green.

Mr Ian Mellor, applicant, spoke in support of the registration of the town or village green.

Sally Madgwick, Acting Team Leader - Definitive Map and Highway Records, presented a report which recommended that Wiltshire Council, as Commons Registration Authority, accept the recommendation of the independent inspector to reject the application made under Sections 15(1) and (2) of the Commons Act 2006 to register land at Barton Park, Marlborough, as a town or village green.

The background to the application to register the play area in Morris Road/College Fields, Barton Park, as a town or village green was detailed. The application was submitted on 18 May 2015. As Wiltshire Council, in its capacity as landowner, was a statutory objector to the application to register the land, the Committee at its meeting on 5 January 2017 resolved to appoint an independent inspector to hold a non-statutory public inquiry to examine and establish the facts and relevant law, and to provide a report and a recommended course of action. The inquiry took place in January 2018. The inspector’s report and its findings, and relevant evidence, was included with the Committee report. Correspondence since the inquiry report between the council as Commons Registration Authority, the inspector, applicant and objectors, had also been circulated to the Committee.

The legal tests for approving the registering of a town or village green were outlined as detailed further in the report, but in particular that, on the balance of probabilities, applicants must prove that a significant number of local people indulged in lawful sports and pastimes on the land for a period of at least 20 years, in this case from 1995-2015, and that their usage of the land must have been ‘as of right’. This would require the use of the land for such purposes to have been without force, without secrecy and without permission.

The independent inspector, following the public inquiry, had concluded that while it was not in dispute that lawful sports and pastimes had taken place on the land across the required period, that use had been ‘by right’, meaning it had been permitted or actively allowed by the landowners, or otherwise carried out by statutory right. As a result, he had recommended that the application to register the land be rejected, with the full details and reasoning set out in the inspector’s report.

Sarah Marshall, Senior Solicitor, confirmed to the Committee that it was able to come to a different decision to that recommended by the independent inspector, but that it could only do so where it considered that the inspector had made a significant error of law or fact, and could support that consideration with clear and valid evidence. Additionally, the Committee was reminded of the requirement not to predetermine the application, but to consider it with an open mind, taking into consideration all the evidence before it, and to assess whether or not the legal tests for registration of a town or village green had been met as the inspector had concluded.

It was also confirmed that officers acting for the council as a landowner making objections, had received separate legal support than the Committee and supporting officers acting as Commons Registration Authority, to ensure all parties, including applicants and objectors, were treated fairly.

Following the presentation members of the Committee were given the opportunity to ask technical questions of the officers.

Members of the public were then given the opportunity to present their views to the Committee, as detailed above.

The Committee then debated the application for registration, and the recommendations of the independent inspector. Some members raised concerns regarding elements of the inspector’s report, in particular reference to relevant legislation under which land was registered and transferred, whether the land had properly been listed as public open space in the past, and past intentions for use of the land. However, a majority of members stated that no significant errors of law or fact had been identified which gave reason to doubt the recommendation of the inspector, and that on the balance of evidence it was therefore clear that while lawful sports and pastimes had taken place on the land, the required legal tests for registration had not been met. In particular it was emphasised that a very clear process had been followed, including the holding of a non-statutory inquiry to test evidence and claims, as well as relevant law, in order for the conclusion to have been properly and fairly arrived at.

A motion to reject the registration of the land in accordance with the reasoning of the independent inspector’s report was moved by Councillor Mark Connolly, seconded by Councillor Paul Oatway QPM. At the conclusion of debate, it was,

Resolved:

That the application to register the play area in Morris Road/College Fields, Barton Park, Marlborough, as a town or village green be rejected for the reasons set out in the inspector’s report dated 2 March 2018.

A recorded vote having been requested by the required number of members, the votes for and against the application were as follows:

For (6)                                                Against (2)                             Abstentions (0)

Cllr Ian Blair-Pilling                          Cllr Stewart Dobson

Cllr Mark Connolly                           Cllr Nick Fogg MBE

Cllr Peter Evans

Cllr Paul Oatway QPM

Cllr James Sheppard

Cllr Chris Williams