To consider the evidence submitted regarding an application made under Schedule 2(6) of the Commons Act 2006 to de-register buildings which it is claimed are wrongly registered as Common Land, the Pound, Whiteparish, (application no.2021/01ACR).
Trevor King spoke in Objection to the Application
Sarah Skeats (Applicant) spoke in Support of the Application
Attention was drawn to additional information as set out in supplements 1 and 2 to the agenda.
The Officer noted corrections to the report, which were:
· Para 11 – (main report) – was amended to read “The closing date for applications made under Schedule 2 of the 2006 Act, is now the same as that made to a 2014 registration authority, i.e. 15 March 2027. In this case the application is made before the cut-off date and there is no material affect”
· Paras 20 & 26 (Appendix 10) - the word ‘immediately’ had been replaced with the word “intimately” in the quotes from the Methuen-Campbell caselaw.
The Senior Definitive Map Officer, Janice Green, presented the Application to de-register buildings wrongly registered as Common Land at The Pound, Whiteparish.
It was proposed that the Application site be part de-registered, over the part of the application area covered by a building or the curtilage of a building, as set out in the report and detailed on the presentation slides.
Some of the main points raised included clarification of the site and its areas which had been numbered 1 to 4 in the report and shown on the screen.
The Officer explained how the legal tests set out at Schedule 2(6) of the Commons Act 2006 regarding the de-registration of buildings wrongly registered as common land, had been considered in relation to the areas of the application land, in that;
· Area 1 was not registered common land and should be excluded.
· Area 2 of the site was included in historical block plans for planning applications/consents for change of use and erection of workshop building at the Pound site in 1967.
· Area 3 was an area of hardstanding, positioned outside of the1967 planning site.
· Area 4 was a grass / wooded area at the north of the application area, also outside of the 1967 planning site.
The Legislation relevant to the application was presented and it was explained that on applying the tests, only one area, Area 2, met the criteria.
Attention was drawn to the reasons for the recommendation, which were set out in paras 40 and 41 of the report.
It was noted that three objections had been made to the application.
The Officer clarified that in relation to the late correspondence submitted by the applicant regarding the Ordnance Survey Mapping and a County Series map from 1952-1992, although these showed a change in surface over the site including Area 3, there was no evidence to demonstrate a relationship between the building and Area 3 necessary for it to form curtilage of the building.
It was also clarified that in relation to the visibility splay extending into Area 3, mentioned by the applicant, that the line on the mapping was the current hedge line rather than extension of the visibility splay northwards. The 1967 planning block plans do not record the visibility splay extending north of the identified planning area and its extension southwards is very clearly conditioned to extend outside the planning area.
Members then had the opportunity to ask technical question of the Officer, where it was noted that in relation to the late correspondence the Officers’ recommendation remained unchanged, as set out in the report.
The Officer explained that the application had come to Committee due to its regulatory function which required the Committee to act in a quasi-judicial capacity, to enable natural justice and a right to a fair hearing. Any decision outside of the Officers’ Recommendation would need to be supported by clear evidence.
Members of the public as detailed above, then had the opportunity to speak on
Some of the points raised included references to local farming families use of the common to raise livestock for over 150 years and that Parish Council held the Commons registration documents.
There was a recollection by local residents of grazing cattle across the builder’s yard and of Romany Gypsies roaming the common land.
The Applicant highlighted the additional evidence and suggested that Area 3 also be de-registered, as she felt there was enough evidence to show that the hard standing area has been in use since 1963 and that the visibility splay formed part of the building curtilage.
The Division Member, Cllr Richard Britton spoke on the application, questioning the Officers’ rebuttal of the hard standing area (Area 3), stating that it was not as convincing as on the main site, asking the Committee whether it would consider a deferral of the application, to allow for further investigation of Area 3.
Cllr Hocking moved the motion of part de-registration, in line with the Officers’ recommendation. This was seconded by Cllr McLennan.
The Committee discussed the application, the main points included the request of the Divisional Member for a deferral, which were not supported and whether the evidence provided by the applicant was enough to deviate from the Officers’ recommendation, which the Committee again did not support.
The Committee considered the options available and the Officers’ reasons for the proposal to part de-register, as set out in the report.
The Committee then voted on the motion to part de-register the application site as set out by the Officers’ recommendation.
That the Commons Act 2006: Schedule 2(6) – Application to De-register Buildings Wrongly Registered as Common Land – The Pound, Whiteparish - Application no.2021/01ACR, be granted only in part, over that part of the application area, named as Area 2, which is covered by a building or the curtilage of a building, for the following reasons:
1. The legal requirements as set out under paragraph 6 of Schedule 2 of the Commons Act 2006, i.e. the de-registration of buildings wrongly registered as common land, are met in the following in this application:
i. Part of the land at The Pound, Whiteparish, subject to the application was provisionally registered as common land on 10 April 1968, (register entry no.CL.7, Whiteparish Common). The registration of the land became final on 1 October 1970, and this is not disputed.
ii. Part of the application land was covered by a building and its curtilage at the time of provisional registration. Planning for the workshop building subject to this application was granted in October 1967 and the building was erected before the end of 1967, i.e. before the provisional registration of the land in 1968. There is no dispute of the date the building was in place on the land and no evidence to suggest that the workshop building was not present at the time of provisional registration, however, there is dispute regarding the extent of curtilage of the building.
iii. Part of the application land has been covered by a building and its curtilage at all times since provisional registration and still is, the period in question being April 1968 – present day. Although Mr King disputes continuous use of the building throughout this period, there is no requirement within the Act to consider continuous use, just that the building and/or its curtilage covered the land during this period, of which there is no dispute and no evidence to the contrary. There is dispute regarding the extent of the curtilage of the building.
2 Having considered the available evidence, Officers’ did not consider that the whole of the application area was, at provisional registration, covered by a building and its curtilage and has remained so. The CRA concludes that where the subject of this application is the garage/workshop building and its curtilage, it is only possible to consider the curtilage of this building to be that area included within the planning applications/consents for change of use of The Pound site and erection of the workshop building at The Pound, as an area so intimately associated with the building as to lead to the conclusion that it forms part and parcel of the building. This relationship between the extended area of the application land, for the full period from provisional registration and at all times since, has not been demonstrated. Therefore, it is proposed that the application to de-register land as common land be granted only in part over that part of the land subject to the successful planning applications in 1967 and excluding that area of the application land not included as part of Common Land Register Unit CL.7, Whiteparish Common, as shown on the plan (para 43 of report).