Agenda item

To consider legal advice requested by the Western Area Planning Committee (WAPC) 10^th April 2024, to assist in its determination of an application made under s.15(1) and (2) of the Commons Act 2006 to register land as a Town or Village Green (TVG), Southwick Court Fields, in the parishes of Southwick and North Bradley and recommend that the Inspector’s Advisory Report be accepted in part, and that the application be rejected on the ground that all the criteria for registration laid down in s.15(2) of the Commons Act 2006 have not been satisfied, for the reasons set out in the Inspector’s Advisory Report dated 9February 2024.

Public Participation

• Mr Francis Morland spoke in objection to the recommendation.
• Mr Geoff Whiffen spoke objection to the recommendation.
• Councillor Graham Hill, on behalf of Trowbridge Town Council, spoke in objection to the recommendation.

The Senior Definitive Map Officer, Janice Green, presented the report considering the Counsel’s Advice as requested by the Western Area Planning Committee on 10 April 2024, to assist in its determination of an application made under S.15(1) and (2) of the Commons Act 2006 to register land as a Town or Village Green (TVG), and which recommended that the Inspector’s Advisory Report be accepted in part, and that the application be rejected on the ground that all of the criteria for registration laid down in S.15(2) of the Commons Act 2006 had not been satisfied, for the reasons set out in the Inspector’s Advisory Report dated 9 February 2024.

Officers including Sally Madgwick (Definitive Map and Highway Records Manager), Claire Lovelock (Principal Legal Executive), and Trevor Slack (Solicitor), explained the background to the application including planning trigger and terminating events which extinguish the right to apply to register land as a TVG; the legislation which governs applications; the accepted application plan; and the previous referral to the Committee on 10 April 2024 which resulted in a deferral to seek Counsel’s Opinion on the question of whether the Draft Wiltshire Housing Sites Allocation Plan (WHSAP) formed a valid trigger event at the time of application.

The Counsel’s Advice, as prepared by Douglas Edwards KC of Francis Taylor Building, was summarised, and officers explained that whilst it was not open to the Inspector to consider the application dated 13 January 2020 in his Advisory Report, the Inspector’s conclusions as to the merits of the application would be the same for the period ending 30 November 2020, and therefore the Inspector’s recommendation can be relied upon by the Commons Registration Authority (CRA) in determining the application received on 30 November 2020. Members were reminded that although it was open to the CRA to reject the Inspector’s report and recommendation, it can only lawfully do so if the CRA finds that the Inspector has made a significant error of fact or law. As such, if the Inspector’s recommendation was rejected, the CRA must provide legally valid reasons, supported by evidence, of the error of fact or law, where the CRA’s decision is open to legal challenge.

Attention was drawn to Agenda Supplement 2 which detailed a series of questions and responses that had been submitted ahead of the meeting.

Members of the Committee then had the opportunity to ask technical questions to the officer.  Members sought further clarity on the timeline for the TVG applications; planning triggers and terminating events in line with Counsel’s Advice; the decision to instruct a non-statutory public inquiry; and if the applicant had been advised on their right to claim judicial review of the decision to return the application dated 13 January 2020.

In response, officers explained that the draft WHSAP was not a trigger event on 13 January 2020 which meant that the CRA was therefore wrong to determine that the application dated 13 January 2020 was invalid, and that the CRA was wrong to have also rejected the application dated 11 June 2020 as the trigger events at that time affected only part of the application land. However, it was emphasised that it was not open to the Inspector to consider the application dated 13 January 2020, as the application before him was that received on 30 November 2020 and that this was the “time” of the application relevant to whether the right to make an application ceased to apply.

The named public speakers as detailed above then had the opportunity to present their views to the Committee.

Councillor David Vigar, as the Local Unitary Member for the identified locality of the application, then spoke to the application and recapped the sequence of events leading to Counsel’s Advice being received and the importance of retaining the green space for the residents of Trowbridge Grove. Considering Counsel’s Advice, Cllr Vigar then made the case to re-examine the option of processing the application made on 13 January 2020 as it should have been processed originally. 

A debate then followed where Members discussed the points raised by Cllr Vigar alongside the legally complex nature of the application, and the benefits of deferring the application in order to further understand Counsel’s Advice, the questions and answers published as Agenda Supplement 2, and the balance of prejudice relating to any decision made by the Committee. Members further discussed the powers of the Committee to override/alter a decision made by an officer under delegated authority and felt that further advice was needed in order to make an informed decision.

At the conclusion of the debate, Councillor Horace Prickett moved to defer the application to allow for a more detailed report to be prepared, seconded by Councillor Jonathon Seed.

Following a vote on the motion, it was then:

Resolved:

The Committee DEFERRED determination of the application to register land at Southwick Court Fields, in the parishes of Southwick and North Bradley, as a Town or Village Green, to seek a further report on whether the application of January 2020 could be processed with the wider application area examined.

Members took a comfort break from 4.30pm to 4.37pm.