Licensing, Registration and General Purposes Committee 10 November 2003 Application to Register Land at Neville’s Cross as a Town or Village Green Report of Director of Corporate Services
Introduction 1 The County Council is the registration authority for town and village greens under the Commons Registration Act 1965. The County Council must act impartially in its determination notwithstanding that it has had an interest in the development of the land.
Purpose of the Report 2 To advise the Committee in its consideration of whether or not to register the field behind Geoffrey Avenue at Neville‟s Cross, Durham City as a town or village green under the provisions of Section 13 of the Commons Registration Act 1965.
Application 3 An application has been made by Louise Spence of 5 Ellam Avenue and Thomas and Kathryn Shanks of 15 Ellam Avenue to register as a town or village green the land shown bordered by a thick black line on the map attached. The application was made on the basis that the land became town or village green on 25 th April 2001.
Objection 4 An objection has been lodged by New College, Durham.
Description of the Application Land 5 The land lies between Geoffrey Avenue and Archery Rise at Neville‟s Cross. The land is separated by a wooden fence along its western boundary from a public footpath. On the other side of the footpath there are the back gardens of houses in Geoffrey Avenue, some of which have gates on to the footpath. The western part of the land is a level playing field which appears to be regularly mown. There are trees around the perimeter. The eastern part is a rough grass bank with trees which falls to a fence along the back gardens of houses in
Archery Rise. The fences around the western, northern and eastern boundaries of the land are now continuous but there were gaps in the fences during the relevant period. The southern side of the application land is not separated from a tarmac area laid out as a car park. Access to the application land is through a gate on the south side of the car park to which the public footpath gives access. Ownership 6 The land is owned by H. J. Banks & Company Limited, having been acquired on 1st July 2003 from New College, Durham. Prior to the incorporation of the College in 1993, the land was owned by Durham County Council. The County Council had an interest in another part of the site which it sold to Banks.
History 7 The application land was laid out as a sports field as part of the grounds of Neville‟s Cross Teacher Training College which was established in the 1930s. The College subsequently merged with New College, Durham. The land remained part of the playing fields of New College, Durham and during the whole of the relevant period from 1981 to 2001 contained a marked out rugby pitch with posts. The rugby pitch was used for student matches from time to time.
Planning Status 8 Durham City Council granted planning permission approval on 13 November 2002 for the redevelopment of the whole college site for mainly residential purposes. However, the planning permission provides that the application land is to be kept undeveloped and to remain in open and recreational use. An agreement under section 106 of the Town and Country Planning Act 1990 provides for the long term maintenance of the land. Whilst the planning status is of interest, it does not have any bearing on the question whether the application land is town or village green.
Evidence of Applicants 9 The Applicants state that the application land is used regularly as of right by the local community, and has been for many years. They state that to their knowledge no public paths cross the land. The Applicants were aware that the land was owned by New College and they have never sought permission for the use of the land, but used it because others in the neighbourhood used it. Nobody has ever prevented their use of the land, although staff at the College had been aware of their presence.
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The Applicants have provided forty pro forma statements of use of the land for sports and pastimes. Evidence is given of the following activities: football, rounders, cricket, rugby, running, kite-flying, tobogganing, cycling, picnicking, dog walking, children playing, walking, blackberrying. The evidence is summarised in the appendix. Twenty-three of the statements refer to a period of at least 20 years for the activities. The other statements refer to more recent periods. Twenty-four of the witnesses reside in Ellam Avenue, Geoffrey Avenue, Archery Rise, and Copeland Court and others live slightly further away from the application land.
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Evidence of Objector 12 The objection on behalf of New College, Durham is as follows: a. New College Durham is a statutory corporation formed under the Further and Higher Education Act 1992, and it became the freehold owner of the application site in April 1993. The application site was previously owned by Durham County Council. At all material times the application site has been part of the Neville‟s Cross Site of an institution for the provision of further and higher education. Part of the Neville‟s Cross Site remained in the ownership of Durham County Council. For the greater part of the past 20 years the application site has been laid out, maintained and used as a rugby football pitch. This use has been for and ancillary to the overall use of the Neville‟s Cross site for the purposes of further and higher education. There has been limited use of the rugby pitch by another educational institution but subject to licence agreements. At no material time has the application site been made available, as a matter of policy, for the purposes of formal or informal recreational use by the public. Over the past few years the use of the application site for the purposes of rugby football has declined and has now largely ceased. However, no other use of the site has yet taken place. At all material times the application site has not been dedicated or intended to be used for the purposes of recreation or lawful pastimes by the general public or that part of the public who live nearby.
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c.
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g.
h.
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i.
The maintenance of the application site for the purposes of rugby football has included keeping the site clean and safe for this purpose. Any use of the site by residents for the purposes of walking dogs has been in conflict with the maintenance of the application site for the purposes of rugby football. The application site has, on its western boundary and close to its southern boundary, a public footpath. This path has given the public the legal right to pass and repass across the Neville‟s Cross site. The footpath is largely separated from the application site by a fence. However, the footpath is intersected by an internal road for the purposes of the College Site. At all material times the College has sought to maintain the fence so as to prevent unauthorised access to the application site. It is acknowledged and recognised that i n practice strict control of persons entering the application site is exceedingly difficult. The Neville‟s Cross Site is generally open to students, staff, support staff, suppliers and visitors as well as public access via the footpath. Having regard to the above facts, it is acknowledged that it has not always been possible to prevent members of the public from gaining access to the application site. However, any use of the application site by the owners and occupiers of neighbouring properties or members of the general public has not in any way altered the nature and use of the application site. The primary purpose and use of this site has at all material times been that of a rugby football playing field for use by students at the college. Any use by the public of the application site will have been upon an implied licence from the College – such Licence being withdrawn at frequent intervals as and when the site is required for rugby football, training, maintenance etc or where persons entering the site cause a nuisance or damage.
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Response of Applicants 13 In response to the objection, the Applicants‟ case is as follows: i. While laid out as a rugby football pitch, the field in question has nevertheless been used on a regular basis for informal sports and pastimes by local residents;
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ii.
Evidence submitted as part of the application for registration clearly shows the land has been used for informal sports and pastimes for over 20 years; The use has been by a significant number of inhabitants, undertaking a wide range of activities; The use has been as of right. The Applicants have provided photographs which show that parts of the fence between the public footpath and the application land have been missing for a long period. No repairs were made to the fence until 2001, when the college site was put up for sale. The playing field has been used openly during the week, at weekends, during the day and in the evenings; no one has ever sought to prevent such use. The Applicants have ascertained that in the 1980s when the use of the playing field for rugby was at its height the rugby pitch was used up to once a week on a Wednesday afternoon during term times only. The Applicants do not consider this to be the primary use of the field as local residents used the field at all other times and used other parts of the application land at the same time as rugby matches. The Applicants draw attention to the inconsistency of points (l) and (p) above in that fencing to keep out unauthorised access was incompatible with an implied licence by the College to local residents. The Applicants contend that playing an organised rugby match once a week on a Wednesday afternoon during term time only (and this only at the height of the use of the pitch by the College) was not „substantial‟. The Applicants contend that the level of use of the playing fields by residents of the locality, particularly when compared with any level of formal use, should have been such as to make it obvious to the College that people were using the field as of right. The Applicants argue that any use by the College for sports activities would not be rendered illegal by the designation of the land as town or village green: as a residential college students would enjoy the same rights as other people living in the locality. In fact, the main use of the land by students has been as an informal recreational area rather than for formal sports ancillary to the College. The Applicants conclude that playing rugby on part of the land for a couple of hours at most one afternoon a week for 30 weeks of the year does not constitute a „substantial‟ interruption to their use of the field for lawful sports and pastimes. The Applicants maintain that this very short interruption of part of the application land is not substantial and the application should therefore be approved.
iii. iv. v.
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viii.
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Commons Registration Act 1965 14 Section 13 of the Commons Registration Act provides for the amendment of the register of town or village greens where land becomes such a green. The expression “town or village green” is defined by s 22(1) of the 1965 Act as “land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years”. This definition encompasses three distinct types of green, (a) a recreational allotment under an Inclosure Act or a statutory Inclosure Award, (b) a customary green, or (c) a prescriptive green. Section 98 of the Countryside and Rights of Way Act 200 amends the definition of a prescriptive green as the following: Land on which for not less than 20 years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and continue to do so. Burden and Standard of Proof 16 The standard of proof is on the balance of probabilities. The burden of proof lies upon the Applicants and all the requirements for registration must be properly and strictly proved. The Applicants have to demonstrate that all the elements contained in the definition above apply to the land.
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“land” 17 The application land is clearly “land” for the purposes of the definition, and is adequately identified by the map attached to the application.
“for not less than 20 years” “and continue to do so” 18 The relevant 20 year period is from 25th April 1981 to 25th April 2001. A number of the Applicants‟ witnesses refer to periods less than 20 years. However, a substantial number refer to use over the 20 year period. It appears from the Applicants‟ evidence that public use has continued for more than 20 years prior to the application. In the case of Laing Homes Limited v Buckingham County Council [2003], it was held that village green rights cannot be established where the land is being used for growing a hay crop. This is because any interruption to the use or enjoyment of a village green as a place
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for exercise and recreation is a criminal offence under section 12 of the Inclosure Act 1857. 20 The question in the present case is whether the use of the land for playing rugby constitutes an interruption. At first sight it would appear that playing rugby is obviously a form of exercise and recreation and so would not be an interruption. However, two considerations militate against this. First, the rugby players were not exercising village green rights; they were playing matches organized by the College. Secondly, when a rugby match was in progress then it was not possible for inhabitants of the neighbourhood to carry on any of the activities claimed on the pitch. Consequently it is reasonable to conclude that the playing of rugby matches would have constituted an interruption. Furthermore, it is established by the cases of Hollins v Verney [1884] and White v Taylor [1969] that the rights claimed must amount to continuous enjoyment. If they are interrupted in any substantial fashion then the twenty year period will have to re-commence. In the present case there was an interruption on each occasion that a rugby match took place because local inhabitants would have been unable to indulge in sports or pastimes on the rugby pitch which occupies a substantial part of the application land. Local inhabitants would have been excluded from the pitch by an activity incompatible with their use as of right.
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“inhabitants of any locality” 23 Neville‟s Cross is part of Durham City but does not have any distinct identity and it would be difficult to classify it as a locality, but Durham City could be described as a locality.
“any neighbourhood within a locality” 24 A “neighbourhood” is not defined but could be taken to mean a suitable area which the application land might reasonably be expected to serve as a green. The Applicants‟ evidence is that the application land has served as a recreational area for the inhabitants of Ellam Avenue, Geoffrey Avenue, Archery Rise and other streets nearby. It would appear that this area could qualify as a “neighbourhood”.
“a significant number” 25 If Ellam Avenue, Geoffrey Avenue, Archery Rise and nearby streets are defined as a “neighbourhood” then the witnesses would amount to a significant number of inhabitants of the “neighbourhood”.
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“lawful sports and pastimes” 26 It is now established that informal recreation such as walking with or without dogs and children‟s play constitutes “lawful sports and pastimes” (R v Oxfordshire CC ex parte Sunningwell Parish Council (1999)). The activities which have taken place on the application land described by the applicant‟s witnesses constitute “lawful sports and pastimes”.
“as of right” 27 It is also now established that “as of right” means “without force, secrecy or permission” (R v Oxfordshire CC ex parte Sunningwell). There is no evidence to suggest that the use of the application land has involved force or secrecy. Moreover there is no evidence of any express or implied consent for use by local residents so that the considerations set out in R (on the application of Beresford) v Sunderland City Council (2001) would not apply.
Conclusion 28 The evidence shows that there has been use of the application land for lawful sports and pastimes by a significant number of local inhabitants over a considerable period. It is accepted by all parties that during the relevant 20 year period the rugby pitch was maintained on the site and was regularly used by the College. The use of the rugby pitch by College students constituted an interruption and prevented the accrual of the 20 year period by 25 th April 2001.
Recommendation 29 The Committee is recommended to refuse the application to register the land as town or village green.
Background Papers 30 Application, supporting evidence, objection and correspondence.
Contact:
Anthony Ewin
Tel:
0191 383 3510
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Neville’s Cross Town or Village Green Application Schedule of Evidence in Support of the Application
1 Name Professor & Mrs T Shanks Addre ss 15 Ellam A venue Document Letter dated 26.04. 01 Letter dated 25.05. 01 Acti vities Children playing, team games including rounders and football, dog walking, blackberrying, picnicking, kite flying, walking, sledging, children‟s parties. Exercising dogs, kite flying. Dog walking, ball games. Football, bike rides, rollerblading, tennis, dog walking, blackberrying. Walking, dog walking. Period Past 17 years.
2
C B Townend
14 The Peth
Pro-forma
19661980 19651970‟s 1976 onwards.
3
N and S Gedye
Sydney House, The Peth Oaklea, The A venue
Pro-forma
4
Mary Gullick
Pro-forma
5
Mrs V E Heather
Rosslyn, The A venue 5 Ellam A venue
Pro-forma
Past 25 years. 1993 onwards.
6
Ms A L Spence
Pro-forma
Dog walking, kite flying, blackberrying, tobogganing, picnicking. Playing fields.
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Mrs S A Ross
33 Geoffrey A venue 16 Geoffrey A venue
Pro-forma
8
Barbara Fox
Pro-forma
Ball games, bike riding, dog walking, jogging, blackberrying. Children‟s play, dog walking, kite flying, blackberrying. Playing fields.
More than 20 years. Oct 1997 onwards.
9
Norman Ridley
14 Geoffrey A venue
Pro-forma
1966 onwards.
10
Miss Milada Kalab Mr S W Rowell
3 Darlingt on Road 16 Ellam A venue
Pro-forma
Since 1975. Past 15 years.
11
Pro-forma
Football, rugby, rounders, dog walking and kite flying.
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12
Name Conrad White
Addre ss Farnley Hey, Farnley Hey Road
Document Pro-forma
Acti vities Football, rugby, cricket, running.
Period Since 1992.
13 14
Carole Reeves Dave and Maggie Robson Richard Turner
27 Nevilledale Terrace 2 Geoffrey A venue 4 Ellam A venue
Pro-forma Pro-forma
Football, dog walking. Sports, pastimes.
15
Pro-forma
Children playing, football, cricket, rounders, running. Sledging, football, kite flying. Kite flying, tobogganing. Rugby, soccer, children playing. Children playing.
Past 15 years. Since Nov 1993. Past 7 years.
16
Nicola and Paul Tomaney Dr G H Welsh John MacDonald
3 Ellam A venue
Pro-forma
Past 3 years. Past 29 years. Since 1988. Since 1960‟s. Since 1960‟s.
17 18
Viewlands Percy Terrace 4 Archery Rise
Pro-forma Pro-forma
19
Edward Thompson Mr J G Bygate
13 Geoffrey A venue 32 Geoffrey A venue
Pro-forma
20
Pro-forma
Jogging, dog walking, golf, kite flying, foot ball, cricket, rounders. Dog walking.
21
Professor & Mrs G Batho Chris & Joan Graham H B Nutter
3 Archery Rise
Pro-forma
19752000 Since 1978. Since Oct 1968. Since Feb 1977. Past 30 years. No dates provided. Past 12 years. Past 30 years. Past 10 years. 40 years.
22 23
34 Archery Rise 21 Nevilledale
Pro-forma Pro-forma
Kite flying, tobogganing. Walking.
24
Lesley and Ian Crosskell Sir Arnold Wolfendale C W Ryland
31 Archery Rise
Pro-forma
Recreation area.
25
Ansford, Potters Bank 13 St John‟s Road 15 St John‟s Road Wilmore House, 50 The A venue 8 Copeland Court
Pro-forma
Children playing.
26
Pro-forma
Playing fields.
27
Dr & Mrs F Whalley Mrs R E Brown
Pro-forma
Ball games.
28
Pro-forma
Various uses.
29
Mr & Mrs D Wright Jonathan Brown
Pro-forma
Recreational activities.
30
4 George Street
Pro-forma
Dog walking, sport, children playing.
10
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Name S Fox and M Weeding
Addre ss 6 Geoffrey A venue
Document Pro-forma
Acti vities Football, tennis, picnicking, kite flying, running, playing, sledging, rugby, frisby playing, team games. Dog walking, golf, ball games. Rugby, children playing. Children playing, ball games. Dog walking.
Period No dates provided.
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Mrs P A Whittaker Desmond and Ann E vans Gwynneth and Stan Dennison C Wyn-Jones
25 Geoffrey A venue 54 The A venue 15 Geoffrey A venue Meneland House, The A venue 18 Geoffrey A venue 13 Ellam A venue
Pro-forma
Since 1979. Past 33 years. 1960‟s & 1970‟s. Past 13 years. Since 1955. Past 15 years. Past 28 years. Since 1977. Past 9 years.
33 34
Pro-forma Pro-forma
35
Pro-forma
36
K G & T Riddle
Pro-forma
Children playing.
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Mr & Mrs W Wilson Dr & Mrs J D Hort on Edith C Metcalfe
Pro-forma
Children playing.
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4 Geoffrey A venue 14 Ellam A venue
Pro-forma
Running, walking, kite flying, tobogganing. Children playing.
39
Pro-forma
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John Renshaw
11 Ellam A venue
Letter dated 24.04. 01
Kite flying, football, rounders, children‟s parties.
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