Agenda item

To consider a report on the application by the Birtles Conservation Forum to register the field between Birtles Road and Drummond Way, Whirley Macclesfield as a new village green under section 15 of the Commons Act 2006

The Committee received a report which detailed an application by Birtles Conservation Forum to register the field between Birtles Road and Drummond Way, Whirley, Macclesfield as a new village green under section 15 if the Commons Act 2006.

The village green application was dated 30 September 2008 and had been submitted to Cheshire County Council on 2 October 2008 by the Birtles Conservation Forum.  Cheshire East Council was the successor authority to Cheshire County Council. 

The application was made pursuant to section 15(2) of the Commons Act 2006, which required the applicant to demonstrate that the land was used:

a.      for lawful sports and pastimes for a period of at least 20 years and that this use continued to the date of the application

b.      by a significant number of the inhabitants of a locality or of a neighbourhood within a locality

c.      as of right

Macclesfield Borough Council, as owner of the land, had objected to the application and Cheshire East Council, as its successor as landowner, had objected in that capacity.  Cheshire East Council was also the Registration Authority for Village Greens. 

The Public Rights of Way Committee, at its meeting on 7 December 2009, had adopted a procedure for dealing with village green applications.  In pursuance of that procedure, the Committee had decided in relation to this Application to authorise the Borough Solicitor to appoint a suitably qualified independent person to hold a non statutory public inquiry.  Douglas Edwards QC was appointed as the Inspector.  Both the applicant and objector supported the choice of Inspector.

A public inquiry was held on 12 to 14 October and 21 October 2010. 
Mrs Peggy Bentham represented the applicant and Miss Ruth Stockley of counsel represented the objector.  The inquiry was held in order to hear all the evidence from both the applicant and objector.  It was agreed between parties that the qualifying period for the purpose of the application was a 20 year period between 30 September 1998 and 30 September 2008. 

The Inspector’s Report, outlining his conclusions and providing his recommendation, was attached to the report.  The report took account of the written information produced to the Inspector and evidence received during the Inquiry. The Inspector had given less weight to written evidence than to oral evidence which had been tested by cross examination at the Inquiry. 

The Inspector had found as a matter of fact that there were periods, albeit short, when the land was fenced off by the objector to prevent access.  He had also found on a balance of probabilities that a temporary access for construction traffic had been laid across the land in 1999 to 2000. 

The Inspector concluded that from the early to mid 1990s there had been significant use of the land as a cut through connecting Birtles Road and Drummond Way and that this had given rise to the path or track which was now a noticeable feature on the land.  Beyond use of the track and its margins, the Inspector had found that evidence of use of the remainder of the land so as to support the Applicant’s case was distinctly lacking.  He had concluded that use of the land beyond the path and its margins had not occurred to any material extent during the qualifying period at least until the clearance work of the last year to 18 months. 

The Applicant had advanced Whirley as a neighbourhood rather than a locality but the Inspector had not found evidence supportive of this. 

The Inspector had found that fencing had been erected to exclude trespassers and repeatedly damaged and removed.  There was evidence of a contest between users and the landowner which led him to conclude that any use of the land for lawful sports and pastimes after the erection of the fences should be regarded as forcible and not as of right. 

The Inspector found that beyond the path which crossed the land and its margins, the use of the land was limited to the occasional trespasser and did not comprise anything approaching use by the general community for recreation purposes. Furthermore the Inspector found that there had not been use by a significant number of the inhabitants of a neighbourhood within a locality for the whole of the qualifying period and he could not find evidence to support the Applicant’s contention that Whirley was a neighbourhood or to support it being a locality.

Based on his findings the Inspector recommended to the Registration Authority that the application should be rejected.

Mrs Peggy Bentham, on behalf of the Birtles Conservation Forum, had registered to speak in support of the application but unfortunately was unable to attend the meeting.  On her behalf, her speech and the text of two emails dated 14 February and 18 September 2011 were read out to the Committee. 

During discussion, Members asked questions about the appointment of the Inspector, the conduct of the hearing and whether witnesses were under oath, the recording of evidence presented at the public inquiry, the quality of the documents produced at the inquiry, the placing of the picnic bench on the land and the state of the land at present

The Chairman asked Members to consider the report’s recommendation and to decide whether to accept the Inspector’s recommendation that the Committee reject the application to register the land as a village green.

Members voted by majority to reject the application

RESOLVED:

The Committee agreed to accept the recommendation of the Inspector to reject the application to register as a village green the field between Birtles Road and Drummond Way, Whirley, Macclesfield, on the grounds that the statutory criteria for registration under section 15 of the Commons Act 2006 have not been satisfied because

1.      the Applicant has not demonstrated that the land was capable of being use or was used as of right during the qualifying period by reason of the fencing works carried out by the landowner, and

2.      on the balance of probabilities, it has not been demonstrated that the land was used for lawful sports and pastimes to any material extent during the qualifying period, and

3.      the Applicant has not demonstrated a qualifying neighbourhood.