Agenda item

To consider the report of the Independent Expert

Having declared that he had previously expressed an opinion in relation to this application, Cllr John Wray left the room before consideration of the report.

The Committee considered the report of the Independent Person on the application to register land adjacent to Chelford Road and Black Firs Lane in Somerford as a new village green under section 15 of the Commons Act 2006.

The Public Rights of Way Committee at its meeting on 15 September 2014 had considered the application and resolved:

That the Head of Legal Services offer the applicant and the objectors twenty eight days to make representations on the potential trigger event which may affect part of the land subject to the village green application.

Following expiration of the twenty eight day period, the Head of Legal Services be authorised to appoint an independent expert to consider the application on the basis of written representations and provide a report.

The Head of Legal Services be given delegated authority to determine if non-statutory public inquiry should take place upon the recommendation of the independent expert, after consulting the Chairman of the Public Rights of Way Committee.

An email had been sent to the applicant and objectors on 17 September 2014 asking for their comments on the trigger event by 16 October 2014. Further information in relation to the trigger event was sent to the applicant and objectors on 10 October 2014. Comments were subsequently received from Richborough Estates, Somerford Parish Residents Action Group, the Applicant and the Cheshire East Council as Highways Authority.

On 27 November 2014, James Marwick, Barrister of Trinity Chambers, Newcastle upon Tyne was provided with all necessary documentation and instructed to consider the Application.  If of the view that the Application could be dealt with by way of written representations and without the need for a non-statutory public inquiry to sit as an independent person to consider it and thereafter to prepare a report to go to the Public Rights of Way Committee recommending whether the Application should be approved or not.

In accordance with instructions, Mr Marwick produced a report dated 12 February 2015, in which he concluded that

a.         a ‘trigger event’ had occurred excluding the part of the land which falls within the area of land identified in the Development Strategy document from registration.  This had the consequence of severing the parts of the land which were registrable in two; namely the remaining part of the claimed land on Black Firs Land and the Chelford Road section.

b.         rejecting the Applicant’s argument to the contrary; there was strong evidence that the Land in its entirety was highway maintainable at public expense so as to justify proceeding on the basis that on balance, it was Highway Land.

c.         having considered all the evidence relied upon in support of the application, practically all the user evidence relied on by the Applicant could be regarded as having been enjoyed pursuant to the public’s highway rights and therefore must be discounted as qualifying user as any use by right rather than as of right was to be discounted from consideration.

d.         the evidential position was not rectifiable at a public inquiry for the reason set out in his report and he was satisfied that his conclusion was one properly reached without the need for a public inquiry.

The Head of Legal Services was satisfied that the Independent Person’s conclusion that the evidential position was not rectifiable at a public inquiry, and determined on 6 March 2015, in accordance with the delegated authority, that it was not necessary to hold a public inquiry.

Mr Marwick’s report was circulated to the parties on 25 February 2015 advising that the application would be considered at the meeting of the Public Rights of Way Committee on 16 March 2015 and the parties were invited to make any representations in relation to the report by 4 pm on 4 March 2015.

Richborough Estates had responded on 26 February 2015 advising that the report was considered to be the most thorough and detailed - it had analysed all issues relating to the application, reached a reasoned conclusion and as a result, the recommendations therein were agreed.

The Applicant, Mr Bell responded on 2 March 2015 stating that he would like to address the Committee in relation to the application but would not be able to attend on 16 March due to being on holiday. He requested that the application be considered at the next meeting of the Committee so as to afford him an opportunity to attend and make submissions.

The Independent Person’s view was that there was no obligation to postpone the Committee meeting as the applicant had been afforded the opportunity to make representations in writing based upon the report, which was the central item to be considered by the Committee, and every opportunity to make relevant submissions had been afforded during preparation of the report.  Mr Marwick also pointed out that the Committee had a discretion whether or not to receive written representations made after the 4 March as part of their decision making process.

The Chairman drew the Committee’s attention to an email sent to them that morning by Mr Bell, which had attached a letter along with representations drafted by Vivian Chapman QC and a tab 5 Plan.  Copies of the documents were provided for Members at the meeting.

In his letter Mr Bell strongly objected to the content of the Independent Person’s report and raised the following points:

·         failure to instruct an independent expert as Mr Marwick was already acting as the Council’s legal adviser to relation to the application before he was instructed as the Independent Person

·         conflict of interest as Cheshire East Council as the Council was the Highway’s Authority and also the Registration Authority

·         financial conflict as the Council would receive S106 money from a housing development which could be affected by the outcome of the application

·         conflicting expert opinions of the Independent Person and the QC instructed by Somerford Parish Council

·         unresolved factual dispute of whether the land in question is part of the public highway which ought to be dealt with at a public inquiry

Mr Bell asked that the Committee decline to accept the Independent Person’s report, determine that a public inquiry was necessary, refer the application for determination by a neighbouring authority or instruct another independent person to determine the application.  He also requested that the application be adjourned to allow his attendance to make oral representations.

Members of the Committee considered the report of the Independent Person and the documents submitted by Mr Bell and during the discussions asked questions about the impartiality of the Independent Person; the conflicting expert opinions; the unresolved issue of highways land:  who were the owners of land and sub soil: the trigger event; the lateness of representations; the size of area involved; the clash of Council interests; and the appointment of another independent person.

It was moved and seconded that the application be deferred to allow the Applicant to attend a meeting and address the Committee and on the vote it was declared lost.

The Committee then consider the recommendation of the report and by majority

RESOLVED:

That the report of the Independent Person – Mr James Marwick, be accepted and that the application to register the land adjacent to Chelford Road and Black Firs Lane, Somerford as a village green be rejected for the reasons as stated in the Independent Person’s report.