Agenda item

To consider the report of the Independent Expert

The Chairman reported that the map at page 93 of the agenda pack was not relevant to this application and had been included in error.

The Committee considered the report of the Independent Person on the application to register land at Pickmere Informal Recreation Open Space, Jacobs Way, Pickmere, Knutsford as a new village green under section 15 of the Commons Act 2006.

The Public Rights of Way Committee, at its meeting on 8 December 2014 had considered the application and resolved:

“a         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.

b.         The Head of Legal Services be given delegated authority to determine if a non-statutory public inquiry should take place upon the recommendations of the Independent Expert, after consulting the Chairman of this Committee.”

On 11 March 2015, the Head of Legal instructed Mr James Marwick of Counsel:

a.    to consider the Application and provide the Head of Legal with a written preliminary review as to whether the matter can be dealt with by way of written representations in the first instance.

b.    If, after considering the Application, counsel is of the view that the Application can be dealt with by way of written representations, to sit as an independent expert to consider the Application on the basis of written representations and prepare a report, to go the Council’s Public Rights of Way Committee, recommending whether the Application should be approved or not;

c.    after considering the Application, counsel is of the view that the Application needs to be dealt with by way of a non-statutory public inquiry, he is to advise the Head of Legal Services in a telephone conference as to the reasons why an inquiry is necessary and, subject to further confirmation from the Head of Legal, to sit as an inspector for the non-statutory inquiry for the purpose of considering the evidence and to prepare a report and recommendation to go the Council’s Public Rights of Way Committee on whether the Application should be approved or not.

Mr Marwick provided a report on 24 March 2015 which advised that the legal question of whether the user of the land was ‘by right’ or ‘as of right’ was likely to be determinative of the application.  He advised that the application could be dealt with by way of written representations and invited the parties to submit further representations and replies on the question of whether the use was ‘as of right’.   

Further evidence, responses and replies were made in April and were passed to Mr Marwick for consideration.  In accordance with instructions, Mr Marwick provided a report dated 15 May 2015, in which he concluded that use of the land had not been “as of right” but permissive for a large balance of the requisite 20 year period and recommended that the application be rejected.  The report was circulated to all parties on 3 June 2015, with an invitation to submit any further representations by 10 June 2015. 

Members of the Committee considered the report of the Independent Person and during discussions asked questions about transfer of the land to the Parish Council pursuant to a section 106 agreement, the permitted use of the land under this agreement, permissive access, and the impartiality of the Independent Person.

The Committee unanimously

RESOLVED:

That the report of the Independent Person – Mr James Marwick, be accepted and that the application to register the land at Pickmere Informal Recreation Open Space, Jacobs Way, Pickmere, Knutsford, as a village green be rejected for the reasons as stated in the Independent Person’s report.