Agenda item

To consider the report of the Independent Expert

The Committee considered the report of the Independent Person on the application to register land know as Wood Park, Alsager as a village green.

The Public Rights of Way Committee as its meeting on 16 March 2015 had resolved:

“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 a non-statutory public inquiry should take place upon the recommendation of the independent expert, after consulting the Chairman of this Committee.”

In April 2015, James Marwick, Barrister of Trinity Chambers, Newcastle upon Tyne was provided with all necessary documentation and instructed to consider the Application.  Mr Marwick advised that the legal question of whether the use of the land was ‘by right’ or ‘as of right’ was likely to be the 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 evidence representations and replies on the question of whether use was ‘as of right’.  Further evidence, responses and replies were passed to Mr Marwick for consideration.

In accordance with instructions Mr Marwick produced a report in which he concluded that:

“Para 26 - It follows that the application must fail, in my view, because any user of the land has been “by right” and not “as of right” at material times.  The Applicant must prove his case on the balance of probabilities.  In my view, he has no real prospect of success of doing so in relation to this issue.

Para 27 - The Applicant cited a number of examples such as the user by motor cyclists of the land which may fall outside use ‘by right’. Such user falls to be discounted from the test as it would not amount to a user for lawful sports and pastimes as regards the activities undertaken. To put it another way, it is very difficult to envisage any users by members of the public for recreational use of the land which would not be use under the statutory right but user “as of right” for lawful sports and pastimes under the Commons Act 2006”

Para 29 - Suffice it to say, that the Land owners actions prima facie are consistent with the Land being held as open space for public recreational use and further weigh against any user being “as of right.”

The report was circulated to the parties, who were invited to submit any further representations by 23 October 2015. Any representations will be provided to the Committee by the way of update.

Members of the Committee considered the report of the Independent Person and during the discussions asked questions about the definition of “by right” and “as of right”, allocation of the land as open space and commented on the scale of development in Alsager. 

The Committee then consider the recommendation of the report and unanimous

RESOLVED:

That the report of the Independent Person – Mr James Marwick, be accepted and that the application to register the land at Wood Park, Alsager, as a village green be rejected for the reasons as stated in the Independent Person’s report.