PRESENT: Councillors Stretton (Chairman), J Evans (Vice-Chair), Beer, Mrs Hunt, Mackay, and Majeed.

Officers: Emma-Jane Brewerton, Anthony Hurst, Joan Lamprell, Maria Lucas, Sean OConnor and Tanya Leftwich.

Also present: Councillor Lenton, Councillor Rayner, Mr Blofeld, Mrs Bowdery, Dr Fergusson-Rees, Mrs Fergusson, Mr Pilditch and Miss Wood.


07/10 APOLOGIES FOR ABSENCE

No apologies for absence were received.

08/10 DECLARATIONS OF INTEREST

Councillor Lenton declared a personal interest in Item 4 (VG 101 – Application for new village green at the Kayles, Wraysbury) as he was the Ward Councillor for Horton and Wraysbury and was known to the applicant and had also attended the public enquiry.

Councillor Rayner declared a personal interest in Item 4 (VG 101 – Application for new village green at the Kayles, Wraysbury) as he was the Ward Councillor for Horton and Wraysbury and was known to the applicant and objector and had also attended the public enquiry.

Councillor Mackay declared a personal interest as he was a member of the National Trust and Ramblers Association.

09/10 MINUTES

The minutes from the meeting held on the 6 September 2010 were agreed as a correct record.

10/10 PROCEDURE FOR RIGHTS OF WAY AND HIGHWAY LICENSING PANEL ON DEALING WITH APPLICATIONS FOR NEW TOWN OR VILLAGE GREEN

The Head of Legal Services requested that Members of the Panel adopted a procedure for dealing with applications for new town or village greens.

RESOLVED: Unanimously that the procedure for Rights of Way and Highway Licensing Panel on dealing with the applications for new town or village greens be adopted.

11/10 VG 101 – APPLICATION FOR NEW VILLAGE GREEN AT THE KAYLES, WRAYSBURY

The Chairman informed everyone present that the Panel was to determine an application relating to the land known as ‘The Kayles’, Friary Road, Wraysbury, received by the Council in its capacity as the Commons Registration Authority for the Borough.

The Council’s Monitoring Officer and Head of Legal Services was invited by the Chairman to present the report on the application which had been received by the Council on the 19 May 2009.

The Council’s Monitoring Officer and Head of Legal Services informed the Panel that the Council was required under the Commons Registration Act 1965 to act as the registration authority for common land within the Royal Borough. It was noted that the Council was required to consider any applications for new town or village greens under section 15 of the Commons Act 2006 and regulations there under. The Council has delegated authority to the Panel to determine the matter on its behalf.

The Council’s Monitoring Officer and Head of Legal Services went on to inform the Panel that the application had been made under section 15 (2) of the Commons Act 2006 and regulation 3 of the Commons (Registration of Town or Village Greens)(Interim Arrangements)(England) Regulations 2007. The Panel noted that section 15 (1) of the Act enabled any person to apply to a Commons Registration Authority to register land as a Village Green where it could be shown that ‘a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as a right in lawful sports and pastimes on the land for a period of at least 20 years’. The Council’s Monitoring Officer and Head of Legal Services explained that an application must also meet one of the following tests;

· Use of the land had continued.
· Use of the land ‘as a right’ ended no more than two years prior to the date of application.
· Use of the land ‘as a right’ ended before the 6^th April 2007.

The Panel were informed that a non-statutory public inquiry into the application was held on the 8^th to the 10^th November 2010 and that an independent inspector had been appointed by the Council to consider the evidence and provide a report on the merits of the application. It was noted that officers of the Council had considered the report that further comments had been made on the report by the parties involved and officers had made the recommendation pursuant to the Inspector’s advice.

The Inspector, Miss Wood, was invited to provide the Panel with a summary of her report. The Panel noted that the application had received three objections, that none of the three objectors had attended the public inquiry and that Mrs Fergusson and Dr Fergusson-Rees had submitted a late objection.

The Inspector ran through the 15 paragraph headings that made up her report and explained that she had attended the meeting today in order to answer any questions the Panel might have on the contents of her report.

The Panel at that time had no questions for the Inspector or the Council’s Monitoring Officer and Head of Legal Services.

The Chairman explained the speaker’s rights to those that had registered to speak in advance of the meeting and that the usual time allotted to speakers was 3 minutes but for this item it had been extended to 5 minutes with Mr Pilditch and Mr Blofeld sharing 5 minutes and Mrs Fergusson and Dr Fergusson-Rees also sharing 5 minutes. The Chairman informed everyone present how the microphones worked and explained how the Time Keeper Presentation Timer worked. The Chairman then went onto invite the applicant, Mr Pilditch, to address the Panel for his allocated 5 minutes.

Speakers in favour of the application

· Mr Pilditch informed the Panel that ‘The Kayles’ were very unique and that there was nothing like it in Wraysbury or within easy walking distance. It was noted that there were walks around the gravel pits but no other walks through woodlands other that through a National Trust property approximately two miles to the south. Mr Pilditch informed the Panel that he had applied on behalf of a number of local residents, none of whom sought financial gain. It was noted that The Kayles Action Group had been established to determine whether sufficient money could be raised to buy the land and therefore allow people the freedom to roam the land. Mr Pilditch went onto inform the Panel that in October 2008 a written offer of £50,000 had been made to Mr Pelham who was the land owner at that time. It was noted that the application for Village Green status was submitted only when attempts to buy the land had been ignored. Mr Pilditch advised the Panel that the objectors to the application were Mr Pelham, the landowner in May 2009 and Mrs Fergusson with her son Dr Fergusson-Rees who purchased the land immediately prior to the public inquiry.

Mr Pilditch went on to inform the Panel that Mr O’Keefe of the local boatyard together with neighbours, Mr & Mrs Hazledene, had also objected but had withdrawn their objections when the land had been sold to the present owners. Mr Pilditch requested that any reference to these two objections be ignored.

Mr Pilditch informed the Panel that the previous land owner, Mr Pelham, had hoped for ‘The Kayles’ to become a marina which would have resulted in him receiving a considerable amount of money ensuing from the extraction of gravel. It was noted that when Mr O’Keefe had been unable to complete his purchase prior to the public inquiry, Mr Pelham had sold the land to Mrs Fergusson and her son Dr Fergusson-Rees. Mr Pilditch informed the Panel that the land had not been offered to the local residents association as had been stated in Mr Pelham’s objection. The Panel were informed that Mr Pilditch had known nothing of Mrs Fergusson and her son until some two years later in October 2010.

Mr Pilditch informed the Panel that whilst he could not be certain of Mrs Fergusson’s motive he imagined that she had hopes of building on her land as Mrs Fergusson had shown the Inspector a plan of the land which had identified a building plot immediately west of number 21, Old Ferry Drive. The Panel were informed that Mrs Fergusson and her son had completed their purchase of The Kayles on the 27 October 2010, just less than two weeks before the Public Inquiry had begun. Mr Pilditch informed the Panel that Mrs Fergusson had admitted to researching the implications of Village Green or Open Space but had decided to proceed with the land purchase anyway. It was requested that any financial or equity loss resulting from the application not influence the Panel in any way.

Mr Pilditch went on to explain that Mrs Fergusson’s 37 pages of objections and innuendo had criticised virtually everyone who had spoken at the Public Inquiry, including the Inspector’s competence. It was noted that in response the Inspector had answered Mrs Fergusson’s complaints and found no reason to reconsider her recommendation that the application be approved.

Mr Pilditch concluded by explaining to the Panel that he believed Mrs Fergusson had bordered on being slanderous towards him and a number of witnesses and had referred on numerous occasions to the law of average or the law of probability in an attempt to bolster assumptions and allegations she had made. Mr Pilditch also informed the Panel that he had also been accused of stealth which he believed was unfounded.

· The Chairman invited Mr Blofeld, who had registered in favour of the application, to address the Panel. Mr Blofeld requested that the Chairman allow him to speak last which the Chairman refused. Mr Blofeld withdrew his application to speak.

· The Chairman invited Mrs Bowdery, who had registered in favour of the application, to address the Panel. Mrs Bowdery withdrew her application to speak.

Speakers in objection to the application

· The Chairman invited Mrs Fergusson and Dr Fergusson-Rees, the objectors, to address the Panel for their allocated 5 minutes. Mrs Fergusson informed the Panel that she intended to address the Panel and requested confirmation that all Panel Members had received a copy of her evidence which had been provided in the form of a handout at the start of the meeting, which all confirmed they had received. Mrs Fergusson went onto double-check that Appendix 3 which related to comments on the Inspector’s report by herself had been included in the agenda which the Panel confirmed. Councillor Mrs Hunt informed Mrs Fergusson that the Panel had received all the information included in the agenda which related to the application and had also visited the land in question.

Mrs Fergusson requested that the Panel reject the application to register the land known as ‘The Kayles’ as a new village green on the grounds that the legal tests / statutory criteria for registration under section 15 of the Commons Act 2006 had not been met. Mrs Fergusson went onto request that the recommendation in the Inspector’s report dated the 1^st February 2011 be ignored for the reasons explained in “VG 101 Report – SAF Comments” dated the 7^th March 2011. The Panel noted that Mrs Fergusson also wished that the recommendation by the Royal Borough of Windsor and Maidenhead’s Legal Services Unit as set out in the report which was available on the RBWM website as of the 22^nd March 2011 be ignored as it was believed that the report failed to address whether or not the statutory criteria for registration had been met. Mrs Fergusson stated that in this context it should be borne in mind that neither the written evidence nor the statutory criteria for registration were properly addressed in the Inspector’s report. It was noted that members of The Kayles Action Group appeared to have mislead proceedings and that this was the first village green application to be considered by the Council in the Royal Borough as Licensing Authority. Mrs Fergusson requested that the Panel fully read the first four pages of her handout and also refer to the exhibits’ in her document.

Mrs Fergusson informed the Panel that with regard to the law and sections of 15 (2) and 15 (3) of the Commons Act 2006 referred to ‘a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as a right in lawful sports and pastimes on the land for a period of at least 20 years’. It was noted that the requirement was broken down into a series of legal tests or statutory criteria which could be found in a) to d) of her handout. Mrs Fergusson went onto explain that in order to be accepted for registration as a green, all the legal tests had to be satisfied and that if one of the tests was not met then the whole application fails irrespective of its merits against other tests. The Panel noted that the onus of proof was on the applicant to show that usage had been “as of right” rather than “by right”. Mrs Fergusson informed the Panel that it was a criminal offence for the applicant to deliberately provide misleading evidence or untrue evidence.

Mrs Fergusson referred the Panel to the list of evidence which had been submitted as part of the application process which must have been considered by the Registration Authority.

Mrs Fergusson explained that with regard to the number of local inhabitants, 3600 would be a reasonable estimate of the average population for the application period 1988-2008. It was noted that in order to satisfy the statutory requirement the land must be in general use by the local community, as opposed to occasional use by individuals, and that use must be more than trivial. The Panel noted that an examination of the witnesses’ evidence together with map B exhibit 2 showed that the statutory requirement may not have been met. Mrs Fergusson explained that part of the usage described by some witnesses was of Thamesfield and not ‘The Kayles’. It was noted that one witness had realised during the Public Inquiry that her use was not of ‘The Kayles’ at all.

The Panel were informed by Mrs Fergusson that the land must be ‘as of right’, without force, stealth / secrecy or licence / permission and that it was not sufficient for the applicant to show that the land was used for access from A to B since such use was more consistent with the exercise of a right of way. It was noted that the applicant’s witnesses evidence showed that use of ‘The Kayles’ was primarily for dog walking along set routes, which included Thamesfield, or for reaching another destination and that this had been the case for well over 20 years. Mrs Fergusson explained that in the past the area to the south-west of the public footpath 8C was used for authorised horse training, gymkhanas and similar activities. The Panel were informed that the applicants final witness had organised events from 1975 – 1986 although Mrs Fergusson believed there was evidence that such use continued until at least 1990.

The Chairman informed Mrs Fergusson that her five minutes had come to an end and asked her to finish what she was saying. Mrs Fergusson concluded by informing the Panel that she believed the legal requirements had not been met and that the handout she had provided did explain why. Mrs Fergusson went onto explain that she believed the use of the land had not been “as of right” and explained that less than half of the land had been used for sports and pastimes. Mrs Fergusson informed the Panel that she believed the application had failed two of the legal tests.

The Chairman asked Mrs Fergusson to confirm if she was querying the Inspector’s decision to which she responded she was. The Chairman asked the Inspector to respond. The Inspector informed the Panel that over the course of the public inquiry she had heard evidence and had balanced fact as a whole. Miss Wood referred to Trap Grounds in Oxfordshire where approximately 25% of the land was accessible to reasonably hardy walkers and still be considered to be a village green. Miss Wood went onto refer to the permissive element which could be found mainly on the notices on the land and referred the Panel to paragraph 13.10 in her report. The Panel were informed that no oral evidence from the original objectors had been provided at the public inquiry, only oral evidence from Mrs Fergusson and Dr Fergusson-Rees who had not known the land for very long. Miss Wood concluded by stating that she had considered all the evidence provided to her and recommended that ‘The Kayles’ be registered as a village green.

In the ensuing discussion the following points were noted:

v From the evidence provided it had been noted that the land users were not just using the footpaths provided but walked where they wished.
v Miss Wood explained that the ‘Betterment Properties v. Dorset CC’ was a 2010 case which had since progressed to the court of appeal.
v The Council’s Monitoring Officer and Head of Legal Services informed everyone present that although this was the first village green application that had been submitted to the Royal Borough, Maria Lucas had herself dealt with an application at a previous authority.
v Ward Councillor Lenton informed the Panel that he had heard the evidence submitted at the public enquiry and did believe the land should be registered as a village green.
v Mrs Fergusson informed the Panel that if the land was registered as a village green then her rights would be taken away from her. Mrs Fergusson requested that the evidence provided in her handout be considered before the Panel voted on the recommendation made by the Inspector.
v The Inspector, at the request of Councillor Mrs Hunt, explained the difference between use of land ‘as of right’ and ‘by right’.

The Chairman informed the Panel that they had three options available to them which was to:

· Accept the application in accordance with the Inspector’s recommendation.
· Reject the application.
· Do nothing.

RESOLVED: Unanimously that the application for registration of a new village green in respect of the land known as ‘The Kayles’, Friary Road, Wraysbury be accepted (for reasons set out in the Inspector’s report which met the test for registration under section 15 (3) of the Commons Act 2006).

12/10 WALTHAM ST LAWRENCE FOOTPATH 25 (part): PROPOSED DIVERSION ORDER

The Principal Rights of Way Officer explained to Members that the report sought the Panel’s approval to publish a Diversion Order for part of Waltham St Lawrence Footpath 25, at Billingbear Park.

It was noted that the intention of the diversion proposal was to re-route the legal line of the footpath to correspond with the route already used along the gravel driveway. Members were referred to the location plan on page 169 of the agenda which showed the existing and proposed routes. The Principal Rights of Way Officer went onto explain that a new section of surfaced footpath would provide an improved walking surface, an easier route to follow and would remove an existing style at point C.

RESOLVED: Unanimously that;
(i) That the Head of Legal Services, in consultation with the Head of Highways and Engineering, be authorised to publish a Diversion Order for Waltham St Lawrence Footpath 25 (part) as detailed in the report and shown on the plan in Appendix 1.
(ii) If no objections were received or such objections were subsequently withdrawn, the Order be confirmed without further recourse to the Panel. If objections were received and not subsequently withdrawn, the proposal be reported back to the Panel for further consideration.

13/10 PUBLIC RIGHTS OF WAY: MILESTONE STATEMENT 2011/2012

Councillor Rayner congratulated the Principal Rights of Way Officer on his report and explained that it was a good starting point for future projects as it showed commitment. It was noted that a report had gone to the Cabinet Participatory Budget Sub Committee with regard to the Thames Path and if the project was selected by the public consultation process this could mean an allocation of £50,000 towards the project. With regards to the legal issues, Councillor Rayner explained that if discussed they would need to be covered in Part II.

The Chairman invited Mrs Bowdery to address the Panel on the Milestone Statement for her allocated 3 minutes. Mrs Bowdery informed the Panel that since l990 the completion of a riverside route for the Thames Path had been the firm objective of Natural England, formerly the Countryside Commission, Berkshire County Council and then the Borough Council. The Panel noted that thirty years on people were still walking along the road. Mrs Bowdery went onto explain that the Council had been offered the footpath link free of charge in return for minor internal alterations to the Bridge View Boathouse in the 1990’s, an offer which had been rejected by the Council’s Senior Planning Officer at that time, which Mrs Bowdery believed had resulted in the financial problem faced today.

Mrs Bowdery went onto inform the Panel that the Quality Standards for National Trails stated that no section of the Thames Path should follow a busy or dangerous road and that despite this requirement, the Council has spent the past 4 years trying to persuade Councillors to accept a double road crossing instead. The Panel were informed that this solution was rejected in 2009 by all ward Councillors and Councillor Rayner and that the same proposal was recycled again in 2010 and was once more rejected by Ward Councillors.

Mrs Bowdery went onto explain that a meeting had been organised by Theresa May and had taken place on the 21^st February 2011.

The Panel noted that Councillor Rayner believed the contents of the meeting with Theresa May which took place in February 2011 would also need to be minuted in Part II as the Officer from the Rambler’s Association’s head office had agreed to keep the discussions private although a press release had later been released by the Ramblers Association locally. Mrs Bowdery requested that Councillor Rayner put his concerns in writing to the Ramblers Association locally which he declined to do.

The Principal Rights of Way Officer explained to Members that the report sought the Panel’s approval for the “Milestones Statement and Public Rights of Way Improvement Plan Annual Review 2011/12” which set out the Council’s objectives, priorities, targets and service standards for public rights of way work in the coming year.

Members were informed the following:

v The approved capital budget for public rights of way works in 2011/12 was £51,000.
v The approved revenue budget for public rights of way work in 2011/12 was £45,000.
v The reported maintenance and enforcement problems on Public Rights of Way in the Royal Borough outstanding at the 31 March 2010 was 554 which had been reduced to 344 as of the end of February 2011.

Members congratulated the Principal Rights of Way Officer and his team for reducing the figures from 554 problems to 344.

The Vice-Chairman of the Panel suggested that the Panel considered whether the targets set for 2011/12 were felt appropriate and achievable compared to last years figures. The Principal Rights of Way Officer informed Members that the two outstanding claims that his team were currently working on were a statutory duty and as such were found to be very time consuming. Members noted that there were currently only four outstanding claims in the system details of which could be found on page 191 of the agenda.

RESOLVED: Unanimously that;
(i) The wording with regard to the LD1 milestones target be changed “To actively progress a minimum of 4 applications to add public rights of way to the definitive map (claims)”.
(ii) The Panel approved the “Milestone Statement and Public Rights of Way Improvement Plan Annual Review 2011/12”.

The Chairman, on behalf of the Panel, thanked the Principal Rights of Way Officer and his team for all their hard work and dedication over the past six months. The Chairman went onto thank the East Berkshire Ramblers for their hard work and dedication over the past six months and for attending the Panel meetings. It was noted that Members recognised both these important roles and appreciated how well the two organisations worked together.

14/10 PUBLIC RIGHTS OF WAY: 6-MONTHLY PROGRESS REPORT

The Principal Rights of Way Officer explained to Members that the report updated the progress made with regard to Public Rights of Way issues during the six months from August 2010 to March 2011.

Members raised and noted the following points:

· Members were informed that one of the priorities set out in the “Milestones Statement 2010/11” approved by the Panel in March 2010 had been to “Maximise the use of recycled materials and reused materials in rights of way maintenance where practicable”. It was noted that two initiatives being progressed were the use of reprocessed wood product as a path surfacing material and the use of recycled plastic product for signposts and waymark posts as an alternative to metal or wood. The Principal Rights of Way Officer informed the Panel that a site visit had taken place and that the surfacing improvements at Cruch Lane in Bray and Uncles Lane in Waltham St Lawrence had been well received by walkers and horse riders. It was noted that the woodchip surface had settled well to provide an easy to use surface and provided that a sufficient depth of material was laid it was felt that the trial had been successful. The Principal Rights of Way Officer informed Members that the cost of this product was less than half the cost of surfacing a similar length with an alternative material such as stone. It was noted that the product would be used again on other suitable routes as the need arose.
· The Principal Rights of Way Officer explained that with regard to the Millennium Walk missing link between Hurley Footpath 18 and Bisham Footpath 20 a permitted path agreement had been negotiated between the Berkshire College of Agriculture and East Berks Ramblers. It was noted that the agreement was for a new permitted footpath across land owned by the College, emerging onto Henley Road opposite an existing footpath across Temple golf course, and the project also included a short section of roadside footpath. It was noted that a budget of £19,000 had been allocated from the 2011/12 capital programme to progress with this project and that the sum included partnership contributions of £1,750 from the East Berks Ramblers and £750 from the Maidenhead Civic Society. The Principal Rights of Way Officer informed members that he would report back to the Panel later in the year regarding the opening of the path.
· Members noted that the Local Access Forum last met in November 2010. The Principal Rights of Way Officer explained that with regard to funding and resources it had been noted that Mrs Bowdery had been keen to use Section 106 to help fund ROWIP projects. It was noted that a member of the S106 team and/or external funding team would be invited to speak at the next Local Access Forum due to be held on 5^th July 2011.

RESOLVED:

(i) That the Panel noted the Public Rights of Way 6-monthly Progress Report attached at Appendix 1.

15/10 DATES OF FUTURE MEETINGS

Thursday 30 June 2011
Thursday 8 September 2011
Thursday 8 December 2011
Monday 12 March 2012

16/10 MEETING

The meeting, which began at 6.30pm, ended at 8.30pm.

17/10 LOCAL GOVERNMENT ACT 1972 – EXCLUSION OF THE PUBLIC

The Chairman for the meeting, Councillor Stretton, passed the following resolution:-

"That under Section 100 (A) (4) of the Local Government Act 1972, the public be excluded from the remainder of the meeting whilst discussion takes place on item 6 on the grounds that it involves the likely disclosure of exempt information as defined in Paragraphs 1-7 of Part I of Schedule 12A of the Act”