PRESENT: Councillors John Stretton (Chairman), Maureen Hunt (Vice-Chair), James Evans, Mohammed Ilyas and Gary Muir.

Also Present: Ward Councillor John Lenton, Ward Councillor Colin Rayner, Margaret Bowdery (East Berks Ramblers) and Mr Chapman QC (the Inspector).

Officers: Emma-Jane Brewerton, Anthony Hurst, Tanya Leftwich and Maria Lucas.


01/13 APOLOGIES FOR ABSENCE

Apologies were received from Councillors Tom Bursnall and John Penfold.

02/13 DECLARATIONS OF INTEREST

None were received.

03/13 MINUTES

The Part I minutes from the meeting held on the 12 March 2013 were agreed as a correct record.

04/13 HURLEY FOOTPATH 25: PROPOSED DIVERSION ORDER

The Chairman asked the Principal Rights of Way Officer to outline the report to the Panel.

The Principal Rights of Way Officer explained to Members that the report sought the Panel’s approval to publish the Diversion Order for part of the Hurley Footpath 25, a plan of the proposal could be found in Appendix 1 (page 5) of the agenda.

Members were informed the following:

It was noted that all costs incurred would be met by the applicant.
Members were informed that the consultation process was a two stage process; the first stage was an informal consultation which had already taken place, the responses from the consultation could be found on page 3 of the agenda. It was noted that no objections had been received from the Local Access Forum or from Parish Councillors and that support had been received from East Berkshire Ramblers. Members were informed that the second stage of the consultation process was a statutory 28 day consultation period where if no objections were received the proposed diversion would come into effect.

The Chairman invited Mrs Bowdery to address the Panel on the proposed diversion for her allocated 3 minutes. Mrs Bowdery informed the Panel that she had made several site visits and was delighted by the new proposed diversion route. Members were informed by Mrs Bowdery that for the past fifty years members of the public had been using a draining ditch which had required clearing when flooded. Mrs Bowdery informed the Panel that the lesson here was how easily a footpath could disappear even if it was on the definitive map and that it would be easy to claim the path never existed. Members were informed by Mrs Bowdery that the same desire had been for the Thames footpath as it was felt to be a dangerous track. Mrs Bowdery informed the Panel that she believed the Thames Path needed to be diverted as a matter of urgency.

In the ensuing discussions the following points were noted:

• The Principal Rights of Way Officer informed Members that an unauthorised diversion had been put in place when the footpath had been obstructed many years ago. It was noted that the former owner had passed away and the land had been sold so the Council were able to re-address the issue now.
• The Vice-Chair stated that she agreed with Mrs Bowdery that the proposed diversion route was indeed better placed.

The Chairman thanked Mrs Bowdery for addressing the Panel.

RESOLVED: Unanimously that;
(i) That the Head of Legal Services, in consultation with the Strategic Manager of Highways and Transport, be authorised to publish a Diversion Order for Hurley Footpath 25 (part) as detailed in this report.

(ii) If no objections are received following publication of the Order, or any such objections are subsequently withdrawn, to confirm the Order without further recourse to the Panel. If objections are received and not subsequently withdrawn, to report the proposal back to the Panel for further consideration.

05/13 APPLICATION TO REGISTER LAND KNOWN AS THAMESFIELD, WRAYSBURY AS A NEW TOWN OR VILLAGE GREEN (VG102)

The Chairman informed everyone present that the Panel was to determine an application to register land known as ‘Thamesfield, Wraysbury’ as a new Village Green. Everyone present was provided a copy of the procedures for dealing with applications for new town or village greens.

The Chairman informed the Panel that the Council was required under the Commons Registration Act 1965 to act as the registration authority to consider any applications for new town or village greens under section 15 of the Commons Act 2006. It was noted that 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 was invited by the Chairman to introduce the report on the application which had been received by the Council.

The Council’s Monitoring Officer and Head of Legal Services informed the Panel that the application (VG102) had been made to register land known as Thamesfield, Wraysbury as a new Village Green. Members were informed that the recommendation in the report was to reject the application because the Inspector had, on the evidence submitted, determined that use of Thamesfield for lawful sports and pastimes by a significant number of people for more than 20 years became contentious and ceased to be used ‘as of right’ in July 2007. It was noted that the application to register the land as a new village green was not made within two years of that cessation which meant that the application failed to meet the statutory criteria required. The Council’s Monitoring Officer and Head of Legal Services asked the Panel to make its decision based on the evidence provided.

The Chairman invited the Inspector, Mr Chapman QC, to address the Panel. The Inspector informed Members that he had been involved in more than sixty public enquiries spread over more than twenty years. Members were referred to the relevant law that applied to the current village green application which could be found on pages 97 and 98 of the agenda. The Inspector read out the relevant sections from the agenda to everyone present.

The Inspector went onto explain that if the qualifying use of land should cease then local people had a breathing space of two years to register the land as a village green. Members noted that Ms Burrows had applied to register the land as a village green on the 11 March 2010. The Inspector informed Members that he had been instructed to hold a public enquiry which had been held in Wraysbury over a period of nine days during which time he had heard over forty witness statements, oral evidence and had also received written evidence which he had carefully considered.

The Inspector gave everyone present a brief summary and explained that Thamesfield had been owned by the Worby family who were farmers and that the majority of their land had been sold off by 1975, bar Thamesfield and one other piece of land. It was noted that the Worby family ceased farming the land by 1975 and had entered into an agreement with a local farmer. Members were informed that Thamesfield was not fenced or gated so was open to be walked on. It was noted that since 1975 Thamesfield had been used by a significant number of inhabitants of Wraysbury for lawful sports and pastimes (e.g. dog walking and children’s play). The Inspector explained that in 2007 the Worby family had decided to sell Thamesfield and had instructed a local sign maker to make four signs to read ‘Private Property – access to this land is by permission of the owners’. The signs were erected at four principal entrances (North, South, East and West) at the beginning of July 2007. Members were informed that three of the four signs had been torn down but that the sign at the South entrance was still in place. The Inspector explained that he was satisfied that the signs must have been seen by the majority of regular users. Members were informed of a case last year (Betterment) that had specifically addressed the issue of signage – the quote could be found in italics on pages 217 and 218 of the agenda which the Inspector read out to everyone present. The Inspector informed Members that he therefore considered the use of Thamesfield ceased to be ‘as of right’ in July 2007 when the signs had been erected. Members were informed that the application had been made in March 2010, hence too late and therefore should be refused.

The Inspector explained that whilst he understood that the Panel might have sympathy with the land users for not registering in time they did not have discretionary powers to extend the time limit and had to apply the law and decide whether the application fulfilled the statutory requirements. The Inspector informed Members that he believed it did not fulfil the statutory requirements and that the Panel should therefore reject the application.

The Inspector confirmed the following points to the Panel:

• With regard to the signs the test was felt to be ‘what would a reasonable person understand the sign to mean?’. The Inspector informed Members that he believed a reasonable person would understand the sign to mean private land – entry by permission only.
• It was confirmed that the landowner was within their right to put up signs to tell people to stay out.
• Members were informed that the sign maker had given evidence at the public enquiry and had confirmed the signs had been put up in July 2007. It was noted that the sign maker had also given evidence in favour of the application so it had been clear that he had no axe to grind.
• It was noted that whilst the signs had not been placed at the only entries to Thamesfield they had been placed at the main entrances and had been in place for a month.
• The Inspector informed Ward Councillor Rayner that he had no knowledge of the local case he referred to (re: Littlewick Green where the landowner had lost his appeal in respect of a right of way). The Principal Rights of Way Officer informed Members that the legislation was different for footpaths.
• The Inspector informed Members that only a relatively small number of plots had been sold off in 2008 around the edge of Thamesfield in order for owners to be able to extend their gardens.
• The Inspector reminded Members that the key point they should be focusing on today was that the two years in which to register the land had expired.
• The Inspector confirmed that the sign maker had provided invoices for the work he had undertaken and had put an entry on a local blog to confirm that the signs had been erected in July 2007.
• It was noted that the signs had been put in place on instructions by the Worby family who had been the owners of the land at that time.
• The Inspector read out evidence given by Mr Larcombe at the public enquiry which could be found on page 152 of the agenda which confirmed that instructions to erect the signs had been given verbally at a meeting.
• The Inspector informed the Panel that if they went against his recommendation to refuse the application the landowner could apply for a judicial review or under Section 14 (b) Commons Registration Act 1965 could go to the High Court for a full rehearing of the evidence and arguments.

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 for both the main applicant and main objector. The Chairman informed everyone present how the microphones worked and reminded the speakers that this meeting was not a continuation of the public hearing. The Chairman then went onto invite the applicant’s Counsel, Mr P Wilmshurst, to address the Panel for his allocated 5 minutes.

Mr Wilmshurst informed the Panel that he was a barrister who specified in law and village greens and also sat as an Inspector in similar cases and represented the applicant, Ms Burrows. Mr Wilmshurst explained that the Panel did not need to worry because his applicant understood and accepted the Inspector’s findings but that he wanted to focus on the real issues which he considered to be:
1) Whether or not the signs were prohibitory signs to an ordinary person which he believed they were not.
2) Whether under all the circumstances of the case the landowner did enough to make use contentious – he explained to the Panel that he did not have time today to address this point but maintained his objection on that legal point.
Mr Wilmshurst went onto explain that he wanted Members to consider as an ordinary, reasonable people whether they believed the signs to have been prohibitory. Mr Wilmshurst explained that the Inspectors report had not said the signs had used the words stay out or stay off and that there had been ‘no magic’ in the words private property that had been used. Mr Wilmshurst went onto explain that the second part of the signs might have encouraged people to enter the land as the signs had not opposed use. Mr Wilmshurst informed the Panel that if they also felt the signs had been ambiguous and not prohibitory then they should go ahead and grant the application. Mr Wilmshurst explained that whilst the Panel might be concerned about going against the Inspectors decision it was not unreasonable for the Panel to have a different view as ordinary, reasonable people.
Ward Councillor Rayner informed the Panel that as a farmer he did not believe the signs to be clear as they did not say ‘keep out’. The Chairman informed the Panel he believed ‘private property’ to mean keep out.

The Chairman invited Jane Hanney, solicitor on behalf of the main objector, to address the Panel for her allocated 5 minutes.

Jane Hanney informed the Panel that she represented Worby Estate Sales Limited. Jane Hanney went onto explain that the Council had appointed an independent Inspector to look at all the relevant evidence and make a recommendation. Jane Hanney went onto explain that Mr Chapman QC was one of the top, if not the top, Inspector with regard to Village Green applications and should be considered an expert given his experience in over sixty public enquiries. Jane Hanney informed the Panel that she believed the process had been very fair and that the Inspector had heard all the evidence and provided a detailed and well reasoned report in excess of 92 pages. Jane Hanney highlighted that the two year time period to register the land had expired and that the application should therefore be rejected. Jane Hanney went onto explain that she believed the Inspector had carefully re-considered everything but maintained his findings and recommendation to reject the application in his Further and Second Further Report. Jane Hanney informed Members that the applicant simply did not like the result and that it would be irrational and unreasonable not to reject the application before the Panel today.

The Chairman was informed that Mrs Fergusson who had registered to speak was not present at the meeting.

The Panel informed the Chairman that they had no questions for the speakers.

The Chairman invited the Panel to make a decision about the Inspectors recommendation before them. The Chairman informed the Panel that they had two options available to them which were to:

• Reject the application in accordance with the Inspector’s recommendation.
• Accept the application.

In the ensuing discussion the following points were noted:

• The Vice-Chair informed Members that whilst she believed private meant private she believed the wording used on the signs had been left quite open.
• Councillor Mohammed Ilyas stated that whilst he was sympathetic to the residents the Panel had to apply the law and that he believed the signs to mean do not enter.
• The Vice-Chair questioned why the landowner had not put up supplementary signs after three had gone missing.
• The Inspector informed the Panel that the intention of the person who put up the sign was not relevant and whilst it was clear the signs could have been made clearer it was down to whether Members believed the signs meant ‘come in’ or ‘keep out’.
• Councillor James Evans conformed that he was of the same belief as Councillor Mohammed Ilyas with regard to the meaning of the signs.

RESOLVED: That the application for registration of a new town or village green in respect of land known as Thamesfield, Wraysbury be rejected as it fails to meet the test for registration under section 15 of the Commons Act 2006 for the reasons set out in the Inspector’s Report dated 25 February 2013, Further Report of 3 May 2013 and Second Further Report of 18 May 2013 (Councillors John Stretton, James Evans, Mohammed Ilyas, Gary Muir voted to reject the application and Councillor Maureen Hunt voted to accept the application).

It was agreed that Thamesfield, Wraysbury should therefore not be registered as a new village green.

It was agreed that written notice of the outcome giving reasons for the decision be given to the applicant and to the objectors and that notification be published on the Council’s website.

06/13 DATES OF FUTURE MEETINGS

Thursday 5 September 2013.

LOCAL GOVERNMENT ACT 1972 – EXCLUSION OF THE PUBLIC

RESOLVED: 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 7 on the grounds that it involves the likely disclosure of exempt information as defined in Paragraph 3 of part I of Schedule 12A of the Act"