Agenda item

Report by Director of Law and Assurance.

The Committee is asked to consider and determine the following application:

Application to register land known as Rascals Wood Field in the parish of Shipley as a Town or Village Green.

Application to Register Land known as Rascals Wood Field in the Parish of Shipley as a Town or  Village Green under Section 15(2) of the Commons Act 2006

22.1   The Committee received and noted a report by the Director of Law and Assurance (copy appended to the signed copy of the minutes).  The report was introduced by Ami Dye, who gave a presentation on the key points of the application, legal provisions, the applicant’s case, objections, consideration of applicationincluding the reasons for the hearing by an independent barrister, details of the inquiry, the inspector’s decision and the conclusion in respect of the application.

22.2   A written submission in support of the application from Mrs Tessa Nash, the applicant was read out.  Concern was raised about possible impartiality of the Inspector leading the inquiry because of his being from the same Chambers as the objector’s barrister.  Objectors had access to professional expertise, supporters did not.  COVID-19 made it difficult for some to attend the inquiry because phoning in was not allowed.  Supporters had no financial or other incentive, yet the fact that they provided partially pre-filled questionnaires was questioned by the Inspector, even though subsequent letters were provided stating they were genuine.  Objectors letters also all said the same thing.  The objectors’ statements that they had full lines of sight and their dogs alert them to activity were found to be untrue.  The Driscolls have only lived in their property for a quarter of the period in question.  There has never been an attempt by the owners to fence off the area, nor has there ever been any signage.  Households of properties which straddle Shipley and Southwater have used the field for recreation and dog walking for many years.  The statement by the Inspector regarding what is a “cohesive community” was not agreed with.  The statement of Mr Driscoll regarding permission from Lady Burrell to ride on the footpath – the only access to Dragons Estate – was called into question because for part of the way this footpath has a clear sign stating, “no public bridleway”.

22.3   A written submission in support of the application from Mrs Magda Haire, who provided a witness statement for the application was read out.  It was difficult for some elderly residents to attend the enquiry held on ‘Teams’, particularly those who wanted to phone in – original paperwork had said they could, but the facility was withdrawn.  Concerns were raised about conflict of interest because the Inspector and Barrister for Catesby Estate and objectors were from the same Chambers.  The report gives the impression the Inspector was more sympathetic to the objectors.  The applicant, Mrs Nash, is a lay person whose aim was to benefit the whole of Southwater.  It is felt that the Inspector made implications about the integrity of the supporters who provided partially filled questions, even though they all provided a letter stating they understood what they signed.   The forms filled in by objectors were almost identical to each other.  The objectors all have a different beneficial interest in Rascals Farm.  The Inspectors comments that he heard no dogs and that vegetation obscures view across Rascals Wood Field shows the objectors’ statements on these points to be incorrect.  Mrs Nash had only disagreed over the part of the sworn statement that the Driscolls had permission from Lady Burrell to ride over the footpath, which is not a bridleway, not any other part of Lady Burrell’s evidence on this point – the Inspector seems to have misinterpreted Mrs Nash.  The criteria for neighbourhood and locality are almost impossible for a lay person to understand.

22.4   A written submission from Mr Neil Robins, who had submitted a witness statement in support of the application was read out.  Mr Robins has lived in Southwater since 1996 and regularly walked on Rascals Wood Field with his children since 2000 and dogs since 2005.  It was questioned whether it is normal practice to have an Inspector from the same Chambers as the objectors’ Counsel.  The Inspector’s report focuses on process rather than the merits of the case.  The objectors were able to engage professional advisors and Counsel, paid for by the property developers.  The supporters are lay people and the Inspector’s report is critical of the processes they used.  The Inspector focused on neighbourhood and locality; however, case studies presented showed that this would not necessarily invalidate an application.  The Inspector criticised the way questionnaires were completed and submitted and then largely discounted them; supporters followed advice from the County Council, including the use of pro-forma letter.  The Inspector disputed or downgraded some evidence due to lack of photographs or precision: no-one records exact details of taking their dog or children for a walk in anticipation of cross-examination in 20-years’ time.  This testimony was given under oath, but called into question.  The thrust of the Inspector’s report seems to have been to compare financial and technical resources available to the local residents versus an out of area property development company.

22.5   A statement from Cllr Amanda Jupp, County Councillor for Billlingshurst, the local member was read out.  Cllr Jupp stated she supports the recommendation in the Committee report as follows: ‘that the application for the registration of land known as Rascals Wood Field as a Town or Village Green be refused for the reason set out in the Inspector’s report dated 15 February 2021.’

22.6   In response to points made by speakers, Legal Officers clarified the following:

·     The matter relating to the Independent Inspector being from the same Chambers as the objectors’ Counsel is common practice because there are only a very small number of Chambers in England which specialise in legislation relating to rights of way.  Chambers have codes of practice and Barristers have Bar Council standards which they must adhere to.

22.7   During the debate the Committee raised the points below and a response or clarification was provided by the Legal Officers, where applicable, as follows:

Conflict of interest by Barristers at the same Chambers

Point raised – It is noted that the applicant is a solicitor and so it was felt that Mrs Nash should be aware that there would be no conflict of interest by barristers from the same Chambers.

Response – See minute 22.6, above.

Cost of the application to the County Council

Points raised – The cost of making a Town or Village Green application was queried and also the cost to the County Council of the inquiry.  It was noted that the Inspector stated that there is nothing wrong in making an application of this nature to prevent a housing development.  Although some sympathy was expressed for the supporters, it was also felt that it doesn’t seem right that the West Sussex tax-payer must foot the bill for what appears to an attempt to prevent a housing development.

Response – There is no charge to make a Town or Village Green application.  The County Council bears the cost of the processing the application, including any inquiry.

Reason for non-statutory inquiry ahead of the Committee meeting

Point raised – Clarification was sought on the reason that an non-statutory inquiry had been heard before the matter was considered by Planning and Rights of Way Committee.

Response –  A decision was taken by Mr Tony Kershaw, Director of Law and Assurance, to hold a non-statutory inquiry first, on the basis of conflict of information and the fact that the Committee cannot cross-examine all of the evidence.  Use of a non-statutory inquiry ahead of a decision whether to register land as village green is the standard process used by the County Council when there is a conflict of evidence because there is no right of appeal.

22.8   The substantive recommendation was proposed by Cllr Atkins.  The proposal was seconded by Cllr Kitchen and approved unanimously.

22.9   Resolved – That the application for the registration of land known as Rascals Wood Field in the Parish of Shipley as a Town or Village Green be refused for the reasons set out in the Inspectors report dated
15 February 2021, as detailed in Appendix 1 of the Committee report.