vga614 our response to ccc objection of 2010-05-19

8/7/2019 VGA614 Our Response to CCC Objection of 2010-05-19

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Village Green Application 614The Downs, Herne Bay

Comments on the objection fromCanterbury City Council

Introduction ................................................................................................ 2The status of the land ................................................................................ 2

Title K912449 ............................................................................................. 3Title K911306 ............................................................................................. 5Title K901348 ............................................................................................. 6Title K912167 ............................................................................................. 7The eastern half of the application site ..................................................... 8Herne Bay Urban District Council minutes ................................................ 9Bye laws................................................................................................... 11The use of language ................................................................................ 13Chief Commons Commissioner’s decision 1980 ..................................... 15

How the land is described currently ........................................................ 17The impact of the 1875 Public Health Act ............................................... 19The relevance of Beresford ..................................................................... 20― As of right” .............................................................................................. 22Summary - the Downs is a legitimate village green ................................ 30The reason for the council’s objection ..................................................... 34



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Introduction

1. There is just one objector and one objection to this application. Canterbury CityCouncil (the council) contends that the land has been held under section 164 of the

Public Health Act 1875 and therefore that the use of the land has been “ by right ”rather than “ as of right ”. To support this claim, the cou ncil relies heavily on the Houseof Lords judgement in Regina v City of Sunderland ex parte Beresford. The councilsays:

2. ―The presence of a legal right to use the land prevents it from being a use ― as of right". This was explained by the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889.‖

3. For the council to succeed in its objection, it must be able to prove firstly that the landis held under the 1875 Public Health Act and secondly that this means that the landcan not be registered as a village green. The council has done neither.

The status of the land

4. In paragraph 2.11 of its objection, CCC contends that ―It is quite clear that theapplication land here has been held by the authority under section 164 Public Health

Act.‖ In paragraph 2.12, CCC contends that ―…there is plenty of evidence that the council has held the land under section 164 Public Health Act 1875. ” However, thedocuments that CCC has produced do not support the council’s contention.

5. The easiest way to deal with the documents on which the council seeks to rely is tolook at each parcel of land, starting in the west and working eastwards, and toexamine what each piece of documentation tells us.



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Title K912449

6. In paragraph 2.15 i) the council says ―The western part of the application site is largely within title number K912449.‖ This can most kindly be described as a grossexaggeration. Parcel K912449 stretches from Canterbury Road in the west to anorth/south line just to the west of Hill Top Road. Its overlap with the application siteis small. The very westernmost tip of the application site begins level with Belle VueRoad, and runs eastwards for just eight house plots before meeting Hill Top Road. Asmall triangle of land north of these eight houses and measuring 150m by 140m by85m falls within both parcel K912449 and the application site. This can in no way besaid to be a large part of the western part of the application site. For context, theapplication site measures over two kilometres tip to tip.

7. It is clear from the documents that K912449 was acquired under the Public HealthAct 1875. It is the only piece of land within the application site for which this can bedemonstrated. If the acquisition of land under the 1875 Act is indeed a bar toregistration of that land as a village green (and I will argue below why this is not thecase), then it would follow that this small triangle of land would need to be excludedfrom the scope of the village green and I would ask your leave to amend theboundary of the application site. However, it should also be noted that a smalltriangle of land (coloured yellow) lying just south of the promenade and to the east ofK912449 would then fall neither within the scope of K912449 nor within the villagegreen application site. We would seek to include that triangle within the village greenthus redrawing its western boundary in a roughly north/south line continuing from HillTop Road, rather than as we have currently drawn it, along the existing path thatdivides mown grass from scrubland.



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8. Before we leave K912449, I would like to draw your attention to the use of language.In the covenants, the Sanitary Authority undertakes to keep the land in this parcel― ...as a public promenade and Recreation Ground for the use of the Residents in and Visitors to Herne Bay…‖ . I will return to this in paragraphs 46 to 51 below.

9. Finally, the register entry for this parcel of land is very different to all the others for therest of the application site in that it commits the council to a number of significantundertakings about how it will manage and control this land as a Recreation Ground.This is not repeated in any of the entries for the other parcels of land and serves todemonstrate that K912449 was acquired in a different way and with differentstatutory powers. Put simply, K912449 demonstrates that the council knew how toacquire land under the 1875 Act and how to record that acquisition. That it did not doso for any of the other pieces of land must be taken as evidence that it did notacquire those other parcels under the 1875 Act.



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Title K911306

10. To the south of K912449 is parcel K911306. This parcel is a narrow strip of landrunning alongside and to the north of Beacon Hill. The very eastern end of this strip,

just one house plot wide and measuring approximately 13m by 23m, also falls withinthe application site.

11. In the council’s own register of land, under the section headed ― Statutory Powers‖ , itsays ―No information. Presumably Public Health Act 1875.‖ There is no date given asto when someone “presumed” that this parcel of land was held under the 1875 Act.An anonymous and undated presumption is not evidence of the legal status of apiece of land, nor does it define it. The purpose of the acquisition is clearly recordedas an ―Open space for use and enjoyment of the Public.‖ The language here isimportant. I will deal with this in paragraphs 46 to 51 below. The council has notproduced evidence that demonstrates that this parcel is actually held under the 1875Public Health Act.



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Title K901348

12. Moving eastwards from parcel K911306 we come to K901348. This parcel runs froma western boundary with K912449 roughly parallel with Hill Top Road to its easternedge roughly in line with Sea View Road. In addition, this plot which extends fromBeacon Hill in the south to the high water mark in the north, has a narrow arm orextension which runs west of Hill Top Road to one house width short of Belle VueRoad where it meets K911306.

13. In the council’s own register of land, under the section headed ― Statutory Powers‖ , itsays ―No information. Presumably Public Health Act 1875.‖ Again, there is no dategiven as to when someone “presumed” that this parcel of land was held under the1875 Act. Again, an anonymous and undated presumption is not evidence of thelegal status of a piece of land, nor does it define it.

14. In the covenants, the council covenants to ―…keep the land …as an op en space and pleasure ground for the recreation and use and enjoyment of the public for ever…‖ .The council seeks to rely on this description to say that this was a formalappropriation of land under the 1875 Act. I say it is nothing more than the language inuse at the time and will deal with this in paragraphs 46 to 51 below. The council hasnot produced evidence that demonstrates that this parcel is actually held under the1875 Public Health Act.

15. It is with wry amusement that I note that the council now wants to put great store onthe covenants attached to this piece of land. I have previously been told by thecouncil that the various covenants on this land are irrelevant as they can no longerbe enforced. I am pleased to hear that the council now thinks that they carry weight.

16. There is a strip of land which continues from Sea View Roadnorth to the shore which falls neither within K901348 nor

K912167. The council is silent about this strip of land.



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Title K912167

17. Moving eastwards from title K901348 we come to K912167. This parcel runs from itswestern boundary parallel with Sea View Road to a curved eastern boundary whichruns just west of Burlington Drive.

18. Again, in the council’s own register o f land, under the section headed ― Statutory Powers‖ , it says ―No information. Presumably Public Health Act 1875.‖ Again, there isno date given as to when someone “presumed” that this parcel of land was heldunder the 1875 Act. Again we are invited to believe that an anonymous and undatedpresumption possibly decades after the event is evidence of the legal status of apiece of land.

19. In the covenants, the council covenants to ―…keep the land …as an open space and pleasure ground for the recreation and use and enjoyment of the public for ever…‖ .Again, I will deal with this in paragraphs 46 to 51 below.

20. In paragraph 2.15 iv) the council asserts that parcel K912167 was decided by theChief Commons Commissioner to be held under the Public Health Act 1875. Theonly map we have seen of the application site for VG 181 is the one provided by thecouncil. That shows the application site for VG 181 to have as its eastern boundarySea View Road. If that is the case, K912167 falls wholly outside of the applicationconsidered by the Commissioner and the council’s assertion is untrue. The councilhas not produced evidence that demonstrates that this parcel is actually held underthe 1875 Public Health Act.

21. There is a piece of land roughly nine house frontages long between the southernedge of K912167 and The Lees which falls within the application site and aboutwhich the council is silent.



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The eastern half of the application site

22. In paragraph 2.15 v) the council goes on to deal with ―…the land in the eastern half of the application site…‖ . The council’s contention is that all this land – an areameasuring roughly 1 km by 0.15 km - was acquired by compulsory purchase in 1936.The only documentation provided by the council is a compulsory purchase orderdated 1935. There is no map. There is no attached schedule. There is no mention ofthe title details of the parcels of the land that the council is acquiring by this order.There is no description of where the land might be sited. There is nothing to say thatthis order relates to the land in question. The purchase order is called the Extensionof Sea Front Pleasure Grounds. It does not say which grounds are being extended.There are Sea Front grounds in the centre of Herne Bay to which this could relate.

23. The order is an authority to purchase land compulsorily. There is no evidence thatthe purchase was ever completed.

24. I do not understand why the council has failed to mention K925751, K926058,K926367, K847057 and K925790. All these parcels of land fall within the eastern halfof the application site, but do not account for all the land in this part of the applicationsite. The OCE at the Land Registry for K925790 mentions covenants found whenlocal solicitors were acting for a vendor in 1938. This is hard to reconcile with the factthat the council claims to have purchased the entirety of this land in 1936.

25. We have seen no evidence that suggests that the council does indeed own all theland in the eastern half of the application site.

26. The act which gives the council authority for the CPO is the Public Works FacilitiesAct. Three other acts are mentioned, none of which are the Public Health Act 1875.Indeed, there is no authority under the Public Health Act 1875 for a local authority toacquire land by compulsory purchase for the purpose of providing public walks andpleasure grounds. If this land were acquired following a compulsory purchase order,then it follows that it was not acquired under the 1875 Act.

27. We have seen no evidence that, if the council were to prove its ownership, this landwas acquired under the 1875 Public Health Act.



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Herne Bay Urban District Council minutes

28. In paragraph 2.17 of its objection, the council says ―Furthermore the records of theminutes of the Herne Bay Urban District Council point to the conveyances of 1901

being for the purposes of buying a pleasure ground for the use of the public.‖

29. The council produces the minutes of 18 th August 1900 which refer to a report to thecouncil dated 13 th August 1900. That report says that Thomas Dence will convey aparcel of his land to the council on a number of conditions. One of those conditionswas that the land ―…be maintained for ever as a Recreation Ground for the benefit of the District…‖

30. The council also produces the minutes of the meeting of the HBUDC on 3 rd July 1901which record the council’s thanks to a number of benefactors for securing ―…to theuse of the Public for ever the large strip of Land and the Leas, extending along the Sea Fr ont from the East Cliff to the Eastern Boundary of the Parish of Herne Bay,…‖ There is no mention of the Public Health Act 1875, nor any mention of a pleasureground. Moreover, at this time the Eastern Boundary of the Parish was UnderdownRoad which is in the centre of Herne Bay, some way west of the application site'swestern boundary. It is therefore unclear exactly what stretch of land is beingdescribed in this minute.

31. In paragraph 2.18 of its objection, the council says ―There is further reference in the minutes of July 13 1901 to the various conditions for the transfer including that the land shall be laid out planted and maintained as a park and pleasure ground for the use of the public for ever.‖ This is incorrect. The land described in this minute hasnothing to do with the application site, but lies instead between Mickleburgh Hill andBeltinge Road. It is neither part of the application site nor does it adjoin it at any part.This minute and the council’s objection based on it are entirely irrelevant.

32. There is further documentation that the council does not mention. The minutes of theHBUDC of 8 th August 1900 record the fact that in 1898 Thomas Dence offered part ofthe application site to the council stipulating a number of conditions. His offer wasrejected. By the meeting of 8 th August 1900 the matter had arisen again. Around thistime Dence said he would convey his interest in the land ―…to the Council for thebenefit of the town on certain conditions,…‖ At the same time, Ramsey and other

benefactors offered parcels of land if the council would ―…undertake to keep it anopen space for ever.‖ There is no mention of the 1875 Act.

33. On 8 th September 1900 the HBUDC discussed meetings that had taken place withvarious landowners. Dence agreed to transfer the land for the ―benefit of the district‖ as long as it was kept ―…as an open space for the use of the public for ever…‖ Chalmers agreed to ―…give up the land…for the use of the ratepayers,…‖ Ramseyagreed to transfer the land on condition that the council ―…undertook to keep it anopen space forever.‖ There is no mention of the 1875 Act.

34. On 2 nd March 1901 the conveyances relating to the Russell, Murch and Dence land

were sealed. No mention is made of the 1875 Act.



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35. On 16 th March 1901, Walter Furley agreed to some of the land referred to as BeaconHill Land being transferred to the council ―…for the use of the public….‖ . No mentionis made of the 1875 Act.

36. On 14 th August 1901 the council’s surveyor submitted a report about fencing for the

―…land situated between the East Cliff Recreation Ground and Beacon Hill Road.‖ Itis clear from this that the council did not consider this land to be part of theRecreation Ground. There is no mention of the 1875 Act.

37. No statutes are mentioned. However, we know that the council was aware of itspowers under the 1875 Public Health Act because it used them explicitly when itregistered the recreation ground in 1881, which overlaps to a very small extent withthe application land. Also, there is specific discussion by the council in 1890 of theAmendment Act. However, when it comes to the acquisition of the application siteland, there is no mention of the 1875 Act or its relevance. No documentation exists tosubstantiate the council’s claim over a hundred years after the event that the landwas acquired under the 1875 Act.



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Bye laws

38. The council submits copies of a number of bye laws to support its case.

39. The first, made in 1906, makes no mention of the 1875 Act, even though this set ofbye laws follows close on the acquisition of many of the parcels of land, and so therelevant statutory powers would have been at the forefront of the council's mind. Inthe schedule which describes the land to which it applies the document talks aboutthe indentures under which the land is held. It says nothing about holding the landunder the 1875 Act. It is very unlikely that, if the land had been expressly acquiredunder the 1875 Act, the council would have failed to capture this in the bye laws.

40. Then there is no documentation for 42 years until we get to the bye laws of February1948 which refer to ―An Open Space – The Lees to Reculver‖ . There is no scheduleattached to this document, although one is referred to in the introduction. At the sametime, bye laws appear for the Downs (to Sea View Road) and the Memorial Park.Both documents use the powers of the 1875 Act to make bye laws but neitherdocument suggests that the land itself was acquired under the 1875 Act. Myconclusion is that we have now reached the time when the presumption was madethat this was all 1875 Act land. This presumption was subsequently mistakenlyaccepted as fact.

41. The next bye laws are made in 1964 ―with respect to an Open Space‖ . Again, thisdocument uses the powers of the 1875 Act to make bye laws but does not suggestthat the land itself was acquired under the 1875 Act.

42. The next document relates to the seashore and promenade and relates to land northof and outside the application site.

43. The final document relates to bye laws made in 1969 and relates to the Downs fromEast Cliff Hill to Sea View Road. Again, this document uses the powers of the 1875Act to make bye laws but does not suggest that the land itself was acquired underthe 1875 Act.

44. All these bye laws repeat again and again the fact that they will be made clear onnotice boards, clearly visible in a number of places on the land to which they refer.

There are no such notices anywhere on the application land. There are no rules,regulations or bye laws publicised on and relating to this land anywhere. If they hadbeen in place once, these bye laws are no longer visible and many of them are nolonger observed. No action is ever taken against people using this land for any kindof lawful sport or pastime, even if they are breaking what might long ago have been arelevant bye law. Dogs run free and catch rabbits. People put up tents and stay inthem. People put up notices about fêtes, sports events and lost pets. People ridebicycles wherever they wish – there are no special areas set aside for them and theydo not even stay on the few paths. People run, sit and lie on the grass wherever theylike. People sing and play musical instruments. They pick flowers and other plants.They forage for leaves and berries. They fly kites. They fly hang gliders. In fact, after

the application period, Southern Water established a small shanty town ofportacabins and generators while they undertook six months work on nearby roads.



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They did not ask the council for permission to do so. There are no areas specificallyset aside for one kind of game or the other – people play what they will where theywill. In short, there are no bye laws in operation on this land.

45. There is nothing in the documentation after March 1969 – a period of more than forty

years to the present day. If this land is really a recreation ground held under the 1875Act and managed as such (which has yet to be proved), this is surprising. It is muchmore likely, as I will argue below, that this land has simply fallen off the council’sradar and has been allowed to become what it is now, land on which people have formore than twenty years engaged in whatever kind of lawful leisure activity suits them,as if they had a right to do so with no rules or bye laws to regulate or limit theirbehaviour.



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The use of language

46. The council claims in 2.15 iii) that a covenant undertaking to ―…keep the land as an open space and pleasure ground for the recreation and use and enjoyment of the

public for ever….is completely consistent with the land being held under the Public H ealth Act 1875.‖ In 2.15 v) the council says that the words ―public walks and pleasure grounds‖ is ―language drawn from the Public Health Act 1875.‖ It is, ofcourse, no such thing.

47. Laws tend to reflect the language in common use at the time. The term ―public walksand pleasure grounds‖ predates the Act by at least thirty years. It is likely that itsorigins go back much further. This is clearly demonstrated, for example, by its use inPunch in 1845 where we see the phrase ―…advocated some large piece of land being taken, and ornamented, for the sole purpose of public walks and pleasure grounds.‖ The term was in common usage many years before the 1875 Act cameinto existence and therefore its use in some of the documentation put forward by thecouncil carries no special legal meaning. It can not be said that the term ―public walksand pleasure grounds‖ when used in a covenant is proof that this was languagedrawn from the 1875 Act, when its use is demonstrably so much wider and older thanthat.

48. The purpose of the acquisition of K911306 is clearly recorded as ―Open space for use and enjoyment of the Public.‖ This acquisition predates the 1906 Open SpacesAct by five years and yet uses (if we are to follow the council’s argument) thelanguage of that Act. This is another demonstration of the fact that language incommon usage at the time might later look as if it had legal significance, but in facthad nothing of the sort. There is no mention in this document of either public walks orpleasure grounds.

49. The purpose of the acquisition of K901348 is clearly recorded as ―Open space for theuse and enjoyment of the public for ever.‖ Again, the language here is important.Again the acquisition predates the 1906 Open Spaces Act by five years anddemonstrates clearly that language in common usage at the time might later look asif it had legal significance, but in fact had nothing of the sort. The covenants say theland is to be kept as an open space and pleasure ground – language which I havealready demonstrated was in common use for at least thirty years before the 1875

Act.50. Conversely, it is clear from the documents that K912449 was the only piece of land

within the application site which was acquired under the Public Health Act 1875. Thepurpose of the acquisition is listed as ―Public promenade and recreation ground for use of residents and visitors to Herne Bay.‖ The council covenanted to keep the land―…as a public promenade and Recreation Ground…‖ There is no mention of publicwalks. There is no mention of pleasure grounds. The language of the 1875 Act is notused in this document despite the fact that the document clearly states that therelevant statutory powers are the Public Health Act 1875. From this we can see thatlanguage was used loosely in all these documents to convey a general meaning

rather than a specific legal status for each piece of land.



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51. As we have seen, use of the words ―public walks and pleasure grounds‖ is no proofof anything more than the fact that this was language in common use at the time, andhad been so for at least 30 years. Use of the words ―open space‖ in these documentssimilarly carries no weight as it predates the 1906 Open Spaces Act and thereforecan not possibly have been said to have been drawn from it. However, it does

demonstrate my point that language in common use (here, the use of the term ―openspace‖ ) will later be co-opted into relevant laws. However this is not the same assaying that every instance of a general term is evidence that that term must havebeen drawn from a legal Act in which it later appeared.



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Chief Commons Commissioner’s decision 1980

52. The House of Commons Explanatory Note says that the 2006 Commons Act wasestablished because the 1965 Commons Registration Act, and its subsequent

application, proved to have deficiencies. The 2006 Act specifically includesprovisions for the creation of new town or village greens, recognising that not allthose that could and should have been registered under the 1965 Act were soregistered. It allows for mistakes to be rectified. There is no assumption that allprevious cases were decided correctly, indeed the 2006 Act exists to remediateearlier errors and omissions.

53. About a third of the application land was subject to a village green application in1970. Kent County Council approved the application and registered the land as avillage green. This decision was overturned by the Chief Commons Commissioner in1980.

54. The Chief Commons Commissioner’s decision is initially confusing because he hasswapped east and west. Moreover, the relevant period of use he was consideringwas 1945 to 1965. It appears as if he decided that the use made of the land could notbe ―as of right‖ because he believed it to be held under the 1875 Public Health Act.He deals with this in one paragraph. We know that K912449 is listed in the council'sterrier as land acquired under the 1875 Act. K912449 accounted for almost half ofVG181. It is clear from our conversations with people involved in the previousapplication that very little documentary evidence was produced at the time by theapplicant so we do not know on what other evidence the Commissioner based hisview. However, the fact that almost half the land was demonstrably held under the1875 Act must have been a big influence on his final decision.

55. Of course, K912449 - the only parcel of land that is explicitly held under the 1875 Act- accounts for less than 3% of the current application land. I have already

demonstrated above that the evidence produced by the council in its objection to thisapplication does not support the contention that the other 97% of the application landis held under the 1875 Act.

56. The Commissioner then raises the question as to whether the acquisition of the landis an ― allotment ‖ under the 1965 Act. This is an interesting question and one that hedoes not deal with fully. It raises the possibility that there is another heading underwhich the land should properly have been registered as a village green at the time ofthe previous application.

57. The vast bulk of the Commissioner’s consideration is given to deciding whether the

inhabitants of the locality had a customary right to use the land for lawful sports andpastimes. This is not relevant to the current ―as of right‖ application. However,



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arguably, in the light of R v Oxfordshire County Council And Others Ex ParteSunningwell Parish Council, the Commissioner was wrong to insist on use goingback to time immemorial as being the correct test of whether or not a customary righthad been established. More recent decisions are clear that the correct period is 20years.

58. There are many reasons why it is right to put the previous decision to one side:

59. The 2006 Act was put in place in recognition of the fact that mistakes weremade in previous registration decisions and that some land that should havebeen registered was not registered. It also allows for the fact that some landhas become capable of being registered as a village green after the deadlinefell following the 1965 Act

60. The Commissioner was taking his decision based on the 1965 CommonsRegistration Act, not the 2006 Commons Act

61. The Commissioner ’s decision covers just one third of the current applicationsite

62. The Commissioner’s decision includes land (most of both K912449 andK911306) that falls outside the current application site. Almost half of the landhe considers has nothing to do with this application, and was acquired indifferent circumstances

63. Since the C ommissioner’s decision in 1980 there have been definitivedecisions in the House of Lords as to the meaning of ―as of right‖ . TheCommissioner himself offers no insight into his thought process as regards the―as of right‖ point, yet this is the key point on which the council rests its currentobjection. I shall deal with ―as of right‖ below

64. It is a fact of life in matters of law that decisions taken at a lower level are oftenoverturned at a higher level. Therefore there can be no presumption that thecommissioner’s decision is right and that other decision makers , looking at theapplication in the light of recent precedent, would agree with him.



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How the land is described currently

65. There is no mention of this land in any of the council documents that describe largepieces of land held as recreational space.

66. The land is not mentioned in the counc il’s Open S paces Strategy 2009-14, evenunder section 3.1.6 which lists the council’s Herne Bay portfolio. The land is listed inthe open space ward profile as a combination of amenity green space (informalrecreation spaces, green spaces in and around housing, domestic gardens andvillage greens) and semi-natural space (woodland, scrub, wasteland, derelict openland, open water, grassland, cliffs, quarries, pits). It is not listed at all in the council’saudit of the quality and value of its open spaces, beyond being an implicit (but notnamed) part of the green corridor running from Reculver to Seasalter. The land is notmentioned in the action plan for Open Spaces.

67. The Herne Bay Conservation Area Appraisal describes the land as a ―narrow strip of o pen space‖ . It also describes it as a ―publicly owned space…the sea -front space[s] of The Downs,…‖ It describes the land as ―…semi -natural open space penetrating into the built environment.‖

68. The very detailed Herne Bay Area Action Plan makes no mention of the land, evenunder the section dedicated to recreation and leisure. Indeed, the land is outside thetown’s regeneration plans, in recognition of its status as a semi -natural landscape,bordering the Thanet Coast SSSI.

69. The Downs is not mentioned in the text of the Local Plan. It is shown on theproposals map simply as Open Space.

70. In the Herne Bay and Whitstable Landscape Appraisal, The Downs is described aspublic open space.

71. The Downs is not mentioned in the corporate plan.

72. There is no mention of Th e Downs on the council’s website either under Outdoor Sports and Recreation Facilities or under Parks and Gardens.

73. The council’s budget documents demonstrate that the council levies a range ofcharges for the use of parks, gardens and open spaces. No charge is ever made forusing The Downs.

74. In summary, the council’s own documentation demonstrates that this land is not aformal recreational space, but a semi-wild, natural green corridor on the edge oftown, used by local people in any way that they see fi t. Nothing has been done to thisland in the last twenty years that substantiates the council’s contention that it holdsthis land as a recreational space under the 1875 Public Health Act and that itmanages and maintains it as such. It is fair to say that, apart from the need tostabilise the land to protect the town from landslips, this land has been completely off

the council’s radar for the relevant twenty year period. Undertaking periodic drainageand stabilisation works on a strip of land to prevent the cliff top houses from falling



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into the sea is a world away from activities which the casual observer wouldunderstand to be the maintenance of a public recreation ground and pleasureground.

Looking west from the eastern tip of the application land

Looking east from The Hundred Steps, roughly in line with Sea View Road(i.e. about a quarter of the way along the Downs from the eastern end)



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The impact of the 1875 Public Health Act

75. If you disagree with me and find, despite the lack of evidence, that the land is heldunder the 1875 Public Health Act, then the council needs to demonstrate that this is a

bar to the land being registered as a village green. As I said in my introduction, thecouncil relies heavily on the House of Lords judgement in Regina v City ofSunderland ex parte Beresford to support this objection. The council says:

76. ―The presence of a legal right to use the land prevents it from being a use 'asof right". This was explained by the House of Lords in R (Beresford) v Sunderland City Co uncil [2004] 1 AC 889.‖

77. I disagree. This was not ―explained‖ in Beresford. I shall explore this more fully below.



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The relevance of Beresford

78. In fact, the issue of whether or not land held under the 1875 Public Health Act can beregistered as a village green was not put to the House of Lords to decide in the

Beresford appeal. The remarks made by Lord Bingham on which the council seeks torely are obiter dicta and are therefore neither law nor binding. The Beresford appealfocussed on whether a use that is tolerated, and indeed encouraged, by thelandowner, can nonetheless be a use "as of right" for the purposes of section 22(1).The council presents Lord Bingham’s remarks as if they were a binding legalprecedent when it is well known that this particular legal question has yet to be testedin a court of law.

79. Indeed, in the same judgement, in paragraph 38, Lord Scott takes a different view tothat expressed by Lord Bingham:

80. ― It follows that the proposition that use pursuant to permission given by the landowner is always precario and cannot ever be as of right for

prescription purposes is not correct.” [my emphasis]

81. Lord Scott goes on to say:

82. ―…I am unable to accept …t hat an implied permission is necessarily inconsistent with the use being as of right. Indeed, I do not, for the reasons I have given, accept that even an express permission is necessarily inconsistent with use as of right.” [my emphasis]

83. ―Smith J and the Court of Appeal were, in my respectful opinion, led astray …..They concluded that beca use use pursuant to permission will sometimes,or often, or usually, be inconsistent with use as of right, it will always be inconsistent with use as of right. The conclusion, my Lords, must in my opinion depend upon the nature of the permission, objectively assessed or construed . To conclude that use pursuant to implied permission is inconsistent with use as of right may in most cases be correct. But the conclusion is an evidentiary one; it is not a rule of law .‖ [my emphasis]

84. Lord Scott also explores whether the 1906 Open Spaces Act might have been

relevant and then concludes: “ But your Lordships cannot take the argument to a conclusion in the present case. ‖ [my emphasis]

85. Lord Walker says:

86. ―Those situations [where land is vested in a local authority on a statutory trust] would raise difficult issues but in my opinion they do not have to be decided by your Lordships on this appeal , and would be better left for another occasion. The undisputed evidence does not establish, or give grounds for inferring, any statutory trust of the land or any appropriation of the land as recreational open space. Counsel for Sunderland rightly did not argue for

some general implied exclusion of local authorities from the scope of section 22 of the Commons Registration Act 1965 . [my emphasis]



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87. In conclusion, the point that the council is representing as a bar to the Downs beingregistered as a village green has never been decided. In addition, there was noconsensus even in the obiter dicta comments of the various judges as to what theanswer might be had the question been put to them. Moreover, nowhere, either in the

2006 Act or in the debates captured in Hansard about the Act, is there any mentionof the impossibility of registering as a village green land which is held under the 1875Public Health Act. Indeed, for the first time, every landowner, including localauthorities, has been given the right to register land as a village green, regardless ofits status or history. Section 15.8 of the Act provides that:

88. ―The owner of an y land may apply to the commons registration authority to register the land as a town or village green.‖

89. There are many examples of councils registering as a village green land which hadoriginally been held under either the 1875 Public Health Act or the 1906 OpenSpaces Act. It is clear from this that land with “1875 Act status” is not incompatiblewith village green status. The council is wrong to claim that Beresford demonstratesthat ―The presence of a legal right to use the land prevents i t from being use ―as of right‖ .



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“ As of right”

90. I will turn now to the meaning of ―as of right‖ . The Commons Act says in section 15.2that land can be registered as a town or village green if:

91. ―(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application. ‖

92. In Beresford, Lord Bingham says that it is clear law that ―as of right‖ means nec vi,nec clam, nec precario, that is, ―not by force, nor stealth, nor the licence of theowner.‖

93. Also in Beresford, Lord Scott quotes Lord Hoffman and says:

94. ―It is accepted that… ―the words 'as of right' import the absence of a ny of the three characteristics of compulsion, secrecy or licence — 'nec vi, nec clam, nec

precario', phraseology borrowed from the law of easements … " (per Scott LJin Jones v Bates [1938] 2 All ER 237, 245 cited by Lord Hoffmann at [2000] 1AC 335, 355).

95. It was established in R v Oxfordshire County Council, ex parte Sunningwell ParishCouncil that this phrase had the same meaning as under the Prescription Act 1832and the Rights of Way Act 1932. ―Precario‖ means precarious or uncertain. In theBeresford judgement Lord Rodger explained that ―precarium‖ was the Roman termfor ― a gratuitous grant of enjoyment of land or goods which is revocable at will .‖ Lord Rodger quotes Farwell J in Burrows v Lang [1901] and says:

96. ―Farwell J asked "What is precarious?" a nd answered his own question: "That which depends, not on right, but on the will of another person." ―

97. The council has not suggested that use of the land in this case has been either byforce or in secrecy. It follows then, that the council’s only object ion to local usehaving been ―as of right‖ is that the use of the land has been by virtue of the

revocable permission of the landowner.98. For use of the land to be anything other than "as of right" , it must be precario . Use of

the land that is precario is use that depends on the landowner’s permission, and onpermission that can be withdrawn at any time. This is what the council needs todemonstrate.

99. The land in Beresford was held as ―parkland/open space/playing field‖ . It was land inpublic ownership, held by a principal council, held for public purposes, maintained atpublic expense and used by the public for recreation – i.e. it was an ―open space‖ asdefined by legislation. Lord Scott noted Dyson LJ’s view in the prior Court of Appeal

hearing for Beresford that, while the public ownership of the land was relevant, ―…onits own, it was a factor of little weight‖ . What Lord Scott thought was more important



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was the parallel between the Commons Registration Act 1965 and the laws relatingto private easements and public rights of way and the way in which people otherthan the owner can acquire rights over land which does not belong to them .

100. He said:

101. ―…if permission to enjoy a right, capable of constituting an easement, isgiven by the landowner in terms likely to lead, and that do lead, the beneficiary of the permission to believe he is entitled on a permanent basis to enjoy the right…he may become entitled in equity to the easement by proprietary estoppel (see E R Ives Investment Ltd v High [1967] 2 QB 379).The landowner would not be able to withdraw the permission he had given.20 years' enjoyment of the equitable right would surely enable the beneficiary of the permission to claim a legal easement under the 1832 Act. In such a case it is easy to regard the enjoyment of the right pursuant to the original permission as enjoyment by a person "claiming right thereto". In such a case the original permission would be the foundation of the claim of right but the enjoyment would not have been precario . [my emphasis]

102. Second, if an agreement to grant an easement were entered into for good consideration and the consideration were fully paid, the purchaser of the easement …would become entitled at law after 20 years' use. His enjoyment of the easement, although deriving from permission, would not

have been precario and, in my opinion, would have been enjoyment by a person "claiming right thereto" …. It follows that the proposition that use pursuant to permission given by the landowner is always precario and cannot ever be as of right for prescription purposes is not correct . [my emphasis]

103. The same is true of use of a public way, or a would-be public way,following upon permission given by the landowner…20 years' use "as of right" following a permission by a landowner that is indicative of an intention to dedicate will produce a deemed intention to dedicate unless the landowner can produce sufficient evidence that he had no such intention (see section 1(1) of the 1932 Act and section 31(1) of the 1980 Act). [my emphasis] [ …]

104. ….Indeed, I do not, for the reasons I have given, accept that even an express permission is necessarily inconsistent with use as of right.

105. Permission for the public to use land for recreational purposes …may,depending on the terms of the permission, if it is express, and on the surrounding circumstances, whether or not it is express, indicate to the public that the permission is temporary only, may be withdrawn, and is therefore precatory, or may indicate to the public that their right of use is intended to be permanent. In the case of a path or track, a sufficient



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indication, express or implied that the right of the public to use the path or track was intended to be permanent would usually constitute a dedication and create a public right of way …They [members of the public] would simply use the way, following the indications that they could do so or following the example of others who were using the way. Their use would

at lea st be "apparently as of right"… The dedicatory nature of the permission that the public could use the path or track would positively support the contention that their user was as of right rather than contradict it.

106. Where a town or village green is concerned, however, a sufficient indication, express or implied, that the right of the public to use the land for recreational purposes was intended to be permanent could not itself endow the land with that status. But the quality of the use of the land by the public, following the dedicatory indications in question, would surely be "as of right". It seems to me to be quite unreal to draw a distinction between the quality of use of a path or track by members of the public following an express or implied dedication and the quality of the recreational use by members of the public of a piece of land following permission given by a landowner that, if dedication of land as a town or village green had been possible, would have constituted a dedication. In each case the quality of the use, entirely consistent with the nature of the permission that had been given, would have been "apparently as of right".The only difference would have been that in the case of the public right of way the landowner could not, once the dedication had been accepted by public use, terminate the use, but in the case of the land used for recreational purposes the landowner could, provided the 20 years had not expired, terminate the use. But this difference does not seem to me to bear upon the quality of the use of the land by the public in the meantime . [myemphasis]

107. …Whether express or implied, permission to use a path over land or to use land for recreational purposes may be of a sufficiently dedicatory character to justify the same conclusion, namely that use by the public thereafter is use "as of right" . [my emphasis]

108. L ord Scott’s point is clear. The 1965 Commons Registration Act and the 2006

Commons Act lean heavily on and use similar language to the Prescription Act1832 and the Rights of Way Act 1932. ―As of right‖ carries the same meaningthroughout. Use of the land may be ―as of right‖ if it is done without permission. Itcan also be ―as of right‖ if permission were given originally and use has beenmade of the land for twenty years without the landowner withdrawing permissionor demonstrating his/her right to do so. Put simply, rights over the land areacquired by the kind of use made of it over twenty years, whether or not theuse began with permission. The Land Registry says:

109. ―Prescription is the acquisition of a right through long use or enjoyment (―user‖): the law presumes that the right was lawfully granted.‖



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110. In R v Secretary of State for Environment Ex Parte Robert D Billson, Scott LJmade the same point:

111. "This seems to me the simplest and truest interpretation of the three words

' as of right', …. It is doubt less correct to say that negatively they import the absence of any of the three characteristics of compulsion, secrecy, or licence - 'nec vi, nec clam, nec precario', phraseology borrowed from the law of easements - but the statute does not put on the party asserting the public right the onus of proving those negatives , … [my emphasis]

112. The true interpretation of those words ´as of right' seems to me to be that he [the user of the land] has done so upon a claim to do it, as having a right to do it without the lord's permission, and that he has so done it

without that permission...It is the requisite quality of the act, not merely the act itself, which is here defined .... The essential quality of the acts - that is,as acts done as of right - has from early days in our law been established by showing that the acts were done openly .... I think it right, therefore, to hold that, where the words ´as of right' are used in the Rights of Way Act 1932, in connection with actual enjoyment, they are satisfied if the evidence shows that the actual enjoyment has been open, not by force and not by permission from time to time given ." [my emphasis]

113. Lord Bingham is clear about what a landowner needs to do to ensure that use ofhis/her land is ―precario‖ and that people do not establish prescriptive rights overit by the quality of their use of it over time:

114. ―A landowner may so conduct himself as to make clear….that theinhabitants’ use of the land is pursuant to his permission. This may bedone, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days…[…] ... If his [the owner’s] position is tobe that the user is by his leave and licence, he must do something to make the public aware of that fact …‖ [my emphasis]

115. In paragraph 2.9 of its objection, the council claims that, to be ―as of right‖ , use ofthe land must be trespassory. Again, this is not right. In Beresford, the applicationto register the land as a village green was successful, despite the fact that thepublic’s use of the land was not trespassory. Lord Scott deals with this point:

116. ―…in the present case, the attitude of the successive owners of the Sports Arena to the public use of the land for recreation was more than mere acquiescence or toleration. There was, I agree, positive encouragement.The provision of the rows of benches was to make more comfortable the watching of the activities of others. The cutting of the grass was in order to enhance the enjoyment of the Sports Arena by those using it. I am



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receptive to the submission that the successive owners had impliedly consented to the recreational use of the land by the public. The users were, in my opinion, certainly not trespassers. But this does not, in my opinion, answer the question whether the use was "as of right" or "nec precario". [my emphasis]

117. Was there any sign that the permission was intended to be temporary or revocable? There was none . The fact that the land was publicly owned seems to me highly material. Neither the WDC nor the CNT nor the council were, or are, private landowners. Their respective functions were and are functions to be discharged for the benefit of the public. The provision of benches for the public and the mowing of the grass were, in my opinion,not indicative of a precatory permission but of a public authority, mindful of its public responsibilities and function, desirous of providing recreational facilities to the inhabitants of the locality. In these circumstances there seems to me to have been every reason for the inhabitants of the locality who used the Sports Arena to believe that they had the right to do so on a permanent basis. ‖ [my emphasis]

118. Lord Rodger agreed:

119. ―The council were, accordingly, entitled to refuse Mrs Beres ford's application for registration of the area as a town or village green only if those who used the Sports Arena did so by the revocable will of the owners of the land, that is to say, by virtue of a licence which the owners

had granted in their favour and could have withdrawn at any time. The grant of such a licence to those using the ground must have comprised a positive act by the owners, as opposed to their mere acquiescence in the use being made of the land . Prudent landowners will often indicate expressly, by a notice in appropriate terms or in some other way, when they are licensing or permitting the public to use their land during their pleasure only. [my emphasis] […]

120. ― Therefore, in the absence of any act on the owners' part to regulate the activities on the land or otherwise to show that the inhabitants were disporting themselves only by the owners' revocable leave or licence, it is proper to infer that the owners had acquiesced in the inhabitants' use of the land as of right.” [my emphasis]

121. Lord Walker of Gestingthorpe also agreed:

122. ―The authorities contain many references (which can be identified and understood more readily since Sunningwell) to the importance of looking at the overt conduct of those involved, including what the landowner said and did from time to time during the period which the court has to examine. If



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the landowner found that his land was being used as a footpath by his neighbour (in a private right of way case) or by the whole village (in a public right of way case) and he suffered in silence, he would be treated as having acquiesced in what was going on….‖

123. A landowner who wishes to stop the acquisition of prescriptive rights over his land must not acquiesce and suffer in silence . The Lord President, Lord Hope, put the point clearly in the Inner House in Cumbernauld 1992 SLT 1035, 1041, (that case was concerned with section 3 of the Prescription and Limitation (Scotland) Act 1973, which does not use the phrase "as of right"; but it is common ground that there is still such a requirement under the law of Scotland): " … where the user isof such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask

that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right ". [my emphasis]

124. Lord Jauncey of Tullichettle quoted that passage with approval when the case came before your Lordships' House on a further appeal 1993 SC (HL)44, 47; the rest of the House concurred in the speech of Lord Jauncey.

125. Later in his judgment in the Inner House Lord Hope said, at p 1042: "A

proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period".

126. ―[…] As Lord President Normand pointed out in Marquis of Bute v McKirdy & McMillan acquiescence on the part of a proprietor in continued user throughout the prescriptive period without taking steps to assert or record his right of exclusion will result in the constitution of a public right of way against him . If acquiescence in these circumstances produces such a result encouragement can even more readily be said to have the same consequences".‖ [my emphasis]

127. The result of this is that, where any land has been made available for publicrecreation, only overt, temporary and revocable permission to use the land candefeat use ―as of right‖ . The landowner has to make the public aware that the landis being used only by permission, and temporary, revocable permission at that.Moreover the onus is not on the person asserting the right to prove that he/shehas used the land without permission. The onus is on the landowner to prove thatovert permission has been given. This the council has failed to do. There are nonotices on the land to identify the owner. There are no notices on the land to limit

or regulate the use people make of it. The land is never closed to the public.There are no notices to suggest that the public is using this land with the



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permission of the council. No charge is made for using the land, regardless ofwhat use the public might choose to make of it.

128. The Sunningwell judgement explored whether or not it is important that peopleusing the land do so believing they are using it as of right. The judges in that case

decided that there was no onus on the applicant to prove what people werethinking. However, in the case of the Downs, what people think about the land isinstructive. As part of producing the village green application, I have spoken toscores of people who later completed evidence questionnaires. Their immediateresponse to any hint that the council might want to develop this land was thesame: "They can't do that. It's ours." In the mind of the local people, this land wasgiven to the town for the townspeople to use forever - that is why they use it, not because they think they have permission from the council. Local people describethe land as theirs and behave as if they have a right to use it however they wish.This is true “as of right” usage.

129. A useful local case here is that of Heartenoak Playing Fields. The land wasformally listed as playing fields and Hawkhurst Parish Council actively maintainedand managed the site for recreational purposes. KCC’s Divisional Director rightlysaid in his/her report to the registration committee:

130. ―…if a landowner gives permission but does not let the world at large know the terms of that permission by erecting notices or taking other overt action and the public continue to use the land then they may well, despite the fact that the landowner thinks it is with his permission, be gaining a right by implied dedication. In essence, permission must be communicated and revocable, or else it is acquiescence….there is no evidence to show that the Parish Council has actually asserted its rights, as landowner, over the land in question…‖ [my emphasis]

131. In its objection, the council quotes Lord Walker as saying that, if land is vested ina local authority on a statutory trust under section 10 of the Open Spaces Act1906, the inhabitants of the locality are beneficiaries of a statutory trust of a publicnature, and it would be very difficult to regard [them] as trespassers. I am not surewhy the council thinks this is relevant to this application as there is no evidence atall that the land is held under the Open Spaces Act 1906 as I have alreadydemonstrated in Section 1 above. I have also already demonstrated that,according to the House of Lords, use of the land does not have to be trespassoryfor it to be ―nec precario‖ .

132. Even if the land were held under the 1906 Open Spaces Act, there is noprecedent to suggest that a qualified right to use the land as a beneficiary of atrust would be sufficiently precarious to render the use anything other than ―as of right‖ . Any statutory licence is insufficiently revocable to render use ―precario‖ andtherefore to prevent the land becoming a town or village green. A statutory licenceis not enough, using Lord Rodger’s words, ―to show that the inhabitants weredisporting themselves only by the owners' revocable leave or licence.‖ Somethingmore is required to render the use ―precario‖ . The council has failed todemonstrate that it has done anything to make the use of this land ―precario‖ .



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133. The 1875 Act, under which the council claims the land is held (but has failed toprove that this is so), carries no such obligation to hold the land in trust for publicuse to the extent that any member of public using the land is doing so as abeneficiary of that trust and therefore is using the land ―by right‖ . There is nothing

in the 1875 Act that alludes to the right of the public to use the land. The 1875 Actgives public authorities powers in relation to recreation, but no duties orobligations. This is in clear contrast to the 1906 Open Spaces Act which says thatthe local authority shall hold the land ―…in trust to allow, and with a view to, theenjoyment thereof by the public as an open space.‖ There is no such right givento the public by the 1875 Act, therefore if use were under the 1875 Act it wouldnot be "by right" .



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Summary - the Downs is a legitimate village green

134. Canterbury City Council's argument has no merit. The onus is on the council toprove that local people have not acquired prescriptive rights over this land by their

use of it over the last 20 years. The council’s objection is invalid for a host of reasons.

135. The council has failed to prove that the application land is held under the1875 Act.

136. Only K912449 was acquired under the Public Health Act 1875 and theoverlap between this and the application site is small

137. K911306, which overlaps the application site for one house plot, was notacquired under the 1875 Act

138. K901348 was not acquired under the 1875 Act139. K912167 was not acquired under the 1875 Act140. The council has provided no documents that identify clearly the application

site east of Sea View Road141. The council has not mentioned a number of parcels of land in the eastern

half of the application site for which the Land Registry holds details142. The Herne Bay Urban District Council (HBUDC) minutes do not mention

any appropriation under the 1875 Public Health Act143. HBUDC knew how to use the Public Health Act to appropriate land – it did

so in 1881. However, there is no evidence in the minutes that it did so in1901 for the parcels of land we are looking at here

144. Part of the Council's objection is based on HBUDC minutes which relate toland entirely unrelated to the application site

145. Whilst some of the bye law documents refer to the council’s power to setbye laws under the 1875 Act, none say that the land is held under the 1875Act

146. The council has included bye laws that do not relate in any way to theapplication site

147. If there are still valid bye laws relating to the application site, they arenowhere in evidence on the land

148. A number of the bye laws in these documents are completely disregardedby users of the land, have been for decades, and no action has been taken

149. No bye law documents have been produced for the last forty years. If thecouncil ever did think that it was managing this land under the 1875 Act, itceased to take any active steps to do so some decades ago

150. The words ―pleasure ground‖ and ―public walks‖ were in common usedecades before the land was appropriated and the covenants written. Useof these words in the covenants is in no way evidence of a specific andnarrow legal definition of the land's status

151. My argument about the use of language is strengthened by the fact thatsome covenants use the term ―open space for the public‖ , a phrase thatpredates the 1906 Open Spaces Act by some years

152. Whilst K912449 was appropriated under the 1875 Public Health Act the

deeds do not use language drawn from it, showing that the council’sassertion about the use of language has no basis in fact – there is no



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actual or necessary correlation between the phrases used and the legalpowers used

153. The 2006 Commons Act was born of the recognition that mistakes weremade in the registers developed using the 1965 Commons RegistrationAct. There is no assumption built in to the legislation that all previous

applications were correctly decided154. Roughly half of the land that the previous Commissioner was consideringhas nothing to do with this application

155. The Comm issioner’s decision relates to just one third of the application land

156. The Commissioner’s decision about ―as of right‖ use runs to one paragraphand offers no insight into his thought process. He does not deal at all withthe issue of rights being acquired by prescription. Since his decision thirtyyears ago there have been detailed decisions on this issue made in theHouse of Lords which sugg est that the Commissioner’s decision w ould beseen as wrong today

157. The council does not list the Downs under Outdoor Sports and RecreationFacilities

158. The council does not list the Downs under Parks and Gardens159. The council describes the land in the few public documents in which it

appears as a semi-natural open space160. The council has done nothing to demonstrate to local people that it holds

this land as a recreational space under the 1875 Act161. There are no fences preventing access to the land162. There are no notices suggesting that use of the land is in any way

regulated or constrained163. There are no notices to say that the landowner is giving permission for

people to use this land

164. The council has failed to demonstrate that holding land under the 1875 Actis a bar to registration as a village green

165. The 2006 Commons Act provides that any land can be registered as avillage green by the landowner. There is no mention anywhere in thelegislation or in the debates that suggests that land held under the 1875Act can not be registered as a village green

166. Village greens have been registered by councils who held the land under

the 1875 Act or the 1906 Act which shows that 1875 land can be registeredas a village green167. The assertion that land held under the 1875 Act would preclude use ―as of

right‖ has never been decided in law. The judges in Beresford took pains tomake it clear that this was a decision for another day

168. The council has failed to demonstrate that use of this land over the last 20years has not been "as of right"

169. ―As of right‖ draws its meaning from the Prescription Act 1832 and theRights of Way Act 1932



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170. For the council to demonstrate that local use was not ―as of right‖ , it mustdemonstrate that use depends on permission from the landowner and thatthat permission could be withdrawn at any time

171. Lord Scott concludes that if a landowner gives permission to use land in away that suggests to the local inhabitants that that permission is

permanent, then, if the inhabitants use that land for twenty years their usewould be ―as of right‖ 172. Rights over land are acquired by the kind of use made of it over twenty

years, whether or not the use began with permission. It is the quality of theuse that matters. We have been using this land for lawful sport andpastimes for over twenty years

173. Lord Bingham is clear that if a landowner’s posi tion is to be that use of theland is ―precario‖ (thus defeating an ―as of right‖ claim), he/she must dosomething to make the public aware of this. The council has done nothing

174. The council claims that ―as of right‖ use must be trespassory. This isincorrect. Use of the land in Beresford was not trespassory – indeed, thecouncil encouraged people to use it. Nevertheless, the land was registeredas a village green

175. The council claims that a statutory licence renders use of the land ―by right‖ . To be able to have a chance of running this argument, the councilwould have first to prove that the land is held on statutory trust. It has notdone so

176. Secondly, even if the council could prove this, there is no legal precedentto help the council to take this further. A statutory licence is insufficientlyrevocable to show that the people using the land are ―disporting themselves only by the owners’ revocable leave or licence‖ . Land held bystatutory trust, with neither overt permission nor regulation, plus twentyyears’ use of that land for lawful sports and pastimes throughout the periodis use ―as of right‖

177. Thirdly, the permission that the council asserts it has given us can only bethat described in the bye laws. Local people have used the land for manyother lawful sports and pastimes for twenty years above and beyond thosedescribed in the bye laws and have acquired rights by prescription

178. There is nothing in the 1875 Act which gives the public any right to useland held for recreation

179. Where land has been made available for recreation for over twenty years,only overt, temporary and revocable permission to use the land will defeat

use ―as of right‖ 180. The evidence questionnaires demonstrate that local people use the landand have done so for a period of at least twenty years

181. The evidence questionnaires demonstrate that local people use the landfor lawful sports and pastimes

182. The evidence questionnaires demonstrate that in those twenty yearspeople have neither sought nor been given permission to use the land

183. The evidence questionnaires demonstrate that people can access the landwhenever they wish

184. This is true ―as of right‖ usage – local people using the land exactly as ifthey had the right to do so and the landowner doing nothing to disabuse

them of this fact nor to assert its rights over the land



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185. We have gained rights over this land because of the quality of our use of itfor a wide range of lawful sports and pastimes over a period of more thantwenty years.

186. If the council ever had rights to revoke permission to use the land it has lost the

right to do so following a period of at least twenty years ’ use of the land by peopleengaging in lawful sports and pastimes. The council has not acted in any way toprevent local people from acquiring prescriptive rights over the land to enjoylawful sports and pastimes, many of which are forbidden in the bye laws on whichthe council seeks to rely.

187. Finally, I would like to make a common sense point about the spirit of the law. Theargument that the council is seeking to run goes thus:

188. “Landowners gave land to the town over a hundred y ears ago for local people touse for lawful sports and pastimes for ever. That land was vested in the localauthority and a clear contract agreed that this would be an open space availableto the people for recreation for ever. Local people use the land because they havea right to do so. Because subsequent legislation allows us to, we can dispose ofthis land at any time, despite the contract we made with those who donated theland in the first place and our promise to keep the land for local recreation forever. However, had local people used this land as trespassers for twenty years,they would have acquired the right to protect this land as an open space forpeople to use for lawful sports and pastimes ever.”

189. This argument would mean that people who are given a legal right to use land forrecreational purposes can lose the right to use it, whereas people who have noright to use the land for recreational purposes and who trespass on it can acquirethe right to use it for ever. This is not what either the 1965 Commons RegistrationAct or the 2006 Commons Act envisaged. As Lord Hoffman says in theSunningwell judgement:

190. ―In passing the [prescription] Act in 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way which had been for many years in de facto use…..And in defining class c town or village greens by

reference to similar criteria in 1965, Parliament recognised a similar public interest in the preservation of open spaces which had for many years been used for recreational purposes.‖



The reason for the council’s objection

191. Since December 2009, the council has been telling us that it has no objection tothe Downs becoming a village green, were it not for the fact that ―you have to ask

the Secretary of State’s permission before doing maintenance work on a villagegreen.‖ Clearly, someone within the council has misunderstood the law.

192. We have spoken to Defra, to the Open Spaces Society, and to the village greenregistration team at KCC. We have also spoken to people in Whitstable who areactively involved in village green maintenance with the council. They all tell us thesame story – there is no problem with maintenance and other work that is for the―better enjoyment‖ of the village green. We have shared all this information withthe council and have offered to set up a meeting to help the council to understandwhat its own experience of managing village greens should already have told it – there is no need to ask the Secretary of State’s permission before doingmaintenance work on a village green.

193. Whatever the merits of the council’s ―1875 Act‖ objection (and I havedemonstrated above how little merit this objection has), it is clear that the councilis using this objection as a vehicle for avoiding the Downs becoming a villagegreen because the council believes that this will cause future maintenanceproblems.

194. It occurs to me that KCC is in a perfect position to help the council to understandthe true position regarding maintenance and thus to remove the only realobjection that the council has. If the council’s concerns about maintenance can beaddressed (the council has already said that it has no other objection), then thecouncil has no need to oppose this village green application and a lot of publicmoney would be saved. We have offered to arrange a meeting for the council withreliable sources of information such as the Open Spaces Society, KCC and Defrabut the council has not responded. Is this something that KCC can do so that thecouncil can be properly informed about the maintenance implications of villagegreens?

195. If we can deal with this sole concern of the council about maintenance, then thecouncil ’s only objection to the Downs becoming a village green falls away and

there is no reason then, so the council tells us, for the council to oppose thisapplication.

vga614 our response to ccc objection of 2010-05-19

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