Agenda item

The purpose of this report is to consider an application under Section 13 of the Commons Registration Act 1965 to register land known as Fulford Cross Green, York, as a town or village green.

Members considered a report which outlined a village green application. The application had been made under Section 13 of the Commons Registration Act 1965 (“the 1965 Act) to register land known as Fulford Cross Green, York as a town or village green.

The procedure for submitting and determining an application is set out in The Commons Registration (New Land) Regulations 1969 and was detailed at page 7 of the agenda.

Officers provided an update which informed Members of the following information and amendments:

• The application had been made by Dr. Fiona Johnson in 2003 who since then had been absent. No other supporters had been willing to pursue the matter.
• The Council had an obligation to pursue the application.
• It is a legal decision not a matter of policy.
• The application must be refused if any of the elements are not met.
• The Commons Registration Officer then advised that she had managed to make contact with the  applicant Dr. Johnson that morning. Dr. Johnson had agreed she should of notified the Council of her whereabouts. When advised of the conclusion, Dr. Johnson had not agreed with the reference to the lack of conclusive evidence for 20 years use of the land.

The following amendments to the report were highlighted:

• Page 11 of the agenda, last paragraph should be amended to read “as to whether it was ever possible to imply a licence by a landowner to use the land, which could be a use as of right..”

• Page 12 of the agenda, section E be amended to read “ A period of at least 20 years and continuing up to the date of application”

Councillor D’Agorne spoke as Ward Councillor. He stated that he was disappointed that he had not been informed that the application for Fulford Cross was being brought to this meeting and felt more could have been done by the Council to keep himself and local residents informed. He advised that following the Legal Officer’s update he accepted the legal position although he did not agree with the recommendation to refuse the application.

In response, the Assistant Director of City Strategy  (Planning and Sustainable Development) advised that there had been no desire to conduct the matter in a secretive manner. In future Officers will ensure that Ward Councillors are informed on any such applications.

The applicant was not present and no representative was in attendance for the applicant. Martin Blythe, Legal Representative, was present to speak on behalf of the Registration Authority. In reference to the criteria detailed at page 7 of the agenda numbered 1 to 6, he advised he had no comment against criterion 4 and 6. In relation to the following criteria, it was argued as follows:

• Criterion 1 -  the applicant had failed to demonstrate that a significant number of the inhabitants of the neighbourhood within the locality had used the application site.
• Criterion 2 – the majority of users live within a cohesive neighbourhood in the vicinity of the application land, rather than a locality as the applicant suggests.
• Criterion 3 – Insufficient evidence provided by the applicant to satisfy this criterion ‘Have indulged as of right’.
• Criterion 5 – Applicant is unable to demonstrate uninterrupted use of the application land for the 20 year period prior to 31 August as the site had been actively managed by the Council and the nearby Fulford Cross school.

In answer to Committee Members questions Officers responded as follows:

• Local residents had been aware of the application. All local residents who had submitted a User Evidence Questionnaire had been written to and asked if they would take the application over.
• The Legal Officer confirmed there is no obligation to inform Ward Members as it is a legal process and the responsibility of the applicant to prove the claim.
• The application had taken 7 years to get to this stage due to the applicant being un-contactable since 2006. Had the applicant being involved or another individual being willing to take over the application then it may have gone to enquiry. As the application was not pursued by the applicant, the Council progressed other village green applications first which were being pursued.
• The applicant must show that the claimed land is within a neighbourhood or locality. In this case, the applicant claimed the land to be within a neighbourhood within a locality.

After discussions, Members decided that as it was doubtful as to whether three of the 6 criterion had been met by the applicant, and as the applicant had not pursued the application, nor had any other supporters taken over the application, then the Officers recommendation of refusal was supported.

RESOLVED:             That the application be refused.

REASON:                  It was considered that there is insufficient evidence to satisfy that all the necessary elements of the registration criteria have been satisfied, in particular that it is not satisfied that usage of the application land for recreational sports and pastimes was by a significant number of the inhabitants of the neighbourhood as of right and occurred for 20 years.