APPLICATION TO REGISTERLAND AT APPENDIX B

YEOMANRY DRIVE, CLOTHALL COMMON, BALDOCK

AS A NEW TOWN OR VILLAGE GREEN

______

Report

Introduction

  1. I have been appointed by Mr Andrew Lacock, the Secretary to Hertfordshire County Council, to hold a public inquiry into an application by Mr CM Bryan and 18 other individuals to register land known as “The Field”, Yeomanry Drive, Baldock, Hertfordshire as a town or village green; and, following the inquiry, to prepare a report for the County Council with a recommendation as to the disposal of the application.
  1. Hertfordshire County Council is the commons registration authority for Hertfordshire. The application is dated 27November 2003. There is one objector to the application, North Hertfordshire District Council, the owner of the land. Its formal Objection is dated 17February 2005. The public inquiry was held in the Church Hall, Baldock on 8, 9 and 10 November 2006 and 11 and 12 December 2006. I carried out an accompanied site inspection on 12 December 2006. At the public inquiry the Applicants were represented by Mr Geoff Hollands, Solicitor, and North Hertfordshire District Council by Mr Richard Ground of counsel. I am grateful for the help they and their teams gave to the inquiry. I am also grateful for the efficient administrative support given to the inquiry by the County Council’s team, headed by Mrinalini Rajaratnam.
  1. A list of those who gave oral evidence to the inquiry is at Appendix 1.
  1. For completeness, I should indicate the reasons for the delay between the application and its consideration at a public inquiry. First, the County Council had to consider the validity of the application with particular reference to the fact that the site had been fenced before the application was made. Second, having decided that the application was valid, its further consideration of it was overtaken by the process of the determination by the courts of the case of OxfordshireCounty Council v OxfordCity Council and Robinson. On 24 February 2005, the Court of Appeal decided that use supporting registration as a town or village green had to continue until the determination of an application by the registration authority. On this basis, on the face of it, it would seem that the application in the present case was bound to fail because, as I have noted, the site had been fenced.[1] The Court of Appeal’s decision was the subject of an appeal to the House of Lords, but the North Hertfordshire District Council objected to the application being further deferred. On 10October 2005, the application was rejected by the County Council. That decision was the subject of judicial review. The County Council subsequently accepted that its decision on 10 October 2005 was a nullity because officers did not have delegated powers to make a decision and, in the light of this, by consent, the application for judicial review was withdrawn. This occurred on 10 July 2006. As its original decision had been a nullity, the County Council accepted that it still had to make a decision in respect of the application. On 24 May 2006, the House of Lords had allowed an appeal against the decision of the Court of Appeal and held that the relevant use need only continue until the date of the application for registration.[2] Accordingly the fencing of the site was not the “knock out blow” it had been perceived to be in October 2005 and a non-statutory public inquiry was arranged further to consider the application.

Relevant statutory provisions

  1. The term town or village green is defined by section 22 of the Commons Registration Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000. Relevant to the current application is third limb of the definition, which defines what is called a class [c] town or village green.[3] This is defined in section 22 (1A) of the 1965 Act, as amended:

Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either-

(a)continue to do so, or

(b)have ceased to do so for not more than such period as may be prescribed, or determined in accordance with prescribed provisions.

  1. No regulations were ever prescribed under paragraph (b). It will be seen that there are accordingly essentially five requirements for fulfilment of the definition, namely:
  • use for not less than 20 years;
  • by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality;
  • for lawful sports and pastimes; where
  • that use has been as of right; and
  • is continuing.

The issues

  1. In the present cased it is not disputed that in recent years the land has been used for lawful sports and pastimes[4]. However in order to establish 20 years use, the applicants need to establish that use began on or before 26November 1983. North Hertfordshire District Council contend that, at that time, the land was subject to an archaeological excavation, which precluded its use by the public. Accordingly much of the evidence which I heard focused on this issue. A second issue relates to the end of the claimed 20 year period. As I have said, the site was fenced in October 2003 i.e. there was a period of about a month after the site was fenced but before the application was made. I was told that, despite this fencing, use of the land did continue; North Hertfordshire District Council contended that any such use was not as of right.
  1. There are two further issues which I need to consider. What I shall call the third issue relates to the evidence of Mr Fitzpatrick-Matthews given on behalf of North Hertfordshire District Council He suggested that there was no use of the application site for lawful sports and pastimes in the period immediately after the archaeological dig on the site, i.e from 1986 until 1990. The fourth issue concerns matters relating to locality and neighbourhood.
  1. I shall consider each issue in turn. Before doing so it will be helpful to set the scene by describing the application site and the area surrounding it.

The application site and surrounding area

  1. The application site is an area of rough grass of something less than 2 acres in extent (ie about0.75hectares). It is located towards the north western corner of an area known as the Clothall Common Estate. This is a housing estate which was built during the 1980s. The first houses on the estate had been completed and occupied by 1983, which is the date with which I am concerned.
  1. The Clothall Common Estate lies on the eastern edge of Baldock, not far from the railway station. The south western boundary of the application site is formed by a footpath running in NW-SE direction. Immediately opposite the application site, on the other side of the footpath, is a primary school, HartsfieldSchool. West of the site is an area of older housing which focuses on three roads: the picturesquely named California, and then Grosvenor Road and Grosvenor Road West.
  1. When I saw the application site it was fenced by a chain link fence, but that fence had been broken down in a number of places and the site was freely accessible.

Issue 1: did the presence of an archaeological dig on the application site at the beginning of the relevant 20 year period preclude use of it by local people for lawful sports and pastimes?

Introduction

  1. The application site supported by a statutory declaration by Mr Bryan in the prescribed form and also by eleven evidence questionnaires. Subsequently, at the beginning of 2004, a further 134 evidence questionnaires were submitted. The statutory declaration is, as one would expect, uninformative as to the use of the land, but the evidence questionnaires all address the use of the land in the years prior to the application and, in many cases, the use of the for a period of 20 years or more. Only one of the questionnaires mentions the archaeological dig. This is the questionnaire completed by Mr Colin and Mrs Jean Salter who in answer to the question

Do you know of any community activities that take place or have taken place on the land?

replied

Archaeological dig.

  1. In answer to questions

Have you ever been prevented from using the land? If yes, when and the reason.

they replied:

(a)Yes - part when [the] archaeological dig was taking place, blocking some parts of the land at the time.

  1. I suspect that the reason that the archaeological dig was not mentioned in the other questionnaires is `that many local people had forgotten about it. However the Objection of North Hertfordshire District Council made it clear that it considered that the archaeological dig did preclude access to the site at the beginning of the 20 year period:

Between 1980 and 1985 the portion of the land to which the village green application relates was the subject of extensive archaeological investigations, during which it was completely fenced off and not accessible to any members of the public.

  1. In the light of this objection, the applicants submitted 23 additional evidence statements. These, which are all signed, are in a standard form. They state:

At no time during the period of archaeological excavation that took place on the Field was the land fenced off. It remained, at all times, available for public use. Some trenches near paths had temporary stake type fencing along some sides.

Local people continued using the Field during this period of time.

  1. I heard oral evidence from 10 witnesses on behalf of the applicants. Of these, 8 spoke to the period when the archaeological dig was being carried on. That evidence may be taken to be accurately summarised in the additional evidence statements.[5]
  1. For its part, North Hertfordshire District Council relied upon the evidence of Mr Keith Fitzpatrick-Matthews, its Archaeology Officer. Mr Fitzpatrick-Matthews, who has an honours degree from the University of Lancaster, has held his current post since 2004. However he had previously worked for the District Council as an archaeologist between November 1985 and September 1990. Accordingly he was able to give evidence as to the site from his direct knowledge for the period from November 1985 until September 1990. As regards the period before 1985, the Council relies on its written and photographic records of the excavation, which are extensive.
  1. It would be helpful to have had a clear understanding of the nature of the site before the archaeological dig, but this was not forthcoming. Most of the land upon which the Clothall Common Estate was built was arable land but there seems to have been a portion of land which now forms part of the site and which was not farmed itself, being crossed by a track leading from the back of a tree belt lying at the rear of California to the footpath: see Document 1, taken from the air in the summer of 1976. Document2 clearly shows this site in panoramic view from the air of Baldock, also taken in the summer of 1976. I do not know whether this part of the site might have been separately mapped by the OS because no historic OS maps were produced to the inquiry. Mrs Davis and Mrs Nash explained that it was rough ground or scrub land (see below). It may be that its function was just to provide space for the track which crossed it - it remains a puzzle as to why it was not incorporated (at least in part) into the adjoining farm land.

Evidence on behalf of the Objector

  1. It is convenient first to consider the documentary evidence relating to the archaeological excavation on the site which was submitted by the Objector. It is helpful to consider this evidence together with the oral evidence of MrFitzpatrick-Matthews because MrFitzpatrick-Matthews seeks to explain and interpret that documentary evidence - both from his own expertise and also from his knowledge of the site.
  1. Included in the papers submitted to the inquiry was an extract from Chapter 2 of a forthcoming publication called Excavations at Baldock 1978-1994 edited by MrFitzpatrick-Matthews and Gil Burleigh. At p29 it contains a helpful plan indicating the location of the various archaeological excavations which took place between 1978 and 1994 (Document 3). The excavation with which the inquiry was directly concerned is shown marked 1980-1985. The features excavated on the site are shown on a further plan which MrFitzpatrick-Mathews produced (Document 4). This site is described in an unpublished draft of the Report of the excavation relating to the iron age materials discovered. The description reads as follows:

Area 1 was selected in 1980 to investigate a large square enclosure with a causewayed entrance centrally placed along the western side, around which other features appeared to be orientated. In 1981 supplementary work was undertaken with large scale work to the west being carried through in 1982 and concluded in 1983. The area covered part of a road and most of a cemetery and a complete solution hollow that proved extremely fruitful. 1984 and 1985 saw work extending the area north and south in order to complete the examination of secondary enclosures, roads, and cemetery. In all c.6400 square metres were excavated.[6]

  1. Area 1 is broadly coterminous with the application site. However, the position is not that the whole area was stripped of topsoil and then remained open for a period of six years while archaeological investigations were carried out. Instead, the area that was open was different in different years. The different areas that were opened and the years in which they were excavated are shown in Document 5.
  1. The only direct evidence I had that Area 1 was fenced as to full extent of its boundary was the oral evidence of MrFitzpatrick-Matthews. He said that the whole of Area 1 was fenced with chestnut paling fencing when he started work on 11November 1985 and that thereafter to his knowledge team members (including himself) made weekly checks on the integrity of the fencing. He said that this continued until April 1986 when the remaining excavated areas were backfilled, the site accommodation moved and the fencing re-erected around the new area to be excavated (which was immediately to the north of Area 1 as having been excavated between 1986 and 1989).[7]
  1. MrFitzpatrick-Matthews said that fencing around the whole site would have been first put up in May1980. In the contemporaneous log or diary that was kept of the excavation records is found the following entry:

Fri 30th May. Cloudy, bright and warmer. Completed erecting fence on Area One.

  1. However in the log for 1981 is the following entry

Sunday 5 July 1981. Warm, dry, cloudy sunny periods. With NHAS members erected fencing around Area One.

  1. The reference to NHAS is to the North Hertfordshire Archaeological Society. It would seem that whatever fencing had been erected in 1980 had been dismantled; in which case this would seem to be a reference to its re-erection in the same or a different location.
  1. There is also apparently a reference to fencing in the Supervisor’s Weekly Report for the week ending 12October 1984 as follows:

Site boundaries made secure for holiday period.

(There was apparently a holiday for the workers on the site until 29October 1984).

  1. In the very next Supervisor’s Weekly Report for the week ending 2November 1984 there is a direct reference to fencing:

Repairs effected to site hut roof following wind damage during holiday; site fences ditto.

  1. Work on site came to an end in April 1986. This is described in the Weekly Report for the week ending 18April 1986:

The mechanical excavator completed its work on Monday of this week. The spoil heaps have all been moved and landscaped to produce a very picturesque effect. There was also time for the last area of backfilling on BAL 1 to be completed thus saving us a little bit of money.

The main repairs on the green shed were also completed thus allowing it to moved from the DoE house compound, and re-erected on site. While it was awkward, as ever, no great difficulties were presented by this operation and it was successfully completed in two stages. It now only requires doors to be fully operational.

The fencing of the area was also carried out this week. We obtained some new posts and some more rolls of chestnut paling from the HertsCounty depot in Stevenage and borrowed a post thumper from Mick Laroche at the NHDC Parks Nursery. This last item proved highly efficient and has built an extremely sturdy fence.

  1. MrFitzpatrick-Matthews specifically recalled an incident which occurred during the week ending 18April 1986. He told the inquiry that

After we moved the fence, a fork lift truck was called in to move the portacabin. We couldn’t get the portacabin through the chain link fence defining the northern boundary of the development area. The fork lift truck raised the portacabin so that it missed the chain link fence. It was very precarious.

  1. As one would expect, there are many photographs of the excavations. These were taken to record archaeological features and only incidentally record other matters. Nonetheless, MrFitzpatrick-Matthews’s researches have discovered a number of photographs which do show fencing. If MrFitzpatrick-Matthews’s evidence is correct that there was perimeter fencing to Area 1, one would expect that there would be at least some photographs which show that fencing. Some of the photographs pre-date MrFitzpatrick-Matthews’s direct knowledge of the site, but he was able to help with questions as to where such photographs must have been taken from.
  1. I think that I can best begin with Document 6, a photograph taken in the summer of 1984. It shows a chestnut paling fence (as to one section broken down) which marks at that time the westerly extent of the excavation of the northern part of the site. The fence clearly has a function, apart from anything else, of protecting a belt of tree planting. Behind the chestnut paling fence can be seen a wire mesh fence (this becomes easier to pick up if one first looks at Documents 7 and 8 (photographs taken in 1985) where the same fence is clearer.)[8]
  1. Documents 7 and 8 are photographs taken from broadly the same vantage point as Document 1 but, as stated, a year later. They show a longer area of site boundary. The southern part of the boundary of the site (to the left of Document 7) is formed of the wall (which is still there) which marks the gardens of the properties at the end of California. Then at the end of what seems to be an accessway running alongside the gardens of the properties at the end of California, there have been rigged up what look like two gate like structures. These have been secured them to the southern section of the wire mesh fence. One can see the further extent of this fence in Document 8.[9]
  1. I turn next to Document 10. MrFitzpatrick-Matthews originally thought that this was taken in 1984 because it was filed in the 1984 file, but subsequent investigation as to its provenance demonstrated convincingly that it was taken in 1983 (it appears in a list of photographs taken in 1983). I am satisfied that this shows chestnut paling fencing on the southern boundary of the site, on the northern boundary of the footpath. I would have concluded that Document 10 did show such fencing simply by looking at it, but MrFitzpatrick-Matthews gave specific evidence to that effect, which I find convincing. A tripod structure can be seen in the left of the picture (it crosses the line of the top of the fence). This relates to the excavation of a well, which can be identified on the plan of the excavations.
  1. Document 11 was taken in 1985 from within the site looking outward, and seems to show the same fence. It is not possible to tell from the photograph whether the fence is on the southern or northern side of the footpath, but if there was a fence on the northern side of the footpath in 1984 one might expect it to still be there in 1985 (given the continuance of the excavation); and, since the school buildings seem to be complete, it would seem to be unlikely that the school site was fenced with what seems to be a chestnut paling fence.[10]
  1. Documents 12 and 13 relate to Area 15, excavated in 1986. These seem to show the boundary of the site marked by chestnut paling fencing.
  1. Finally as regards pictures of fencing, the Applicants submitted a copy of a page from the Baldock Mail dating from October 1986. This shows quite a large number of visitors standing on the edge of an excavation. The text indicates that this was a photograph taken during the course of an open day. It does not show Area 1, but its relevance is that it might reasonably be taken as showing the practice as to fencing on the site.
  1. If one looks at the original reproduction of the picture in the Baldock Mail, it does seem that there is paling fencing visible behind the lines of visitors.
  1. The final relevant photograph - Document 14 - is an aerial photograph of the Clothall Common Estate during its development. From the presence of an isolated archaeological excavation to the north east of the estate Mr Fitzpatrick-Matthews dates it to 1984. Local people thought that because of the extent of the estate development it must be later - say 1985. It seems to show the south eastern portion of Area 1 subject to excavation - which would fit with either date from what we know of the programme of excavations. The relevance of this photograph is two fold. It seems to show a “zig-zag” boundary feature to the east of the application site. Second, it shows an area apparently being excavated, together with what must be spoil heaps sheds and portacabins. It does not look like an area available for general recreation.
  1. I inquired whether there was any publication, contemporary with the excavation of Area 1, which gave any guidance as to the appropriate practice in relation to the fencing of archaeological sites. MrFitzpatrick-Mathews was able to produce Health and Safety in Field Archaeology (1986) by JL Allan and A St John Holt. This was produced by SCAUM (the Standing Conference of Archaeological Unit Managers) and published with the aid of a grant from English Heritage, so it evidently is of some authority. Section 2.4, entitled Before work starts provides as follows:

With the initial checklist completed and the system to be used agreed upon, the Supervisor must ensure that the required equipment is on site before the work starts. The equipment should include the following: