The Application to Register As a Town Or Village Green Branksome Recreation Ground, Recreation

BOROUGH OF POOLE

LICENSING SUB COMMITTEE

On 20th July 2010 at 19:00 hours

Council Chamber, Civic Centre, Poole

REPORT OF HEAD OF ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES

THE APPLICATION TO REGISTER AS A TOWN OR VILLAGE GREENBRANKSOME RECREATION GROUND, RECREATION ROAD, POOLE

1.0Purpose of report:

To request that the Licensing Sub-Committee, in its capacity as Registration Authority,decide whether to appoint an independent inspector to convene a non-statutory public inquiry and make recommendations regarding an application to register land known as Branksome Recreation Ground; or whetherto proceedto consider the application and objections received and determine the matter without a public inquiry.

2.0 Background Information:

The Borough of Poole ‘the Council’ is the Commons Registration Authority for the purpose of exercising functions under the Commons Act 2006, for the registration of town and village greens within its jurisdiction.

As noted in the Council Constitution, responsibility for considering and determining applications pursuant to the Commons Act 2006 for the registration of land as a town or village green is designated to the Licensing Committee by way of the Licensing Sub-Committee.

Application has been made by Mrs. Jacqueline Wilsonon behalf of the Branksome Recreation Action Group under section 15(1) of the Commons Act 2006 for the registration of land known as Branksome Recreation Ground as a town or village green.

The application has been advertised in accordance with the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulation 2007 and four objections to the application have been received, one of which was from the Borough of Poole’s Leisure Services.

3.0Matter for Consideration:

In its capacity as Registration Authority, the Borough of Poole is requiredto consider the application and the objections. The definition of a town or village green is set out in section 15 of the Commons Act 2006. If the conditions of section 15 of the Commons Act are met, the land is a town or village green and must be registered. If any of the conditions are not fulfilled, the land is not a village green and the application must be refused.

Decisions made by the Licensing Sub-Committee on town or village green applicationsare not subject to review by the Secretary of State through a prescribedstatutory and public process. The decision to either accept or reject anapplication can only be challenged through the courts by way of judicial review.

It is therefore particularly important that the RegistrationAuthority’s scrutiny of the application and any objections is thorough andthat this Committee is well-informed and advised before the applicationis finally determined.

The Registration Authority has discretion as to the procedure to be followed in determining the application but it must be carried out in a manner that is both fair and also seen to be fair.

In this application the Council is not only the Registration Authority but also the freehold owner ofthe land and an objector to the application. The Council’s interest as freehold landowner and the objection received from Leisure services, could lead be a perception that there is aconflict of interest with the responsibility as the Registration Authority.

There is relevant case law in relation to the procedure for determining applications for registration, in particular where matters are complex, facts are in dispute or where the Registration Authority is the landowner.

The perception of conflict where the Registration Authority is also the landowner was addressed in the case of R (on the application of Christopher John Whitmey) v The Commons Commissioners [2004], when Arden LJ stated that: 'The registration authority is not empoweredby statute to hold a hearing and make findings which are binding on the parties by a judicial process. However the registration authority must act reasonably. It has a power under section 111 Local Government Act 1972 to do acts which are calculatedto facilitate, or are incidental or conducive, as to discharge their functions. Thispower would cover the institution of an inquiry in an appropriate case.'

Arden LJ goes on to state that: 'where the registration authority has a conflict of interest because it also owns the land in question it may well be that the right course is to allow any dispute to be determined by the courts. Alternatively, it can appoint an independent legal expert to conduct a non-statutory inquiry into the factual position and make findings.'

4.0Financial Considerations

Financial implications are not to be considered by the Licensing Sub-Committee as the Council has a statutory duty to consider theapplication.

5.0Conclusion

In determining this application, the Council must separate its duty as the Registration Authority from its interest as landowner. This separation has been observed by officers since the application was received. Due to the Council’s interest as landowner and the objection received from Leisure Services theLicensing Sub-Committee should consider the possible perception of a conflict of interest in determining this application. In order to remove any perception ofpartiality,the Sub-Committee may decide that the application should be dealt with by appointing a suitably qualified inspector to conduct a non-statutory public inquiry to make recommendations to the Sub-Committee.

6.0Recommendation

In connection with the application to register land known as Branksome Recreation Ground, that either:

Option 1:A non-statutory public inquiry is held and a suitably qualified inspector be appointed to conduct the inquiry. That the appointed inspector be asked to hear evidence for and against the application and then to prepare a written report advising the Registration Authority whether to accede to or to reject the application;or

Option 2:The licensing sub-committee in its capacity as Registration Authorityconsider the application and the objections and determine whether to accept or reject the application.

It is the recommendation of the relevant officer that the Licensing Sub- Committee ACCEPT option 1.

S ROBSON

HEAD OF ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES

Name and Telephone Number of Contact Officer

Frank Wenzel 01202 261782

Background Papers

Section 15 of the Commons Act 2006

Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulation 2007

1