To receive a report to consider a village green application.

The Committee received and considered the report of the Director of Sustainable Communities which related to an application to register the land described as “Town Farm Court and Town Farm Orchard”, Henlow as a Town or Village Green.

The Committee noted that an earlier application has been considered at the Development Management Committee held on 2 February 2011.  At that time the Committee considered the evidence submitted by the Applicant, Mr Rapacchi, the landowners and other objectors, which included 23 letters of representation and resolved “that the applicant be notified that his application to register the land described as Town Farm Orchard, Town Farm Court, Henlow as a Village Green had not been accepted.”

The second application, which was made again under Section 15(3) of the Commons Act 2006, from the Applicants, Mr & Mrs Rapacchi was received on 3 March 2011 and was formally accepted on 4 May 2011, following receipt of additional evidence.  In addition, the Council concluded that the second application was not a ‘repeat’ application and that it had been ‘duly made’ under the statutory regulations.

The Orders & Commons Regulations Officer explained to the Committee that in summary the Applicants must prove that the land has been used by a significant number of local inhabitants for lawful sports and pastimes “as of right” for a period of twenty years.  The landowners objection had dealt with the second application by way of two separate parts and the Officer’s report considered Town Farm Court and Town Farm Orchard in this way as well.

Town Farm Court

The Committee were informed that Examination of the Land Registry and converyance documents confirmed that the six properties which comprised the Neighbourhood had the benefit of rights of way to pass and re-pass (with or without motor vehicles or other vehicles) from time to time and at all times and for all proper purposes over this access road.  Clearly private rights had been granted and therefore insofar as the Applicants were seeking to register the Town Farm Court private driveway as a town or village green, the Council considered that in light of a 1999 House of Lords decision ‘use’ of the driveway land has been carried on ‘by right’ rather than ‘as of right’.  Therefore the Council did not accept that this part of the Second Application Land was eligible or met the criteria for registration as a town or village green.

In addition the Council could not accept that Town Farm Court constituted a locality, or neighbourhood within a locality in which a significant number of its inhabitants used Town Farm Court for lawful sports and pastimes as of right for a period of twenty years.

Town Farm Orchard

The Applicants submitted with their application seven completed evidence questionnaires by the Applicant’s themselves; Miss L R and Mrs T S are the applicants daughters, Mr P R their son, Mr N T, Mrs Rapacchi’s brother, Mrs O T, Mrs Rapacchi’s mother and Mr G P, a previous resident of Town Farm Court.  The Applicants had not disputed this information.  Therefore, it was considered that there was no evidence of use by a significant number of people in connection with Town Farm Orchard and that the test had not been met.

The Applicants stated in the application that the residents of the six properties in Town Farm Court, and High Street, Henlow had habitually used Town Farm Orchard for over 20 years.  However, the Landowners refute this and the Council had not received any letters in support of this application from the residents of the other four properties in Town Farm Court and the High Street, Henlow.  Therefore, it was considered that the test of locality, or neighbourhood within a locality in connection with Town Farm Orchard had not been met.

To meet the ‘as of right’ test, the Applicants needed to demonstrate that the use of the land had been without force, without secrecy and without permission.  The evidence from the Landowners supported by the other 17 letters of objection (who had used the land at the invitation of the Landowners) is that the Applicants and the other people who completed the evidence forms were given permission by the Landowners to enter and use the land.  Therefore, it was considered that the use of Town Farm Orchard had not been ‘as of right’,

The Committee after consideration of the information above and listening to the representations made in accordance with the Public Participation Scheme voted unanimously to reject the Application.

RESOLVED

that the Committee agreed to accept the recommendations set out in the report of the Director of Sustainable Communities to reject the application to register as a town or village green the land described in the application as “Town Farm Court and Town Farm Orchard”, Henlow on the grounds that the statutory criteria for registration under Section 15 of the Commons Act 2006 have not been satisfied insofar as:-

1.                 there is no evidence of use by a significant number of people and that this test has not been met;

2.                 the test of locality, or neighbourhood within a locality has not been met and;

3.                 the use of Application Land has not been “as of right”.