APPENDIX B
1. The Application
On 14th April 2004 Hertfordshire County Council, as registration authority, received an
application dated 29th March 2004 from Mrs Patricia Winifred Strack to register land at
Woodcock Hill, Borehamwood, as a town or village green pursuant to s.13 of the
Commons Registration Act 1965 (“the CRA 1965”).
Joint objections to the application on behalf of Laing Homes Limited and Mr Jacques
Isaac Onona and Mrs Ninette Onona (“the Second Objectors”) were received by the
Council under cover of a letter dated 15th December 2005.
2. The Land
The application site is a large area of land on the south side of Borehamwood town
centre. It is bounded to the north east by Vale Avenue, the rear and side fences of the
gardens to six houses on the north western side of Carrington Avenue and by
Carrington Avenue itself. To the south the land is bounded by Barnet Lane. To the
West lie a house known as Little Orchard, a small wooded area and the land over the
top of the Elstreee railway tunnel. The houses in Byron Avenue lie to the north west of
the application site. There is a substantial chain link fence along the rear of the houses
in Byron Avenue. To the north west of the northern corner of the application site is a
playground. At the eastern end of the application site is a narrow finger of land to the
east of the route of footpath 9 extending along the Barnet Lane frontage, and bounded
to the north by fencing surrounding an area used for grazing horses.
The southern end of the site lies on top of a high escarpment and affords commanding
views of the surrounding area. The high point was used historically as a beacon site.
The highest land with the best views lies to the west of a scrubby belt of trees marked g
on plan TAY/774/02. There are several substantial ancient trees at the top of the
escarpment, but otherwise the land is fairly open. There is a clear path along the top of
the escarpment. There are some smaller scrubby trees and a ditch between the open
area at the top of the hill and Barnet Lane. There is a dilapidated concrete bench within
this area. The land on the western side of the tree belt slopes down from the
escarpment quite steeply towards the north. At the time of the site inspection there
were two main tracks running down the hill, and a third less well-defined track running
down the western side of the hill, nearer the boundary with Little Orchard. The land to
the eastern side of the tree belt also slopes downwards, but not so steeply. There is a
flattish area at the top. This area is criss-crossed with a network of paths. Paths lead
onto this area from Vale Avenue. The paths become fewer as the land slopes away to
the northwest towards the tree belt. The northern part of the land (from about where the
six houses on the north west side of Masefield Avenue are to the north) is reasonably
flat. There are paths crossing this area, and leading onto the application site from
Byron Avenue and Vale Avenue. There are two main paths going down the hill. The
paths join to cross the tree belt at the same place.
The eastern part of the application land is crossed by footpath number 9, which
commences from Barnet Lane opposite a property known as Thanmory, thence in a
north-easterly direction across the application land, to the junction with Carrington
Avenue. Footpath 9 is shown on the current (2005) definitive map and statement of
public rights of way. Footpath 9 has been shown in the same position on all available
definitive maps and statements since 1953. The route of footpath 9 is not currently
discernible on the ground across the land, although there is evidence of entry onto the
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land from Vale Avenue being gained next to the public footpath sign, and the entry onto
the land from Barnet Lane also appears to be used. The finger of land to the east of the
route of footpath 9 lies within the treed area fronting Barnet Lane. There is one main
track running through this area and on to Barnet Lane.
There is a pending application for six bridleways over the application land. The
Registration Authority provided a plan showing the claimed routes of those bridleways.
A National Trail/Long Distance Route known as the London Loop runs along Barnet
Lane.
No part of the land is presently registered as common or as town or village green.
3. The Inquiry
The Council (as registration authority) appointed a barrister, Miss Lana Wood, to hold a
non-statutory public inquiry into the application and to report in writing to the Council
with a recommendation whether the Council should accede to or reject the application.
The Public Inquiry was held at Hertsmere Borough Council’s Council Offices,
Borehamwood on 5th, 6th, 7th, 8th and 9th November 2007, including an evening session
on 5th November 2007, to accommodate witnesses who were unable to attend to give
evidence to the inquiry during normal working hours. The Inspector also carried out an
accompanied site visit.
The Applicant was represented at the Inquiry by counsel.
That part of the application land which was at the time the objections were lodged was
owned by Laing Homes Limited was at the time of the Inquiry owned by Wimpey PLC
(“the Lead Objector”). The Lead Objector was represented at the Inquiry by counsel.
The Second Objectors were represented by Mr Onona in person. Mr Onona retained
Laytons solicitors who assisted him in the preparation of his case.
Part of the application land is owned by a Ms Cowell. She did not lodge an objection or
appear at the inquiry.
4. The Evidence
Oral evidence from 19 witnesses on behalf of the Applicant was heard at the Inquiry. In
addition 26 written witness statements and a substantial number of user surveys and
evidence questionnaires were submitted by the applicant. Some documentary evidence
was also submitted.
Oral evidence from 3 witnesses on behalf of the Lead Objector was heard at the Inquiry.
Documentary evidence was also submitted.
Mr Onona on behalf of the Second Objector gave oral evidence at the Inquiry. Mr
Onona also submitted a written statement and some photographs.
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5. Findings of Fact
General observations as to evidence
In evaluating the Applicant’s evidence I have borne in mind that this village green
application has arisen out of a desire to protect the application land from future
development for housing. I have considered carefully whether this has coloured the
witnesses’ evidence. Further I am aware that it may be difficult for witnesses who are
familiar with the application land as it has been in recent times to recollect accurately
what it might have been like at the beginning of the relevant period, and I have borne
this in mind when evaluating the evidence of user at the beginning of the period.
I have also borne in mind when evaluating the Evidence Questionnaires and user
surveys of those witnesses for the Applicant who did not give oral evidence to the
Inquiry the features of those documents which may mean that the evidence collected in
this form is less reliable than, for instance, an individually drafted witness statement.
When evaluating the weight of the user survey as a whole, I have borne in mind the fact
that each of the individuals involved in administering the user survey throughout the day
themselves filled in a user survey, when, apart from their involvement in the survey,
they might not otherwise have used the land on that day. When looking at the evidence
questionnaires, I was satisfied that I had been provided with all questionnaires
completed or partially completed, having regard to the fact that a number of the
questionnaires submitted stated that the witness did not use the land.
In the absence of any witness of fact who can speak to the content of the documents
produced behind tab 9 of the Lead Objector’s bundle on behalf of the Lead Objector, I
have approached those documents with caution. Formal disclosure obligations such as
apply in court proceedings do not apply in the context of village green applications. I
was not given any information as to how those documents had been selected or any
evidence which would enable me to determine whether all relevant documents
available, whether or not they assisted the Lead Objector’s position, were before the
Inquiry. I approached the documents produced by the Applicant with the same degree
of caution, for the same reasons.
Although the author of the 1997 Excitech survey did not give evidence to the Inquiry, I
was satisfied that the information contained in that survey was likely to be accurate. It
was a formal detailed survey of the whole of the land within the Lead Objector’s
ownership, drawn to scale and produced on a computer. Similarly, although the author
of the 1996 survey entitled Woodcock Hill Open Space did not give evidence to the
Inquiry, I am satisfied that the information contained in that survey was reasonably
accurate. The 1996 survey was handdrawn rather plotted on a computer, although it
states that it is drawn to scale. It expressed itself to be a survey of paths. I therefore
think that it is likely that it provides an accurate snap shot of the paths on the land on
the dates of the survey. In my judgment where the barbed wire remains shown on the
1997 are more extensive than the remains shown on the 1996 survey, the most likely
explanation is not that the 1997 surveyor has exaggerated what he found, or that more
has been added to the land in the intervening period, but that the 1997 survey shows
more accurately what was on the ground at the time.
Aerial photographs dated 1973, 1980, August 1988, May 1990, July 1991, AprilSeptember 1999 and 30th May 2003 were produced by the Lead Objector. The
photographs were from three different sources and were of varying quality. There were
substantial gaps in time between various of the photographs, in particular there was a
long gap between 1980 and 1988, and between 1991 and 1999. It seemed from Mr
Bennett’s evidence that there had been some difficulty in obtaining further photographs,
although I was left with the impression that, had he continued to seek photographs
between the completion of his statement and the opening of the inquiry, more
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photographs might have been available. It also seemed that it had been difficult to
accurate information as to when the photographs had been taken. It was not possible to
identify the month in which the first two photographs were taken. No expert in the
interpretation of aerial photographs was called at the inquiry. I was invited to draw my
own conclusions from looking at the photographs, and to use what I saw to support
inferences drawn from other evidence. This I have done.
Considering the application land as a whole
The application land is a substantial area of land: the land owned by the Lead Objector
alone has an area of between 13.5-14.5 acres. Some of the land is covered by trees or
dense bushes, and is therefore inaccessible. The vast majority of the land is accessible
to a hardy walker, although some areas clearly provide much easier going than others.
Some of the land would be suitable for a kick-about casual game of football, but the
vegetation on much of the land would preclude such use. The boundaries between the
Onona land and the land owed by Ms Cowell are not visible on the ground. The
boundary between the Onona/Cowell land and the land owned by the Lead Objector is
marked by a mature belt of trees and bushes and a ditch. It is possible to walk between
the trees inside this area, and also to cross from one side to another easily in one place
marked C on plan 2. At the top of the hill, at the southern end of the land, there is a
wide gap between the trees, with easy access between the land owned by Ms Cowell
and the Laing land. It is entirely conceivable in my judgment that a user of the land
would not have appreciated that he was passing from land in one ownership to land in
another ownership. The aerial photographs of the land throughout the period show a
network of paths, more at the top of the hill than at the bottom, but across the whole of
the land, worn by users of the land. The exact location of the paths shifts between
photographs, but there are paths across all parts of the land in every photograph. The
area with the fewest paths across it is the area coloured green on plan 13.
The undisputed land
Ms Cowell did not object to the application and did not appear at the inquiry. There was
a substantial amount of evidence of user of her land by members of the public for
general recreation, and no evidence that such user had not been as of right.
Access to the land
Access to the land is currently available in numerous places along the road frontages
with Vale Avenue and Carrington Avenue, from the whole length of footpath 9, from the
end of Byron Avenue and from Barnet Lane, at the eastern end of the site, and further
along the site by the remnants of the concrete bench. There is no evidence of any of
the north western boundaries of the application land (to Vale Avenue and Carrington
Avenue) having been fenced during any part of the relevant period, other than the
boundary between the rear of the houses in Carrington Avenue and the northern part of
the application land. The whole of the frontage to Barnet Lane is unfenced, and there is
no evidence of its having been fenced during any part of the relevant period. There was
evidence of a mound and ditch having been dug along the Vale Avenue frontage in
1982, which made it difficult to access the land from Vale Avenue for a time.
Access between parts of the land in different ownership
There is now and has always been during the whole of the relevant period free access
between the land owned by Ms Cowell and by the Lead Objector at the top of the hill,
and between the land owned by the Second Objector and the Lead Objector, through
the line of trees on the boundary, at point C, towards the bottom of the hill.
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Travellers’ incursions
I am satisfied that there were two incursions by travellers on the land, both before the
relevant period, the first in about 1971 and the second in 1982. A ditch and mound was
dug along the Vale Avenue frontage after the 1971 incursion, but was filled in after
complaints from local residents that it posed a danger to children. A second ditch and
mound was dug in 1982.
Fencing
(a) The Laing Land
I am satisfied on the basis of the 1967 newspaper article, corroborated by the evidence
of witnesses for the applicant, and the remnants of fencing recorded in 1997 around the
boundary of the land, and the remnants present on site today, that a barbed wire fence
was erected in 1967 around parts of the boundary of the land where hedging did not
already provide an effective barrier. Remnants of barbed wire fencing remained along
the Vale Avenue frontage in 1997. A small amount of this fencing remains on the land
today. The 1997 survey records dilapidated posts on the western boundary of the
northern part of the application land. I was unable to find those on site but it is possible
that they remain there in the undergrowth: the most westerly area of the application land
is very overgrown with brambles.
I do not accept Mr Biart’s evidence that there was chain link fencing along Vale Avenue
during the period 1987-1997 which was actively maintained. That evidence is not
consistent with the evidence of any other witness, including Mr Boyd.
On balance, I think that it is likely that the applicant’s witnesses’ evidence that the fence
along the frontage to Vale Avenue remained only for a short period is correct: certainly
it was not effective to prevent the incursions by travellers either in 1971 or 1982.
Taking the 1987, 1996 and 1997 plans together with the remnants of fencing on the
application land today, I am satisfied that Mr Bennett’s conclusion that at some time a
fence was erected around the western and southern boundaries of the green area of
land along the line marked A-B-C on aerial photograph C(i) is correct. Remnants still on
the land suggest a line of fencing along the western boundary and a line of fencing
along the southern boundary of the green land. On the basis of the same documentary
evidence, taken together with a small remnant on the land, I also accept that it is likely
that at some stage there was a fence across the green area.
A section of fencing in fairly good repair still exists on the boundary of the Laing land
within the tree belt towards the rear of the houses at Byron Avenue. This section forms
the south eastern boundary of the green land as shown on plan 13. The posts of the
fencing on the south eastern boundary of the green area within the tree belt, along the
boundary of the land in Laing’s ownership are different to the posts along the western
and southern sides of the green area, and in my judgment, given the different materials
used, this fencing is unlikely to have been erected at the same time as the fencing along
the southern and western sides of the green land.
It also seems likely that there was at some stage a line of barbed wire fencing along the
back of the houses in Byron Avenue a small remnant of which remained on the land in
1997. No sign remains on the land of that fencing today. As at 1997 this remnant was
not connected to any other part of the fencing that remained on the land, and in my
judgment it is not possible to determine definitively the extent of that line of fencing (and
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in particular whether it originally formed part of a fence line around just the green area,
or whether it formed part of a different fence).
In my judgment taking this evidence together, on balance it seems likely that the
remnants of fencing along the Vale Avenue frontage date from the 1967 fencing
exercise. I accept Mr Mynors’ submission that, on a careful reading of the article, it
appears more likely than not that the fencing being reported was fencing along the Vale
Avenue frontage. It is possible, however, that other fencing was erected in areas where
it was felt necessary to further secure the boundary, for instance it may be that this was
the original purpose of the fencing within the tree belt (the south eastern boundary of
the green area). On balance, I think it more likely than not that the fencing to the rear of
the houses in Byron Avenue was part of the fencing around the green area. I think it
more likely than not that the fencing around the south eastern boundary of the green
area already existed when the fencing around the western and southern sides of the
green area was erected.
I turn next to consider when the fencing around the green land was erected. In my
judgment the evidential value of the aerial photographs presented in fixing a date when
the fencing around the southern and western edges of the green area might originally
have been erected was seriously impaired by the absence of any photographs between
1980 and 1988. Mr Bennett acknowledged that he had come to the photographs with a
pre-existing belief that there had been a fence on the land, and looking for evidence of
that fence in the photographs. I cannot see a fence on the 1980 photograph, but neither
am I able to say that I can see something which, on the balance of probabilities,
represents a fence in the 1988 photograph or in any later photograph. As I understood
Mr Bennett’s evidence, he said that he would not have been able to identify the
presence of a fence from the photographs alone: he drew the conclusion that there was
a fence in the position indicated from a combination of the evidence of the 1987 and
1997 surveys, and from the changing position of the paths on the land.
I am not convinced that Mr Bennett’s conclusion that there was a complete fence
around the green area (effective to make any user user by force, rather than as of right)
during the relevant period can be supported by the documentary evidence adduced.
Mr Bennett sought to draw the conclusion that the fencing was erected between 1980
and 1988, and was still complete in 1988, from the change in the pattern of tracks
across the green area between 1980 and 1988. I am not convinced that this is the only
explanation or indeed the most likely explanation for the change in the pattern of use:
the 1982 newspaper article supported by oral evidence from some of the applicant’s
witnesses established that travellers got onto the northern part of the land in August
1982. After they left a large trench and embankment were dug by Laings along the Vale
Avenue frontage. The photograph accompanying the newspaper article illustrates the
extent of the embankment and confirms the evidence of two of the applicant’s witnesses
as to the likely obstacle to access it presented. Mr Dover’s evidence was that the
embankment was difficult to scale and discouraged use from Vale Avenue. Mr
Cowley’s evidence was that it was only possible for people to climb over at either end of
the mound along the frontage with Vale Avenue. In my judgment, it is at least as likely
that this event was responsible for the change in the pattern of tracks across the green
land evident from a comparison of the 1980 and 1988 photographs, as fencing erected
during that period. I am unable therefore to place the same degree of weight as Mr
Bennett thought it appropriate to place on the change in the pattern of tracks when
considering whether it is likely that there was a complete fence around the land at some
time during the relevant period.
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The internal memoranda dating from late 1983 and early 1984 suggest that there was
some fencing on the land in 1983 which had fallen into disrepair, and that in December
1983 the fencing had recently been repaired. The location of the fencing referred to is
not clear from those documents. Even if one assumes that the fence referred to is the
fence around the green area, the documents, taken in the light of the other evidence, do
not in my judgment establish on the balance of probabilities that the fence remained
complete at the beginning of the relevant period.
In the light of the other evidence heard at the inquiry I am not convinced that the internal
fence was complete at any time during the relevant period. Mr Boyd did not remember
the fencing being complete in 1987. Although he did say that, had the fence been
dilapidated, he might have noted that on his plan, his recollection was clear that he did
not have to climb any fences to get onto the northern part of the application land. It was
not suggested to Mr Boyd that he might have walked along a pathway left between the
chain link fence to the rear of the rear fences of the houses on Byron Avenue and a
barbed wire fence erected within the Laing land around the green area, and, given the
detail of his recollection, I think it likely that he would have recalled this. I also think that
he would have recalled that he was unable to gain access to some of the land he was
appraising, had this been the case. I therefore conclude that the fence was not
complete in 1987.
Looking at the period between 1984 and 1987, and in particular the photographic
evidence of a tethered horse on the land in 1983 or 1984 produced by Mrs Maxwell, the
recollections of other witnesses of tethered grazing and fact that the fence required
repair in 1983, I think it unlikely that the fencing formed an effective barrier to keep
horses in or people out for very long, perhaps as suggested by Mr Mynors (although
there was no direct evidence of this) because it was repeatedly broken down by people
wishing to access the land. Taking into account the evidence of Mr Fitzjohn and Mr
Duncan that they were able to walk across the green area in respectively 1985 and
1986 without impediment, I consider it more likely than not that the internal fencing had
been broken by the start of the relevant period and no longer provided an effective
barrier to access to the green area.
(b) the Onona Land
In about 1973 or 1974 fencing was erected along the frontage between the Onona land
and Carrington Avenue. This fencing was only up for a short time. There was no other
evidence of any fencing around or across the Onona land.
Use for grazing (Laing land)
The Laing land was used for tethered grazing. The inspector’s report on the 1974
planning appeals1 records that in 1974 the land was used for tethered grazing. There
was photographic evidence dating from 1983 or 1984 showing a horse tethered with a
metal chain grazing on the northern lower part of the application land2. This supported
Mrs Maxwell’s oral evidence that there were horses and donkeys tethered on the land in
August 1984. The fact that it was necessary in August 1984 to tether a horse, rather
than rely on a complete enclosure by fencing, supports my conclusion above that the
fencing was not complete during the relevant period. There are circular marks on the
1973 and 1980 aerial photographs which Mr Bennett said were consistent with tethered
grazing. The preponderance of evidence from the applicant’s witnesses supported a
1
2
A/696C
A/661A
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conclusion that the grazing ceased in the mid 1980s. Mr Boyd did not see horses on
the land, but saw some signs of grazing or was told about grazing in 1987. There are no
marks similar to the marks on the 1973 and 1980 photographs that I have been able to
discern on the 1988 photograph or on any later photograph. I therefore conclude that
tethered grazing had ceased by the latest in 1988 and, having regard to Mrs Harris’s
evidence, probably by 1987. I do not consider, on the basis of the evidence, and also
having regard to the nature of the use itself, that the use of the land for tethered grazing
interfered with the use of the land by local inhabitants for village green type uses.
Signs
There was some evidence of signs being present on the land.
(a) Signs 1987-1997
Mr Biart stated that he gave instructions on several occasions for signs to be erected on
the land at two particular locations. He was not sure of the wording of the signs. I bear
in mind that Mr Biart’s concern was to prevent use of the land by motorcyclists and that
he did not object to members of the public using the land when he saw them on the land
in considering what these notices might have said.
(b) Highways Act signs November 2001
The Lead Objector adduced documentary evidence which suggested that signs were
erected on the Lead Objector’s land on 21st November 2001 (documents numbered 2,
3, 4, 5, 6 and 7 above). The signs were headed Highways Act 1980 Section 31(3)
Notice, and had a plan on which the boundaries of the land owned by the Lead Objector
were highlighted. The notice stated
“TO WHOM IT MAY CONCERN
WE GIVE NOTICE that the land edged red on the plan below is PRIVATE LAND,
over which there is No Right of Way
Laing Homes Limited 21 November 2001”
The note on document (7) suggests that the author of the note believed or intended that
copies of the notice had been or would be erected in 9 different places on the land
owned by Laing: 6 around the perimeter, two within the northern part of the land, and
one between the northern and southern parts of the land owned by Laing. The note is
not signed, although it is dated 21st November 2001, the same date as it says the
notices were posted, and the same date as the notices themselves are dated. I do not
know who wrote it. It is not clear from the note whether the author of the note had direct
knowledge that the signs had been erected (i.e. whether he had been on the land
himself and seen them on 21st November 2001) or whether he had merely given
instructions that the signs should be erected in the positions indicated on that day. If
the latter, it is unclear whether when he wrote the note he had been told that his
instructions had been complied with or not.
The note also refers to 3 metal private land signs. It is not clear whether the author of
the note intended to convey that these were erected on the same occasion as the
Highways Act notices. Given that the note goes on to state that one had been pushed
over, one had the post still in place but the sign removed, and one was still intact, this
tends to suggest in my judgment that the private land signs had been erected at an
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earlier date and that they were inspected on 21st November 2001 when the Highways
Act signs were erected. In my judgment this suggests that, at the very least, the author
of the note must have spoken to someone who visited the land on 21 st November 2001
and received that information.
Taking all this evidence together, I think it more likely than not that the Highways Act
signs were erected on the land on 21st November 2001.
(c) Signs erected in December 2005
Ms Jones’ statement (not relied upon by the Lead Objector) stated that thirteen signs
were erected around the perimeter of Mr and Mrs Onona’s land and along the eastern
edge of footpath 9 on 12th December 2005. Eight signs were erected around the
perimeter of the Lead Objector’s land, and one sign on the southern edge of the
northern part of the application land on 8th and 9th December 2005. Those signs are not
relevant to this inquiry, having been erected after the end of the relevant period, save to
the extent that it is possible that the applicant’s witnesses’ recollection of signs may be
explained by reference to the presence of those signs on the land.
Mr Stokes said that he had seen a sign within the last 5 years at the entry from
Carrington Avenue to footpath 9, but he was not clear whether the sign had been
erected before or after the application was made. Mr Stokes did not recognise the signs
referred to in Ms Jones’ statement (erected after the application) as being the sign he
remembered. However, Mr Onona adduced no evidence that there had been any other
signs on the land, and in the absence of any such evidence I have to conclude that it is
more likely than not that the sign was indeed one of the signs referred to in Ms Jones’
statement.
Mrs Shiradski stated in her evidence questionnaire completed on 28th May 2004 that
she remembered two signs by land A and C. Clearly these cannot have been the signs
erected in 2005, but without any further information, I am unable to reach any firm
conclusion as to when the signs were on the land, where exactly they were positioned
or what they might have said.
Mr Dover remembered signs in the tree belt along the boundary with Barnet Lane within
the last 15 years. He did not specify whether the signs were on the land within Laing’s
ownership or on the Cowell land or the Onona land. He stated that the gist of the
writing on the sign was: we are the owners, be careful and do not trespass.
Some of the witnesses who did not give oral evidence remembered signs (in some
cases not distinguishing between signs or fencing): Mrs Duncan (prohibiting
motorcycles), Mr Lock (not specified what the sign said or to whom directed), IL Evans
(not specified whether notice or fencing), Cavacinti (attempts made to stop motorbikes
and caravans only), Archer (no discouragement to use by local inhabitants only to use
by travellers), Ramprasad (not specified whether notice or fencing).
Conclusions on signs during the relevant period
Taking all the evidence together, on the balance of probabilities it seems to me likely
that signs were erected on the land between 1987 and 1997. It is likely that the signs
were directed at prohibiting the use of the land by motorcyclists. The signs were
erected in two particular places: in my judgment, those places would have been the
places at which the motorcyclists were known to come onto the land. The signs were
replaced on at least one occasion. There may also have been some attempt to limit
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liability under the Occupiers’ Liability Acts 1957 or 1984 during this period (on the basis
of Mr Dover’s suggestion that the signs said “be careful”, and taking into account Mr
Biart’s anxiety that a dog walker might be injured by a motorcyclist on the land), but in
my judgment the evidence is not clear enough to establish this on the balance of
probabilities.
I think it more likely than not that 3 metal signs stating “private land” were erected on the
land at some time before 2001 and probably after 1997. Only one of these remained
intact on 21st November 2001.
I am satisfied that the Highways Act signs were erected on the land on 21 st November
2001 in 9 different places.
Permission
Two of the witnesses who did not give oral evidence reported having been given
permission by an owner, although in neither case was it clear which of the three owners
was referred to: Mrs Jones (to walk dogs on the land), Mr McGrath (for public access for
leisure purposes – permission given whilst owner building a mound around the
perimeter of the land). No other user reported having been given permission to use the
land.
User
There was a substantial amount of evidence to support the applicant’s case that the
land had been used for general recreation throughout the whole of the relevant period.
The aerial photographs suggested an extensive network of paths appearing and
reappearing in slightly different positions across the land from year to year. In my
judgment although parts of the land are overgrown, the use has been sufficiently
general and widespread to amount to recreational use of the land as a whole.
There was more use of the top area, including the southern part of the Laing land and
the Cowell land and the western part of the Onona land which is more scenically
attractive and has the view, than of the lower, northern area of the Laing land. However,
the northern area in my judgment was used for general recreation as well as as a way
through to the more scenically attractive land at the southern and western ends of the
site.
The user survey required people to specify which areas they had used by reference to
the map: area C was the northern part of the land. Mr & Mrs D’Acampo were the only
users who distinguished between their frequency of use of areas A and B and C, saying
that they used A and B and sometimes C. Many witnesses described going up or down
the hill whilst walking dogs or walking around the application land. There is no physical
boundary within the Laing land between the southern area and the northern area, and
on the aerial photographs there are consistently at least two paths (although not always
in the same positions) within the Laing land leading down the hill. In addition there is a
clear passage through the line of trees on the boundary between the Onona land and
the Laing land, at C, which many witnesses described using. Any of those paths gives
access to the northern area of the land. The eastern part of the northern area was
generally considered least attractive and was used less, but in my judgment was still
used for general recreation and not just to cut across to gain access to the remainder of
the land, as suggested by the Lead Objector.
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There was little evidence of relevant use of the area to the east of footpath 9, other than
use of the track through that area onto Barnet Lane. In my judgment that type of user
was a right of way-type user rather than a village green type user, and falls to be
discounted. None of the aerial photographs produced by the Lead Objector
(concentrating as they do on the land within the Lead Objector’s ownership) shows the
whole of the eastern part of the application land. Given the nature of that part of the
application land: a narrow finger of land between the horses field and Barnet Lane, I
think that it is inherently less likely that there would have been any village green type
user of that area. There were a number of the applicant’s witnesses who specifically
said that they did not use the area to the east of footpath 9. In my judgment, once the
evidence of those who used it in connection with their work as teachers is discounted
(as not being lawful sports and pastimes) and the evidence of passing through (right of
way type user) is discounted there is very little evidence of use of this area (Maxwell).
The predominant users of the land were dog walkers or those with children. There was
some use by adults for general relaxation or short distance walking. Those without
dogs or with small children tended to stay on the part of the land most local to their
homes. Some people who lived locally to the land reported more intensive periods of
use of the application land during or immediately following periods of ill-health. Many of
those with dogs used the whole of the application land for dog walking. In my judgment
the evidence of user and the criss-crossing nature of the paths is more consistent with
the use of the land being predominantly for village green-type wandering, than for
walking from A-B, such as might give rise to a claim to a right of way, although there
was some evidence of use of the land to get to Scratch Woods, to get to the station, or
as part of a circular walk via Barnet Lane. Where there has been evidence of that type
of use I have discounted it.
There was evidence of use of the land by motorcyclists. I do not consider that the
motorcyclists’ activities can be classified as lawful sports and pastimes (as driving a
mechanically propelled vehicle on land other than a road is an offence under section 34
of the Road Traffic Act 1988) and I discount the evidence of that use.
The hill on the application land was used whenever there was sufficient snow for
sledging and, on occasion, for skiing.
There was some fairly infrequent use of the application land by horse riders, mostly
during the earlier part of the period.
One-off events
The land was used in 1987 by the local Scout group for a wide game. The game used
the whole of the application land. Access was not impeded on that occasion by a fence
around the green area.
A beacon was lit on the top-most point of the hill in 1988 to celebrate the 400 year
anniversary of the Armada. The event was attended by over a hundred members of the
public from the local area and further afield. A procession led by local dignitaries
entered the application land from Vale Avenue and proceeded up the hill to the beacon
site. Access was not impeded on that occasion by a fence around the green area.
Where did the users come from?
There was in my judgment an element of tailoring of evidence on the point of where the
users came from: those who understood the neighbourhood element of the test tended
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to emphasise local use, whereas those who did not tended to exaggerate use by the
wider public, possibly thinking that they would add merit to the application by so doing.
In a case where evidence is gathered by leaflet dropping local houses, it might be the
case that witnesses would naturally tend to include a disproportionately high number of
local people. However, in the light of Mrs Strack’s description of the methods of
evidence collection used in this case: a user survey and an evidence questionnaire
handed out to people who were known to use the application land, and by dog walkers
to other users when using the land, I do not accept Mr Mynors’ submission that it is
likely that there has been such a distorting effect here. I think that it is likely that
composition of those giving evidence (including written evidence) is fairly representative
of the composition of the users of the land.
I reject Mr Mynors’ submission that the Local Plan inspector’s observation that
“[a]lthough privately owned, most of this area, including the objection site [which
description I take mean the whole of the land within Laing’s ownership], is used widely
by the public as an amenity/recreational area” suggests that the users were the general
public rather than local inhabitants: the Local Plan inspector was not concerned as to
where the users came from and would not have needed to make such a distinction.
There was evidence that people come from a fairly wide area to enjoy the view from the
top of the hill and that some users park in Carrington Avenue. Horse riders tended to
come from further afield, from outside the immediate area. When it snowed, sledgers
came from a fairly wide area, including the whole of Borehamwood and Elstree, as the
hill on the application land is the best for sledging in the area.
However, in my judgment it was clear that the overwhelming majority of people using
the land to walk dogs are local and that the overwhelming majority of regular rather than
occasional users of the land for other general leisure purposes are local.
Although there was some evidence of use by people from outside the claimed
neighbourhood, in my judgment taking all the evidence as a whole, it is clear that the
users came predominantly from the claimed neighbourhood.
Neighbourhood
I am satisfied that the area comprising the houses in the following roads has the
necessary degree of cohesiveness to justify its description as a neighbourhood:
neighbourhood II, and comprising the following addresses: Linster Grove, Carrington
Close, Carrington Avenue, Lullington Garth, Masefield Avenue, Milton Drive, Tennison
Avenue, Byron Avenue, Melrose Avenue, Vale Avenue, Byron Avenue and the houses
on that part of Furzehill Road which is set back from the main part of Furzehill Road and
the few houses on the western side of Furzehill Road between the track to the rear of
the houses in Melrose Avenue to the south and Tennison Avenue. In my judgment the
properties in Wordsworth Gardens, Auden Drive, Coleridge Way and Cedars Close do
not form part of this neighbourhood. The residences on Wordsworth Gardens, Auden
Drive and Coleridge Way have only been built relatively recently, and there is little
evidence that the occupants have integrated socially with the residents of the roads I
have identified. The housing in the area I have identified as the neighbourhood was
built as part of the same development by Laings. Byron Avenue is a later addition, but I
am satisfied that by the beginning of the relevant period that housing had in existence
for long enough to justify its inclusion by accretion into the already established
neighbourhood formed by the Laings development. On the evidence, the
neighbourhood I have identified enjoys a sense of community, with residents having
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local acquaintances and friends. Users of the land from within the neighbourhood
reported recognising other users of the land as fellow local residents. The claimed
neighbourhood falls wholly within the catchment area of the local primary school,
although the school itself is on the other side of Furzehill Road. There is a
neighbourhood watch scheme running in the area (although it has not been in existence
for the whole of the relevant period).
6. Applying the Law to the Facts
The Applicant’s case is that every part of the application land should be registered as
village green. If I am of the opinion that the application must fail in relation to the whole
of the land, following the decision of the House of Lords in the Trap Grounds case, I
must consider whether part only of the application land should be registered.
Land… In my view, the application land has been sufficiently clearly defined to
constitute “land”.
…on which for not less than 20 years…The House of Lords determined in the Trap
Grounds case that the relevant 20 year period is the period ending with the date of the
application for registration. In this case the relevant period is therefore 15th April 1984 –
14th April 2004.
…a significant number of the inhabitants of any locality or of any neighbourhood
within a locality… The user evidence supports the applicant’s case that the
application land has been used for recreation by a significant number of the inhabitants
of a particular neighbourhood, namely the residents of Linster Grove, Carrington Close,
Carrington Avenue, Lullington Garth, Masefield Avenue, Milton Drive, Tennison Avenue,
Byron Avenue, Melrose Avenue, Vale Avenue, Byron Avenue and the few houses on
the western side of Furzehill Road between the track to the rear of the houses in
Melrose Avenue to the south and Tennison Avenue.
…have indulged in lawful sports and pastimes… In my view there is clear evidence
that the local inhabitants have used the whole of the application land, with the exception
of the area to the east of footpath 9, for a variety of lawful sports and pastimes.
…as of right… In my judgment there have been no complete fences preventing access
to the land during the relevant period.
On the evidence there have been signs on the land saying “private land” and “the land
edged red on the plan below is PRIVATE LAND, over which there is No Right of Way”
during the relevant period. I turn therefore to consider whether the legal effect of those
signs is to prevent the user of the land by the local inhabitants for lawful sports and
pastimes being user “as of right”.
It was not submitted on behalf of the Lead Objector, in my view correctly, that the
existence of signs saying “private land” or “the land edged red on the plan below is
PRIVATE LAND, over which there is No Right of Way” necessarily prevented village
green type user being as of right.
It might be argued (following Newnham v. Willison) that a sign prohibiting entry onto
land by the public would render any entry in defiance of the sign entry by force.
However, Lord Walker’s observation in Beresford at paragraph 72 that a landowner who
puts up a notice stating “Private land – keep out” is in a less strong position, if his notice
is ignored by the public, than a landowner whose notice is in friendlier terms: “the public
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have permission to enter this land on foot for recreation, but this permission may be
withdrawn at any time”, suggests that if a sign prohibiting entry is ignored for the
requisite period the mere presence of a sign prohibiting entry by itself would not prevent
a right arising.
The wording of these particular signs fell short of expressly prohibiting entry The first set
of signs merely asserted that the land was privately owned. It might be argued that
there is no purpose in such a statement, other than to indicate to those thinking of going
onto the land that they are not entitled to do so and therefore it is a necessary
implication of a “private land” notice, that the owner is also saying “keep out”. However,
in my judgment an assertion that land is private does not carry necessarily with it the
implication that the public have no rights to go onto the land at all, for instance, land
might be in private ownership, but subject to rights of way.
The purpose of the erection of the second set of notices was to counter such a
suggestion: the assertion of private ownership in the second set of notices is coupled
with a denial that any right of way exists over the land.
If land is registered as a town or village green, the land remains in private ownership,
but the local inhabitants have a right to go onto the land for lawful sports and pastimes.
The objective viewer of these signs and the objective landowner observing people going
onto the land past these signs would in my judgment have in mind the following
background facts when reaching a conclusion as to whether use in spite of the signs
was use as of right of use by force: the fact that the land owner had not objected to use
by any local residents of the land for dog walking or general recreation: representatives
of the landowner had tolerated the presence of individuals undertaking those activities
on the land without challenge. The landowner’s concern had been to prevent use of the
land by motorcyclists. The fact that an application to add various bridleways to the
definitive map has been made to Hertfordshire County Council. I have not been told the
date of the application, but infer from the fact that the paths survey was carried out in
1996 that either the application had been made by 2001 or a reasonable landowner
would have known at that time that there was a risk of such an application being made,
having regard to the use that was being made of the land.
In my judgment the second set of notices put the question of whether any public right of
way over the land existed into contention, but would not necessarily have conveyed to a
reasonable user for lawful sports and pastimes that his use was objected to.
In my judgment the first set of notices did not put either right of way user or village
green type user into contention, and therefore were not effective to make user in spite of
the notices user by force.
In my view therefore neither of the signs was inconsistent with, objectively judged,
apparent user of the land as of right for village green type uses. A reasonable user
would not have concluded that his use for village green type purposes was objected to
as a result of reading these signs.
If I am wrong in my conclusion as to the correct inference to be drawn from the wording
of the signs, so that the words “keep out” or something similar are necessarily implied
into the signs, then following the observation of Lord Walker in Beresford, I nevertheless
conclude that use in spite of such signs is user as of right.
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I conclude that the use that has been made of the application land by the inhabitants of
the area identified as the neighbourhood has been user “as of right”.
…and continue to do so. The use of those parts of the application land which I found
were used (i.e. the whole of the application land, excluding the area to the east of
footpath 9) continued up to the date of the application.
7. Conclusion and Recommendations
I conclude that the application succeeds in part.
Accordingly, I recommend that the registration authority should accept the application in
part and should register the application land, with the exception of the area to the east
of footpath 9 as a town or village green.
I recommend that the reasons for the Registration Authority’s decision are stated to be
“the reasons set out in the Inspector’s Report dated 10 March 2008”.
LANA WOOD
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