STATEMENT  OF  OBJECTIONS

 

 

SUBMITTED BY

 

THE RODING VALLEY RESIDENTS’ COMMITTEE

 

ON BEHALF OF

 

THE RESIDENTS OF RODING VALLEY

 

TO

 

EPPING FOREST DISTRICT COUNCIL

 

 

 

 

 

 

IN RESPECT OF

 

PLANNING APPLICATION PL/GC/EPF/2038/06

 

 

November 18th, 2006.

Summary

 

1.        Mr. Stephen McLaren has, through his agents, submitted a planning application (PL/GC/EPF/2038/06) for a three-storey block of nine two-bedroom flats, to be built on land at the junction of Chestnut Avenue and Hornbeam Road (hereinafter “the site”, “the land”, “Roding Valley Village Green”, or “the Green”).

 

2.        Both Mr. McLaren and the Roding Valley Residents’ Committee agree that the Land in question is an open amenity area.

 

3.        The specific type of open amenity area exemplified by the Land in question is town or village green.

 

4.        The Roding Valley Residents’ Committee has applied to Essex County Council for registration of the land in question as a village green. To date the Committee has lodged 212 witness statements with the registration authority attesting the use of the site as a village green for nearly seventy years. The Committee has continued to accumulate photographic and video evidence testifying to such use. 

 

5.        The application for registration of the site as a Village Green enjoys overwhelming local support. A petition supporting the village green application and opposing any development of the site was recently presented to the local MP, Eleanor Laing. The petition contained 1,571 signatures.

 

6.        Legally, the land in question is a village green now, merely awaiting registration. As such, the Council is prohibited from granting planning permission on the site.

 

7.        The Council should also have regard for the Commons Act 2006, which will be in force within the next few months - indeed it may be in force by the time the Council has reached its decision on PL/GC/EPF/2038/06.

 

8.        If the application for registration as a village green were to fail, the land would still enjoy protection as an Open Space, under Policy Planning Guidance 17 (PPG17), issued by the Office of the Deputy Prime Minister.  PPG 17 contains a number of recommendations which are individually fatal to PL/GC/EPF/2038/06, including the following:

 

a.       The Roding Valley Village Green has not been shown to be surplus to requirements;

b.       Mr.McLaren has not demonstrated widespread support for his proposal among local people;

c.       Mr. McLaren has not offered  local people a replacement village green site of equal or superior quality to the existing one; and

d.       Mr. McLaren’s proposed development offers no benefits to local people.

 

9.        PPG 17 also imposes upon local authorities obligations to protect small areas of open space in urban areas, to increase the supply of public open space, to preserve, and where possible extend, public rights of way, and not to reduce the supply of public open space.

 

10.    Epping Forest District Council’s own planning policies prohibit the granting of PL/GC/EPF/2038/06. The planning policies followed and enforced by Epping Forest District Council are set out in the Epping Forest District Local Plan. The Local Plan contains a number of policies which are individually fatal to Mr. McLaren’s application for planning permission, including:

 

a.       Policy LL5, which prohibits developments which result in any adverse effect upon any urban open spaces which have the potential to contribute significantly to the amenity of a locality;

b.       Policy HC4, which prohibits developments which damage or are detrimental to the landscape character of village greens; and

c.       Policy  RST3, which requires the council to protect public rights of way

 

11.    The Local Plan contains several other policies which may be fatal to Mr. McLaren’s application either individually or in combination. These are too numerous to list in this summary. The reader is referred to Section IV for a full consideration of these policies and their implications.

 

12.    The Epping Forest Local Plan also contains a policy (I14) which enables the Council to take action against Mr. McLaren for the damage he has done to the Roding Valley Village, in particular the wilful destruction of a number of fine, ancient oak-trees on the site.

 

13.    Mr. McLaren has accompanied his planning application with a Planning Statement which sets out the case for proceeding with the development. This case is extremely weak. Many of the policies cited by Mr. McLaren in support of his development turn out, upon an examination of the full text of the policies, to argue against the proposed development, often very powerfully.

 

14.    These considerations lead inexorably to one conclusion: Epping Forest District Council must reject planning application PL/GC/EPF/ 2038/06.

Introduction

 

15.    This statement of Objections is organised as follows.

 

16.    Section I, entitled “Background”, deals with the background to Planning Application PL/GC/EPF/2038/06.

 

17.    Section II, entitled “Roding Valley Village Green” considers the historical use of the land in question as a Village Green, the application pending for registration as such, and the support of local inhabitants for the application.

 

18.    Section III, entitled “Government Guidance,” considers Planning Policy Guidance Note 17: Planning for Open Space, Sport and Recreation, issued by the Office of the Deputy Prime Minister, which is particularly relevant to the land in question.

 

19.    Section IV, entitled “District Council Policy” sets out the planning policies in the Epping Forest District Plan which are contravened by planning application PL/GC/EPF/2038/06.

20.    Section V, entitled “Planning Application PL/GC/EPF/2038/06,” addresses issues raised by the application for a three-storey block of flats submitted by Mr. McLaren.

 

21.    Section VI summarises the conclusions of the other sections.

 

22.    Throughout this submission italic type indicates a quote, citation or excerpt. The observations of the Roding Valley Residents’ Committee are in normal type.

 

23.    The Roding Valley Residents’ Committee intends to post a copy of this submission on the saveourgreen.com website.

Section I: Background

 

24.    Mr. Stephen McLaren has, through his agents, submitted a planning application (PL/GC/EPF/2038/06) for a three-storey block of nine two-bedroom flats, to be built on land at the junction of Chestnut Avenue and Hornbeam Road.

 

25.    This land has served the local inhabitants of Roding Valley as an open amenity area since the estate was built in the 1930s. This use continues today. Until May 6th 2006, the land comprised a grassed area, shrubs and small trees, a small electrical sub-station, benches, and three magnificent oak trees, (four, if one includes the fine specimen between the bridle path and St. Elisabeth’s church). A recent examination of the rings of the smallest of the felled oak trees shows it to have been approximately 180 years old. The local councils have been maintaining the site, which was immaculately kept, for many years. The site was treasured by local people and was much used, particularly by families with young children, and by the elderly.

 

26.    On May 6th, 2006, a team of workmen chopped down most of the trees on the site, including two of the ancient oak trees, and erected a fence around the site. On being challenged by local residents, the workmen stated that they were working for Mr. Stephen McLaren, who was present on the site at the time. Mr. McLaren had not sought planning permission for any of these activities, and indeed stated that he had only acquired the land on the previous day.

 

27.    Mr. McLaren did eventually apply, again through his agents, for planning permission for the fences, but his planning application [EPF/1224/2006] contained false statements and the Council asked him to re-submit his application. When he did re-submit the application, permission to erect the fences was refused.


Section II: Roding Valley Village Green

 

Open Amenity Area

 

28.    We begin with a point upon which the Roding Valley Residents’ Committee is in complete agreement with Mr. McLaren. Page 3 of the Planning Statement which accompanies PL/GC/EPF/2038/06 makes the following blunt statement concerning the land in question:

 

“It previously was an open amenity area…”

 

29.    This is indeed the case. Prior to Mr. McLaren’s wanton destruction of the site on May 6th and his abortive attempt to erect fences for which he had not even applied for planning permission, the land was indeed an open amenity area. Furthermore, it remains an open amenity area today. It is significant that the Planning Statement, although it concedes that the land was an open amenity area, does not say what the land is today. We assume that this is because Mr. McLaren does not want to admit that the land he intends to build on continues to be an open amenity area today. However, on page 4, Mr. McLaren concedes this point indirectly, for he states that the area containing the playing fields at the end of Squirrel’s Lane

 

“…provides a much greater amenity for the local area than the application site…”

 

and also that the development he is proposing will not entail any loss of visual amenity

 

“Therefore, the visual amenity value will not be harmed…There is no loss of visual amenity in this case.”

 

30.    From these statements we can conclude that, in Mr. McLaren’s view, at least the visual amenity of the site continues to the present, and the application site constitutes an amenity, albeit a lesser amenity than the playing fields at the end of Squirrel’s Lane. We dispute this last point because we believe the two amenities are complementary, but very different in function. One cannot be substituted for the other. But we do agree with Mr. McLaren that the land continues to serve as an open amenity area to this day. 

 

32.    Since we are all agreed that the land in question was and is an open amenity area, the question we are trying to answer in this submission can be formulated thus: Do the Council’s planning policies allow the Council to grant planning permission for the built development proposed by Mr. McLaren on an open amenity area? 

 

31.    The Roding Valley Residents’ Committee believes that the Council’s own planning policies do not allow the council to grant planning permission in this, or any similar case. Furthermore, granting planning permission in this and any similar case would stand in flat defiance of planning guidance issued by the government, for which local authorities are obliged to have regard both when formulating policy and when considering individual applications.  Finally, the Roding Valley Residents’ Committee has applied to have the land registered as an official village green. The application has overwhelming local support. Granting planning permission in these circumstances would constitute an effective declaration to the effect that the Council favours the interests of one developer over the clearly expressed wishes of very nearly all of the local people who would be affected by the development. It could also expose the Council, and therefore local council tax payers, to a legal action for damages in the event that planning permission granted by the Council is subsequently revoked by registration of the land as a village green.

 

Customary use of the site as a Village Green

 

32.    Having established that the site is an open amenity area, we turn now to a consideration of the specific type of amenity the site offers the local inhabitants of Roding Valley. The Roding Valley Residents’ Committee believes that the open amenity area is most accurately described as a village green, basing this conclusion on a review of the evidence of the customary use of the site.

 

33.    The Commons Registration Act 1965, as amended by s. 98 of the Countryside and Rights of Way Act 2000, defines a village green as

 

“land on which for not less than twenty years a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and…continue to do so…”

 

34.    From the 12th November 1938[1] to the present the local inhabitants of Roding Valley have, on the site, indulged in sports and pastimes, including, but not limited to:

 

    1. Playing games, especially children’s games, including football, cricket, conkers, rounders, kiss-chase, hide-and-seek, and skipping. Parents especially favoured the green as a play-space for their children as it was felt to be particularly safe, being overlooked by several flats and houses.
    2. Observing wildlife, especially birds, squirrels, bats and insects;
    3. Meeting and socialising with other inhabitants of Roding Valley;
    4. Walking dogs;
    5. Climbing trees;
    6. Riding bicycles, tricycles, and non-motorised go-carts;
    7. Picnics;
    8. Reading;
    9. Tobogganing;
    10. Building snowmen;
    11. Having snow-fights;
    12. Constructing rope-swings on the trees;
    13. Courting;
    14. Gathering blackberries and acorns;
    15. Walking;
    16. Undertaking activities organised by such groups as the Brownies; and
    17. Enjoying the green and pleasant peacefulness of the site while sitting on the bench, on the grass, or under the trees.

 

35.    The Roding Valley Residents’ Committee has gathered the evidence for all these activities in the form of witness statements made by local people. These statements attest the use of the Green for the purposes described above as far back as the 1930s. We have passed these statements, which now number more than 200, to Essex County Council. The County Council may be prepared to allow representatives of the Epping Forest District Council to inspect the witness statements in order to satisfy itself that the description of the customary use of the site in this submission is accurate.

 

36.    It was plainly the intention of Mr. Charles Samuel French, who owned the land from the 1930’s until his death and who built the estate, that the site be used as a public green space for the inhabitants of Roding Valley[2], for the following reasons:

 

                i.      Mr. French did not build on the site, although it could have supported at least one house.

              ii.      As far as we have been able to discover, Mr. French never displayed any signs or notices indicating that the site was private property or that people who used the site did so by his licence or revocable consent; and

             iii.      A stream runs through the land, which was piped underground some time between 1952 and 1954.[3] When this was done the fence[4] and gate which surrounded the green were removed. From that time until May 6th 2006 – a period well in excess of 20 years – the green was unfenced.

 

37.    Upon the death of Mr. Charles Samuel French, the land passed into the hands of the trust which bears his name: the Charles S. French Charitable Trust. The trust took no action to prevent or hinder the locals’ use of this land as of right, that is: the trust put up no fences or signs asserting their rights over the land, and continued to let the council maintain the land for the enjoyment of the local inhabitants of Roding Valley.

 

38.    The local councils encouraged the locals in pursuing these activities by

 

a.       Maintaining the site in good order by cutting the grass and carrying out necessary maintenance work on the trees; and

b.       Placing benches on the site for local inhabitants to use.

 

39.    The local inhabitants of Roding Valley indulged in the pastimes described in paragraph 34 above as of right, acting on the reasonable presumption that the site was public land. They were encouraged in this by Mr. Charles French, the Charles S. French Charitable Trust, and by the local councils. Indeed, in the late 1990s, the local District Council approached locals with a proposal to enhance the site with a formal children’s playground. This proposal did not find favour with locals, who preferred the site the way it was, as a site for unstructured informal play and as a social hub for local people.

 

40.    The local inhabitants did not indulge in the pastimes detailed in paragraph 34

 

a.       By force (nec vi)

b.       By stealth (nec clam)

c.       By the licence or revocable consent of the owner (nec praecario)

 

41.    It is clear from the foregoing that the land satisfies all the legal tests for registration as a village green as defined in The Commons Registration Act 1965 as amended by s. 98 of the Countryside and Rights of Way Act 2000, and that locals’ right to use the land as such was established well before Mr. McLaren bought the land.

 

42.    It is also worth noting in passing that the site also exhibits salient characteristics of the stereotypical English village green which, although not captured in the legal definition cited above, are still relevant to the amenity value of the land and therefore material to any consideration of the contribution the land makes to the local community. Among these characteristics we may note the following:

 

a.       The land is triangular;

b.       The land is next to the local Anglican church (St. Elisabeth’s);

c.       Several important roads converge on the green (in our case, four roads  - Chestnut Avenue, Hornbeam Road, Buckhurst Way, Squirrel’s Lane - a bridle path and an alley);

d.       The land contains ancient trees (oaks);

e.       The land is opposite the local pub (The Monkham’s);

f.        The land is near the village hall (right next to St.Elisabeth’s Hall, 2 minutes walk from Roding Valley Hall);

g.       The land is very near local shops (2 minutes walk);

h.       The land is very near the local railway station (Roding Valley, 3 minutes walk).

 

43.    Mr. McLaren’s planning statement also acknowledges this reality

 

“It is well served by public transport, being close to bus stops, which serve main shopping centres and employment areas. It is within easy walking distance of a London Underground central-line station where there are also a few local shops and a large public house.”

 

44.    Mr. McLaren’s activities on May 6th, 2006 were the first indication the local inhabitants had that the Green was in private hands. The Roding Valley Residents’ Committee therefore lodged a formal application with Essex County Council for registration of the land as a village green under the Commons Registration Act 1965 as amended by s. 98 of the Countryside and Rights of Way Act 2000.

 

45.    Mr. McLaren’s activities on May 6th 2006 do not affect the status of the land as a village green because:

 

a.       Locals’ right to the use of the site was established well before that date,

b.       Mr. McLaren’s actions were unlawful, in that he had not sought planning permission for his destruction of the site;

c.       The law deems a village green to be so either at the time of application, or at the time at which the land was put in issue, not at the time of registration, as is explained in paragraphs 49 to 57 below;

d.       The Roding Valley Residents’ Committee applied to have the site registered as an official village green very soon after Mr. McLaren’s activities alerted it to the fact that the Green was under threat (the Commons Act 2006 allows applications to be made up to five years after the event in cases like this); and

e.       Mr. McLaren did not apply for planning permission for the fences he erected on May 6th, 2006, until after the Committee had applied for village green registration, and this application was in any case refused.

 

Support for the Registration of the Site as a Village Green; Opposition to Any Built Development on the Site

 

46.    Local inhabitants overwhelmingly support the application for registration of the site as a village green, and almost universally oppose any built development on the site. On Friday, 13th October 2006 the Roding Valley Residents’ Committee presented to Eleanor Laing, the local MP, a petition supporting the Village Green application and opposing any built development on the site. The petition was signed by 1,571 local people[5]. Moreover, to date, 212 people have provided witness statements to Essex County Council in support of the village green application. All of these witness statements support the village green application, and oppose any built development on the site. The Committee cannot recall any past local issue which has received anything approaching this degree of support.

 

47.    If Mr. McLaren’s proposed development went ahead, some two dozen people, who are not at present members of the local community, would be able to buy Mr. McLaren’s flats, but at least 1,571 people who are members of the local community (and who knows how many future people?) would lose their village green for ever. For each person who benefits, approximately 150 lose. Thus, the two sides of the moral equation are nowhere near equivalent, and the Roding Valley Residents’ Committee believes the Council should recognise this by acting with a preference for the interests of the majority.

 

48.    It would be a perverse outcome indeed if the Council were to favour the desire for private profit of one opportunistic developer, who has no connection to the area other than a speculative interest, over the clearly expressed wish of such an overwhelming majority of local inhabitants. However the case might stand in law, the moral imperative is clear and inescapable. The Council must bow to the wishes of the majority and act to preserve the Roding Valley Village Green for generations as yet unborn. Failing to do this would represent an abdication of the Council’s moral obligation to act in the best interests of the people of Epping Forest.

 

The Law understands the Roding Valley Village Green to be a Village Green today.

 

49.    On Wednesday, May 24th 2006 the  Lords of Appeal (Lord Hoffmann, Lord Scott of Foscote

Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond) gave their opinions for judgment in the cause Oxfordshire County Council (Respondents) v. Oxford City Council (Appellants) and another (Respondent) (2005) Oxfordshire County Council (Respondents) v. Oxford City Council (Respondents) and another (Appellant) (2005) Oxfordshire County Council (Appellants) v. Oxford City Council and another (Respondents) (2005) (Conjoined Appeal[6]). The questions considered by the noble Lords included the question of the precise date upon which an as yet unregistered village green should be deemed to be a village green in the eyes of the law. This question was addressed by Lord Hoffmann, Lord Scott of Foscote and Baroness Hale of Richmond.

 

50.    Lord Hoffman gave the following opinion:

 

“44. Since 2001, then, the land must satisfy the definition as amended by the 2000 Act. The inhabitants must “continue” to use the land for sports and pastimes. Continue until when? Carnwath LJ said that user had to continue until the date of registration. But that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right. In R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] JPL 975,991 Sullivan J said, accurately as it seems to me, that such a construction would make nonsense of the Act. Carnwath LJ [2006] Ch43, 71, para 94 did not accept that his construction was “so obviously unreasonable or contrary to the legislative intention that it must be rejected.” He gave three reasons for adopting it. First, the Secretary of State had power to prescribe a different period. But that seems to me neutral as to what the default position should be. Secondly, the history of the 1965 Act gives “no support for a broad interpretation of the provisions for new greens.” That sounds like an attempt to refight the battle of Sunningwell green. Thirdly, a construction which made dedication of a new green in effect voluntary at the time of registration would “help to provide an answer to possible human rights objections.”As I shall explain, I do not think that there are valid human rights objections. I would therefore reject the Court of Appeal’s construction as irrational. In my opinion the correct date is that of the application. That appears to be assumed by clause 15(3)(b) of the Commons Bill now before Parliament.” [Emphasis added].

 

51.    Lord Scott of Foscote agreed with Lord Hoffmann and offered the following observations, which are of particular relevance in the case of the Roding Valley Village Green:

 

“109. Issue (iii). Paragraph (iii) seeks a ruling as to the meaning to be attributed to the words “continue to do so” in section 22 of the 1965 Act, as amended. This issue is addressed by Lord Hoffmann in paragraph 44 of his opinion with which, with one slight qualification, I am in complete agreement. I agree that the amendment introduced by the 2000 Act does not require that the user of the land for sports and pastimes continues until registration and, I agree that, prima facie, the user must continue up to the date when the registration application is made. If, however, 20 years appropriate user having passed and while the user is still continuing the landowner bars the user, a more or less immediate application to register the land in response to the landowner’s action would, in my opinion, suffice. But if the barring of the use were not responded to reasonably promptly, the continuance criterion introduced by the 2000 Act would not be able to be satisfied. My reason for this slight qualification is that an applicant for registration is quite likely, before making the application, to attempt to stir up neighbourhood support or to obtain suitable evidence from local inhabitants. The landowner is quite likely to hear of this and a race to see who could act first, the landowner in barring the use of the land or the applicant in making the application, would not be satisfactory. The requirement of continuance needs, I think, to be approached in a commonsense fashion. Has the previous public user fallen into disuse is, in my opinion, the right question to be asked. “ [Emphasis added].

 

52.    Baroness Hale of Richmond amplified the observations of Lord Scott of Foscote:

 

“143. Be that as it may, I entirely agree, for the reasons given by my noble and learned friend Lord Hoffmann, that the use need continue no longer than the date of the application for registration as a green. I would have liked to agree that it need continue no longer than when it is first put in issue, either by the landowner in some way challenging the inhabitants’ right so to use the land, or by the inhabitants taking some steps to assert their right. But the Act is all about registration. Its main provisions deal with the requirement to register, the process of registration, the effect of registration, and in the case of old greens and commons, the effect of non-registration. In that context, it is difficult to read the words “and continuing” as continuing until some date entirely divorced from the registration process. This is reinforced by the express power (in section 22(1A)(b)) to make provision for land where the use has ceased some time previously.”[Emphasis added].

 

53.    Lord Hoffmann refers to Section 15 of the Commons Bill “now before Parliament”. Since Lord Hoffmann made this statement in May 2006, the Bill has become law as the Commons Act 2006. The relevant portion, including the clause to which Lord Hoffman refers, reads as follows[7]:

 

 “15 Registration of greens

 

(1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.

 

(2) This subsection applies where—

 

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

 

(b) they continue to do so at the time of the application.

 

(3) This subsection applies where—

 

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

 

(b) they ceased to do so before the time of the application but after the commencement of this section; and

 

(c) the application is made within the period of two years beginning with the cessation referred to in paragraph (b).

 

(4) This subsection applies (subject to subsection (5)) where—

 

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;

 

(b) they ceased to do so before the commencement of this section; and

 

(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).

 

(5) Subsection (4) does not apply in relation to any land where—

 

(a) Planning Permission was granted before 23 June 2006 in respect of the land;

 

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

 

(c) the land—

 

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

 

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes

 

(6) In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and (4)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.

 

(7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied—

 

(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and

 

(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land “as of right”.”

 

54.    It is therefore clear that, legally, a village green becomes a village green at the very latest at the time of application, not at the time of registration. Furthermore, in the view of the Lords of Appeal, the appropriate date for continuing use is the date on which the land is first “put at issue”, and this circumstance is provided for by the fact that the Commons Act 2006 allows up to five years for an application for registration to be made after the land is put at issue. Even if Mr. McLaren had applied for planning permission before putting the land at issue on May 6th 2006, which he did not, under the Commons Act 2006, local people would still have had 2 years to make their application.

 

55.    The Commons Act 2006 will come into force within the next few months, indeed it is likely that it will be in force before the Council reaches its decision on planning application PL/GC/EPF/2038/06. When it is in force, the Roding Valley Residents’ Committee intends to apply for village green registration under the 2006 act as well as under the 1965 Act as amended, but to ask that the two application be considered as one as a matter of administrative convenience. There is no reason to believe that this request will be refused. Even if it were refused, the village green would benefit from the protections offered by the 2006 Act from not less than five years before the date of application, as Mr. McLaren had not been granted planning permission before 23rd June 2006. This will obviously produce a date well before May 6th, 2006, which will more than suffice to prove continuing right of use for the purposes of registration.

 

56.    Although the changes to the registration process in Commons Act 2006 are helpful, the Roding Valley Residents’ Committee does not rely on the 2006 Act to prove its continuing right of user. The opinions of the Lords of Appeal make it quite clear that the appropriate date for continuing right of user is the date on which the land was first put in issue, after which a period of time for marshalling local support and gathering evidence is allowed before the application is made. In our case, the land was first put in issue on May 6th, 2006, and a period ensued in which local people took advice on their rights, contacted local authorities, held several public meetings, gathered evidence, and ultimately applied for village green registration less than 2 months after the land was put “in issue”. This is entirely consistent with the opinions for judgment of the Lords of Appeal.

 

57.    The reasonable construction to be placed on this sequence of events is that, in the eyes of the law, the site was already a village green on May 6th, 2006, or, at the very latest, on the date of application (June 28th, 2006).

 

Conclusion

 

58.    Both Mr. McLaren and the Roding Valley Residents’ Committee agree that the land in question is an open amenity area.

 

59.    The specific type of open amenity area exemplified by the land in question is town or village green.

 

60.    The Roding Valley Residents’ Committee has applied to Essex County Council for registration of the land in question as a village green. This application enjoys overwhelming local support.

 

61.    Legally, the land in question is a village green now, merely awaiting registration. As such the Council is prohibited from granting planning permission on the site.

 

62.    The Council should also have regard for the Commons Act 2006, which will be in force within the next few months. Although the Act is not yet in force, it would be perverse of the Council to act in defiance of the clear will of Parliament, as expressed in the Act.

 

63.    If the application for registration fails, the council may consider planning applications on the site at that time, but not before. In this event, the Roding Valley Residents’ Association believes that the Roding Valley Green would continue to enjoy legal protection, but on different grounds. These grounds are considered in sections III, IV and V of this Statement of Objections.

 

64.    If the Council grants planning permission to Mr. McLaren before the registration decision is made, this could be taken as an attempt by the Council to pre-empt the decision of the registration authority. Moreover, if the Council were to grant Mr. McLaren planning permission and Mr. McLaren were to proceed with his proposed development only to be required, by the official registration of the land as a village green, to stop all work on his development and return the Land to the state in which he found it before carrying out any of the development work, Mr. McLaren may well seek damages from the Council. A prudent and responsible Council will not incur this risk and potential expense on behalf of its council-tax payers.

 

65.    For all these reasons, Epping Forest District should reject planning application PL/GC/EPF/2038/06.


Section III: Government Guidance

 

Local councils must have regard for PPG 17 when considering planning applications.

 

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