Agenda item

Report of the Corporate Lead Officer: Highways and Environmental Services upon an application to register land as a Village Green at Erw Goch field adjoining Hafan y Waun, Waunfawr, Aberystwyth

Minutes:

Councillors Bryan Davies and Rhodri Evans left the meeting for the duration of the discussion on the following item.

 

The chair welcome Katherine Barnes, barrister to the meeting.

 

Councillor Alun Williams, Deputy Leader of the Council presented the report to the Council outlining the procedures and processes to date. He noted the potential conflict between Ceredigion County Council as the landowner, and as the Registration Authority, stating the clear demarcation of Officer roles in relation to the above, and a previous decision by the Council to appoint an external Barrister to consider the application.  He also noted that the independent advice received from the external Barrister Katherine Barnes recommended that the application for Village Green status must be refused as the statutory incompatibility defence is made out.

 

He provided an explanation of the potential options open to Members, noting that this was a matter of law as opposed to opinions or beliefs, and noting that the report for consideration was concerned solely with the Village Green status and the issue of statutory incompatibility.

 

Members asked the Barrister whether there were any covenants contained in the conveyancing documents which confirmed that the land had been set out for educational purposes.  Katherine Barnes confirmed that there was no express decision by the Council stating that the land was acquired for educational purposes; however this is inferred in the documents, which included the Conveyance for when the land was originally purchased which referred to the proposed site for new school, and a recent Supreme Court decision stated that it is appropriate to infer from the evidence provided that the land was purchased for educational purposes and there was no other evidence to suggest that the land was acquired for anything other than educational purposes.

 

Members asked whether this would be negated if the requirement was now redundant. Katherine Barnes said that the questions to be considered were what was the land acquired for and has it continued to be held for that purpose. Katherine Barnes said that actual use of the land is irrelevant, the issue was how the land has been held legally. Katherine Barnes said that Local Authorities are creatures of statute and have to act within the statutory powers given to them.  It was confirmed that a formal decision would have to be made to re-appropriate land, therefore the original status would remain irrespective of how it has been used or any proposals for future use.  Katherine Barnes said that even if the land is not used for educational purposes, and it is accepted here that it is not, the land is legally held for educational purposes. Katherine Barnes confirmed that re-appropriation could be applied tomorrow via a legal process however this could not be applied retrospectively in relation to an application for Village Green status.  This would mean that the 20 years of recreational use would need to start again from that date.

 

Members asked whether the inclusion of this land within the Local Development Plan could be considered as an acknowledgement of change of use, and whether re-appropriation would need to be applied prior to granting planning permission. Katherine Barnes confirmed that re-appropriation is a very specific legal process, therefore the inclusion in the Local Development Plan would not change this. If the Council did grant planning permission in relation to the land, given that the land is held currently for educational purposes it would not prevent the issuing of planning permission, however in order to lawfully implement the permission, the Council would need to make a formal decision for the land to be re-appropriated for that use.

 

Members asked whether re-appropriation should have been applied on acquiring the land in 1965.  Katherine Barnes noted that Ceredigion County Council did not own the land prior to 1965, therefore this would not apply. Members asked whether re-appropriation should have been applied in relation to the transfer of land for the development of the Hafan y Waun residential care home.  Katherine Barnes confirmed that this did appear to be irregular, however this land does not overlap with that of the Village Green application. Members asked whether residents would continue to have access to the land if the Council decided to adopt the recommendation of the external adviser.  Katherine Barnes confirmed that unless registration is made, there is no right for public use.

 

Several Members highlighted their concerns regarding access to residents and potential future use.  Eifion Evans, Chief Executive confirmed that the purpose of the discussion today was to consider the recommendation of the external adviser in relation to Village Green status, and that discussions relating to the future use of the land was a matter for the Members to decide at further appropriate committee meetings.  It was also noted that Members of the Cross-Party Constitution Working Group would review the Constitution in relation to re-appropriation of land.

 

Members asked whether there had been an open dialogue with residents regarding their application for Village Green status, and it was noted that due to issue of conflict of interest in relation to this matter, the roles of landowner and Registration Authority had been divided between Officers, and that any discussion by Officers with the applicant would have impacted the legal process that was being pursued.

 

Following a discussion it was RESOLVED to adopt the recommendation made on 26th October 2023 based on the report of the Independent Assessor i.e: That Council (acting as the Registration Authority) finds that the doctrine of statutory incompatibility prevents the registration of the Land as a Village Green and accordingly Council refuses the Application to register the Land as a Village Green.

 

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