This is the objection to the Willesden Town Green application lodged, unsurprisingly, by Linden Homes. Linden are a subsidiary of Galliford Try the site developers. My apologies for any formatting problems. I had to convert the objection from a PDF file.
application was submitted
on the 301 April 2012 by Mr Michael Redston.
for a 20 year period beginning on 1 May 1992 and ending on 301
use of the area began at least
from 1992 and continued up to 301
On behalf of Linden Homes Chiltern Limited and Galliford Try PLC
OBJECTION BY LINDEN HOMES LIMITED/GALLIFORD TRY TO THE TOWN GREEN APPLIC ATION MADE IN RESPECT OF WILESDEN GREEN LIBRARY CENTRE
2. 11 is claimed that the area shown on the plan attached to the application has been used "as of right" since 1986 for "pastimes and leisure pursuits" including walking, meeting, public art, French Market and the St Patricks Day festival.
3. Signatures are appended to the application which purports to support the use for "pastimes and leisure pursuits" for varying numbers of years.
4. To establish the existence of a Town Green the test set out below must be applied in accordance with section 15 of the Commons Act 2006.
4.1 Whether the land has been used to lawful sports and past times;
4.2 Whether there is a qualifying locality or neighbourhood within a locality;
4.3 Whether any such use has been indulged in by a significant number of the inhabitants of that locality or neighbourhood;
4.4 Whether the use has continued for 20 years up to the date of the application;
4.5 Whether it has been used "as of right" (that is not without secrecy, force or with permission}.
5. The area must have been used for sports and pastimes.
5.1 The Oxford English Dictionary definition of "pastime" (as referred to in the case of R v Oxfordshire County Council and another, ex parte Sunningwe/1 Parish Council is "an activity that someone does regularly for enjoyment, a hobby".
"Activity" is defined as a "recreational pursuit". "Recreation" is an "enjoyable leisure activity".
5.2 The main claimed "use" for the area is for the holding of markets. The holding of a
market does not fall within the definition of "a pastime" as set out above, that is, it cannot be said to be "an activity" that someone does for enjoyment", a "hobby".
5.3 Even if it could be said that the holding of and visiting markets were a "pastime", this is only the first part of a 5 part test. As demonstrated below, the activity fails to meet other elements of the test.
lt is clear from the case law that the type "pastimes" envisaged are walking, playing with children and similar recreational activities (an enjoyable leisure activity).
5.4 it is noted that only two people claim that it is used for "kids play"/ "playing", only one person claims it was used for "football and cricket" and a further four people claim it is a "seating area". These activities could fall within the definition of "pastime· As demonstrated below, all these activities fail to meet other elements of the test.
5.5 "Petitioning" is not a pastime. lt is not a recreational activity/hobby and therefore fails this limb of the test.
5.6 Using the area as an alleged "right of way" is not a "pastime" as it is not a recreational activity or hobby and therefore fails this limb of the test.
6. lt must be a qualifying locality or neighbourhood within a locality and any such use has been indulged in by a significant number of the inhabitants of that locality or neighbourhood
6.1 The second and third limbs of the test are read together in accordance with Section
15(2) of the Commons Act 2006 which states that there must be a "significant number
of inhabitants of the locality or any neighbourhood within the localfty using the area for such sports and pastimes".
6.2 The area is in a qualifying "locality" being in the administrative area of the London
Borough of Brent and the "neighbourhood" being Willesden Green.
6.3 However, it has not been demonstrated that the "use has been indulged in by a significant number of the inhabitants of that locality or neighbourhood".
6.4 The applicant has only produced 36 people to support the application
6.4.1 One person gives their address as Edgware and is therefore not an inhabitant of the locality or neighbourhood and therefore must be discounted.
6.4.2 Five People do not specify a postcode and therefore it cannot be said with any certainty that they do inhabit the locality or neighbourhood.
6.4.3 The remaining 30 people state that they either live within postal areas NW2 or NW10, both of which are within the administrative area of the London Borough of Brent and/or Willesden Green.
6.5 The population of the administrative area of Brent is in excess of 255,000 people. The Population of the neighbourhood of Willesden Green, although lower, is still significant and therefore the 30 people (or even the total of 35 people, if it could be shown that the other five did live within the locality and for neighbourhood) demonstrated to live within the locality or the neighbourhood, using the area for the purported use, is extremely insignificant and therefore fails both the second and third limbs of the test.
7. The use must have continued for 20 years up to the date of the application
7.1 The Application was made on 301h April 2012. Therefore the 20 year period runs from 1May 1992 - 30 April 2012.
7.2 The application purports 20 years use from 1986. None of the 30 qualifying inhabitants have stated in what year their purported "use· of the area began. Therefore the application does not adequately demonstrate that any of the purported pastimes were
7.3 Even if all or some of the qualifying persons could demonstrate that their purported
April 2012, as
shown in the Table to be produced by the Council in defence of this application, none of the purported "pastimes· have actually run for a period of 20 years up to 301h April
8. The table to be produced by the Council will show clearly that:
8.1 The French Market has been running since 2006 ( 6 years);
8.2 The Art Installations running since 2011 (1 year);
8.3 The apple tree planting running since 2010 (2 years);
8.4 The St Patricks Day Festival running since 1997 (15 years);
8.5 The Green Fayre took place once on 2011;
8.6 Brazilian Festival took place once in 2008;
8.7 The International Market took place once in 2011(1 year);
8.8 The Food Market, this is the World Flavours Market running every Saturday since
8.9 The Green Fayre took place once in 2011 (1year);
8.10 Petitioning - Applicant states this has been running for 12 years so this fails the test in any event (whatever the relevant penod);
8.11 Kids Play - Applicant evidence claims this use has been indulged for "20 years" however no start date is given so must be discounted as it has not been demonstrated that the stated 20 year period was between 1 May 1992-30 April2012 ;
8.12 Public Seating- Applicant states this has been running for 6 years so this fails the test of a 20 year user in any event (whatever the relevant period);
8.13 Playing Football and Cricket- Applicant evidence claims this use has been indulged for "21 years" however no start date is given so it must be discounted as it has not been demonstrated that the claimed 21 year period included the period 1 May 1992-
In any event, as part of the Art Installation of 2011, a number of decorative artwork trees were planted in the application area. Since then, it has not been possible to play cricket and/or football and therefore, it would not be possible for the Applicant to show that this pastime was enjoyed continually for a 20 year period up to 30 April 2012.
9. As stated above, none of these activities have been shown to be used continually in the requisite period of 1 May 1992 - 301h April 2012 and therefore all the purported activities fail the fourth limb of the test
10. Area must have been used "as of right" (that is not without secrecy, force or with permission).
10.1 the Council's permission (by way of a licence) was required to hold:
10.11 the French Market
10.12 the International Market
10.13 Brazilian Market
10.14 the Food Market
10.15 the Green Fayre
Therefore, the holding of or the attendance at all of these markets was with permission (of the Council) and not "as of right" and therefore all of these purported pastimes fail the last limb of the test.
10.2 The Art Installation, the tree planting and St Patricks Day celebrations were all organised by the Council on Council property and therefore all visitors were there with the permission of the Council. Therefore, these three purported activities fail to meet the final limb of the test
10.3 With regard to "Petitioning" and "Public Seating", even if it could be shown that these purported activities were carried out "as of right", the Applicant by his own evidence shown they were not enjoyed for at least 20 years
10.4 With regard to "kids play/playing" and "football and cricket" it has not been adequately shown by the Applicant that these uses were indulged "as of right". The application area is the frontage of the public library and therefore it is as likely that such use was incidental to visiting the library. These being the case, then such activities were not "as of right" but with permission of the Council - being permission to enter onto the area in order to visit the library.
10.5 There is no evidence at all to suggest that "football and cricket" have been enjoyed a significant proportion of the inhabitants of the neighbourhood (or locality) "as of right", not least because of lack of space to enjoy such pastimes to any significant degree.
10.6 lt is incumbent on the Applicant to prove that these uses were "as of right". The applicant has failed to prove this is the case.
11.1 As demonstrated above, the Applicant has failed to show that the application meets the test for establishing that the area outside Willesden Green Library should be registered as a Town Green.
11.2 Not all of the purported uses are in actual fact "sports and pastimes" as required pursuant to section 15 of the Commons Act 2006 (petitioning, claimed right of way and the holding of markets)
11.3 Of the purported uses that could be said to be pastimes (kids play, football and cricket, seating) and those uses that some may argue to be pastimes (the markets}, it has not been demonstrated that:
11.3.1 a "significant number of the inhabitants of the locality or neighbourhood" have indulged in the pastimes. The Applicant has produced only 30 people in support (a total of 35 if those further 5 can be shown to live in the locality and/or neighbourhood). The population of Willesden Green is circa 12,000 and the population of Brent is in excess of 255,000. No evidence has been produced to show that a significant number of the inhabitants of Willesden Green, let alone the Administrative Area of Brent, have used the area for all or any of the purported pastimes.
11.3.2 the area has been used for the 20 year period 1 May 1992- 30 April 2012 . Contrary to the claims in the application, as set out above, the Council can demonstrate (as set out above) that none of the markets/Council run events have
been running for the requisite 20 year period. The Applicant by his own evidence has failed to demonstrate that the other purported pastimes were indulged for the requisite
20 year period, as set out above.
11.3.3 the area was not used "as of right''.As set out above, all of the markets and Council run events were provided/permitted with the consent of the Council. Therefore none of these activities were enjoyed "as of right".
Of the remaining activities, the Applicant has failed to adequately demonstrate that these purported pastimes were enjoyed "as of right" rather than being incidental to visiting the library and in the case of "football and cricket", the Applicant has failed to produce any evidence that such pastime was enjoyed whether "as of right" or otherwise.
11.4 In view of the above, the Application fails to meet the test set out in the Commons Act
2006 and therefore the application to register the area outside Willesden Green
Library as a Town Green must be rejected.