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.
1. An
application was submitted
on the 301 April 2012 by Mr Michael Redston.
indulged
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
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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
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April2012.
7.3 Even if all or some of the qualifying persons
could demonstrate that their purported
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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
2012.
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);
HOME.S
8.8 The Food Market, this is the World Flavours Market
running every Saturday
since
2011(1 year);
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-
30 April2012;
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 Conclusion
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.
Meet and greet parking Luton
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