The Judgement

The applicant, Jo Cartmell, sought to prove that Radley Lakes had been used for lawful sports and pastimes by a significant number of people from the locality or neighbourhood, without force or secrecy and without the landowners' consent. The County Council is the body charged with deciding whether town green criteria has been met and like most councils it determined this through a non-statutory inquiry to examine the complexities. For Radley Lakes, the inquiry Inspector was Vivian Chapman, who chaired the Sunningwell, Trapp Grounds and Warneford Meadow inquiries.

Vivian Chapman's report makes uncomfortable reading for the Radley Lakes campaigners. It is not just the conclusion, but Mr Chapman's weighing up of the integrity of the witnesses. He accepts the evidence of many but accuses others of being vague about events two decades ago. One he describes as "sincere" before accusing her of exaggeration. There are lessons here for town green campaigners in the way they prepare witnesses for an inquiry. A number of errors reinforce the impression at the inquiry that Chapman was struggling to keep up with his note taking. Surely it is time that the County Council engaged a stenographer?

What of the substance of the judgement? The campaigners win on all arguments but lose in an unexpected way.

Mr Chapman accepted that the "town" aspect of the case had been proven. A significant number of local people had used the banks of the lakes, but not the water, for the requisite 20 years. Although the neighbourhood of east Abingdon proposed by the campaigners was rejected, the civil parish of Abingdon was accepted as a locality. This ruling may be beneficial for other town green campaigns.

Mr Chapman agrees that it has been always been possible to enter the land without the use of force—in legal terms, force can mean climbing a gate or walking past a "keep out" notice. The use of the lakeside was neither covert or permitted, two essential criteria for a town green claim.

Mr Chapman divides Radley Lakes into several parts and considers these separately. The effect is to treat the lake area as a series of sectors but not a coherent landscape. It is a curious decision as most of the sectors are not bounded by obstructions such as fences, and users of the lakeside do not restrict their activities to one sector or another. This subdivision may be a convenient way of presenting the Inspector's conclusions but it must be questioned whether this partitioning of the landscape has affected his judgement about the way that the area has been used.

Overall, Mr Chapman accepted that Radley Lakes had been used for lawful sports and pastimes by a significant number of people from the locality or neighbourhood, without force or secrecy, and without the landowners' consent. But he rejected town green status for all sectors of the lakes on a completely different criterion. He asked whether people using the land in a way that created rights of way or a town green.

A strip of land alongside a river over which people have promenaded might be a green, but if people keep to a footpath or track, it is simply a right of way, not a town green. Chapman recognises that the distinction between these situations might be ambiguous, and says that such ambiguities should be resolved in favour of the rights of way interpretation. This is contentious. Chapman believes that people did not use the lakeside of Thrupp and Bullfield Lakes as a promenade but as a right of way, albeit one that they strayed from—to pick blackberries, for example. This is very contentious. Few think this is a good description of the way the lakes have been used. Of course there are tracks around the lakes, but these are heavily braided and cover much of the accessible land. To stray further away from the tracks would in many cases lead to the walker falling in the lakes.

The Conclusion and Recommendation

It was on the rights of way issue that Vivian Chapman rejected the application for town green status.

"I conclude that the applicant has failed to prove that the application land or any part of the application land is registrable as a new green. I recommend that the application is rejected."

The County Solicitor has accordingly recommended:

"The Committee is RECOMMENDED to REJECT the application for registration of the Thrupp and Bullfield Lakes and the surrounding land as described in the application by Mrs Jo Cartmell dated 19 October 2006 as a new town or village green pursuant to the Commons Registration Act 1965, for the reasons given in the Inspector’s report dated 13 October 2007."

The final decision on Town Green status will be made by the County Council Planning and Regulation Committee on Monday 26 November 2007. It is expected that it will accept the recommendation of the Inspector.

Comment

The Inspector has decided that all the criteria for town green status have been met, but that the way people have traversed the land is more akin to using a footpath than a green.

This rejection of town green status on the criterion of footpath-style use may be capable of challenge in the courts. But time is of the essence as RWE npower already have planning permission to destroy Thrupp Lake. Mr Chapman's verdict has major implications for other cases. A meadow with footpaths around and across it could meet all the town green criteria but fail on the rights of way issue. That is why Chapman's arguments must be challenged in the courts. If not at Radley Lakes, somewhere else in England.

Footpaths have featured heavily in the Warneford Meadow inquiry to date. Witnesses have made it clear that they strayed far from footpaths but there is obvious concern that Mr Chapman will apply the preference of footpaths over town green to that case. This makes the defeat of the NHS appeal for outline planning permission in January more important than ever to ensure that there is a sufficient window for sustained legal action. Legal costs are already rising due to the complexity of town green cases, and it looks like Warneford Meadow will be an expensive, as a well as a long and exhausting haul.

The journey to the highest courts in the land must be taken sometime soon. Otherwise the polite habits of the English, especially their respectful way of creating and keeping to tracks to avoid trampling on the wildscape, will be used to reject town greens everywhere.

Andu Boddington. October 2007

Further Information

• Radley Lakes
• The Town Green Inquiry
• The Inspectors report
• OCC officers report to the Planning and Regulation Committee