To receive apologies for absence.

Apologies for absence were submitted by Councillors PGH Cutter and GA Powell.

To receive details any details of Members nominated to attend the meeting in place of a Member of the Committee.

There were no named substitutes present at the meeting.

To receive any declarations of interest by Members in respect of items on the Agenda.

Councillor R Hunt declared a personal interest in respect of the following item.

To determine whether land at Argyll Rise, Belmont, Hereford should be registered as a town green.

Please note that this report has been updated from the one which was submitted to the meeting of the Committee held on 2nd November 2010.

The Chairman welcomed those present to the meeting and introduced the Principal Lawyer (Corporate) who was presenting the report contained within the Agenda, Mr V Chapman Q.C. whose role would be to advise the Committee on the legal issues, Mr C Whitmey who was representing the applicants, Newton Farm Town Green Action Group, and Ms M Ellis QC who was representing Herefordshire Housing Ltd (HHL).

The Principal lawyer (Corporate) presented his report which explained the background to the application and the history of the land. it was part of a larger area which had been purchased for housing purposes in 1959 by the former Hereford City Council under the powers of the Housing Act 1957 and was subsequently laid out as open space as part of the surrounding housing development during the 1970s.  In November 2002 the land was one of a number of open spaces included in a transfer of the Council’s housing stock to HHL. 

The report noted that the Committee, at its meeting on 12 August 2008, had rejected a previous application to register the land because it considered that, on the balance of probabilities, use had not been “as of right”. The Principal Lawyer  explained the reasons  in his report as to why he considered that use had been “as of right”, notwithstanding barristers’ opinions received by the Council were that use of the land had been  “by right” under an implied statutory permission.

Mr Whitmey presented the case for the applicants and explained the arguments contained in his written legal submissions, including case law and Inspectors’ reports into similar applications, which had been circulated to the Committee.  He believed that the land had probably been laid out as an open space under section 107 of the Housing Act 1957, rather than as a recreation ground under section 93.  Mr Whitmey considered that the public did not have a statutory entitlement to use open spaces laid out under section 107 and that use of the land over a period of twenty years had not been “by right” but “as of right”. Mr Whitmey considered that the circumstances of the application were similar to those in the case of Beresford v City of Sunderland 2003 where the House of Lords had decided that use of the land had satisfied the “as of right” test.

Ms Ellis QC, acting on behalf of HHL, explained her written legal submissions and other material that had also been circulated to the Committee. In her view it did not matter whether the land had been provided under section 93 or 107 of the Housing Act 1957 as either section would have provided the public with a right to use the land for recreational purposes, and so use would have been “by right” and not “as of right”.

Mr Whitmey and Miss Ellis QC also discussed how the Committee should proceed with the application pending the final decision in the case of Leeds Group plc v Leeds City Council which could have fundamental  ...  view the full minutes text for item 111.