Imagining evidence and ignoring the rest: where the Inspector’s report goes wrong (1)

The Inspector wrote a report back in March 2021, before he even asked for the evidence – he had mistakenly assumed he already knew all there was to know. In that report, the Inspector expressed the view that because he conducted a public inquiry in 2016 on the previous TVG application, ‘everyone must have thought’ that use had was no longer ‘as of right’ after that. Obviously we insisted that he should not have reached a view without seeing the evidence, but in his more recent March 2023 report (pages 13-44 on this link) he has remained wedded to that idea, saying that he did not think we were contesting it.

That was an extraordinary statement, since we had contested the idea throughout, and had attached a 24 page annex to our December submissions setting out all the evidence that proves him wrong on this. Those submissions are at pages 159 to 210 on the same link – the annex is at pages 180 to 203. Clearly he had not read our submissions thoroughly (or at all), and had not even looked at that annex. That’s just not good enough.

In his final Note (pages 222 to 226), the Inspector admits his error and apologises for that mistake but still does not deal with the evidence we put before him. Here are some of the facts the Inspector has ignored in order to maintain his position:

• The Council had no power under the lease or the law to change the day to day use of the land by its conduct at the public inquiry.
• BCC spent the next two years arguing FOR registration before the High Court. It said that ‘registration would reflect what has been the position on the land for at least the 20 year period prior to the application; it appears that the land has been used for a very long period for recreational purposes by the local community and the importance of the protection of recreational uses that arise from… registration should not be overlooked’. Why should anyone have thought that use was contentious, when BCC was arguing the opposite?
• The Council itself did not consider that it had ended ‘as of right’ use – both it and Cotham School say in their submissions that the school put up new signs on 24 July 2018 with the specific intention of ending ‘as of right’ use i.e. they thought use was ongoing up to that date. 
• The School asked the Council to issue a ‘landowner statement’ to end ‘as of right’ use in summer 2018. This only makes sense if both parties considered that ‘as of right’ use was still ongoing. BCC has told the Information Commissioner that it took legal advice and decided not to make a statement – so either it did not object to ongoing use or it thought 20 years’ use had already accrued. Either way, both parties thought ‘as of right’ use was still going on. The Inspector doesn’t even mention this hugely significant issue. Why not?
• Our evidence included, for example, Neighbourhood Partnership minutes from 2017 recording a decision to spend funds on installing a new dog waste bin – that would be patently absurd if local users thought that they weren’t allowed to use the field. But the Inspector has ignored all of this, as well as all the witness statements (which he never saw at all).

In his final Note, the Inspector admits that he made mistakes on this issue. He has changed position, and now suggests that a We Love Stoke Lodge sign displayed in mid-2018 may have indicated that tensions were heightened. But here’s the thing – that sign was not included anywhere in the evidence (because it wasn’t relevant to anything). It doesn’t mention anything about TVG applications or a public inquiry, so it doesn’t make the point he’s claiming. It actually talked about Cotham’s 2018 fence proposal, which BCC was also objecting to at the time! But even worse, the Inspector is drawing a conclusion based on what he imagines might have been on a poster that he hasn’t seen, while at the same time ignoring all the actual evidence submitted to him. 

It’s not difficult to see that the Committee simply can’t accept the Inspector’s conclusion on this – they have to consider the issues and evidence for themselves, and these make it clear that he’s got it badly wrong. This is an example of why a public inquiry was needed – it shouldn’t have been possible for the process to end up with a mess like this.