The Public Rights of Way and Greens Committee is faced with very unusual circumstances on Wednesday. The Inspector wrote a report in March which contained obvious errors that were challenged by the applicants – for example, he said that the applicants weren’t contesting one issue at all, when there was a whole set of submissions and a 24 page annex on that issue. Clearly he hadn’t paid any/enough attention to the applicants’ submissions.
In the face of our representations, the Inspector wrote a final Note – and this is what’s so unusual. The Note admits that he made errors (though he doesn’t attempt to rectify them). It still fails to deal with the evidence he missed out and makes up a new reason for one conclusion which (inexplicably and inexcusably) is based on a poster that the Inspector hasn’t even seen. The Inspector’s Note also recognises that he might have misinterpreted the key case that he was relying on.
That case is Winterburn (the one about the tiny car park in Keighley). He now says that ‘It is necessary for the Committee to take a view about this. If I were wrong, then the Avon County Council signs would have been ineffective’ – which means that the land should have been registered as a result of the first TVG application. Years of controversy could have been avoided. That’s quite a mistake to consider – and he says it is necessary for the Committee to decide this for itself. He also says, in relation to our evidence that the Council and the School had acquiesced in informal use throughout the relevant period, that if that argument is correct then ‘it follows that, on the face of it, the land should have been registered’ on the earlier application. But he wrote his report from a starting assumption that the Council ‘cannot have been acquiescing’ in informal use – his predetermined bias (which flew in the face of the evidence) clearly influenced his recommendation.
The Inspector apologises for ‘misunderstanding’ the fact that we didn’t accept his assumption that ‘everyone knew’ about the public inquiry in 2016 and that ‘everyone thought’ use of the field was contentious after that. It’s very difficult to see how he could have ‘misunderstood’ this if he had actually read our submissions thoroughly. Even now he hasn’t attempted to review the evidence on this (which includes the Council defending registration in the High Court – much more widely reported than his public inquiry! – and the school putting up signs in July 2018 with the express intention of ending ‘as of right’ use. And the words ‘landowner statement‘ don’t appear anywhere in the Inspector’s writings, despite this being a huge piece of evidence confirming that both the Council and the school thought ‘as of right’ use was still going on – so why should the public think any differently?)
The Inspector has now changed the basis for his conclusion on this issue, and is relying on what he imagines one poster might have said in mid-2018, even though he hasn’t seen that poster. Yes, this would be farcical if it weren’t so serious. He now says this is a matter of judgment, and we are sure the Committee will be able to exercise better judgment than this!
The Inspector then says ‘The decision of course remains that of the Committee and if they are persuaded for whatever reason that I have got the law wrong, they will so decide and resolve accordingly… Ultimately I am either right or wrong and they have to take a view about that. As to the interpretation of the facts, there may… be scope for greater disagreement. It is open to a decision maker to disagree with an Inspector’s finding as to facts’ – so long as they give reasons for doing so (which is the only element that wasn’t fully achieved in 2016).
Finally, he says ‘It is not for me to suggest a way through the law and the facts whereby [the Committee] might conclude that the land is registrable as a town or village green and for such a conclusion not to be challengeable in law; it is for the Applicants to do this if they can.’
We can, and we will.
We need to talk about Stoke Lodge 