An application for land to the rear of Gorsey Bank Primary School to be registered as a village green is finally due to be determined after more than seven years.
Local resident Chris Stubbs, on behalf of the Friends of Gorsey Field, submitted a village green application in March 2009, for the top field behind the school - which is bounded to the north by Alton Road and to the west by Gorsey Road.
Cheshire East Council, who own the land, objected to the village green application and decided back in 2010 that a non-statutory public inquiry be held which was expected to cost in the region of £15,000.
Mr Stephen Sauvain QC was then appointed to hold the public inquiry in November 2015 to determine the main issues - whether the land has been used for lawful sports and pastimes over a period of at least 20 years; whether that usage has been 'as of right'; and whether any usage as of right has been by a significant number of the local residents.
According to Mr Stubb's application the land is a village green because it has been used as of right for lawful sports and pastimes for a period of at least 20 years, by a significant number of the residents of Pownall Park. His application was accompanied by 96 user forms/statements.
Mr Stubb's application was based on use of the land for football, rugby, cricket, rounders, ball games and dog-walking, and also for dog training, picnics, cycling, kite and model aeroplane flying, sledging, berry picking, hide and seek, tag, bird watching, tree climbing, playing with children and general recreation.
In addition to Cheshire East Council, objections to the application were also submitted by the Governing Body of the Gorsey Bank Primary School. They have objected on the grounds that any use is not: by the inhabitants of a locality or neighbourhood, by a significant number of such inhabitants, use "as of right" and the uses claimed do not qualify as lawful sports or pastimes. 83 objections were lodged.
The Council's appointed independent expert, Mr. Sauvain QC, is recommending refusal of the application on the grounds that the land should not be registered as a village green for two reasons.
Firstly, there is insufficient evidence that the land has been used "as of right" for the requisite period of time by a significant number of inhabitants of the locality or of a neighbourhood within the locality. Secondly, that the registration of the land as a village green would be incompatible with the statutory purposes for which the land is held (education).
In this case the 20 year period is the period of 20 years immediately preceding February 2009, when a fence was erected to enclose approximately 60% of the claimed land and thereby exclude public use of it.
The inspector concluded that "Whilst the overall impression from the evidence is that there has been a level of usage which might have led a reasonable landowner to have realised that a town or village green right was being asserted, that actually only happened over the last 10 years or so of the 20 year period in question
"Much of that use (in the latter 10 year period) is attributable to a relatively small number of families mostly living on Alton Road. Accordingly, there is insufficient certainty, on the balance of probabilities, that even during this latter 10 year period there has been sufficient usage by a significant number of the inhabitants of the Pownall Park neighbourhood rather than from the inhabitants of one or two streets that are in the immediate vicinity of the land."
Regarding the earlier part of the 20 year period, evidence of use is taken primarily from user forms only, and Mr Sauvain QC was not content that those forms provide sufficient information to satisfy him that sufficient activity took place "as of right" on the land over the full 20 year period by a significant number of inhabitants of the neighbourhood.
His raised concerns that much of the activity described related to use of the land by right (and not "as of right") or with permission. He felt the uses described were most likely uses attributable to use of the footpath across the land or use in connection with trips to and from the school.
As a result Mr Sauvain QC is recommending to the Public Rights of Way Committee, who will meet on Monday 13th June, that there is insufficient evidence to support the application in respect of any part of the land - including the land that was not enclosed in 2009 - and it should not be registered as a village green.
Whilst Mr Stubbs has not made any observations on the content of the report to Cheshire East Council he has expressed a desire to understand why it has taken so long for this matter to be resolved.
In response, the Council's report states "The answer to that question is no more sophisticated than there having been a period of uncertainty as to where responsibility and funding for village green matters rested following local government re-organisation in 2009, in conjunction with a failure of this matter to rank amongst competing priorities. Both of those difficulties have subsequently been addressed."