[Electoral Division: Keswick]
To consider a report from the Executive Director – Economy and Infrastructure (copy enclosed)
Members considered a report from the Executive Director – Economy and Infrastructure which detailed an application to correct non-registration of common land at Thirlmere.
The applicant claimed that the application land was omitted from registration as part of the register unit CL413 Whelpside, Steel End, West Head, Armboth and Bleaberry Fells and had requested that the application land be added to that register unit.
The applicant also claimed that the application land was not at any time finally registered as common land or as a town or village green under the Commons Registration Act 1965 and that it was recognised or designated as common land by or under an enactment, that enactment being The Manchester Corporation Waterworks Act 1879, and thus satisfied the criteria specified in paragraph 2 of Schedule 2 of the Commons Act 2006.
The Commons Registration Officer took members through the report in detail.
One objection was received from United Utilities who was the owner of the application land. The Objection was duly served on the applicant in accordance with the 2014 Regulations and a response was provided by the applicant.
The officer took members through the objection and the grounds on which it was made.
The Commons Registration Officer reminded members that in line with Regulation 27 (7) an application may not be refused without first offering the applicant an opportunity to make oral representations.
On 5 November 2019 the officer wrote to the Applicant informing him that she was minded to recommend that the two applications concerning land at Thirlmere (CA13/19 and CA13/20) be rejected, outlining the reasons and inviting the Applicant to make oral representations.
The oral representations meeting took place on 21 November in the presence of Commons Registration and Legal Officers.
Following this meeting the applicant submitted further written evidence in support of his application. However, having considered the contents of oral representations and further written evidence, it was the officer’s opinion that, despite there being some evidence that suggested that at some point in the past the application land was common land, there was still insufficient evidence to prove a direct relationship between the application land and the 1879 Act.
The Commons Registration Officer was of the opinion that the evidence provided by the Applicant does not show on the balance of probabilities that the application land was recognised or designated by or under the Manchester Corporation Waterworks Act 1879 and therefore it should not be registered as common land under paragraph 2 of Schedule 2 to the Commons Act 2006.
Members asked for clarity on whether if the public continued to enjoy access to the land, and had done for a number of years, this gave it a status of common land.
The officer responded to say the this does not automatically mean the land was common land. She confirmed that she had considered all the appendices and a maps submitted and she could find no evidence that any of the land in question was recognised under the Act as common land.
One of the members asked whether access to the public was open all the way around Thirlmere, as he understood that some of the access was closed.
The officer replied to say that as far as she was aware that was a path around Thirlmere which could be accessed by the public, but that some of the land mentioned in this application that was currently fenced off.
One of the members said he had always been led to believe that there was no public footpaths around Thirlmere, due to the fact that this water was to be used for drinking water for Manchester. He was aware that there was a public viewing area at the top end and that it was possible to drive around the lake but he was not aware that it had public access to walk around the lake. He asked for clarification.
The Development Control Manager reminded members that there were separate tests, laws and legislation to deal with footpaths. The application before members today was only dealing with the Common Land aspect. The Lead Lawyer confirmed this was correct.
Upon conclusion of the debate the officer recommendation was moved, seconded, and put to a vote.
A roll call vote was taken with 15 votes for, 0 against and no abstentions.
RESOLVED, that the Committee rejects the application on the grounds that the land in question does not satisfy the criteria specified in paragraph 2 of Schedule 2 of the Commons Act 2006. It is considered that the Manchester Corporation Waterworks Act does not recognise or designate the land which is subject to this application as common land.