CARDIFF COUNCIL Agenda Item: CYNGOR CAERDYDD PUBLIC PROTECTION COMMITTEE 11th January 2011 ___________________________________________________________________ RUMNEY RECREATION GROUND : APPLICATION TO REGISTER AS A TOWN OR VILLAGE GREEN REPORT OF THE CITY AND COUNTY SOLICITOR Background

1. Mr Alun Michael MP made an application dated 8th January 2010 to the Council as Registration Authority under section 15 of the Commons Act 2006, to register the Rumney Recreation Ground as a Town or Village Green. A plan of the application site appears as Appendix 1

2. It is the statutory responsibility of the Council as the Registration Authority to consider the application and in the case of finding in favour of the application on legal grounds, to register the land in the Register of Town or Village Greens that must be maintained by the Council.

3. The responsibility of this function has been fully delegated to the Public Protection Committee by the Council 4. In recent years the Council has received several applications in respect of

other sites where the land was owned by the Council. In these cases the Council resolved to refer the applications for consideration at a non statutory public inquiry. Thereafter, the Council formally accepted the finding and recommendation of the Inspector because technically the decision making responsibility of the Council, as the Registration Authority, remains with the Council.

5. On the 6th July 2010 this Committee resolved that the application to register The Meadows as a Town or Village Green under the Commons Registration Act 1965 be considered at a non statutory public inquiry and that the Committee decide the application following the outcome of the inquiry.

6. The principal reason for this approach was that Council has dual roles in this case and those roles should remain separate so far as is possible so as to minimise any challenge. The Council is registration authority and must consider the application purely on the merits by applying the relevant law and in accordance with the principles of natural justice. The Council is also the landowner of the site.

The Issues 7. The City and County Solicitor instructed Mr Leslie Blohm QC as Inspector for

the non statutory public inquiry. The Inquiry was held over 3 days in September 2010. Mr Blohm’s Report is annexed in full as Appendix 2. Mr Blohm concluded that the application fails for the reasons set out in his Report. This means that the Council is not required to register the land as a town or village green.

8. It falls to the Committee to exercise its delegation to decide the matter on behalf of the Council as Registration Authority.

Legal Advice 9. The Committee must determine the matter and in doing so will have careful

regard to the findings on Mr Blohm’s Report. Members of the Committee are reminded that the Committee determined that the application be considered at a non statutory public inquiry and consequently it would be irrational in a legal sense not to accept Mr Blohm’s conclusions and recommendations in his report unless there were very good grounds for doing so. It is a matter for Committee but Members are advised to accept the report.

Financial Advice 10. The report recommends that the application be treated as a non statutory

public inquiry. There were costs associated with this that amounted to £20,920 for the inspectors fees and the cost of the venue of the Inquiry. These costs will be met from within existing resources

Recommendation 11. That on behalf of the Council as Registration Authority, the Committee

determine the application to register the Rumney Recreation ground as a Town or Village Green under the Commons Registration Act 1965.

Kate Berry City and County Solicitor 10th December 2010 The following Appendices are attached: Appendix 1 : Plan of the Site Appendix 2 : The Inquiry Report

IN RE: AN APPLICATION TO REGISTER LAND KNOWN AS RUMNEY RECREATION

GROUND ADJACENT TO NEWPORT ROAD, CARDIFF AS A NEW TOWN OR VILLAGE

GREEN UNDER THE COMMONS ACT 2006

REPORT TO CARDIFF CITY COUNCIL

Leslie Blohm Q.C.

St. John's Chambers,

101 Victoria Street,

Bristol,

BS1 6PU

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Contents

Page

1. Introduction 3

2. Application 3

3. Advertisement 5

4. Objections 5

5. Inquiry 6

6. Pre Inquiry Meeting 7

7. The Land 9

8. Evidence of ownership and appropriation 12

9. Oral Evidence – Applicants 17

10. Oral Evidence – Objectors 41

11. Documentary Evidence 46

12. Submissions 48

13. Burden and Standard of Proof 52

14. Findings of fact 53

15. 20 years user for lawful sports and pastimes 60

16. By a significant number of the inhabitants 60

17. Of the neighbourhood within a locality 61

18. As of right 61

19. Use by implied license 69

20. Section 15(7) Commons Act 2006 71

21. Conclusions and Recommendation. 72

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1. Introduction

I have been instructed to advise the Council of the City and County of

Cardiff as to the merits of an application to register land known as Rumney

Recreation Ground, Cardiff, and locally as 'Rumney Rec' or 'The Rec', as a

Town or Village Green (‘TVG’) pursuant to the provisions of the Commons

Act 2006.

2. The Application

An application dated 8th. January 2010 was made for the registration of the

land as a TVG pursuant to section15(2) of the Commons Act 2006 jointly by

the Rt. Hon. Alun Michael MP, the Member of Parliament for Cardiff South

and Penarth; Ms. Denise Taylor, and Mr. Mal Plenty. The land the subject

matter of the application was described as:

“Rumney Recreation Ground (also referred to locally by a variety of

terms including ‘Top Field’, Llanrumney playing fields, and ‘The

Leisures’.”

Its location is described as:

“Land bounded by Newport Road (B4487), Llanrumney Avenue and

Watchet Close as shown on MAP A”.

Map A in fact excludes from the area of the claimed TVG, which is shown

edged red, certain areas within Rumney Recreation ground. The areas

excluded are the leisure centre, playground, car park and hard and

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fenced sports courts. The Application identified the ‘locality’ or the

‘neighbourhood within a locality’ as:

‘Located in the old “Rumney Ward” of Cardiff which has more

recently been subdivided into the ‘new’ Rumney Ward and

Llanrumney. The land itself is in the Llanrumney Ward but borders

Rumney and is used by people from both wards.’

The Application attaches as Map B a plan showing the extent of the

neighbourhood. Map B shows the neighbourhood as an oval edged red

centred on the land. It extends as far as Church Road to the South,

Ridgway Road to the West, Ty-Fry Gardens on the East and Cannington

Avenue to the North

3. The basis of the application is the use of the land, for a period in excess of

20 years, by a significant number of the inhabitants of Rumney and

Llanrumney Wards, for sporting, recreational and social activities. The

Application also asserts that when the Leisure Centre was constructed by

the Council in the early 1980s, the Council assured the local residents that

there would be no further construction on the land.

4. Mr. Michael swore a statutory declaration in support of his application, and

also served 145 signed witness statements showing the historic use to which

the land has been put.

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5. Advertisement

The application was advertised on 11th. February 2010, and that

advertisement satisfied the statutory requirements for the advertisement of

an application that on its face satisfies the requirements for registration.

6. Objections

The land is presently owned by the City and County of Cardiff, and they

served a notice objecting to the registration of land. They have since

amended that notice of objection.

7. The Council’s amended objection raises three grounds of opposition to the

application:

(1) The first is that the land is held by the Council pursuant to the provisions of

section 19 Local Government (Miscellaneous Provisions) Act 1976, which

provides (in broad outline) for local authorities to be entitled to provide

such recreational facilities as they think fit. It is suggested that the

consequence of this is that informal recreational use of the land by local

inhabitants is not ‘as of right’, but 'by right' and that therefore the use of

the land by the residents does not satisfy the requirements contained in

section 15(2) of the 2001 Act. To put it shortly, that the Council should not

find that usage is 'as of right' where there was a pre-existing legal

entitlement on the part of the users to carry on such recreation; and the

Council say that such has been the case here, at all material times. I shall

call this the ‘by right’ argument.

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(2) Secondly, it is suggested that the notices erected on the land, together

with the regulation of the usage of the land by by-laws, leads to the

conclusion that local inhabitants were using the land by permission of the

Council. I do not think that the Council suggest that any of these notices

expressly indicate the giving of permission; the Council suggests that the

giving of permission should be implied. Again, where land is used by

permission of the landowner, that usage would not be usage ‘as of right’. I

shall call this the ‘license argument'.

(3) Thirdly, the Council points to the formal usage of the land. In the winter it is

laid out to 3 football and 2 rugby pitches; in the summer it is laid out to 3

baseball diamonds and these pitches occupy most of Rumney Recreation

Ground. They are used on weekends and in the winter evenings. The

pitches are also used by Rumney High School and Coleg Glan Hafren. This

use for team games takes place with the express permission of the

Council and a schedule of charges applies to use of the pitches. That

situation is say the Council, also inconsistent with user “as of right”, but not

with general public recreational use of the land “by right”. I shall call this

the ‘inconsistent usage’ argument. The Council did not however pursue

this argument in their closing submissions.

8. Inquiry directed by Council

The Council is both the body charged by statute with determining the

validity of the application for registration, and as the landowner it is the

body with a practical interest in ensuring that the application is refused. I

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shall refer hereafter to the Council when it is acting in its capacity as

statutory registration authority as ‘the Authority’, and in its capacity as land

owner of the land, and objector, as ‘the landowner’. In order to ensure so

far as is possible that there should be no criticism of the approach adopted

to determine the application, the Authority has appointed me as an

independent inspector to advise on the proper determination of the

application. I stress this point here. It is not for me to make the final

determination as to whether this application should succeed, or not. I have

been appointed only to advise the Authority as to what, in my opinion, they

should do. It will be for the Authority, considering my advice, and giving it

such weight as they think appropriate, to come to a final conclusion.

9. Pre-Inquiry meeting.

I directed that a pre-inquiry meeting be held on 28th. July 2010. At that

meeting the Applicants, together with some assistants, were present. The

objector was represented by Mr. Geoffrey Shimmel from the landowner’s

legal department. During that meeting I asked Mr. Shimmell whether there

were any challenges to the Application other than those contained in the

notice of objection. I was told that there were not. I was specifically told

that the landowner did not dispute that for the past twenty years preceding

the application, a significant number of the inhabitants of the area claimed

as a neighbourhood on the application had used the land for lawful sports

and pastimes. I was also informed that it was accepted that the claimed

neighbourhood was a neighbourhood for the purposes of the Act. Although

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the matter was not explored at the pre-inquiry meeting, it was plain to me

that these concessions extended only to the period of twenty years before

the application was made. As will be seen, that is a relevant matter as the

Applicant's case, on one basis on which it is put, depends in part on

establishing a qualifying usage going back in time as far as 1930, if not

further back. Subject to this, the only issue between the parties that would

arise as to the Inquiry, would be whether the usage of the land was ‘as of

right’, as required by the Act, or not. I asked the representatives of the

Council and the Applicants at the Inquiry whether that remained the case;

and they told me that it did.

10. I would add that the decision that the Authority will make will determine the

existence of an alleged public right, and will thus have consequences

which go beyond the entitlement of Applicants to use the land, or that

there will be an encumbrance on the land. Therefore, the mere fact that an

objector chooses to concede a point does not necessarily prove it, or

determine the issue. However, a landowner is usually the party with the

greatest interest in objecting to an application; and will also have good

knowledge of the use that has been made for land over the relevant

period of twenty years. Where such a landowner admits all or some of the

allegations made which make up the basis of the application, this will

normally be good evidence that the allegation is true.

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11. The Inquiry

The Applicants were represented at the enquiry by Miss Mair Coombes

Davies of counsel, and the landowner was represented by Mrs. Harriet

Townsend of counsel. I suggested at the outset of the Inquiry that, if any

members of the public wished to speak in support of or in opposition to the

application, they should liaise with the legal representatives most closely

allied to their viewpoint; and this appears to have been the procedure that

members of the public have adopted. Given the sophisticated nature of

the legal issues that have arisen, this has made the conduct of the Inquiry

much more straightforward than it otherwise might have been.

12. The Inquiry was held between the 21st. and 23rd. September 2010 at the

Llanrumney Library and Learning Centre, Llanrumney, Cardiff. I heard oral

evidence from forty two witnesses in support of the application, and two

against. At the conclusion of the Inquiry I held an accompanied view of the

land. I then heard closing submissions from Counsel.

13. The purpose of Inquiry has been to consider whether the matters set out in

section 15(2) of the Commons Act 2006 have been satisfied as regards this

application. The background to the application lies in the current intention

of the City Council to re-organise its local schools, and to construct a new

school on the land. That intention has provoked a sharp and strong division

of views, and those views were made plain in the course of the Inquiry.

However, as I made plain at the Inquiry it would be wrong for the

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Registration Authority to have regard to the general benefit, or otherwise, or

registering this land as a TVG, or alternatively of constructing a school on

the land, in deciding on the decision that it should take. So on coming to

this advice I have disregarded those views, and as I have indicated above

my advice to the Authority is that it must disregard any such views in

coming to its decision.

14. The Land

The Rumney Recreation Ground, of which the land the subject of the

application is 19 acres1 or 9 hectares in size. It is bounded to the South by

the A48 trunk road between Cardiff and Newport and to the North by

Llanrumney Avenue, one of the main vehicular access-ways to the

Llanrumney Estate. The Recreation ground is roughly semi-circular in shape,

with the flat diameter being formed by the A48. The Llanrumney Estate is a

substantial housing estate that was built by the local authority in the mid

1950s2, and the construction works included a shopping parade and

schools. The land slopes very gently away from the A48, but is flat enough

for sports pitches. It is generally grassed, with a screen of mature trees

around the perimeter of the site, and along the path that runs from

Newport Road to the Eastern Leisure Centre. At the time that I visited the

land it was marked out with three soccer and two rugby football pitches,

with associated posts. The Applicants have produced a helpful

1 The Applicants have measured the land as 20.32 acres. The precise size does not I think matter; the boundaries of the claimed TVG are clear. 2 I heard from some witnesses that some of the houses were self-built.

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comparative table of areas, which states that the Rec is in total some 23.77

acres; the built land not claimed as TVG is 3.45 acres; and of the remainder

there are two rugby pitches and three football pitches with a total acreage

of 7.59 acres.

15. The Eastern Leisure Centre, a local sports centre, was built in 1982. It lies in

the centre of the land, with vehicular access to the Centre from Llanrumney

Avenue. Other built areas within the recreation ground include a car park,

changing rooms, a small depot, a house occupied by a Council employee,

a playground, what is called a ‘teen shelter’ which is a skeletal metal

structure, a skate park and walled and floodlit hard-surfaced multi-use

games area.

16. The land is fenced against the A48 Newport Road, (with access at the mid-

point of the fence) but is otherwise open for pedestrian access.

17. There are four signs on posts spread around the perimeter of the land. They

say:

“No:

Motorcycling

Horse-riding

Beach Casting

Striking of Golf Balls”

On the external wall of the changing room block is a sign stating:

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“Rumney Recreation Ground. Outdoor Leisure Management Pitch

Booking

Line Tel:- 453734”

It is unclear precisely when the signs were erected. Those on the perimeter

bear the sign of ‘Dinas Caerdydd/Cardiff City Council’, but that is not to say

they did not replace signs present earlier. That on the Leisure Centre would

appear to have been erected at the time the centre was built.

18. The land the subject of this application comprises the entirety of the Rec, as

it presently exists, less the built up area but including the skateboard area

and the ‘teen shelter area’

19. Evidence of ownership and appropriation

The relevant history as appears from the documentation produced to the

Inquiry is as follows. Immediately before the Second World War, Rumney

was a village that lay within the boundaries of Cardiff Corporation, but on

the outskirts of the developed part of the City. In 1939 the Chief Officer

delivered a Report to the Corporation3 that noted that there were no

public recreational grounds in Rumney; the Estates Committee was asked

to secure a 10 acre plot if possible. This document to an extent contradicts

the evidence from a number of witnesses, to the effect that by this time at

3 Report to the Parks and Baths Committee, 21st. November 1939 [A/70]

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least the villagers were using, as they wished, a field owned by4 Squire

Williams, although it may have been the case that the Estates Committee

was having regard to the lack of land that it perceived the locals were

entitled to use, the Committee not having given thought to the technical

and at that time rather obscure matter of customary village greens5.

20. The Second World War then intervened, and the Corporation decided to

build a substantial quantity of new public housing at Llanrumney. This

development would require open space for public use by the new residents

of the estate, and it was intended that part of the land acquired for housing

purposes be turned over for use as playing fields. It may have been the

case that the fields presently comprising the land were made available for

sport and recreation by the then landowner, Squire Williams6. In 1948 an

order was made enabling the Council to compulsorily acquire the land,

and notice of intention to take possession was given for October 1950. The

purpose for which it was to be acquired was for housing purposes pursuant

to section 73 and 80 Housing Act 1936. In fact it appears that the

4 In fact it seems likely that Squire Williams was not the freehold owner, but the tenant for life of a settlement under the Settled Land Acts 1882-1925 in which the land was vested – see the recitals to the conveyance of this land. 5 The law was first put on a statutory footing by the Commons Registration Act 1965. Even then the law of Town and Village Greens remained a footnote, first gaining prominence in Steed v. Suffolk CC [1996] 75 P&CR 102 and more so after R v. Oxfordshire CC ex p. Sunningwell P.C [1999] 3 WLR 16-. See also the subsequent documentation referred to at footnote 5. 6 See the letter of 4th. January 2010 from the Misses Hobbs to whom it may concern, and the witness statement of Robert Green, para. 6; although Note the letter from the City Surveyor to the Town Clerk of 14th. May 1952 stating that ‘I have no records of the land referred to being used for purposes other than agriculture before 1st. July 1948’. There is a dispute in the inquiry as to the extent and location of the land used for recreation before the Second World War.

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landowner and the Council decided to deal with the matter consensually7,

and the land was within a parcel of approximately 711 acres conveyed by

Charles Crofts Llewellyn Williams to the Corporation by a conveyance

dated 1st. April 1952. Ownership of the land is now registered at HM Land

Registry under title number CYM484100, and the Council is shown as the

freehold landowner.

21. The housing was then constructed, and in October 1954 the Council

approved the appropriation of some 23.77 acres at Llanrumney from

housing to parks purposes. 'Appropriation' in this context refers to a decision

of the local authority to change the purpose for which it holds land at any

given time from one purpose to another.

22. At a meeting of the Estates (Sale and Acquisition of Land and Planning)

Sub-Committee on the 7th. October 1954 the following was recorded:

“3882 Llanrumney Housing Estate: Appropriation of land to Parks

Purposes – (paragraph 8608) The City Estate Manager submitted his

valuation of 23.77 acres of land to be appropriated from Housing to

the purposes of the Physical Training and Recreation Act 1937, in the

sum of £[illegible]. Resolved – That the valuation be approved and

that, subject to the approval of the Ministry of Housing and Local

Government and the Parks etc. Committee the appropriation be

effected in accordance therewith.”

7 See Recital (6) to the conveyance of 1st. April 1952.

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23. This was proposed and agreed at the meeting of the Parks, Baths and

Cemeteries Committee of 12th. October 19548 in the following terms:

“Appropriation of land at Llanrumney – The City Estates Manager

reported the terms on which he recommended that the appropriation

of 23.77 acres of land at Llanrumney from housing to parks purposes

should be effected. Resolved – That the recommended terms be

approved.”

24. The Council produced its terrier card record of its landholding. This

evidenced an appropriation from Estates to Parks Committee, the

Ministerial consent dated 29th. October 1954, a valuation of £8,650 made on

21st. September 1954 the resolution of the two committees and the fact that

the appropriation took place under the provisions of section 163 Local

Government Act 1933. I pause here to note first that the reference to

appropriation between committees indicates a misconception that is not,

in my experience uncommon in local authorities’ historic dealings with land.

The purpose of an appropriation is to enable a public body to change the

use of land from one purpose (for which the land has been held) to another

(for which it intends the land to be held). It is commonplace for such an

appropriation to cause the responsibility for the land to be passed from one

committee of the public body to another. The appropriation is however not

between committees, it is between statutory functions. This can give rise to

8 See Item 3458.

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difficulties where there is inadequate evidence as to what particular

function or use the land is being appropriated to, given that there is no

requirement of formality or some specific form of writing for a valid

appropriation9. In the present case however it appears from the

documentation I have referred to that the statutory purpose for which the

land was appropriated was for use as a public sports facility pursuant to

section 4 Physical Recreation and Training Act 1937. Secondly, section 163

Local Government Act 1933 was at the time the statutory power entitling a

local authority to appropriate land from one purpose to another. It has

been superceded by section 122 Local Government Act 1972 (as currently

amended).

25. In 1980 the Council approved the construction of a sports centre on the

Rumney Recreation Ground; that sports centre was to become the Eastern

Leisure Centre, and it was opened on 12th. July 1982.

26. I have been shown aerial photographs of the land dating from 1947

onwards. The earlier photographs are not particularly clear; and those from

1985 show sports pitches clearly marked out on the ground.

9 There is a statutory acquirement that the capital accounts of the authority are varied (section 24(1) Town & Country Planning Act 1959). Where the land being appropriated is public open space, then its planned appropriation must be advertised and the authority must consider the representations made to it as a result (section 122(2B) Local Government Act 1972).

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27. Oral Evidence - Applicants

I first heard evidence from Mr. Alun Michael MP. Mr. Michael wrote a

general letter 'To whom it may concern' dated 3rd. July 2008, and a letter to

Mr. Morgan, the Acting Chief Executive of the Council, on 15th. January

2010, enclosing his application and the substantial supporting written

evidence. To summarise his evidence in those letters, he had known of the

land since 1971, when a youth worker in the area. Many voluntary team

sports were played there - football, rugby, baseball - and the community

believed that the land was subject to the community's rights. The issue of

the location of the Eastern Leisure Centre was contentious. In the late 1970

Mr. Michael, who by then was a ward councillor, was also the chairman of

the Planning and Development Committee. Locals expressed the view that

building on the Rec would interfere with their rights over it, and might set an

adverse precedent. Local councillors accepted that the community had

such rights, and a consensus emerged that there would be no further

building on the land. Mr. Michael made the point that a local referendum

had overwhelmingly rejected further development on the Rec. The present

ward structure had at its centre the old Rumney Ward, which was itself

centred on the Rec. Mr. Michael wrote further on 12th. September 2010, in

which he said that he had been the local MP since 1987.That when the

consultation took place in 1979, opinions were expressed that the land had

been given to the community by Squire Williams; others that Squire Williams

had tolerated public recreation and encouraged it, by building a hut for

changing and paying for the local football team to have shirts in his colours.

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Investigation failed to reveal any covenant against building, but the local

community believed they had a right to carry out their recreation on the

land. The existence of signs forbidding specific use did not amount to

implicit permission for other usages. Indeed the reference to 'Beach Casting'

indicated that the signs were something of a job lot, designed for some

other, coastal or riparian surroundings. The fact that people ask to use the

Rec for team sports was simple politeness, and throughout there have been

many informal usages. Mr. Michael also criticised the decision and the

decision-making process of the landowner in deciding to oppose the

application. There was no evidence, or at least no evidence that was

presented to the Inquiry, that the Council had considered the matter at any

proper level. There was no 'due process'. Mr. Michael added orally that

individuals were not charged to use the facilities; only teams were charged.

Cross-examined, Mr. Michael said that the land was acquired by the

Council for housing and not for recreational purposes. Various documents

were put to Mr. Michael to demonstrate that the land was not being used

for recreational purposes prior to the acquisition by the landowner; or that

other land (and not the Rec) was historically used for recreational purposes.

Mr. Michael denied this. Dealing with the period up to the acquisition, Mr.

Michael said that the general view in the locality was that the land should

not be built upon; and that there was a perception that Squire Williams had

covenanted that the land should be for public use in perpetuity, such belief

emanating from the historic use of the land, although the City maintained

that the land was subject to no such restriction.

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28. I then heard from Mr. Mel Plenty. He was born in 1938 at 886 Newport Road,

and lived opposite the Rec for 15 years. He had lived in Ridgway Road

since 1974. In the interim he would return to visit his family. With his sister, as

a boy he would go on the field, play, pick blackberries, In the 1940s and

1950s the St. Mellon's Agricultural and Horticultural shows were held in the

land. Access to then field was never restricted. Football and cricket was

played there. There was a run-down old tennis court at the Highcroft end of

the fields. Access was from an open gate in Maxwell's Road, or through the

Shutes' market garden. The local scouts10, Rumney Brownies, Girl Guides

and the Methodist Church Boys Brigade used the field for instruction and

recreation. The Llanrumney Housing Estate was developed in the 1950s - it

was previously agricultural land. There was a carnival to celebrate the

Coronation in 1953, and in the 50s and 60s many summer fetes were held

there. In the 1960s Mr. Plenty played for Llanrumney RFC, playing some

matches on the field, and training there. Football and baseball took place

there in the summer. From 1974 to 1982 Mr. Plenty was group scout leader

of the 80th. Cardiff, 1st. Llanrumney (St. Cadoc's) Scouts, which group used

the western part of the field for recreation every Friday. On occasion the

seven local scout groups would hold inter-pack games there. By 1970's the

residents of the Greater Rumney area - the Trowbridge Housing Estate11, St.

Mellons, Rumney and Llanrumney - used the land, together with residents

from Marshfield, Castleton and Peterston. At the time of the construction of 10 49th. Cardiff, 1st. Rumney Scout Group. 11 Which I believe I have called the Llanrumney Housing estate.

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the Eastern Leisure Centre the Council pledged there would be no further

development of the land. There is and always has been a lot of informal

recreation on the land such as walking, dog walking. The land is the only

large available green area in the locality. The activities on the pitches do

not clash with local recreation, given that locals often enjoy spectating. The

usage has continued for more than a century. Mr. Plenty also filled in an

evidence questionnaire He told me that the Eastern Leisure Centre opened

in 1982, not in 1983. In his view the customary use of the ground has carried

on since the late 1800s The Council by-law signs are not displayed. Apart

from a period in the early 1980s he had never known the ground to be

closed for public use. Considering the photographs, there was regular use

by dog walkers from early morning until late at night. Mr. Plenty ran through

the historic photographs that were presented. One photograph was dated

28th. November 1947, and at that time an end part of the land was held

under lease by the Shutes. They grew root crops and sold them from huts.

There was fencing only at Newport Road’ and fencing on Shutes field. The

situation was different as regards the levels and location of population.

Everyone knew one another. Mr. Shute would allow people to use the

central path as a walkway. Mr. Plenty did not use it very often but when he

did, as far as I was aware, there was no restriction. The area around High

Croft Walk included a hut and a tennis court, a cricket square, 2 football

pitches. There were gaps in the hedges. People went wherever they

wished. His parents went there as did his brother and sisters. He used it

infrequently and went there with his mates. He walked his dog there. Other

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people used the area quite frequently. He was not aware of any signs in

the Rumney area preventing or restricting access to the land. No permission

was needed to play tennis. There was a gate to the court but it was never

locked. The fencing had been rolled up at the bottom, so there were gaps

underneath chain link fencing. He was aware that there is a booking

system for pitches, but said that most people were aware that the pitches

are used as people wish. Of the signs dealing with usage, two face into the

field. If you were gaining access you would not read the sign. Presently

there was very little maintenance provided outside the leisure centre. There

were no signs indicating ownership, although the signs show the council’s

logo. That is only show where the council owns land. There were no signs

showing that access is restricted. There are no by-laws governing usage.

29. Cross-examined, Mr. Plenty told me that in 1947 access was gained how to

the Shutes garden was from the western edge. The other access followed

the hedgerows. The land at Hedge Croft and market gardens was both

owned by Squire Williams. The market gardens was leased to Shute Bros.

Asked about the Llanrumney festival, he agreed it was the main organised

event there for the community. He could not think of any other organised

community events. He was not aware that the organisers asked permission

for the event. When the aerial photographs were put to him, he accepted

that only part of what is presently Rumney Rec was historically used by

locals before 1950; the rest of the land was market garden.

21

30. Mr. Robert Lee had written a letter dated 8th. September 2010. He was

born in 1941 and has lived all of his life in Rumney, presently living in

Ridgway, his parents having lived in Whitehall Parade and then The Walk;

he then moved to Maxwell Road. Lads used to muck around in the hut on

the field, which by the 1950s was somewhat dilapidated. On one occasion

in 1956 a professional footballer from Cardiff City, Stan Montgomery,

demonstrated his skills on the Rec. His school used the Rec for football

matches on a Saturday. There was a large hedge running across the Rec.

The Rec was extensively used by schoolchildren. He was not cross-

examined.

31. Mrs. Irene Thomas gave her evidence by a letter dated 13th. September

2010. She has known the land for over 70 years, when it was originally

Highcroft Field/Shutes Market Garden. She played on it with friends, without

permission, when she attended Rumney School on Wentloog Road.

Between 1945 and 1951 she would watch people play sports on it - tennis,

rugby and football. There were bank Holiday fetes, and occasional Horse

Shows. Mrs. Thomas' mother worked for Squire Williams, and he simply let the

locals use the field - he was that kind of man. Mrs. Thomas stopped using

the field in about 2000, through disability. She was not cross-examined.

32. Mrs. Olive O’Halloran is 79 and lives in Nevin Crescent. She moved to

Llanrumney with her family aged 17 to live in a new house on the estate.

22

People played sports on the Rec - it was a very social place. Mrs. O'Halloran

still walks there every day. She was not cross-examined.

33. Mr. Robert Watson who lives in South Witla Drive recalled visiting the St.

Mellon's Agricultural show and other similar events on the land. The land

was the centre of the recreational activity arising from the construction of

the Estate. As a teenager he and other played ball games there. Access

was unrestricted. Mr. Watson played rugby there in the 1950s and 1960s and

trained there/, as did other locals. When he had children, they played

there. He too was not cross-examined,

34. I then heard from the Misses Frances and Margaret Hobbs, who are sisters

who live at two addresses in Lyton Terrace. The elder was four and a half

when they moved to Rumney, the younger was two years old. In 1927

Rumney was a small country village. The land was essentially agricultural,

and landowners did not concern themselves with trespass (so long no

doubt as crops were respected). Shute's Market Garden (on the eastern

side of the Rec) extended to a point half way along the present Newport

Road boundary. Since the early years of the 1900s the fields (to the West of

the market garden) were used by the villagers from Rumney and St. Mellons

for organised sport and general recreation. No one asked for, or was given

permission for this use. In 1935 the Silver Jubilee of King George V and

Queen Mary was celebrated there. Usage has not changed much from

the 1920s to the present. They were not cross-examined on their evidence.

23

35. Mr. Tony Martin lives at Witla Court Road, Rumney. He has lived in Ruimney

since his family moved there in 1958, when he was 16, save for an 18 month

period when he was first married. He played cricket at the Highcroft end of

the Rec, without permission. No-one stopped him. They watched baseball

played there when it was popular, and football. They took their children for

walks there, both in prams and when they were older. They would

occasionally picnic there. Mr. Martin and his wife take their grandchildren

there in the same way as they took their children there. They also walk dogs

there. In 1980 they complained about the proposed construction of the

Eastern Leisure Centre; they regarded the Rec as (in Mr. Martin’s terms)

‘sacred ground’. He had known of the land from 1958, and had himself

used it since 1967. Cross examined, he told me that the Council had made

a promise to the local inhabitants that the construction of the Eastern

Leisure Centre would be the last major piece of construction on the land;

and that this promise had been made by Alan Michael, who was the local

councillor.

36. Mr. Henry Jackson of South View Drive, Rumney, told me that he first came

to use the land in 1958, playing rugby there and changing in the Royal

British Legion. He played rugby until he was 37. He also ran on the land for 3

or 4 times a week. His children used the land for games; they were born in

the 1970s. He had seen numerous forms of informal recreation being carried

24

out on the land – such as rounders, dog walking, community celebrations,

fetes, picnicking, kite flying, walking and cycling.

37. Mr. Robert ‘Bob’ Derbyshire lives at Newport Road and is 61. He was a

councillor for Rumney ward for two terms12 to 2008. He moved to Rumney in

1981, and his house overlooks the Rec. He and his family used the Rec for

walking dogs, having picnics, bicycle riding, roller skating and general play.

Other families did the same thing. The Brownies played there. He said that

the Llanrumney Festival had taken place for at least the last 20 years. The

land had been used constantly. Cross-examined, he told me that the

Brownies met at the Methodist church on Wentloog Rd. They played games

on the land. In the winter they would be in the hall. He told me what he

thought would be necessary had the land been adopted as a park. In

1981 all the parks had a park keeper. It was not managed as a park is. It

was managed as open space. There were not tended gardens. It was not

fenced off. With the land the council send officers in to cut the grass, or

mark out pitches. He had never been aware of staff based there in terms of

doing the management. He was a councillor for 9 years, and for the last

year he was chair of planning.

38. Mrs. Iris Dyer moved to Rumney on war service with the Land Army in 1944

and stayed until 1946, returning in 1949 to be married. In 1944 the receation

ground was the Eastern half of the current Rec, comprising a cricket field

12 I assume, six years.

25

and pavilion and the remainder a field with a tennis court. Mrs. Dyer

walked through the Rec twice a week. People played cricket there, and

families played ball games. The Western side of the Rec was developed in

the 1960s. The field was well used in the 1950s by sporting groups, and the

general public. There was an annual St. Cadoc’s fete and Whitsun treat

events. Cross-examined, Ms. Dyer told me that the St. Cadoc’s fete was last

held in the 1980s or 1990s possibly; usually in the summer.

39. Mr. David & Mrs. Theresa John gave their evidence together. They live at

Chard Avenue, They have used the Rec since childhood, and are now in

their fifties. They attended annual fetes, and with their family played

football, rode bikes and indulged in informal sports. They had picnics and

saw others doing the same. Mr. & Mrs. John still use the land for informal

recreation. Questionnaires 1/50, 1/60. Mrs. Johns also told me that she was

unwell, and uses the Rec both as therapy and for physiotherapy. She has

met a great number of people walking their dogs or socialising. They are all

just ordinary people enjoying the rec. It is used by and for the people.

40. Ms. Bernice Marjorie Neal is a member of the History Society. She referred to

a photograph of the ladies’ local hockey team13 - Rumney Hockey Club.

Her mother and aunt were shown, amongst others. Her mother played

hockey until 1937. They played on what they referred to as the Sports Field

on Newport Road. The photo dated from before 1937, and there was

13 [D66]

26

reference in a magazine in March 1931, produced in the area, referring to

the ladies hockey section. Cross-examined, Mrs. Neal told me she lives live

at Middle Newton Farm, which is in Rumney but not near the Rec. The

History Society did not write a letter in support of the application. Mrs. Neal

could not say when the land became known as the Rec. Her parents

referred to it as the Playing Field. Mrs. Neal told me that if ever she passed

along there as a child, that is where her mother used to say ‘we played

hockey there’.

41. I next heard from Councillor Heather Joyce, who spoke in support of the

application. Cross-examined, she confirmed that she spoke on behalf of

three ward councillors. She had not herself used the facilities for 40 years.

She was involved in the Llanrumney Forum. Each year they had a festival.

They had to book the day.

42. Mrs. Brenda Griffiths lives in New Road. She went to school in the area

between 1954 and 1970, and practiced her sports out of school hours on

the Rec. Many families had picnics there. Although she said she no longer

lives near the ground, Mrs. Griffiths takes her grandchildren to play there,

and indeed she takes Guide Dogs there to play. She commented that the

Rec was the only large green open space on the East side of Cardiff.

Cross=examined, Mrs. Griffiths told me that she had lived in Cheddar

Crescent between 1954 and 1962, having moved there when she was 10,

before moving to Burnham Avenue and then to her current address in New

27

Road. When they moved to Cheddar Crescent they referred to the ground

as both ‘Rumney Rec’ and ‘Playing Fields’.

43. Mr. Keith Jones lives at Parracombe Crescent, Llanrumney. He had used the

land for informal recreation without permission for 23 years; his family for

over 56 years. He was not cross-examined.

44. Ms. Janet Bowgen lives at Witla Court. Her recollection of the land

extended to the immediate post-war period. She would be taken to see

horse shows on the land, and for Whitsun Treats with Diamond Street

Chapel, as well as less formal recreation there. She said that ‘these

activities continued right up to the time that work began on building

Llanrumney Housing Estate’. The inference being that what had previously

been enjoyment of a large amount of rural land was thereafter

concentrated on to the Rec. She has used the land until the present date

for general recreation, sports spectating, and dog walking, on her own and

with her family. In 1950s her mother wanted a house on the land, but her

uncle (who was a builder) said he could not build there as there was a

covenant on it. Cross-examined, Ms. Bowgen told me that she knew of

Squire Williams. Her Aunt moved to a house at 40 Royal Avenue. It was she

said common knowledge that Squire Williams had given this land for the

benefit of the community, in perpetuity. Ms. Bowgen told me that she had

not in the early years seen games on the fields, nor could she recall it being

used for a market garden.

28

45. Ms. Geraldine Evans, who lives in Llanrumney Avenue, told me that having

known the area since 1954 it was drummed into her that the field was there

for the people. The Rec was the recreational space for the growing

community that was the Llanrumney Housing estate. Her father played

cricket there; she was stationed as the back or long stop. Over the years

she had 5 dogs and walked them around the Rec. She would pick up wood

there. The ground was never tended. The users looked after it. When the

leisure centre was built she and my father were hopping mad, and they

thought we would lose our kennel club, where we met with our dogs.

46. Mr. Dennis Griffiths lives in Llangwm Place, and previously lived in Rumney

Road. He had known the Rec since 1969 when he joined Rumney RFC and

played games there on a Saturday. The Council started charging a fee

when they put in changing rooms. A neighbour, who was 70, had told him

that it was a shame the Council compulsorily purchased the land when

Squire Williams used to let everyone use it for nothing. Mr. Griffiths took his

children and grandchildren to play there. He said that other clubs use the

Rec for training.

47. Ms. Joyce Pitman lives in Newport Road. She gave me the most detailed

and also historic account of usage of the land that I received orally in the

Inquiry. Her recollections were both vivid and in general pin-sharp. She had

known the Rec since she was born here in 1919. When she was a young

29

child the Rec was called the Sports Field. Although Ms. Pitman was born

next to the vicarage. She could not remember whether the churches used

it. During her very young days they had sports days there including athletics.

In later years the tennis courts were situated in the right hand corner of the

field near the main road. She agreed with what Mrs. Neal had told me

about the ladies hockey team, for whom she had played when she was

about 16. She recognised Mrs. Neal’s mother from the photograph14. She

played for them when they were short of numbers, and they played on

Saturdays. There was also baseball and soccer played on the land

(although i think it likely that baseball would only have been a post-war

recreation – Ms. Pitman may have been referring to rounders; see Mrs. Jean

Plenty’s evidence below). There used to be sports days, which was a big

event. Rumney she told me was in Monmouthshire until 1938, and Cardiff

schools would therefore not have used the Rec. The village school might

have used it, but she had left the local village school aged 11. She then

attended the High School at Bassaleg in Newport. During the war years Ms.

Pitman could remember Ball Road and Shute’s market garden. The road

was rather narrower in those days. Access to the Sports Field was via the

Newport side. There was no restriction on access, and Squire Williams was

not asked for permission – it was free. Between 1920 and 1945 it was always

well used with the tennis club, and football taking place there. Between

1945 and1950 Ms. Pitman could not say what happened to the Rec.;

Newport Road was called ‘Top Road’. There was no change in the pattern

14 D66

30

of people accessing the land up to 1960. People were free to use it as they

wished. There was lots of activity there, and there always has been.

Between 1960 and 1970 that activity continued. Ms. Pitman knew of the

construction of the Leisure Centre but I was not involved with it. She thought

the Rec was used in much the same way today.

48. Cross examined, Ms. Pitman told me that Squire Williams knew what was

going on; he lived at Llanrumney Hall. He participated in the events in

Rumney Village, and attended the British Legion dinners there. Ms. Pitman

could not say whether the land was used for agriculture during the war.

49. I then heard from Mrs. Angela Emes of Taunton Avenue. She had lived in

the area for thirty years, and she and her family had regularly used the land

for pleasure and for sport, as had others during that period, without seeking

permission. Her husband played for Highcroft RFC, and they still train on the

Rec. They paid for using the changing rooms, but not to play on the field.

Mrs. Emes was not cross-examined.

50. Madeleine Rosewell lives in Llanrumney Avenue and is 91. She moved to

Llanrumney in 1956. At the time the Rec was rather scruffy, with a stream

running through it15. There were historic hedges running through it, that were

removed in the 1960s. It was well used for families for dog-walking and

picnics, and indeed for horse riding in the early years. The Rec marked the

15 The route of the stream can just about be seen today, although it no longer flows.

31

boundary between Glamorgan and Monmouthshire at that time. Mrs.

Rosewell’s daughters also played on the land with Brownies and Guides. No

permission was sought. The land is used for informal recreation now as it has

been in the past. Mrs. Rosewell was not cross-examined.

51. Jonathan Atkinson lives in Llanrumney Avenue, having been born in 1955

Kewstoke Ave. His earliest memories were of playing in the Rec with his

friends, even camping there, and generally using the Rec daily, making

dens in bushes behind the old pavilion. There was a small stream running

across. It was always central to their little community. Mr. Atkinson’s

grandmother was born in 1882 in Splott; and died in 1985. She was a family

historian, and told him that the family would come out and have picnics on

the Rec. In the 1960s and 1970s the Rec was like it is now. The stream had

gone by then. The members of the Sunday School would go there as a

treat. Mr. Atkinson’s father taught there. No permission was sought, and

there was no attempt to prevent them from gaining access. No one ever

approached them.

52. I also heard from Mrs. Jean Plenty, who lives in Ridgway Road, She moved

with her family to Rumney in 1947, aged 9. She could recall the original

recreation field, which was by Highcroft House on the Eastern side of the

current Rec. She told me that the cricket pavilion was in a ramshackle

condition by 1947. She played informal games of rounders there, using

jumpers for bases. The other part of the Rec was at that time a market

32

garden run by the Shute family. She would go there with her mother to buy

vegetables. She referred to the great change that had come across the

area with the construction work in the 1950s. The roads were widened and

pavements were put in. The expansion was very rapid. Her family was one

of the first to move into the new housing. She recalled fetes in the 1940s and

1950s. Although she had moved away for 9 years in the 1960s Mrs. Plenty

visited her family in the area regularly. Having moved back, she used the

land for informal recreation. Today’s youngsters used the land in much the

same way as she did. Cross-examined, she said that she could not recall

the name of the annual fete, but it always took place on the August bank

holiday.

53. Mrs. Mary Holmes lives at Lynton Place. Her house had been one of the first

built on the Llanrumney Estate in 1953. Mothers from the new estate took

their children to the Rec for play. The Rec was always used for sport and

recreation by the local inhabitants. Mrs. Holmes was not cross-examined.

54. Graham King lives in Dickens Avenue, having moved to the area in 1959

when he was sixteen. He worked at the fairground on the Rec in the early

nineteen sixties,, between nineteen sixty two to nineteen sixty four. The Rec

was then an open field. The church ran fetes there – it was free. Football

was played on the land. The fair went on the land where the car park and

the childrens’ playground is now. Cross-examined, he could recall three or

four years of fetes and fairs. He was not responsible for booking places on

33

the ground. After 1990 the Llanrumney Association has had fairs there, but

he could not say if they were annual. He had moved back to Llanrumney in

1974.

55. Mr. Ray Connolly lives in Ty Fry Gardens; he is 79, and was born in Wentloog

Road. He recalled Rumney being a country village where children roamed

where they wished. Shutes market garden extended to a point just opposite

Claremont Crecent. The sports field was used for local sport and recreation,

up to Highcroft Walk. Cricket and football was played there during the war

years. The fields were extended in the nineteen fifties, Mr. Connolly had

used them since 1935. Still does, using them every day to walk his dog.

Cross-examined, Mr. Connolly told me that he played cricket and football

Informally as a child, and later for Rumney between nineteen forty eight

and nineteen fifty, and played football on the field. In nineteen fifty went in

the forces. After national service he played for a team called Pegasus.

Then he joined the British Legion (the air rifle section), and the group had

stands in fairs on the Rec for two consecutive years. The football team

trained in Squire Williams’ field. The home games were played mostly at the

top of St. Mellons’ Hill - that was (and is) not part of the Rec. Mr. Connolly

told me that the recreational land was not dug up during the war years, but

left open for games.

56. Philip Watson lives in Glastonbury Terrace [H187 Questionnaire H100]. He

moved to Llanrumney in the mid 1950s, and a church was set up. They used

34

to meet for Sunday School near his home. He recalled the annual fete,

which was a big event in the local community. Mr. Watson worked at

Rumney College, and organised the sporting teams for football, baseball,

badminton and cricket. The football and baseball teams all used the Rec.

Mr. Watson also played football for the college at the time16. There were

always decent crowds of spectators. The team played in a league, and the

team, the pitch and the players had to be registered with the league. He

had to pay ‘the bloke who opened up the changing rooms’ and the

referee. However, practice on the Rec was informal – they just turned up

and used it. It seems to me from Mr. Watson’s evidence that payment was

being made for the use of the pitch during matches, and that is what one

would expect. Mr. Watson also referred to his playing baseball for Witla

Wanderers for between six and seven years. In the early 1960s or 1970s it

became a regular feature that the Elders would play football on the Rec on

Boxing Day morning against the Youngers of the church, and they may

have gone back to the Church for recreation. This went on for many, many

years. Cross-examined, he thought the Boxing Day matches ran from 1963

or 1964 to the turn of the 70s.

57. Mrs. Christine Taylor lives in Patchway Crescent. She had known the Rec

since the early 1950s, and at that time would ride horses there, when it was

known as ‘The Common’. The horse riding ceased when the area was

developed. In the 1950s the area was very rural; afterwards the available

16 According to his questionnaire, this would appear to be between 1972 and 1980.

35

space (for horses) became smaller. Mrs. Taylor would watch her husbamnd

play rugby there, or watch baseball being played. The pitches were at the

Highcroft Lane end, and were separated from the rest of the Rec by

scrubby hedges. Her aunt and uncle helped run St. Cadoc’s fete, which

was a huge local event, and has now as Mrs. Taylor put it, been reinvented

as the Llanrumney festival. She took her children to play there, and now

takes her grandchildren there. Scouts would carry out their activities there.

There is a lot of informal sport on the land. She has never asked permission

to use the Rec. Cross-examined, Mrs. Taylor told me that St. Cadoc’s fete

took place in the mid to late 50s.The Llanrumny festival took place at some

time in the 1970s, over a week end. It was run by, St. Cadoc’s; the parish

people; and the local people. Four generations of her family had used this

field. Her mother-in-law was a parlour maid (live-in) and she was courted

around the field in the 1920s17.

58 Christine Baker lives in Oregano Close, in St. Mellons. She accepted that she

was a relative newcomer to the area in 2000. She wanted to use the Leisure

Centre, and had got to know and use the recreation ground over the past

5 or 6 years. It was useful for giving her guide dog a walk, to sit with her

friend in the sun, and have a picnic lunch there. The air and the green

freshness was both lovely and therapeutic. She is a regular visitor to the Rec.

She was not cross-examined.

17 This may be a local customary sport or pastime.

36

59. Mrs. Rachel Robjohn has lived in Rumney since 2002 and gave evidence

about the recreational use of the land that she has seen, and that her

family has taken part in. She was not materially cross-examined.

60. Mr. Mark Feneck lives at 32 Taunton Crescent,moving to Llanrumney in 1964

shortly after he was born. He played on the Rec informally with his brothers,

and he played rugby from his teens to his thirties. The club would train there,

but would not ask permission to do so. They trained there about twice a

month Since then he has jogged around the Rec regularly through the

week. He may cycle around it, or walk a dog there.

61. Mr. Glyn Harris has lived at The Walk, Rumney, since 1968, and lived at New

Road from 1937 to 1962. He confirmed that New Road Rumney is about a

mile from the Rec., in the direction of Newport. He attended Rumney Junior

and Senior School. and played cricket on a rather poor square near

Highcroft Walk. There was a tennis court there as well. Summer fetes and

horse shows were held on the fields. In the late nineteen sixties Mr. Harris

played rugby for Rumney RFC, on a pitch at the West end of the Rec. In

1981 he organised a Rumney Junior football team that played on the Rec

for about five years. Mr. Harris said (in his questionnaire) that he never

sought permission to use the land, and I take it that this applies to the

childrens’ football that he arranged. He was not cross-examined.

37

62. Councillor John Ireland lives in Whitehall Place, and has lived in the area for

forty five years. He has taken part in football, baseball and rugby on the

Rec, and has participated in carnivals there. He asserted his use was as of

right. He was not cross-examined.

63. Mr. Bob Watson had carried out an investigation into the public records

behind the compulsory acquisition of the land after World War II. He told me

that he had noted every minute of the Parks Baths and Cemeteries

Committee. It was left to conjecture as to what the documents

represented, and indeed whether the plot of land was acquired as

recreation ground. He thought that there might be other land that might be

relevant to that purpose, and being referred to, rather than the Rec. He

referred to a Minute 6743 of 8th. July 1947, which stated:

‘the TC18 reported that the petition of the Corpn. to the Lord Bishop of

Monmouth will shortly be submitted as to the actual use the ground will be

put to. The Burial ground was to be put to the use of Open Space.’

He had a copy of a relevant map, and I was handed an extract.

According to Mr. Watson, the parcel of land referred to in the minute

includes a former burial ground situated to the North West of Newport

Road, due South of Pen-yr-Heol and due North of Tredelerch. Immediately

inside the gates of the Rumney gardens to the left in connection with the

war effort was used as allotments, which coincides with some of the

previous evidence given. Also he was given to understand that there was a

18 Probably Town Clerk.

38

hut in the far corner at the police station end (as it presently exists). Cross

examined, he confirmed that the burial ground was never used; it was

consecrated.

64. I then heard from Cllr. Heather Joyce and Cllr. Derek Morgan who are

involved in the organisation of the Llanrumney Festival, Cllr. Joyce for the

last eight years. They confirmed that the giving of a bond had always been

required by the Council. They told me that the festival take place in the last

weekend in June, and it occupies that part of the Rec from the Eastern

Leisure Centre to Highcroft Walk. The football tournament is carried out on

the top pitch. In the summer there is baseball, both girls and boys. These

pitches are not situated on the same part of the Rec as the festival. There

had never been a clash of events. The first festival took place six or seven

years ago. The procedure was that they would speak with the manager at

the Eastern Leisure Centre as to when they would like to have it – they ask

for the ‘usual Saturday’. It would be up to the manager whether they were

able to use the Rec on that day. The ‘bond’ that has been referred to is the

same thing as the deposit. It was not payment for use of the land; it was

security against what might go wrong.

65. I then heard from Miss Kiera Bowgen, who lives in Southview Drive. Her

recollection of the Rec. goes back 21 years. Her grandmother used to tell

her stories of how she used to take picnics there. She – Miss Bowgen’s

39

grandmother, that is - was told that she could not have a house there as

the land could not be built on.

66 Mr. Jeffrey Bonsey of Oakwood Avenue, Pen-y-lan CF 23 9EZ then gave

evidence. He could remember the land as a cricket pitch opposite the big

house on Newport Road. There was a cricket pavilion on it. It was used for

hay making during the war. Mr. Bonsey’s first recollection was from the late

1930s. Once the hay had been cut they used to play cricket and different

things there. They could not use it until the hay was cut in the early summer.

After that he said they were just allowed to use it. According to Mr. Bonsey

Squire Williams was a kindly man who was very well regarded in the locality.

He let people do what they wanted on the land, so it seems to me that Mr.

Bonsey was referring to toleration, not the granting of permission.

67. Ms. Deborah Jane Howell of Uplands Road, Rumney, has lived there all of

her life. Ms. Howell used to do physical training train on the land. she had

investigated the history of the Rec., and had gone to the Glamorgan

Archives. There were no maps available relating to the dealings with the

land in the 1950s, and one could not see that the land was that this

procedure was referring to. Cross-examined, Ms. Howell told me that it was

the only field close to her that was usable for any sport.

40

68. Oral Evidence - Objectors

I then heard from Mr. Robert Green MRTPI, who is the Land Strategy

Manager, Corporate Services, of Cardiff City Council. Mr. Green produced

a statement dated 23rd. August 2010, and he also produced a quantity of

documentation and records in support of the landowner’s objection.

69. His evidence was that the documentation showed that the land was

compulsorily acquired by Cardiff Corporation in 1950, and had remained in

the ownership of the local authority through successive local government

re-organisations since. The original purpose of the acquisition was for

housing purposes with associated recreational and educational use in

accordance with sections 73 and 80 of the Housing Act 1936. According to

Mr. Green, this evidenced a clear intention on the part of the Council to

provide recreational open space for the public, and he said that the

authority of Green v. Minister of Health19 confirmed that any such

recreation ground was for the benefit of the general public as well as the

local residents. He accepted that there was probably recreational use on

the land before the Council’s acquisition of it in nineteen fifty, although he

thought there was photographic evidence of agricultural use in nineteen

forty four. Pitches were marked out on the land after its acquisition by the

Council. A Coronation Carnival was held on the land in June nineteen fifty

three, and a programme produced to demonstrate this. According to Mr.

Green, the Council appropriated the land to use under section 4 of the

19 [1948] 1 KB 34 (Denning J.)

41

Physical Training and Recreation Act 193720 in October 1954. The land has

continued to be maintained by the public at its expense, and is presently

maintained by the Council’s Parks Services as part of its Parks and Green

Spaces Regime. In Mr. Green’s view, usage by the public has been ‘by

right’ and not ‘as of right’. Mr. Green told me that the relevant documents

had been disclosed so far as they were available; there may be other

documents, but they had been lost. Mr. Green was quite confident (from

the acreages stated in the records) that the record cards produced related

to this particular piece of land on acquisition.

70. Mr. Green commented on Mr. Watson’s evidence, and suggested that the

reference in the 1949 minutes, would not have been for the land closer to

Cardiff suggested by Mr. Watson in his evidence, as it was a long way from

Rumney and was intended for later phases of the development. There was

no independent evidence that the Rumney Hill Gardens land was

allocated for playing field. It was more likely to be a reference to the

Llanrumney acquisition.

71. Cross-examined, he accepted that the Notice of Entry does not set out the

statutory power under which it was executed, but asserted that this was

evident from the other documentation does so. On being shown the

Llanrumney Housing Estate Development Charge Plan, which showed the

land coloured green, it was put to Mr. Green that this demonstrated that

20 Now section 19 Local Government (Miscellaneous Provisions) Act 1976.

42

the land was at that time being used for recreation at that time; Mr. Green

was unable to comment on this. Much of the cross-examination of Mr.

Green related to the inferences to be drawn from the historical

documentation that Mr. Green produced, and Mr. Green acknowledged

that he had little if any knowledge of the factual usage of the land, and no

direct knowledge of the Council’s dealings with it. He agreed that there

were no signs on the land indicating the existence of by-laws, or ownership

requesting land. Mr. Green told me that he did not believe the by-laws

were set out on the Council’s web-site. He took the view that the Council

know what the by-laws are; they assume other people will know as well. I

found this a rather surprising attitude. Re-examined, Mr. Green said the

documentation indicated that the land in question was appropriated for

housing purposes, under the powers contained in the Housing Act 1936, but

that it was intended to be for recreational use. I suggested to Mr. Green

that there was no evidence of any subsequent appropriation to the 1954

appropriation enabling the Council to change the use of the land so as to

construct the Eastern Leisure Centre. He agreed.

72. I then heard from Mr. Robert Jones, who is the Council’s Team Leader for

Operations within Parks and Sport. He has been employed by the Council

since 1979, and has worked his way up from the post of gardener. He set

out the physical extent and form of Rumney Rec, that I have set out

already, and the regular maintenance that is carried out on the land by

the Council. A Parks Games Attendant supervises the use of the changing

43

rooms, and pitches and facilities are booked through a computerised

booking system. Incidental use of the land for informal recreational

purposes is, according to Mr. Jones, an accepted part of the use of the

grounds in their function as public open space. The records show a listing

for ad hoc festivals etc., which are booked in advance. Mr. Jones was not

aware of any other events which were booked, and was not aware of any

un-booked events. The Council operates a booking system, which

necessitates the sending out of letters of confirmation to organisations who

book land. Amongst other documents produced was a letter dated 5th.

August 1995 giving a Ms. Baker permission to use ‘Eastern Leisure Centre

fields for your jazz Band competition.’ subject to compliance with the

standard terms and conditions applicable to the use of parks and open

spaces.

73. Mr. Jones produced various documents relating to the operation of the

ground. He produced photographs of the signs relating to use of the land – I

have already set the details of these out above. Mr. Jones also produced a

Council report for 1990 that contained the statistics for use over the year

1989/1990 at the Recreation Ground. There were 299 football events21, 70

rugby and 35 baseball events, plus such use as may have been made of

outdoor pitches by local Education Authority schools. The tenor of the

evidence, which I accept, is that insofar as there is any formal use of the

facilities and pitches, such use is regulated by the landowner, and takes

21 I am not clear what these units are – they may well be matches or simply bookings.

44

place on request by the proposed user, and a consequent factual consent

to that use by the landowner. The Council’s current website invites people

to involve themselves in leisure activities and recommends that users book

facilities in advance.

74. Mr. Jones also produced a letter dated 12th. February 1998 from Mr. R. A.

Jeffrey, Administration Manager, to Mr. G. Craven a Festival Committee

member of the Llanrumney Festival Committee. That referred to an earlier

telephone conversation between Mr. Craven and Mr. Tozer, and stated:

“I am pleased to confirm permission, subject to the following:

- Details of your public liability insurance should be provided before

the event.

- Access to the site for setting-up and dismantling purposes only will

be from the adjacent car park.

- Vehicles should not be parked on the grassed area.

- Any litter generated by the event should be collected and

disposed of...”

According to Mr. Jones, it has been custom and practice for letters of this

sort to be sent out, and various letters have gone out in the past years in

different terms, but to the same general effect. The letter that went out in

the year before was in the same form. Mr. Jones has been based at his

current location for the last ten years. There is a booking officer in his office.

He receives a copy of the application. The practice has certainly been the

same for the last seven or so years.

45

75. Mr. Jones also produced copies of the by-laws which were confirmed in

1970 relating to the use of public open spaces. The Schedule Part I to those

by-laws sets out a list of ‘Pleasure grounds with respect to which Byelaws are

made under section 164 of the Public Health Act 1875’. ‘Rumney

Recreation Ground’ is listed under that heading.

76. Cross-examined, Mr. Jones agreed that the cheque for the Llanrumney

festival used to be a bond that was (typically) not cashed.

77. Documentary Evidence

The documentary evidence that has been produced to the Inquiry falls into

two types. The first is contemporaneous documentation such as Minutes of

record, correspondence, plans and photographs. Much of that has been

referred to in the course of my summary of the evidence above. The

second type of documentary evidence is evidence of recollection from

people who did not attend, or who were unable to attend, the Inquiry. I

have been supplied with a large number of statements and questionnaires

from persons who wished to give evidence in support of the Application,

the majority of which were supplied together with the application. I take

their evidence into account in considering my advice in this matter. I bear

in mind that those witnesses have not been cross-examined on their

evidence, but I note that this is not an application, as some are, where any

great challenge has been made to the general tenor of the Applicant’s

46

evidence. So as I say I have read and taken that evidence into account. I

shall however make specific reference to some of that material.

78. I have been supplied with a letter dated 22nd. July 2008 from Mrs. M. P.

Griffiths, the leader of the Trowbridge Scout Group (83rd. Cardiff Scout

Group). She confirms that the local scout group has used the Rec

periodically and without permission over the past thirty four years.

79. Mrs. Sylvia Atherton, the Secretary to the Old St. Mellons Village Association

wrote on the 27th. August 2008 stating that members of the Association and

local residents had access to the land for more than 20 years, and the site

was the venue for the home games for league football matches for several

of the village teams. The playing fields have always been used as of right,

without secrecy, without permission and without force.

80. I have also been shown photographs of usage of the land in relatively

recent years, but before the dispute over TVG status or indeed the

construction of the school arose. Those photographs show the Llanrumney

fete, and they show exactly what one would expect to see on a substantial

piece of urban green land used for such a purpose.

81. The programme for the Coronation Carnival shows that this was a

particularly grand and well-organised event, concerning the immediate

47

locality. Those taking part included the 22nd. Cardiff Company (Rumney

Methodist Church) Boys Brigade. The heading to the programme stated:

“Saturday 6th. June 1953

Coronation

SPORTS AND CARNIVAL

at the

RUMNEY SPORTS GROUND

(Kindly loaned by Cardiff Corporation)”

82. I have been shown extracts from ‘Rumney and St. Mellons – A History of Two

Villages’ which was published in August 2005 by the Rumney and District

Local History Society. That suggests that the squire of Llanrumney Squire

Williams) made some of his parkland available at the Lodge field and the

recreation ground. The communities of Rumney and St. Mellons used the

fields and most of the gentry were very supportive. It also referred to a

football team clubhouse erected adjacent to Highcroft in about 1928.

83. Final Submissions

On behalf of the Applicants, Mrs. Coombes Davies submitted that the

evidence demonstrated that local inhabitants had used the land, or at

least part of it, for various games, as of right from about 1900 and

continuing to the date of the application. Since 1900 the use had been ‘as

of right’. Mrs. Coombes Davies accepted that if the legislature had created

a right for the public to use the land usage would be ‘by right’, and not ‘as

of right’; user which is ‘by right’ is permissive user, and hence not as of right.

The House of Lords in R v. Sunderland City Council ex p. Beresford [2004] 1

48

AC 889 did not decide whether in any particular case, as regards the

operation of any particular statute, user of land pursuant to that statute

would be ‘as of right’ or not. Use by local inhabitants before the acquisition

of the land by the Council in 1954 is relevant. If the Applicants can

demonstrate at least 20 years usage prior to the user becoming ‘by right’,

then the Applicants can rely on the provisions of section 15(7) Commons

Act 2006 to prove the relevant period or user. Mrs. Coombes Davies referred

me to the DEFRA Guidance Notes dated February 2007 which state:

“The new legislation ...ensures that where the landowner grants permission

for use of his land when there has already been 20 years use ‘as of right’

then the use continues to be regarded ‘as of right’ (so there is no time limit

by which you must make an application for registration unless the

landowner takes steps to challenge use).”

Mrs. Coombes Davies submits that the Applicants can, therefore, rely on 20

years usage ‘as of right’ prior to the acquisition of the land in 1954 in order

to satisfy the requirements of section 15.

84. The Applicants deny that it is possible to imply a license from the usage of

the land by the Council. The signage is inadequate for this purpose they

say, and there was no practical control of informal use of the land. They

also deny that where land is held under section 4 of the Physical Training

and Recreation Act 1937 the public thereby has a right to enjoy land for

recreational purposes. They suggest that (unlike section 10 Open Spaces

Act 1906) that statute does not expressly state that such a trust is created.

49

They also point to section 123(2A) Local Government Act 1972 which

indicates that trusts are created by section 10 Open Spaces Act 1906 and

section 164 Public Health Act 1875.

85. Mrs. Townsend on behalf of the landowners submits that section 15(7) of the

Commons Act 2006 is intended to protect a community from having its

application defeated by an unsought permission granted by a landowner

shortly before the application is made. It would be stretching legislative

intent to suppose that an application which would have failed in 2005

because of an historic permission would be treated as being successful in

2007 by virtue of section 15(7). It was suggested by Lord Hoffmann in

Oxfordshire County Council v. Oxford City Council [2006] UKHL 25, para. 18,

that (under the provisions of the Commons Registration Act 1965) if greens

were not registered by 31st. July 1970, such rights were extinguished.

86. Mrs. Townsend also argued in the alternative that the right that may have

accrued prior to 1950 cannot be the same right that continues, because

the neighbourhood that is being relied upon was not as a matter of fact the

same. The creation of the Llanrumney Housing Estate in the 1950s

demonstrated that, as did the later construction of Manorbier Crescent and

Maxwell Road. Wartime use was also unproven, as was user ‘as of right’

before the war. Mrs. Townsend also complains that the landowner had

limited knowledge of this perhaps sophisticated argument, and would want

further time to research its archival documents. As far as this last document

50

is concerned, it is my view that I must advise the authority on the basis of

the evidence as it is presented to the Inquiry. If the landowner is of the view

that there is further relevant evidence that has not been considered, it may

bring that to the attention of the authority.

87. As far as the basis of appropriation was concerned, the landowner

suggested that although the land was appropriated under section 4

Physical Training and Recreation Act 1937, the land ‘was, and was

managed as an open space within the meaning of the Open Spaces Act

1906, the Council being entitled to manage it under sections 10 and 12

Open Spaces Act 1906.’ Where user is ‘by right’, it is not ‘as of right’ citing

the decision of the House of Lords in R v. Sunderland City Council ex p.

Beresford [2004] 1 AC 889 per Lord Bingham (at para. 9), per Lord Scott (at

para. 30) and Lord Walker (at para. 87). Lord Scott thought it arguable that

section 10 would apply to land held ‘for the purposes of recreation’. Lord

Walker thought the position would be the same if the land had been

appropriated for the purpose of public recreation.

88. As a matter of evidence, the land was acquired for recreation ancillary to

the intended creation of a new housing estate. The use proposed was open

space within section 10 of the Open Spaces Act 1906. It was suggested that

the landowner only became obliged to provide the land for public

recreation when it was appropriated under the 1937 Act. The passing of by-

51

laws also indicated that the landowner was bound to allow the public to

use the land for recreational purposes.

89. Alternatively, the use is generally by permission. Those who hold fetes and

those who pay for facilities have been granted express permission. The

existence of by-laws indicates that user is permissive. The fact that the locals

did not know of them is immaterial. The landowner has regulated the usage

of even informal recreation on the land. Usage of land by permission of the

local authority is necessarily permissive, as the council may appropriate the

land to a different use.

90. I also heard a final written submission from Mr. Watson. He stressed that

there has been public use for the last 75 years. He criticised the decision of

the landowner to build a school on the site, and to oppose the application.

91. Burden and Standard of Proof

The burden lies on the Applicants to establish each element of the test set

out in section 15(2) Commons Act 2006; that is, that the land has for (subject

to specific exceptions) been used for twenty years ending with the date of

the application, as of right, for lawful sports and pastimes, by a significant

number of the inhabitants of a locality or a neighbourhood within a locality

– see R v. Suffolk County Council ex p. Steed (1996) 75 P & CR 102 at 111 per

Pill L.J. Although Pill L.J. stated that each element must be ‘properly and

strictly proved’, this requires simply that they must be proved on the

52

balance of probabilities, by evidence. The evidence that can establish

these facts need not be direct oral evidence; it can be proved by way of

documentation, and also by inference from that evidence (see R v.

Staffordshire County Council ex. p. Alfred McAlpine Homes Ltd. [2002] 2 PLR

1). However it does require evidence; it cannot be derived from mere

benevolence or goodwill towards the aims of the Applicant.

92. Findings of Fact

I deal first with the credibility of the oral witnesses that I heard. In my view

none of the witnesses that I heard from were anything other than honest

witnesses. It was not suggested otherwise. I have no doubt that all witnesses

were doing their best to recall matter of fact. I do however bear three

points in mind. First, in view of the legal arguments that have been

deployed in this case, it has been necessary to investigate matters at a

further remove than the mere twenty years that is typical in such

applications. Although one marvels at the recollection of senior citizens, at

such length of time there is always a risk that memory may not be perfect.

Secondly, as have said above, this is a case where local feelings are strong.

It is possible that recollections may unwittingly favour one particular

outcome rather than another. Thirdly, the dispute in this case turns on what,

to most people, are rather arcane and unusual concepts. For example,

even the most skilled of lawyers can have difficulty in defining what is usage

‘as of right’ and what is usage ‘by right’. To ask witnesses to give evidence

against the backdrop of such concepts can risk either confusing or over

53

simplifying matters. In these circumstances documentary evidence from the

time in question may be particularly helpful in assessing oral evidence.

93. I therefore turn to my factual conclusions in the Inquiry.

(1) It seems to me likely, on the balance of probabilities, that Squire Williams as

the landowner of the land which became the Rec., made the land

available to the local communities for recreational use at the turn of the last

century. I come to this view based on the oral evidence of usage in the

1920s and 1930s; the evidence of the tennis courts and pavilion - somewhat

dilapidated by wartime - that must have been erected at an earlier time;

and the evidence of local reputation of Squire Williams as a benefactor in

this regard. I have paid particular attention to the contents of the local

Historical Society’s handbook in this regard.

(2) The extent of the land the subject of such usage is approximately to the

East of the Eastern Leisure buildings and the path that runs from Newport

Road to it.

(3) I have found it more difficult to come to a conclusion as to whether the

usage during this period was ‘as of right’ or not. There is no direct evidence

available from anyone who dealt with Squire Williams or (more likely) his

land agent. There is no contemporaneous documentation which refers to

the gift or permission, whichever it be. Although there is reference to school

teams playing on the cricket square, there is no evidence as to whether

there was any arrangement as to what the agreement might have been, if

there was one. I think it highly unlikely that at the time that usage

54

commenced, or when formal games were played there, the local

community would have been much concerned as to the terms of the

arrangement. There are I think four matters which lead me to conclude that

the usage that Squire Williams allowed would have generally come about

through permission, and not mere toleration. First, had Squire Williams

intended to make a permanent gift of a recreation ground to the local

community, it seems likely that this would have been attended with

formality. If one bear in mind that many memorial community facilities were

being created over this time, a gift would surely have been recorded and

publicised. Secondly, Squire Williams was not so philanthropic that he

wished to work anonymously. When the football team was permitted to use

the land, it had to wear his racing colours. That may have been a simple

gesture as a response to generosity however. We do not know. Thirdly, it

appears to have been the case (see the conveyance to the Council dated

1st. April 1952) that Squire Williams was not the owner of the fee simple

absolute in possession of the land. He was a tenant for life, and the land

was held under a strict settlement pursuant to the Settled Land Act 1882.

Squire Williams (and his land agent) would have known that he was a

trustee, entitled to enjoy the land whilst he was alive but holding it for the

benefit of future generations under his trust instrument. The consequence of

this would be that he could not simply give the land away. Fourthly, it was

clear from the evidence that the land was used for various different types of

function – cricket, football and tennis – and some were seasonal. There

were facilities and land for each. Yet there was no evidence that as far as

55

those sports were concerned, there was any body that regulated the use of

the land. The inference must be that Squire Wiliams did so. Insofar as there

was any formal use of the land – whether by schools or by clubs – this would

have been the main use of the land at the time. I accept that there would

have been some informal use, but the majority of the usage would have

been formal use. I do not think it necessary for me to go into the interesting

issue as to whether section 15 of the Commons Act 2006 can apply to land

that is held by a tenant for life or other limited owner, although I incline to

the view that it can. As I have indicated above, the burden lies on the

Applicants to establish that the user it relies upon is user ‘as of right’. I

conclude that they have not established that the historic user that took

place before the Second World War was user ‘as of right’, and that they

have not as a matter of fact shown that such user as took place was not

user by license. On the evidence adduced the likelihood is that there would

have been an agreement between Squire Williams and the particular

organisation that used the land under which they would have been

permitted to use it, and I conclude that such user was, in general, pursuant

to an express license.

(4) The Sport Field was not used for agriculture during the Second World War,

but a hay crop was taken from it.

(5) The Council acquired the land, along with much other land, from Squire

Williams in 1952. It did so pursuant to its powers under the Housing Act 1936,

for the purpose of constructing the intended Llanrumney Housing Estate

together with ancillary works. At the time it seems to me likely that the

56

Council intended that the land (being the former Sport Field and the Shutes

market garden) would be used as public open space ancillary to the new

Housing Estate.

(6) At the time of the acquisition the area was very different from that which it

was subsequently to become. It was a rural village, but was to become to a

large part urban and residential in outlook. Whereas Sport Field had been

bounded by Newport Road, a large house, and fields, after the

construction of the estate it would, as the applicants witnesses have

described, a green island in a built up area. The consequence of this is that,

as a matter of fact, the neighbourhood that used Sports Field prior to 1952

was not the neighbourhood that used it afterwards, or that is relied upon by

the Applicants in this Inquiry and application. It is plain that in enacting

section 15 of the Commons Act 2006 Parliament has not defined what a

neighbourhood is, and that description has itself been described as a

deliberate imprecision – see per Lord Hoffmann in Oxfordshire County

Council v. Oxford City Council [ ] at [ ]. However, although it seems to

me that it is possible for the boundaries of a neighbourhood to vary over

time, it is a matter of fact and degree as to whether any given change is so

great and extreme, and the change of character and identity so noted, as

for a neighbourhood at one time not to be the same neighbourhood as

exists in the same locality at another. In my view the neighbourhood relied

on by the Applicants for the twenty year period prior to their application is

not the same neighbourhood as existed and made use of the Sport Field

prior to 1952.

57

(7) By resolution in 1954 Cardiff Corporation appropriated the land the subject

of this application, and the land presently covered by the Eastern Leisure

Centre, to the purposes of section 4 of the Physical Training and Recreation

Act 1937.

(8) At all material times since 1952 the land has been used for formal team

sports such as rugby football, association football, cricket and baseball;

local organised community use such as the Coronation Carnival in 1953, the

St. Cadoc’s fete, and the Llanrumney fete; and informal recreation and

sport including walking, dog walking, having picnics and general family

recreation and games.

(9) The formal team usage has been regulated and controlled by the Council.

It provides and maintains the pitches, and decides who is to use the pitches

at any given time. Schools and teams will contact the Council and ask to

use a given pitch at a given time. Although there was no evidence as to

how pitches are to be allocated, it is almost certainly on a first come first

served basis. I have read correspondence passing between a rugby club

and the Council in which the club sought to negotiate for a change of

pitch, it appears unsuccessfully. The point however is that the Council

decided who used which pitch.

(10) Where formal community use of the Rec is required, the organisers have

asked the Council. The programme for the Coronation Carnival in 1953

made it plain that was so, noting that the Rec had been ‘loaned’ by the

kind consent of the Corporation. Equally in more recent times the organisers

of the Llanrumney fete have enquired as to whether they can have ‘the

58

usual Saturday’. The correspondence such as it is indicates expressly that

the Council has given permission for such usage. The Council has required a

bond, or protective security, as a term of such usage.

(11) Although there are by-laws which purport to govern the use of the land,

these have not been drawn to the attention of the users of the park. Given

that it is highly unlikely that they can be enforced without knowledge of

their terms, in my view they are not material in considering the nature of the

usage made of the land by local inhabitants.

(12) it is common ground that the five notices referred to earlier are visible from

the land. Access to the Rec is easy, and there are no effective barriers save

for the metal railing fronting Newport Road alone.

94. Before I turn to the legal analysis and the conclusion to be drawn from

these facts, I should consider the relevance if any of any promise by the

Council or Mr. Michael in 1980 or 1982 as to the Council’s intention not to

further develop the land in future. It is evident that, at the very least, local

residents were left in 1982 with the understanding that there would be no

further development on the Rec. As Mr. Michael I think fairly recognised,

that can have no direct bearing on the outcome of this Inquiry. A local

authority may not fetter its ability to act by representation or promise,

except where that is permitted by statute. Such a promise is a statement of

intention, and unless it amounted in law to an actual dedication of land as

a Town or Village Green (and I would add, I do not think it did) it can have

no effect on the status of the land. If it was a promise it was a political

59

promise, not a binding one. In any event, it is not a matter that the

Registration Authority can have regard to in determining this application.

95. 20 years user for lawful sports and pastimes

I am in no doubt that the land has been used since 1952 for lawful sports

and pastimes, and is still so used. Informal use such as walking, rambling,

dog walking etcetera falls within this definition – see R v. Oxfordshire County

Council ex p. Sunningwell PC [ ]

96. By a significant number of the inhabitants

This too was not disputed by the landowner. A ‘significant number of the

inhabitants’ of an area in this context means sufficient usage to indicate to

the landowner that what is being asserted is a general right, not a

succession of trespasses. It must be such number as would indicate to a

reasonable landowner that the right in question was being claimed by the

inhabitants of that locality – see R. v. Staffordshire County Council; ex. p

Alfred McAlpine Ltd. [2002] EWHC 76 at para. 77 per Sullivan J. – per

Sullivan J.22. The evidence is plain and pretty universal that the land is

presently the main open recreational space for the surrounding urban

areas. Certainly insofar as the area claimed by the Applicants as a

neighbourhood is concerned, the test is in my view satisfied.

22 Now Sullivan LJ.

60

97. Of the neighbourhood within a locality

The applicants rely on the establishment of a ‘neighbourhood within a

locality’ of an oval area centred on the land, approximately three times as

long as the land is, and three times as wide as it is. Ms. Townsend has

accepted on behalf of the landowner that this area is sufficiently cohesive

to constitute a ‘neighbourhood’ within section 15 of the Commons Act. In

view no doubt of that concession there was relatively little evidence from

those who gave oral evidence as to the nature of the neighbourhood. It

seems to me, in the light of the landowners concession, that this area is one

which, on balance, the Authority should find is a neighbourhood.

98. ‘As of right’

This is the main area of dispute. Usage is traditionally regarded as ‘as of

right’ if it is without force, secrecy or stealth. It has been commented that it

is really use that is ‘as if of right’ – with the appearance of being entitled to

carry out the usage. Relatively recently, and particularly in the context of

TVGs, Courts and Registration Authorities have considered that there is a

further requirement to add to that definition, that the usage must not be ‘by

right’. To put it another way, the whole doctrine of usage ‘as of right’ exists

to create a legal right or status where none existed before. It explains why

people did what they would otherwise have no right to do. So, in the case

of a right of way that is claimed to exist by long usage, if it is the case that

the owner already had been granted a formal right of way, even one

which will expire at some short time in the future, there will be no need for

61

him to rely on his alleged right by long usage. In the same way, if the public

in this case had a right to use the land for recreation, then their usage

would be by reference to that right, and not ‘as [if] of right’. The difficulty for

the Applicant in these circumstances is that the right that the Council

asserts the public has is a temporary one, which they can bring to an end.

In contrast, if they can establish a TVG, then the Council may not, in

practice, either be able to bring it to an end or to act inconsistently with it.

99. I did not understand Miss Coombes Davies to argue that if user was ‘by

virtue of an existence right’, it would nonetheless be ‘as of right’. In my view

the comments of the members of the House of Lords in R v. Sunderland City

Council ex p. Beresford [2004], although not binding (as the parties did not

argue the point, it did not form part of the decision) is strongly persuasive

that user which is ‘by right’ cannot be ‘as of right’, and in my view that

analysis is sound. It follows that the next question is whether the public had

any pre-existing right to use the land or not.

100. In order to prevent user being as of right in this way, the Council has to show

that it held the land for such a statutory purpose that its use by local

inhabitants, in the manner in which they used it, would not have been a

trespass – or to put it another way, that they had a right, albeit not

necessarily a permanent right, to use it in the way they did, when they did.

62

101. It is often thought that local authorities own land in trust for their local

inhabitants. In general, they do not. Local authorities are subject to what is

sometimes referred to as a ‘trust in the higher sense’23, namely a duty to act

properly and in the best interests of those whose lives they affect. But this is

not a trust in the conventional legal sense of a relationship that gives

enforceable rights regarding specific property to persons who are the

beneficiaries of that property. So the mere fact that local authorities are the

owners of land, does not necessarily mean that local inhabitants are

entitled to conduct informal recreation on it.

102. Local authorities must, in general, acquire and thereafter hold their land for

a specific statutory purpose. There is an exception to that principle in that

that purpose may change from time to time, but the changing of the

purpose of landholding, a concept known as ‘appropriation’, has to

comply with the statutory rules and powers that enable local authorities to

appropriate land. Those rules have changed over time, but are to be found

at present in section 122 Local Government Act 1972, as amended.

103. The original acquisition of the land was under the Housing Acts 1936-1949.

The Housing Act 1936 contained powers [permitting the construction of]

land as ancillary recreational grounds provided - sections 73 and 80 ibid..

The landowner has submitted that land held under these sections is held on

trust for the public, relying on the decision of Denning J. in Green v. Minister 23 See Tito v. Waddell (No.2) [1977] 2 WLR 496 at 595-7 per Megarry V-.C. in the context of the Royal Preogative.

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of Health [1948] 1 KB 34. I do not agree that the statute or the authority has

that consequence. Those sections of the Housing Act give power to a local

authority, when it is exercising its Housing Act powers, to acquire land other

than for housing, which purposes are ancillary to the purpose of providing

housing. They here enable the local authority to provide land for the

purpose of public open space which is ancillary to the housing being

provided. It does not oblige them to provide public open space for the

general public, or for anyone outside of the housing that is being provided.

Green v. Minister of Health decides that the exercise of such a power is

valid notwithstanding that members of the public may in fact derive a

benefit from it – in that case, through the provision of a public house to

serve the estate. As a public house is a common calling, it could not turn

away the general public. In the present case it would have been open to

the Council to make the land available only to the residents of the estate

(difficult though that would have been to enforce) or to the general public.

It would not have obliged the Council to make the land available to the

general public. It follows that the public’s usage would not have been ‘by

right’ simply by reason of the fact that the land was held under the Housing

Act 1936.

104. The land is now held for recreational purposes under s.4 Physical Training

and Recreation Act 1937, now enacted in s.19 of the Local Government

(Miscellaneous Provisions) Act 1976.This section (as amended) provides:

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19 Recreational facilities.

(1) A local authority may provide, inside or outside its area, such

recreational facilities as it thinks fit and, without prejudice to the

generality of the powers conferred by the preceding provisions

of this subsection, those powers include in particular powers to

provide—

(a) indoor facilities consisting of sports centres, swimming pools,

skating rinks, tennis, squash and badminton courts, bowling

centres, dance studios and riding schools;

(b) outdoor facilities consisting of pitches for team games,

athletics grounds, swimming pools, tennis courts, cycle tracks,

golf courses, bowling greens, riding schools, camp sites and

facilities for gliding;

(c) facilities for boating and water ski-ing on inland and coastal

waters and for fishing in such waters;

(d) premises for the use of clubs or societies having athletic,

social or recreational objects;

(e) staff, including instructors, in connection with any such

facilities or premises as are mentioned in the preceding

paragraphs and in connection with any other recreational

facilities provided by the authority;

(f) such facilities in connection with any other recreational

facilities as the authority considers it appropriate to provide

including, without prejudice to the generality of the preceding

provisions of this paragraph, facilities by way of parking spaces

and places at which food, drink and tobacco may be bought

from the authority or another person;

and it is hereby declared that the powers conferred by this

subsection to provide facilities include powers to provide

buildings, equipment, supplies and assistance of any kind.

(2) A local authority may make any facilities provided by it in

pursuance of the preceding subsection available for use by such

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persons as the authority thinks fit either without charge or on

payment of such charges as the authority thinks fit.

(3) A local authority may contribute—

(a) by way of grant or loan towards the expenses incurred or to

be incurred by any voluntary organisation in providing any

recreational facilities which the authority has power to provide

by virtue of subsection (1) of this section; and

(b) by way of grant towards the expenses incurred or to be

incurred by any other local authority in providing such facilities;

and in this subsection “voluntary organisation” means any

person carrying on or proposing to carry on an undertaking

otherwise than for profit.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Any property which, immediately before the date when this

subsection comes into force, is held by a local authority for the

purposes of section 221(b) of the Public Health Act 1936 or

section 4 of the Physical Training and Recreation Act 1937 or, in

pursuance of section 144(1)(b) of the Local Government Act,

1972, for the purposes of recreation shall on and after that date

be held by the local authority for the purposes of this section

(6) In section 222(1) of the Public Health Act 1936 (which relates to

charges in respect of any baths, wash-house, swimming bath or

bathing place under the management of a local authority) for

the words “washhouse, swimming bath or bathing place” there

shall be substituted the words “or washhouse”.

105. On its face, this provision does not obviously confer any right on the

members of the public to use the facility that falls within it. The local

authority’s obligation is contained within section 19(2) which provides that

it:

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“……may make any facilities provided by it in pursuance of the

preceding subsection available for use by such persons as the

authority thinks fit either without charge or on payment of such

charges as the authority thinks fit”

The issue here is whether the public has an immediate right to use the land.

In my opinion, it does. Subsection (1) gives the local authority power to

‘provide’ a recreational facility. That is a power, and not a duty. It need not

do so, but if it does exercise that power, then without more the facility so

provided is one that is available for public use. That is the whole purpose of

the section. If sub-section (1) stood on its own, acquisition of land pursuant

to that function would create an implicit entitlement on the part of the

public to use the land for recreation, and such recreation would include

informal recreation or ‘lawful sports and pastimes’ as referred to in section

15 Commons Act 2006. The position would be, in my view, analogous to

that arising under section 164 Public Health Act 1875 in which public

authorities have the power to lay out pleasure grounds for public use. It is

implicit that the public has a correlative right to use the land – see Hall v.

Beckenham Corporation [1949] 1 KB 716 per Finnemore J.. Subsection (2)

regulates the basis upon which such land that has been provided is to be

made available. It gives the local authority the power to regulate the

public’s use of the land, either by imposing terms, or by imposing charges. It

does not in my view give the local authority the right simply not to operate

the power, and hence to prevent the public from enjoying the land.

Although the wording is that the local authority ‘may’ make facilities

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available, in my opinion this properly means that it must make them

available but may impose restrictions as to terms or charges.

106. In the present case the Council ‘provided’ the facility when it appropriated

it from housing purposes to the purposes arising under the Physical

Recreation and Training Act 1937. It marked out and no doubt constructed

the pitches. To the extent that the local authority has not imposed

restrictions, and it has not done so as regards those who use the land

informally, then in my opinion they exercise their usage by right, and not as

of right. It is a recreational facility, authorised by statute, and the public is

consistently using it for recreational purposes.

107. I would add that this conclusion accords with common sense. Not all

facilities are fenced stadia, and an open recreation ground would in most

cases be regarded as, by reason of a local authority’s statutory powers and

duties, available for sensible and proper public use consistent with the

nature of the property save insofar as the council direct to the contrary.

108. Mrs. Townsend suggested that some of the obiter dicta24 of the House of

Lords in ex p. Beresford were wide enough to be applicable whenever local

authorities held land ‘for public recreation’. That may be an arguable

approach, but there is no reasoning in Beresford to justify those dicta, and I

24 Or ‘words’. This is lawyer’s latin for part of a judgment that is not an essential part of it, but a non-binding comment.

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think that it is better to advise the Council by reference to the particular

words of the applicable statute.

109. In the further alternative Mrs. Townsend submitted that where land was held

under section 19 of the 1976 Act, then the local authority could nonetheless

exercise its powers under 12 of the Open Spaces Act 1906 and that in those

circumstances section 10 (which creases a trust) comes into force. On that

basis the land would be held on an express statutory trust for the benefit of

the public (see section 10 ibid.), and user would certainly be ‘by right’.

110. In my view this argument is not correct. Where land falls within section 12 of

the 1906 Act, the local authority then has the powers set out in section 10,

such as the power to lay out and maintain the land. It does not operate the

other parts of section 10, which relate to the creation of a trust.

111. Implied License

In the event that the usage of the land was not pursuant to statutory right, it

would be necessary to turn to the issue of implied license. The oddity of the

present case is that some use by members of the neighbourhood was

undoubtedly by express license, and one must therefore consider what the

effect of that, and other circumstances, is.

112. In ex p. Beresford the House of Lords accepted that a landowner could

seek to establish usage of land could be by way of implied license.

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However, the case also established that such license must be implied from

overt acts on the part of the landowner that is inconsistent with usage by

reason of the existence of a TVG. Anything else would be mere toleration or

acquiescence, and that would not prevent user from being as of right. In ex

p. Beresford the acts relied upon were the cutting of grass, and the

provision of benches for spectators. The issues here, therefore, are first

whether there are overt acts on the part of the landowner from which a

license might be inferred; and secondly whether those acts are sufficient to

give rise to an implied license. They will only be so if they would have plainly

indicated to a reasonable person using the land in the manner asserted

that such usage was by way of license.

113. The matters which might give rise to an implied license are the following:

(1) The creation and marking out of sports pitches;

(2) The maintenance of the land;

(3) The erection of regulatory signage on the land;

(4) The granting of licenses to sports teams for the formal usage of the pitches

and the ancillary changing facilities;

(5) The creation, and administration of the Eastern Leisure Centre as a physical

part of the Rec.;

(6) The granting of periodic license as regards formal community use of the

land.

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114. These are all overt acts on the part of the landowner. Some of them are

inconsistent with the existence of a TVG, and in my view these are the

licensing of pitches for formal team sports for local teams, and the licensing

of the local fete, both the St. Cadoc’s fete and the Llanrumney Fete. There

was a discussion in submissions as to the nature of the bonds that have

typically been required of the Llanrumney Fete. In my view that is a term of

the license under which permission to use the land was granted. If the user

was not by way of license, then the Council would not have been entitled

to demand such a bond, and its requirement by the Council and its

provision by the organiser of the fete is good evidence that the relationship

between the Council and the fete was one of licensor and licensee.

115. Some of the activities relied upon, in particular the maintenance of the

land, is equivocal as between use as of right and use by way of license.

However, what in my view is particularly important in these circumstances is

the extent of permissive user by many local groups over many years. There

are five pitches providing facilities for local clubs as regards a number of

different sports in summer and winter. Usage by all of those sports is

licensed, and would, if thought about, be regarded as licensed by the local

authority. The incidental usage of the land by spectators would be ancillary

to the license granted to use the pitch. Although the land that is the subject

of the TVG registration excludes the built area, in my view a reasonable

person looking at the land would see that the buildings and built form is part

of the whole. Any person who has been aware of the site since 1980 would

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be aware that the Eastern Leisure Centre is not part of a village green, or

ancillary to public rights, but a facility constructed by a local authority

pursuant to its statutory powers, and regulated either according to statutory

provision (section 19(2) Local Government (Miscellaneous Provisions) Act

1976, or by way of simple license. That, in my view, would colour the views

of the reasonable observer in these circumstances. My conclusion is that

the reasonable informal recreational user of land, in circumstances where

this dispute had not arisen, would appreciate that his or her usage was

implicitly pursuant to the license of the landowner, and capable of being

withdrawn if the landowner so chose; and, being a local authority, decided

to do so in its view of the public good.

116. Section 15(7) Commons Act 2006

I turn lastly to this provision, which Miss Coombes Davies relies upon to

defeat arguments that since 1952 the usage by the local inhabitants has

not been ‘as of right’, but permissive. I do not think this argument can

succeed for the following reasons:

(1) If user is ‘by right’, then it is not by way of license. I bear in mind that in

Beresford Lord Walker said that user by right (there, pursuant to the Open

Spaces Act 1906) was akin to a ‘statutory license’ but that seems to me to

be a figure of speech. The license that section 15(7)(b) refers to as being

‘granted’ is a consensual or possibly unilateral license, not a right in the

nature of a trust arising from the operation of a statutory power.

(2) The neighbourhood relied upon did not exist in 1952.

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(3) The user was not sufficiently demonstrably ‘as of right’.

117. Conclusions and Recommendation.

My conclusion is that the Authority should decline to register the land as a

Town or Village Green. The reason is that user relied upon has not been as

of right, being pursuant to a statutory right alternatively by way of an

implied license.

118. Lastly, I would like to extend my thanks to all parties and their

representatives, and to those members of the public who either gave

evidence or attended the inquiry to listen, for the courteous, polite and

indeed generally good spirited way in which they permitted the inquiry to

be conducted. I would also wish to record my thanks to Mr. Stephen Ham of

the Authority, who arranged the venue and carried out the administration

of the Inquiry with unobtrusive skill and efficiency.

Leslie Blohm QC

St. John’s Chambers,

101 Victoria St.

Bristol,

BS1 6PU 9th. December 2010

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