APPLICATION TO REGISTER LAND AT APPENDIX BYEOMANRY DRIVE, CLOTHALL COMMON, BALDOCK

AS A NEW TOWN OR VILLAGE GREEN

_________________________________________________________

Report

Introduction

1. I have been appointed by Mr Andrew Lacock, the Secretary to Hertfordshire County Council, to hold a public inquiry into an application by Mr CM Bryan and 18 other individuals to register land known as “The Field”, Yeomanry Drive, Baldock, Hertfordshire as a town or village green; and, following the inquiry, to prepare a report for the County Council with a recommendation as to the disposal of the application.

2. Hertfordshire County Council is the commons registration authority for Hertfordshire. The application is dated 27 November 2003. There is one objector to the application, North Hertfordshire District Council, the owner of the land. Its formal Objection is dated 17 February 2005. The public inquiry was held in the Church Hall, Baldock on 8, 9 and 10 November 2006 and 11 and 12 December 2006. I carried out an accompanied site inspection on 12 December 2006. At the public inquiry the Applicants were represented by Mr Geoff Hollands, Solicitor, and North Hertfordshire District Council by Mr Richard Ground of counsel. I am grateful for the help they and their teams gave to the inquiry. I am also grateful for the efficient administrative support given to the inquiry by the County Council’s team, headed by Mrinalini Rajaratnam.

3. A list of those who gave oral evidence to the inquiry is at Appendix 1.

4. For completeness, I should indicate the reasons for the delay between the application and its consideration at a public inquiry. First, the County Council had to consider the validity of the application with particular reference to the fact that the site had been fenced before the application was made. Second, having decided that the application was valid, its further consideration of it was overtaken by the process of the determination by the courts of the case of Oxfordshire County Council v Oxford City Council and Robinson. On 24 February 2005, the Court of Appeal decided that use supporting registration as a town or village green had to continue until the determination of an application by the registration authority. On this basis, on the face of it, it would seem that the application in the present case was bound to fail because, as I have noted, the site had been fenced.1 The Court of Appeal’s decision was the subject of an appeal to the House of Lords, but the North Hertfordshire District Council objected to the application being further deferred. On 10 October 2005, the application was rejected by the County Council. That decision was the subject of judicial review. The County Council subsequently accepted that its decision on 10 October 2005 was a nullity because officers did not have delegated powers to make a decision and, in the light of this, by consent, the application for judicial review was withdrawn. This occurred on 10 July 2006. As its original decision had been a nullity, the County Council accepted that it still had to make a decision in respect of the application. On 24 May 2006, the House of Lords had allowed an appeal against the decision of the Court of Appeal and held that the relevant use need only continue until

1 Even if that fencing had not been effective to prevent continuing use - and, as will be seen, there are factual issues about this - it would have been open to the landowner at any time to take steps which would have made any continuing use not as of right (and thus defeat the claim).

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the date of the application for registration.2 Accordingly the fencing of the site was not the “knock out blow” it had been perceived to be in October 2005 and a non-statutory public inquiry was arranged further to consider the application.

Relevant statutory provisions5. The term town or village green is defined by section 22 of the Commons Registration

Act 1965, as amended by section 98 of the Countryside and Rights of Way Act 2000. Relevant to the current application is third limb of the definition, which defines what is called a class [c] town or village green.3 This is defined in section 22 (1A) of the 1965 Act, as amended:

Land falls within this subsection if it is land on which for not less than twenty years a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports and pastimes as of right, and either-(a) continue to do so, or(b) have ceased to do so for not more than such period as may be

prescribed, or determined in accordance with prescribed provisions.

6. No regulations were ever prescribed under paragraph (b). It will be seen that there are accordingly essentially five requirements for fulfilment of the definition, namely: use for not less than 20 years; by a significant number of the inhabitants of any locality, or of any

neighbourhood within a locality; for lawful sports and pastimes; where that use has been as of right; and is continuing.

The issues7. In the present cased it is not disputed that in recent years the land has been used for

lawful sports and pastimes4. However in order to establish 20 years use, the applicants need to establish that use began on or before 26 November 1983. North Hertfordshire District Council contend that, at that time, the land was subject to an archaeological excavation, which precluded its use by the public. Accordingly much of the evidence which I heard focused on this issue. A second issue relates to the end of the claimed 20 year period. As I have said, the site was fenced in October 2003 i.e. there was a period of about a month after the site was fenced but before the application was made. I was told that, despite this fencing, use of the land did continue; North Hertfordshire District Council contended that any such use was not as of right.

8. There are two further issues which I need to consider. What I shall call the third issue relates to the evidence of Mr Fitzpatrick-Matthews given on behalf of North Hertfordshire District Council He suggested that there was no use of the application site for lawful sports and pastimes in the period immediately after the archaeological dig on the site, i.e from 1986 until 1990. The fourth issue concerns matters relating to locality and neighbourhood.

2 The decision of the House of Lords is reported at [2006] 2 AC 674, and that of the Court of Appeal at [2006] Ch 43. The case is often referred to as the Trap Grounds case (from the name of the application site).

3 The three limbs are invariably described, respectively, as class [a], [b] and [c] town or village greens. This practice is derived from the Notes to Form 30 contained in the Schedule to the Commons Registration (New Land) Regulations 1969 (SI 1969 No 1843).

4 Mr Ground, for North Hertfordshire District Council, accepted, for the purposes of this application, that the site had been used for lawful sports and pastimes between 1990 and the erection of the fencing in 2003.

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9. I shall consider each issue in turn. Before doing so it will be helpful to set the scene by describing the application site and the area surrounding it.

The application site and surrounding area10. The application site is an area of rough grass of something less than 2 acres in extent

(ie about 0.75 hectares). It is located towards the north western corner of an area known as the Clothall Common Estate. This is a housing estate which was built during the 1980s. The first houses on the estate had been completed and occupied by 1983, which is the date with which I am concerned.

11. The Clothall Common Estate lies on the eastern edge of Baldock, not far from the railway station. The south western boundary of the application site is formed by a footpath running in NW-SE direction. Immediately opposite the application site, on the other side of the footpath, is a primary school, Hartsfield School. West of the site is an area of older housing which focuses on three roads: the picturesquely named California, and then Grosvenor Road and Grosvenor Road West.

12. When I saw the application site it was fenced by a chain link fence, but that fence had been broken down in a number of places and the site was freely accessible.

Issue 1: did the presence of an archaeological dig on the application site at the beginning of the relevant 20 year period preclude use of it by local people for lawful sports and pastimes?

Introduction13. The application site supported by a statutory declaration by Mr Bryan in the prescribed

form and also by eleven evidence questionnaires. Subsequently, at the beginning of 2004, a further 134 evidence questionnaires were submitted. The statutory declaration is, as one would expect, uninformative as to the use of the land, but the evidence questionnaires all address the use of the land in the years prior to the application and, in many cases, the use of the for a period of 20 years or more. Only one of the questionnaires mentions the archaeological dig. This is the questionnaire completed by Mr Colin and Mrs Jean Salter who in answer to the question

Do you know of any community activities that take place or have taken place on the land?

replied

Archaeological dig.

14. In answer to questions

Have you ever been prevented from using the land? If yes, when and the reason.

they replied:

(a) Yes - part when [the] archaeological dig was taking place, blocking some parts of the land at the time.

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15. I suspect that the reason that the archaeological dig was not mentioned in the other questionnaires is `that many local people had forgotten about it. However the Objection of North Hertfordshire District Council made it clear that it considered that the archaeological dig did preclude access to the site at the beginning of the 20 year period:

Between 1980 and 1985 the portion of the land to which the village green application relates was the subject of extensive archaeological investigations, during which it was completely fenced off and not accessible to any members of the public.

16. In the light of this objection, the applicants submitted 23 additional evidence statements. These, which are all signed, are in a standard form. They state:

At no time during the period of archaeological excavation that took place on the Field was the land fenced off. It remained, at all times, available for public use. Some trenches near paths had temporary stake type fencing along some sides.

Local people continued using the Field during this period of time.

17. I heard oral evidence from 10 witnesses on behalf of the applicants. Of these, 8 spoke to the period when the archaeological dig was being carried on. That evidence may be taken to be accurately summarised in the additional evidence statements.5

18. For its part, North Hertfordshire District Council relied upon the evidence of Mr Keith Fitzpatrick-Matthews, its Archaeology Officer. Mr Fitzpatrick-Matthews, who has an honours degree from the University of Lancaster, has held his current post since 2004. However he had previously worked for the District Council as an archaeologist between November 1985 and September 1990. Accordingly he was able to give evidence as to the site from his direct knowledge for the period from November 1985 until September 1990. As regards the period before 1985, the Council relies on its written and photographic records of the excavation, which are extensive.

19. It would be helpful to have had a clear understanding of the nature of the site before the archaeological dig, but this was not forthcoming. Most of the land upon which the Clothall Common Estate was built was arable land but there seems to have been a portion of land which now forms part of the site and which was not farmed itself, being crossed by a track leading from the back of a tree belt lying at the rear of California to the footpath: see Document 1, taken from the air in the summer of 1976. Document 2 clearly shows this site in panoramic view from the air of Baldock, also taken in the summer of 1976. I do not know whether this part of the site might have been separately mapped by the OS because no historic OS maps were produced to the inquiry. Mrs Davis and Mrs Nash explained that it was rough ground or scrub land (see below). It may be that its function was just to provide space for the track which crossed it - it remains a puzzle as to why it was not incorporated (at least in part) into the adjoining farm land.

Evidence on behalf of the Objector20. It is convenient first to consider the documentary evidence relating to the

archaeological excavation on the site which was submitted by the Objector. It is helpful to consider this evidence together with the oral evidence of Mr Fitzpatrick-Matthews because Mr Fitzpatrick-Matthews seeks to explain and interpret that documentary evidence - both from his own expertise and also from his knowledge of the site.

5 I shall of course consider this evidence in detail in due course.10

21. Included in the papers submitted to the inquiry was an extract from Chapter 2 of a forthcoming publication called Excavations at Baldock 1978-1994 edited by Mr Fitzpatrick-Matthews and Gil Burleigh. At p29 it contains a helpful plan indicating the location of the various archaeological excavations which took place between 1978 and 1994 (Document 3). The excavation with which the inquiry was directly concerned is shown marked 1980-1985. The features excavated on the site are shown on a further plan which Mr Fitzpatrick-Mathews produced (Document 4). This site is described in an unpublished draft of the Report of the excavation relating to the iron age materials discovered. The description reads as follows:

Area 1 was selected in 1980 to investigate a large square enclosure with a causewayed entrance centrally placed along the western side, around which other features appeared to be orientated. In 1981 supplementary work was undertaken with large scale work to the west being carried through in 1982 and concluded in 1983. The area covered part of a road and most of a cemetery and a complete solution hollow that proved extremely fruitful. 1984 and 1985 saw work extending the area north and south in order to complete the examination of secondary enclosures, roads, and cemetery. In all c.6400 square metres were excavated.6

22. Area 1 is broadly coterminous with the application site. However, the position is not that the whole area was stripped of topsoil and then remained open for a period of six years while archaeological investigations were carried out. Instead, the area that was open was different in different years. The different areas that were opened and the years in which they were excavated are shown in Document 5.

23. The only direct evidence I had that Area 1 was fenced as to full extent of its boundary was the oral evidence of Mr Fitzpatrick-Matthews. He said that the whole of Area 1 was fenced with chestnut paling fencing when he started work on 11 November 1985 and that thereafter to his knowledge team members (including himself) made weekly checks on the integrity of the fencing. He said that this continued until April 1986 when the remaining excavated areas were backfilled, the site accommodation moved and the fencing re-erected around the new area to be excavated (which was immediately to the north of Area 1 as having been excavated between 1986 and 1989).7

24. Mr Fitzpatrick-Matthews said that fencing around the whole site would have been first put up in May1980. In the contemporaneous log or diary that was kept of the excavation records is found the following entry:

Fri 30 th May . Cloudy, bright and warmer. Completed erecting fence on Area One.

25. However in the log for 1981 is the following entrySunday 5 July 1981. Warm, dry, cloudy sunny periods. With NHAS members erected fencing around Area One.

26. The reference to NHAS is to the North Hertfordshire Archaeological Society. It would seem that whatever fencing had been erected in 1980 had been dismantled; in which case this would seem to be a reference to its re-erection in the same or a different location.

27. There is also apparently a reference to fencing in the Supervisor’s Weekly Report for the week ending 12 October 1984 as follows:

6 The same description appears in an unpublished draft of the Report of the excavation relating to Roman materials discovered, but omitting the reference to the extent of the excavation.

7 The new area which was excavated is shown on Document 3.11

Site boundaries made secure for holiday period.

(There was apparently a holiday for the workers on the site until 29 October 1984).

28. In the very next Supervisor’s Weekly Report for the week ending 2 November 1984 there is a direct reference to fencing:

Repairs effected to site hut roof following wind damage during holiday; site fences ditto.

29. Work on site came to an end in April 1986. This is described in the Weekly Report for the week ending 18 April 1986:

The mechanical excavator completed its work on Monday of this week. The spoil heaps have all been moved and landscaped to produce a very picturesque effect. There was also time for the last area of backfilling on BAL 1 to be completed thus saving us a little bit of money.

The main repairs on the green shed were also completed thus allowing it to moved from the DoE house compound, and re-erected on site. While it was awkward, as ever, no great difficulties were presented by this operation and it was successfully completed in two stages. It now only requires doors to be fully operational.

The fencing of the area was also carried out this week. We obtained some new posts and some more rolls of chestnut paling from the Herts County depot in Stevenage and borrowed a post thumper from Mick Laroche at the NHDC Parks Nursery. This last item proved highly efficient and has built an extremely sturdy fence.

30. Mr Fitzpatrick-Matthews specifically recalled an incident which occurred during the week ending 18 April 1986. He told the inquiry that

After we moved the fence, a fork lift truck was called in to move the portacabin. We couldn’t get the portacabin through the chain link fence defining the northern boundary of the development area. The fork lift truck raised the portacabin so that it missed the chain link fence. It was very precarious.

31. As one would expect, there are many photographs of the excavations. These were taken to record archaeological features and only incidentally record other matters. Nonetheless, Mr Fitzpatrick-Matthews’s researches have discovered a number of photographs which do show fencing. If Mr Fitzpatrick-Matthews’s evidence is correct that there was perimeter fencing to Area 1, one would expect that there would be at least some photographs which show that fencing. Some of the photographs pre-date Mr Fitzpatrick-Matthews’s direct knowledge of the site, but he was able to help with questions as to where such photographs must have been taken from.

32. I think that I can best begin with Document 6, a photograph taken in the summer of 1984. It shows a chestnut paling fence (as to one section broken down) which marks at that time the westerly extent of the excavation of the northern part of the site. The fence clearly has a function, apart from anything else, of protecting a belt of tree planting. Behind the chestnut paling fence can be seen a wire mesh fence (this

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becomes easier to pick up if one first looks at Documents 7 and 8 (photographs taken in 1985) where the same fence is clearer.)8

33. Documents 7 and 8 are photographs taken from broadly the same vantage point as Document 1 but, as stated, a year later. They show a longer area of site boundary. The southern part of the boundary of the site (to the left of Document 7) is formed of the wall (which is still there) which marks the gardens of the properties at the end of California. Then at the end of what seems to be an accessway running alongside the gardens of the properties at the end of California, there have been rigged up what look like two gate like structures. These have been secured them to the southern section of the wire mesh fence. One can see the further extent of this fence in Document 8.9

34. I turn next to Document 10. Mr Fitzpatrick-Matthews originally thought that this was taken in 1984 because it was filed in the 1984 file, but subsequent investigation as to its provenance demonstrated convincingly that it was taken in 1983 (it appears in a list of photographs taken in 1983). I am satisfied that this shows chestnut paling fencing on the southern boundary of the site, on the northern boundary of the footpath. I would have concluded that Document 10 did show such fencing simply by looking at it, but Mr Fitzpatrick-Matthews gave specific evidence to that effect, which I find convincing. A tripod structure can be seen in the left of the picture (it crosses the line of the top of the fence). This relates to the excavation of a well, which can be identified on the plan of the excavations.

35. Document 11 was taken in 1985 from within the site looking outward, and seems to show the same fence. It is not possible to tell from the photograph whether the fence is on the southern or northern side of the footpath, but if there was a fence on the northern side of the footpath in 1984 one might expect it to still be there in 1985 (given the continuance of the excavation); and, since the school buildings seem to be complete, it would seem to be unlikely that the school site was fenced with what seems to be a chestnut paling fence.10

36. Documents 12 and 13 relate to Area 15, excavated in 1986. These seem to show the boundary of the site marked by chestnut paling fencing.

37. Finally as regards pictures of fencing, the Applicants submitted a copy of a page from the Baldock Mail dating from October 1986. This shows quite a large number of visitors standing on the edge of an excavation. The text indicates that this was a photograph taken during the course of an open day. It does not show Area 1, but its

8 Mr Hollands accepted on behalf of the Applicants that this fence had existed; indeed I saw parts of it on my site inspection. A closer view of this fence is seen in Document 9, taken in November 1985.

9 The chestnut paling fencing around the trees had been removed. The background to this is made clear by an exchange of memoranda between the Senior Curator and the Director of Technical Services in November/December 1984. On 15 November 1984 the Senior Curator wrote as follows:

I am writing to confirm our request to excavate within the tree planting belt at the north-west corner of the development area. The reason … being that we are currently excavating a Roman inhumation cemetery which unfortunately extends into the tree planting area in question …

As it is obviously not all desirable to try and remove the trees now they are reasonably well established, [the Director of Technical Services] and Mr Burleigh discussed a compromise whereby the ground between the trees night be excavated, leaving suitable undug strips near the trees in order to protect their roots …

The Director of Technical Services agreed to this proposal on 4 December 1984.10 The school opened in September 1983.

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relevance is that it might reasonably be taken as showing the practice as to fencing on the site.

38. If one looks at the original reproduction of the picture in the Baldock Mail, it does seem that there is paling fencing visible behind the lines of visitors.

39. The final relevant photograph - Document 14 - is an aerial photograph of the Clothall Common Estate during its development. From the presence of an isolated archaeological excavation to the north east of the estate Mr Fitzpatrick-Matthews dates it to 1984. Local people thought that because of the extent of the estate development it must be later - say 1985. It seems to show the south eastern portion of Area 1 subject to excavation - which would fit with either date from what we know of the programme of excavations. The relevance of this photograph is two fold. It seems to show a “zig-zag” boundary feature to the east of the application site. Second, it shows an area apparently being excavated, together with what must be spoil heaps sheds and portacabins. It does not look like an area available for general recreation.

40. I inquired whether there was any publication, contemporary with the excavation of Area 1, which gave any guidance as to the appropriate practice in relation to the fencing of archaeological sites. Mr Fitzpatrick-Mathews was able to produce Health and Safety in Field Archaeology (1986) by JL Allan and A St John Holt. This was produced by SCAUM (the Standing Conference of Archaeological Unit Managers) and published with the aid of a grant from English Heritage, so it evidently is of some authority. Section 2.4, entitled Before work starts provides as follows:

With the initial checklist completed and the system to be used agreed upon, the Supervisor must ensure that the required equipment is on site before the work starts. The equipment should include the following:Adequate and suitable materials for support work.Ladders for safe access and egress.Stagings for barrow runs or access.Physical barriers to prevent falls from edges liable to be approached of 2 metres or more (In some cases, potential falls from lesser heights may require the same protection.Bunting to define other hazards, but NOT to act as substitute material where physical protection is required against falls.Warning signs.Fencing for the site boundary, or, where this is not reasonably practicable, for individual areas.(emphasis supplied)

41. Section 2.6, entitled Excavating, includes this passage:As excavations proceed, it is recommended that checks be regularly carried out; the following checklist illustrates what is to be monitored:1. Is the support work secure?2. Is the support work being damaged by, or obstructing, lifting

operations.3. Is the removal of spoil causing safety problems?4. Are the locations of services known and clearly marked?5. Are voids or signs of subsidence appearing close to support

work?6. Any voids or subsidence in areas being excavated?7. Is safe access and egress being maintained?8. Are ladders adequately based and secured?

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9. Is there adequate working space?10. Are the cut edges secure and free of spoil?11. Is access across excavations adequate at floor level?

At prevailing ground level?12. Is support work installed and removed safely?13. Can backfilling be done safely?14. Have weather conditions affected any part of the excavations?15. Existing structures still sound and unaffected?16. Any changes in environmental conditions since plans were

made?17. Site secure when unattended, and no accidental entry?18. If the whole site is not secure, are individual excavations

secure when the site is unattended?(emphasis supplied)

42. Section 2.10, entitled Working in Public Areas, includes this passageThe securing of sites and excavations against unauthorised visitors requires special consideration when members of the public have rights of access - public right of way, bridle-path or public highway. Measures taken to prevent falls into excavations must be sufficient to restrain non-sighted members of the public who may pass by, and must be of materials through which children cannot easily pass. At night, these areas must be adequately illuminated, and warning signs will be required at all times.

Evidence on behalf of the Applicants

43. Mr Christopher BRYAN moved to 62 Westwell Close at the beginning of July 1983. He said that the application site was open land which was not fenced and on which he was free to wander when he wanted. He described its use for informal recreational use - walking, cycling, children’s play, concerts, sledging (in the snow) and celebrations at New Year. He did not distinguish between the use in the early years and more recently. There had been an archaeological dig on the land but it had not affected the overall use of the land. Where there were trenches and one might otherwise fall down and hurt oneself these were fenced off, but they were only flimsy fences - more visual than physical. It was orange net-like temporary fencing around individual trenches.

44. Mrs Christine DAVIS moved to Clothall End House, California in January 1979. As I have noted, she remembered that at that time the application site was rough ground. After a year or so the archaeological dig began on the site. Her husband worked on the site as an archaeological volunteer. The first excavations were carried on by students in tents. Water was required on site and a hosepipe was run from her garden over the next two properties and to the site. A very big area was cleared of topsoil. A cemetery was found. Her husband worked as a volunteer at the site. The site was open. Everyone went to see what was going on because they were interested. Children played on the site. In the early 80s various areas were developed, but Mrs Davis could not remember the sequence. Mrs Davis did not remember any fences on the site. When deep wells were excavated, planks were put across the hole. When the public were invited on to the site, orange plastic stuff was put up. Mrs Davis did not recall ever being prevented from going on to the site and was a frequent visitor on Sunday afternoons because she was interested in history. She described the use of the application site for informal recreation - children playing, dog walking, blackberry picking around the edges. When the dig was on, ball games were played on the edge of the excavation. Apart from the orange flimsy stuff, the only fencing she can

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remember on it was that between the application site and the housing development site to the north.

45. Mrs Teresa CEVETTE now lives at 3 Mercia Road where she has lived since 1986. Before that she lived in Bush Spring where she moved in 1985. However she knew Clothall Common before then, her parents-in-law having moved to Icknield Way East in 1983. She had used the site from that time, when she and her family used to walk there on Sunday afternoons. It used to be a convenient place for children to meet after school and they used it as a bike training area. It was used for blackberry picking and for kite flying. It was used for dog walking - there is a dog walking “club” and dogs are parked on the green because they cannot be taken on to the school site. It was used for cricket or rounders - there is a rivalry between the children living in the east and west side of the green. This has been the use of the application site throughout the period that Mrs Cevette has known it. Children’s play was not affected by the archaeological dig - although they could not play on the whole site, there were parts where they continued to play.

46. Mrs Julia NASH now lives at 2 Grosvenor Road West and has done so since 1983. However she went to school in Baldock between 1973 and 1980 and her father ran an agricultural engineering business in Baldock. Between 1980 and 1983 she was in London training as a nurse. When Mrs Nash first knew the application site in the 1970s it was scrubland. She played there as a child. However in 1983 she did not recall children playing on the site; she has learned about this since. She has been directly aware of such use since about 1988 when she had her first child. As her children grew up, they used the site extensively - for picnics, for playing ballgames, riding bicycles, walking. She did recall the archaeological excavation but not in any great detail - at that time she would go with her neighbour and her neighbour’s dog and do a circular walk. She could not say with certainty that she would have left the path to go on to the site of the archaeological excavation, unless it was to speak to someone she knew. She did not recall the archaeological dig being fenced off.

47. Mr Hilton YAXLEY now lives at 31 Mercia Road, but he has known the Clothall Common Estate since about 1981 or 1982 when he was living in St. Albans. He then joined a group of people who were given the opportunity to build their own house on the plots that became Weavers Way. He started building his house in 1983, working at weekends. He completed the house in about a year and moved in with his wife and son. He moved to Mercia Road about 8 years later. He remembered his wife taking his nieces down to the application site for a kick about with a ball - this would be about 12-17 years ago. He remembered the site as an open green field at the time he started building. He did not take an interest in it - he was too busy. When he went to Baldock he used to drive there; he only rarely had occasion to use the footpath going towards California. The only sort of fencing that he recalled in the vicinity of the site was fencing protecting the tree planting in association with the housing development.

48. Mr Colin MADDREN has lived in Baldock since he was born in 1972. He was away at university during the 90s but came back to Baldock during vacations. From the age of about 8 his father would take him on Sunday morning walks up to and past the application site. He remembered it as scrubland where one could walk around looking for clay pipes and find scabrous, heartsease and other plants growing. The Sunday morning walks petered out in about 1986 when he started playing rugby. On the other hand he remembered cycling on the application site - with its rough terrain it made part of a “rally cross”. He had a friend he did this with, who moved to Weavers Way in 1987. Mr Maddren’s parents ran the community newspaper, the Baldock Mail. They were members of the Baldock Society. They were interested in things like the archaeological dig. Mr Maddren remembered the digs on the application site from his

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walks. They would go up and look at the trenches. There wasn’t much to see. They wouldn’t speak to the archaeologists. The dig wasn’t segregated or roped off, although the trenches would often be roped off. There was not formalised fencing, fencing off the area.

49. Mrs Paula FARRANT first came to Baldock a week before her son’s 7 th birthday - which would have been in August 1983. With her husband and family they were looking for a place where a friend might open a hardware business. On that visit they discovered Clothall Common - the children walked all over the place and they exercised the dog, although they didn’t have much time. Thereafter they used to come up every weekend. Mrs Farrant’s husband helped with the business, which opened in 1984. Because Mr and Mrs Farrant wished to move to Baldock and wanted their children to make friends before a move, they would come down at weekends and the children were allowed to play on the application site. It looked like a building site, but she didn’t restrict the children - she didn’t think that there were any dangers. There were archaeological digs in the area and the father of one of the boys with whom her son made friends came from Ashwell in order to take part in the dig. In 1984 she thought that there was a dig going on further inland than the application site. Its quite hard to determine where what is now known as the Field ended. It was very muddy. There was quite a lot of digging. The children were there every day. There was lots of space where the children could play, where the topsoil had not been stripped; there were also areas where the topsoil had been stripped and where the archaeological work was being carried on. There may have been some wooden paling fencing around the trenches, but mostly it was used around the trees.

50. Mrs Alison GENTLE lives at 3 Downlands. She was born in 1960 and has lived in Baldock all her life except for the period between 1979 and 1981 when she lived in South Africa. Her first recollection of the application site was when it was scrubby - tufts of grass interspersed with less grassed areas and where there would be dandelions. She would cycle down the footpath and get off her bike and sit in the grass. When she came back from South Africa she went with her husband to live with her parents and then moved to Lime Kilns in the summer of 1982. Her husband worked in the Maltings on Royston Road and she would go up to meet him on his way home. They would look at what was going on in the vicinity of the application site. There was quite a lot of activity. In 1982 there was an archaeological dig and the infrastructure for Yeomanry Drive was beginning to be put in. They saw people with dogs on the site and also children playing on the site now and again. They were up in the area more at the end of 1984 and thereafter because they bought the lease of house in Downlands - they were up at the application site quite a lot as their house was being completed. The application site was not fenced. The houses were ready for occupation in June 1985. She had two children aged 5 and coming up to 3. They would play all around. Sometimes they would play on the field behind and sometimes they would play on the application site. There were quite a lot of children who moved in at the same time as her children and together they would play on the application site. There were a few areas which had picket fence and some had bits of orange tape round them. In 1985 her family let off some fireworks on the application site on bonfire night. In 1986 they got a puppy and she started to use the application site more regularly. She didn’t recall any archaeological work after Christmas 1985, and in 1986 the whole field was completely covered in grass and quickly became a community facility where lots of children would play.

51. In addition to the oral evidence submitted on behalf of the Applicants, I also have to consider the written statements submitted in support of their case.

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52. As I have explained, the application is supported by 144 evidence questionnaires. These were collected at the end of 2003 and the beginning of 2004. As I have explained, only one of them refers to the archaeological dig.11 A list of those who completed evidence questionnaires is at Appendix 2. In Appendix 2 I have indicated by an asterisk those who signed additional evidence statements in the form set out in paragraph 16 above.

53. The applicants also submitted 14 statements made by people who were children in the first half of the 1980s and had some recollection of the archaeological dig. A list of those who made these statements is at Appendix 3. The statements were all to the effect that as children they had played on the land and that the dig had not inhibited them from doing so. An example is the statement of Caroline COLLINS who attended Hartsfield School between 1983 and 1989 (between the ages of 5 and 11):

The Field was never fenced when I was at school or signed ‘private’ or ‘keep out’ and we were never asked to leave or told we could not play there. Occasionally in summer we saw the archaeologists digging, they would answer if we asked questions. Only a couple of patches in the Field were dug while I was at school.

We played all sorts of games: skipping, ‘banana splits’ (a game using a length of elastic - involving jumping and saying rhymes), hide and seek, tag, bat and ball, rode our bikes and generally enjoyed ourselves. The dig did not come into our thoughts or limit how we played.

We also had trips to see the dig during school times, taken by our teachers, we would walk across the Field to see what was happening and walk back again across the Field.

54. The applicants also submitted a further statement from Mr David CUMMING. He had made arrangements to attend the inquiry on 9 November 2006 but unfortunately time did not permit for his giving evidence on that occasion. He and his family moved to Downlands in August 1985. As regards the archaeological dig he states:

During the period of the archaeological excavations on the Field both archaeologists and local residents co-habited in peace, there was room for everyone and the archaeologists were friendly and welcoming to anyone who asked questions. During the course of my childhood my son spent much time in talking to the volunteers digging other sites, which took several years, and due to this contact developed an interest in their work. My son read archaeology at A level before going on to read geography at university.

55. Mr Cumming also says:I took part in bonfire celebrations on the Field in November 1985. At least 20 adults from the estate took part and many more children, including mine. Bonfire night is celebrated every year on the Field.

56. Finally, the applicants submitted a statement from Theresa BRYAN who lived at 62 Westell Close from the end of June 1983 until November 2000. She says:

The field was always accessible and never completely fenced. Two or three archaeological digs had small token fences around the outline of the dig areas. These did not obstruct the entry to the field in any way.

11 See paragraphs 13 and 14 above.18

Evaluation of the evidence57. Archaeological investigation of the kind that was carried out in the area of what

became the Clothall Common Estate involves the excavation of trenches, pits, and quite extensive areas from which material covering areas of interest has been removed. Before I heard any evidence in this case, it would have been my expectation that the site of such an excavation would have been fenced both for reasons of health and safety and in order to give some degree of security. Accordingly I was not surprised that the general guidance that was available at about the time that the excavations with which I am concerned were being carried out indicated that fencing of an archaeological site was good practice (see paragraphs 40 to 42 above).

58. In accordance with my expectation and good practice, photographs of the site do clearly show site fencing. There is indeed some fencing that can be seen in the photographs that plainly has the function of protecting young trees, but the fencing that is shown in the photographs is not limited to such fencing. Specifically, the chestnut paling fencing that is seen in Document 6 appears to be primarily protecting the trees, and the barrier to entry to the site being the wire mesh fence behind it. Further, I think that Documents 11 and 12 are of some relevance. Photographs taken in 1986 plainly show sit fencing. It would be surprising if site fencing had begun for the first time in 1986, and there is no suggestion that this was the case in any of the written material.

59. The photograph in the Baldock Mail was taken on an open day, so it seems to me that it is not possible to infer from the photograph a conclusion that members of the public were generally able to obtain uninhibited access to the excavation - indeed the concept of an open day seems to imply days when the excavation would be closed (although I accept that - absent any other evidence - it is possible that the only significance of an open day was that guides were available to explain what was going on). It seems likely in the light of all the evidence that the paling fence in the background of the picture is a photograph of a fence enclosing the site of an excavation, although from the photograph itself one would not be able to make this deduction.

60. I then turn to consider the log entries. These are clearly speaking about perimeter or site fencing of Area 1.12 I accept that these entries do not make it clear that the perimeter being spoken about or indicated was necessarily coterminous with the entirety of Area 1, but they do indicate that something larger than the site of individual excavation or trenches was being fenced, a conclusion which is of course reinforced by an examination of the photographs.

61. Finally there is the evidence of Mr Fitzpatrick-Matthews himself. I accept of course that he did not see the site until November 1985, but his clear recollection was that it was fenced at that time. And if it was fenced at that time it plainly was fenced for some reasonable period before that date - the 1980 log reference would suggest from 1980. Mr Fitzpatrick-Matthews was an impressive witness. He displayed a mastery of many intricate details relating to the excavations. He plainly was an honest witness, and it was not suggested otherwise. Accordingly it seems to me intrinsically unlikely that he would be mistaken as to the site being fenced in its entirety. This possibility becomes even more remote if one recollects that fencing of the entire site is (i) what one might reasonably expect, (ii) seems to be shown in the photographs and (iii) is indicated in the log entries.

62. I should note also that no one suggested that the archaeological dig was fenced as to its entirety, but that that entirety was an area less than the application site. The evidence

12 It is also worth re-iterating here that when in 1986 the excavation moved from Area 1 to a new area, it is clear that the new site was fenced. It would be odd if the new site was fenced - seemingly as a matter of course - and the old one had not been.

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of Mr Fitzpatrick-Matthews was to the contrary. Moreover it is plain that there were spoil heaps sheds and huts also associated with the dig (see Documents 7, 8, 10, 11, and 14). I would expect them to be within rather than outside a perimeter fence. It seems to me that there is no proper basis for concluding that the site of the dig was fenced as to its entirety but that this was an area less than the area of the application site.

63. Accordingly it seems to me that the documentary evidence taken with the oral evidence of Mr Fitzpatrick-Matthews points strongly (to put it no higher) to the application site having been fenced as to its entirety in 1985. Absent any other evidence, I would necessarily conclude that Area 1 had been fenced as to its entirety in November 1985 and thereafter until April 1986, as well as before that date. However before reaching any conclusion on this matter I need to remind myself that the assertion that the site was fenced was strongly contested by local people; and that I need to take into account what has been told me on the part of the Applicants.

64. I should say at the outset that I think that everybody who gave oral evidence on behalf of the Applicants was doing their best to assist me. Similarly, although they were not subject to cross-examination and must be accorded less weight for that reason, I have little doubt that the statements of those who attended the school in the early 80s represent the bona fide recollections of those who made them, and I can make the same comment in respect of the statements of David Cumming and Theresa Bryan.

65. The difficulty however that arises is that that evidence simply does not engage with the documentary evidence, considered by itself, let alone the documentary evidence supported by the oral evidence of Mr Fitzpatrick-Matthews. By does not engage with I mean that it did not seek to qualify or explain that evidence (eg by asserting that the application site was fenced but not as to its entirety, or that there was a fence around the entirety of the area being excavated but that area was less than the application site). The picture that is conveyed by the totality of the Applicants’ evidence is of an archaeological dig site that was unfenced but with temporary fencing around the trenches themselves. This is not what is shown by the documentary evidence which shows or speaks to perimeter fencing around the site.13

66. I am bound to conclude that those who gave evidence have forgotten the details of the archaeological examination. It happened, after all, more than 20 years ago - and, as I have pointed out, was referred to in only one of the original evidence questionnaires. Some, although not all, of the oral evidence given on behalf of the Applicants seems to be speaking to use at a later period and “projecting it backwards” (so to speak) to an earlier period. If I am correct in my conclusion that local people have essentially forgotten the details of the archaeological excavation, then, subject to one matter, none of their evidence really casts much doubt on the evidence adduced by the Objector.

67. The one matter I have in mind is Mr Cumming’s statement about bonfire night in 1985.14 This would have been within a few months of his moving so one would imagine he might have a clear idea as to the timing of the event. One guesses that if the bonfire did take place on the application site, it did not take place on a part that was subject to the dig - which in itself could have been possible if the site had not been fenced. But of course the documentary evidence does show that the site was fenced - which Mr Cumming is clear at this time that it was not. This conflict of evidence is

13 Of course Mr Hollands accepted the existence of the wire mesh fence referred to in paragraph 32 above but it did not figure in recollections of the site. This however could be explicable (if it were the only fence) on the basis that it was on the far side of the excavation in relation to the houses on the Clothall Common Estate.

14 Mr Gentle also recalled bonfire night celebrations in November 1985: see paragraph 50 above.20

different to the generality of the conflicts of evidence that arise between the evidence of the Objector and the Applicants because it is not explicable simply by reference to failure of memory. (This is the case even though, like the other witnesses for the Applicant, Mr Cummings cannot recall the existence of any fencing at the time of the archaeological dig - and he is plainly wrong about that).

68. In considering Mr Cumming’s evidence as to bonfire night in 1985 I have to bear in mind that he was, unfortunately, not able to give oral evidence and to be cross-examined, and I must give his evidence less weight on this account. It seems to me that it cannot reasonably lead me to alter my view as to the rest of the evidence. In a case of this kind it would perhaps be surprising if everything tallied neatly.15

69. At paragraph 63 above I say that [a]bsent any other evidence I would necessarily conclude that Area 1 had been fenced as to entirety in November 1985 and thereafter until April 1986, as well as before that date. I need to say something more about the position before November 1985.

70. Clearly the fencing did not spring into being on the day of Mr Fitzpatrick-Matthews’s arrival on the site, and I would conclude that, absent any evidence to the contrary and on the balance of probabilities, what Mr Fitzpatrick-Matthews saw in November 1985 existed throughout 1985. I think that the evidence of the photographs from 1983 and 1984 goes to confirm the existence of perimeter fencing of the site in those years.

71. However at an earlier time it does seem to me that it is possible that the position may have been different.

72. Included in the photographs is one taken in 1981, not of Area 1, but of a site further to the east (Document 15). This shows a basically shallow excavation but with no fencing protecting it (there is shown in the photograph some fencing, but it is protecting some young trees). Although the shallowness of the excavation might provide a partial explanation for the absence of fencing, there is a pit in the foreground of the photograph which goes deeper. It seems to me that an explanation for the absence of fencing is most likely to be found that in the fact that in 1981 no houses at all on the Clothall Common Estate had yet been constructed (or at least occupied), and the excavation was comparatively remote from the eastern end of California. However this may be, it does suggest that there was a time when the excavations on Clothall Common were not always fenced.

73. There is also the log entry for 5 July 1981. This indicates that Area 1 was not continuously fenced from 1980 until 1986.

74. Unfortunately, although there are, as I explained, extensive records as to the site, the log is not complete, and it is not possible to “bottom out” from the documentary records or anything else an accurate and complete account of the fencing of the site.16

15 I should note that the recollection of local people as to temporary fencing of individual parts of the excavation is not of itself incorrect. Mr Fitzpatrick-Matthews explains that

Because we were aware of the possibility that people might enter sites without permission, deeper parts of the excavations (such as wells) would be separately fenced off with brightly coloured plastic fencing held in place with metal road pins or with shorter stretches of chestnut paling.

16 There is another matter which I cannot bottom out. In her statement Theresa Bryan says The builder’s site agent Mr Thomas Odd assured us that this area (the application site) would not be built upon and would remain a public recreation area. The oral evidence of Christopher Bryan was more general, but to similar effect. Mr Beavan told me however that the development brief for the estate did not envisage that the site would not be developed. This is however not a matter central to the matters with which I am concerned.

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75. However the fact that I am not able from the material that I saw able to give a complete account to the registration authority of the fencing of the site from 1980 does not mean that I am not able to reach clear conclusions as to the fencing of the site in the relevant period of the claimed 20 years’ case, which, I remind myself begins on 26 November 1983. I conclude on the balance of probabilities that the site was fenced as to its entirety on 26 November 1983 and continued to be so fenced until April 1986. If I were wrong about the position on 26 November 1983, I would still conclude on the balance of probabilities that the site was fenced as to its entirety in November 1985 and thereafter until April 1986.

76. The effect of this is that it would not have been accessible to local people for use a land on which they could indulge in lawful sports and pastimes at the beginning of the relevant 20 year period. The effect of this conclusion is that in my view one of the statutory requirements for registration has not been made out. This is my conclusion on the basis that the site was fenced as to its entirety on 26 November 1983. My conclusion would still be the same even if the site had only been fenced from November 1985 until April 1986.

Issue II: fencing of the site in October 2003The law

77. The application site was fenced in October 2003 and the application for registration is dated 26 November 2003. Potentially these facts represent a “knock out” blow to the application because if the effect of the fencing was that any use of the application site after October 2003 was vi (by force), it can be argued that use which was as of right did not continue, as required, until the date of the application. In the Trap Grounds case the House of Lords was considering an appeal from the Court of Appeal which had held that use which was as of right had to continue until the date of determination. Such a construction, as the Court of Appeal accepted, would have meant that only land which a landowner was voluntarily content to allow to be registered as a town or village green would ever be registered - because it would be open to a landowner right up until the eleventh hour before registration to fence or to post notices and thus to prevent continuing use being as of right. Accordingly, in the House of Lords the focus of the Appellant’s argument was in respect of the obvious alternative to the date of determination, namely the date of application; a construction much more favourable to applicants. The House of Lords gave the Court of Appeal’s decision short shrift. Lord Hoffman said:

Since 2001, then, the land must satisfy the definition as amended by the 2000 Act. The inhabitants must ‘continue’ to use the land for sports and pastimes. Continue until when? Carnwath LJ said that user had to continue until the date of registration. But that would mean that any well-advised landowner, on receipt of an application to register, would erect barbed wire or take other steps to prevent the user from continuing, or at any rate continuing as of right. In R (Cheltenham Builders Limited) v South Gloucestershire Council17, Sullivan J said, accurately as it seems to me, that such a construction would make nonsense of the Act. Carnwath LJ did not accept that his construction was ‘so obviously unreasonable, or contrary to the legislative intention, that it must be rejected’18. He gave three reasons for adopting it. First, the Secretary of State had power to prescribe a different period. But that seems to me neutral as to what the default position should be. Secondly, the history of the 1965 Act gives ‘no support for a broad interpretation of the provisions for new greens’. That sounds like an attempt to refight the

17 [2004] JPL 975 at paragraph 62.18 [2006] Ch 43 at paragraph 94.

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battle of Sunningwell green. Thirdly, a construction which made dedication of a new green in effect voluntary at the time of registration would ‘help’ to provide an answer to possible human rights objections’. As I shall explain, I do not think that there are valid human rights objections. I would therefore reject the Court of Appeal’s construction as irrational. In my opinion the correct date is that of the application. That appears to be assumed by clause 15(2)(b) of the Commons Bill now before Parliament (emphasis supplied).19

Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe agreed with Lord Hoffmann on this point.20

78. Baroness Hale of Richmond also agreed but added some further views… I entirely agree, for the reasons given by my noble and learned friend, Lord Hoffmann that the use need continue no longer than the date of the application for registration as a green. I would have liked to agree that it need continue no longer than when it is first put in issue, either by the landowner in some way challenging the inhabitants’ right so to use the land, or by the inhabitants taking some steps to assert their right. But the Act is all about registration, and in the case of old greens and commons, the effect of non-registration. In that context, it is difficult to read the words ‘and continuing’ as continuing until some date entirely divorced from the registration process. This is reinforced by the express power (in s 22(1A)(b)) to make provision for land where the use has ceased some time previously. If, as I understand counsel’s argument, the Secretary of State would prefer an earlier date than the date of application, he has only to provide accordingly(emphasis supplied)21.

79. It sounds as if she may be commenting on, and perhaps disagreeing with the speech of Lord Scott of Foscote (see paragraph 80 below), which she had seen.22

80. Lord Scott said:The issue is addressed by Lord Hoffmann in paragraph 44 of his opinion with which, with one slight qualification, I am in complete agreement. I agree that the amendment introduced by the 2000 Act does not require that the user of the land for sports and pastimes continues until registration and, I agree that, prima facie, the user must continue up to the date when the registration application is made. If, however, 20 years’ appropriate user having passed and while the user is still continuing the landowner bars the user, a more or less immediate application to register the land in response to the landowner’s action would, in my opinion suffice. But if the barring of the user were not responded to reasonably promptly, the continuance criterion introduced by the 2000 Act would not be able to be satisfied. My reason for this slight qualification is that an applicant for registration is quite likely, before making the application, to attempt to stir up neighbourhood support or to obtain suitable evidence from local inhabitants. The landowner is quite likely to hear this and a race to see who could act first, the landowner in barring the use of the land or the applicant in making the application, would not be satisfactory. The requirement of

19 Paragraph 44 of his speech.20 See, respectively, paragraphs 114 and 124 of their speeches.21 See paragraph 143 of her speech.22 See paragraph 145 of her speech.

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continuance needs, I think, to be approached in a commonsense fashion. Has the previous public user fallen into disuse is, in my opinion, the right question to be asked.23

81. If I were looking at the matter free from any specific guidance on the point, the question I would be asking would be whether the requirement that relevant use continue down to the date of the application is satisfied by a more or less immediate application after the landowner has barred users; and, if so, whether the application in the present case was made more or less immediately after the landowner had barred user.

82. In this context, I call to mind the view of DEFRA expressed in the Common Land Policy Statement 2002. It would seem that the Department took the view at that time that as long as an application was pursued with due expediency, it did not matter if the right had been called into question by the time that the application was made. (Note that this view was expressed after the amendment to the 1965 Act by CROW 2000).24

83. I also bear in mind the purposive approach that the House of Lords took to this provision in the Trap Grounds case, in rejecting the view that use had to continue until determination and preferring the date of application instead.

84. I find it hard to imagine a court rejecting an application on the basis that, although it was made more or less immediately after access was barred, the fact that it post-dated the barring meant that the necessary use was not continuing as required by statute.25 In saying this I bear in mind Baroness Hale’s point that it would have been possible for the Secretary of State to make express provision by regulations addressing this point; and that indeed, in the Commons Act 2006 the matter is addressed by specific provisions which will provide, once the Act is in force, a two year period of grace in respect of applications.26 I think there is a distinction to be drawn between a more or less immediate application and one which post dates the barring by a more extended period. In this context, I do not think that one could “get around” the harshest case which can be envisaged - an application made the day after the fencing went up - by applying the de minimis rule. It is surely legally significant - even if not ultimately determinative - in this example that the barring precedes the application.

85. On my view what Lord Scott said can be viewed as essentially a gloss on what Lord Hoffmann said and not a dissent from it. I say “essentially” a gloss - in fact in formulating Has the public user fallen into disuse? test, he goes, I think, further than is necessary to address the problem which he has identified. I think that it is this wider test that Baroness Hale may have in mind when she says … it is difficult to read the words and continuing as continuing until some date entirely divorced from the

23 See paragraph 143 of his speech. Note that Baroness Hale (dissenting) held that if the relevant period of 20 years ended at some time between 1990 and 2001 (i.e before the amendment of the definition of town or village green by the Countryside and Rights of Way Act 2000), it would be possible to register a new town or village green on the basis of the old definition, and that use continuing until the date of the application was not required in such case. The passage set out above from paragraph 143 has reference to the amended definition, which requires continuing use (the original definition did not).

24 This emerges from paragraph 47, where two views are summarised – that a claim is not defeated if it is pursued with due expediency, and a view even more favourable to applicants, namely that the right accrues after the expiry of 20 years and cannot be barred thereafter. Note however that the author is seeking to summarise the views of the courts rather than expressing an independent view of his own.

25 And I should add that I think it the sort of point that, if taken successfully by an objector at first instance, would become increasingly difficult to sustain on appeal.

26 See section 15(3). In respect of use which is rendered not as of right before the Commons Act 2006 comes into force, a five year period of grace is provided: see section 15(4).

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registration process. To suggest that an application made more or less immediately after access is barred is within the terms of the statute is not to suggest a date entirely divorced from the registration process. Accordingly I consider that such an application would not fail on the basis that use which was as of right was not continuing until the date of the application.

86. Having reached this view, it does not automatically follow that the application in this case was made sufficiently closely in time for the principle that I have enunciated to apply. As a matter of fact and degree, however, I think that it does. I think that if the period between barring and notices was longer than, say six weeks, it would be difficult to argue that the principle applies. As it is, I think that it does.

87. If I am correct in the view that I take, it is not necessary to go on to consider whether access to the site was in fact barred in October 2003. However, the County Council may differ from me as to the law and accordingly I think that it is necessary to consider the facts of this aspect of the matter.

Was access to the site barred in October 2003?88. On 31 July 2003, Mr Rod Whitworth, the senior Estate Surveyor of North

Hertfordshire District Council had a meeting with the land manager of Twigden Homes. They were concerned that the application site might be subject to an application for registration as a town or village green and accordingly they decided to put up fencing – the heading of the relevant minute refers to this as being to forestall any attempt to have the site registered as a village green but the text more neutrally observes that [i]t is envisaged that the fencing should be in place for a 6 month period to see if any member of the public seeks to justify any rights of way or public use. The Senior Estates Surveyor asked Jarrett Fencing to provide an estimate. This was for

388 [m of] 1.2m high galvanised chainlink on concrete posts together with 7 corner posts and 10 two way posts and 1 set of timber palisade gates.

The estimate for this was £7,725.21 (£657.90 + £1150.61 VAT).

89. The estimate was accepted. The length of the fencing to be provided was later reduced in the event to 304m by virtue of the fact the trees on the western boundary of the site were excluded. Mr Turner recalled receiving a call from the contractor while the fence was being put up to the effect that part had been vandalised. He instructed the contractor to make good the damage and add the cost of it to the final account. This was done, and in the invoice for the work (which was in the sum of £7,034.19) there appears the following item:

16 man hours to repair vandalised fencing @ £17.50 per hour.

The date of the invoice was 22 October 2003.

90. Mr Turner added in a supplementary statement thatI also recall that within a day or so of giving that instruction I called to the site and padlocked the gate with one of our standard padlocks. At the time of my visit I recall a completed job with no apparent signs of vandalism.

91. Mr Turner added in answer to my question that when he attended at the site on this occasion the gate was closed, with the hasp folded into the staple, but that anyone could have opened the gate.

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92. Further contemporaneous documentary evidence is provided by an email dated (Monday) 20 October 2003 from Mr Geoff Hollands in his role as councillor for the ward of Baldock East to Mr Whitworth. It is as follows:

Mr WhitworthI am the councillor for the ward of Baldock East in which the above site owned by the council is situate. I believe you are dealing with the sale to developer for the construction of 24 houses.

At the end of the week the site (which has been open land since the estate was finished some 8 years or so ago) was fenced off. This has provoked considerable dissatisfaction among local residents. The main reasons are two fold:

1. It is now impossible to walk along the side backing onto Sale Drive. This means that residents of Sale Drive have to make a considerable tour to take children to Hartsfield School or use the path that leads to California into the town.

2. All of the grass verge has been lost on the Downlands side and I understand that this path now becomes very crowded when children are entering and leaving Hartsfield School.

There is also a groundswell of dissatisfaction at loss of the open space.

Please could you let me know why the fence was put up and what come be done to satisfy these concerns. Would it be possible to reopen the route along the side backing onto Sale Drive.

Please also let me know if the land has now been sold.

You may also like to note that the gate into the site had been broken down when I walked past on yesterday afternoon.

If you would like to discuss these issues further I can be reached in office hours on [phone number given]RegardsGeoff Hollands(emphasis supplied).

93. Mr BRYAN said that the land was enclosed with a fence at the end of October or beginning of November 2003. This had not prevented the use of the land because there were several breaches in the fence. If there was a time when there were no breaches, it wasn’t for very long, perhaps a couple of days. Moreover the gate in the fencing was shut but never locked. Mr Bryan was clear that he never saw a lock on the gate at this time.

94. Mrs DAVIS said that recreational activities had carried on until a wire fence was erected in 2003. It didn’t prevent people going on to the land for very long - perhaps a day - because the fence was broken down. She said that people were furious about the fencing. At some time the gate was broken down. She remembered the gate not being locked - the hasp was without a padlock.

95. Dr DAVE said that in mid-October 2003 a fence and gate was erected around “The Field”, stopping use. It went up overnight and was intact for a couple of days stopping

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access. He was aware that children got in after a few days, the fence having been vandalised.

96. Mrs CEVETTE saw the fence put up in 2003. It took a couple of days to put up. It meant that children from Sale Drive had to go around the field. People were indignant. Mrs Cevette didn’t recall the gate being closed and in any event children climbed over the gate - there was never a time when children weren't playing on the site. She never saw anyone damaging the fence but there were quite a few gaps in it after it was erected.

97. Mrs NASH recalled a fence being put up around the site in 2003. She remembered seeing the gate damaged shortly after the fences went up - it was possible to get in if one walked around and got in via the gate. She thought that the thing that went first was the gate - she didn’t recall it being locked. She had an impression that she used the land at a time when the fence was intact and accessed it through the gateway at the top.

98. Mrs WATTS saw the fence being put up in 2003. She saw posts being put up one day and the wire the next. She had no prior knowledge of the fencing, which was completed in daylight. She saw the gate completed. It wasn’t locked, children just pushed the gate open. She saw it immediately after the workmen left. The next day there was damage to the fence and the gate was damaged. Mrs Watts took some photographs showing the damaged gate. In answer to my questions, Mrs Watts said that when the gate was completed, this were twisted at the ends secured it - “like a loaf of bread”. Children came and untwisted the wire. The wire was silver-grey galvanised wire, as shown in the photograph she had taken.

99. Mr MADDREN described the fencing process as taking four or five days in all - on the first two days putting up the posts and then putting up the fencing. He said that there was a gate in the fence, but he never saw it locked. He didn’t see a lock on the gate.

100. Mrs FARRANT first saw the fence that was put up in October 2003 when she was walking her dog. She said that it didn’t prevent anyone going on to the land because the gates were wide open. Thus when the fence was completed, fully enclosing the land, the gates were swinging open - it was a windy day. Next morning the front of the frame was broken, and on that day the gates were secured with ties. No-one was prevented from using the land, and they went on using it. She did not herself see any wire securing the gates - she was told that children had opened it. She thought that the photographs showed that the gate had never been locked with a padlock - they looked too shiny.

101. Mrs GENTLE didn’t herself see the fence go up but went and looked at it on the day that it was put up. When she first saw it, it was pretty whole. She never saw the gate padlocked.

Evaluation of the evidence 102. It seems to me that Mr Turner’s evidence confirms that there would have been a time

when the fencing was completed and the gate not locked - because at that time Mr Turner had not attended to fit the padlock. On the other hand, it would seem that the fencing was at that time intact. Given that the fence had already been vandalised and had been the subject of 16 hours worth of repair work, one could not have expected Jarretts to go off site and to have submitted an invoice unless they had finished the job. Moreover the thrust of the evidence of local people is not that there never was a time when the fencing was intact, but that there never was a time when they could not get access to the application site.

27

103. However the question does arise as to whether there was a brief period when access to the site was prevented - because the gate was locked but the fence had not yet been broken down. Mr Turner says directly that there was. It seems to me that it would be very odd for him to attend to secure the gate with a padlock and not to notice that the fence had been vandalised in any respect - although he did not say in terms that he checked the fence. It does look from Mr Hollands’ email and Mrs Nash’s evidence that the first part of the fence to be vandalised may have been the gate.

104. I think that it is likely that there was a brief period when the site was secured - namely after the padlock was put on and before the gate was broken down. Mr Hollands’ email indicate that this would have been between, say, (Thursday) 16 October 2003 and ending some time before (Sunday) 19 October 2003 (by which time the gate was broken down). This would place Mr Turner’s visit to the site to padlock the gate as being on Thursday 16 October 2003 or Friday 17 October 2003.

105. This means that at least some of the use of the land after the padlock was put on must have been vi (by force) - i.e by the person who broke down the fence or by children who climbed over it. However it seems to me that the use of those who access the site through a gap made by others is not necessarily vi. User may be vi even though it does not use physical force or involve climbing over a fence. The test is whether, as illustrated by the cases27, the use has been contentious.

106. I think that difficult cases may arise as to whether use is, or is not, contentious. However in the present case it seems to me obvious that the District Council by its actions were seeking to prevent access to the application site. Everyone would have realised that - as evidenced by the anger to which the fencing gave rise.28 It may be that one cannot have regard to what, subjectively, people thought about the fencing but this does not affect the position. On the view I take it would have been apparent to an objective bystander that somebody was trying to prevent access to the site. This I think renders use after the fencing was put up contentious and not as of right. Accordingly, if as a matter of law, use has to continue until the date of the application and that requirement is to be interpreted literally and strictly, I consider that relevant use did not continue until the date of the application.

Issue III: Use of the site between 1986 and 1990107. I can best explain what this issue is about by setting out an extended quotation from

Mr Fitzpatrick-Matthews’s Proof of Evidence:4.11 Over the summer of 1986, the former excavation area at BAL-1 became covered in naturally seeded grass and other plants that reached knee height and the recently built houses at the western end of Downlands and Wynn Close were first occupied. The only use of the former excavation area I witnessed was by residents walking their dogs along a path that became worn through the grass through the grass between the kink in the footpath west of Downlands and the back of Hartsfield School; the grass on the rest of the field remained too long and unmaintained for any other use of the land. There were also patches of nettles, typical of disturbed ground.

27 See eg Eaton v Swansea Waterworks Company (1851) 17 QB 267, and, in the specific context of village greens, R (Cheltenham Builders Limited) v South Gloucestershire Council [2004] JPL 975.

28 Everybody who used the land of course knew about the fencing – a matter which is self-evident, but confirmed by the fact that the fencing is referred to, almost without exception, in the evidence questionnaires. This is in the context of questions 33 and 34 which refer to use being prevented or an attempt being made to prevent use. It would have been apparent that the fencing was not eg a temporary measure to allow the grass on the land to grow back after a long, dry summer (or something of that kind).

28

4.12 During the spring of 1987, the team worked at Hartsfield School, excavating part of the playground in advance of building work. In order to get our tools and records from the store at 12 Royston Road to the school, we would take wheelbarrows filled with what we needed from the garden of the house, where a specially built stile had been erected to assist the team to climb over the fence, across the field to the former BAL-1 excavation, where we created a path through the long grass to the back gate of the school, which at that time lay rather to the west of its present location (Enclosure R shows a path on the same line, running along the north-western side of the site, in the summer of 1991; it also demonstrates that, at that time, the site was as unmaintained as the then undeveloped waste ground to the north). There was still no evidence for any use of the site other than by people walking their dogs along the diagonal path that had developed from the angle in the footpath west of Downlands to the back of Hartsfield School; the same path can be seen in 1991 on Enclosure R.

I attach Enclosure R as Document 16.

108. The point that Mr Fitzpatrick-Matthews is making is a powerful one and illustrates a difficulty that often arises in cases of this kind. Although plainly people walked their dogs across the land (which looks to be an issue giving rise to a claim, if anything, to a footpath), he never saw anyone playing on the land or otherwise using it for sports and pastimes. Yet it seems that it is so used now, and there is nothing that has physically changed about the site itself since 198629 - it was and remains available for such use, which must have started at some point after April 1986. It is likely - and I think Mr Fitzpatrick-Matthews’s evidence may be taken as confirming – that at this early stage is the availability of the site there was less use than latterly. However this is a different thing to saying that there was no use at all and I am confident that there would have been some. It is difficult to say whether at its inception such use was significant or not, and, if it was not, at what date it became significant.

109. Doing the best I can, I think that the correct approach is this. The evidence of local people whose memory goes back that far is that they have always used the site in the same way. Of course, in my judgment the use only goes back as far as the archaeological dig, but this does not cast doubt on the generality of their evidence. I would, absent any other evidence, accept this as demonstrating use back as far as the archaeological dig. Powerful though Mr Fitzpatrick-Matthews’s evidence is, it does not persuade me that there was not significant use of the site between 1986 and 1990, only that he did not see any such use. Accordingly I conclude that there was significant use of the site for sports and pastimes between 1986 and 1990.

Issue IV: Neighbourhood and locality110. Use has to be by

a significant number of the inhabitants of any locality or of any neighbourhood within a locality.

111. The possibility that qualifying use might be the inhabitants of any neighbourhood within a locality represents a relaxation of the previous requirement that such use had to be the inhabitants of a locality. The background to this was explained by Lord Hoffmann in the Trap Grounds case:

29 It is a reasonable inference that is less overgrown now then, because it is more used. (I reach a conclusion as to the comparative level of use later in this paragraph).

29

24. The registration of village greens which had come into existence by virtue of 20 years’ user as of right was at first restricted by the decisions of Carnwath J and the Court of Appeal in R v Suffolk County Council, ex p Steed 30 which held that user ‘as of right’ meant that people indulging in sports and pastimes on the land must have believed that they were exercising a right claimed by the inhabitants of a particular locality. This requirement was, I think, intended to be, and was in practice, very difficult to satisfy. As in the case of the metropolitan commons in the Victorian era, people who went upon open land in urban areas for recreational purposes tended to think (in so far as they thought about the matter at all) that they were exercising a general public right.25. In R v Oxfordshire County Council, ex p Sunningwell Parish Council31, however, your Lordships’ House rejected the requirement of a subjective state of mind by people using the land and thereafter, as Carnwath LJ observed in this case, registration of new village greens became ‘an area of unusually vigorous legal activity’32 Once 20 years’ user had been established, the only substantial hurdle which the applicant for registration had to overcome was, as it had been in the Victorian cases on customary greens, proof that the user had been by the inhabitants of a defined locality. This requirement was relaxed by the House in the Sunningwell case only to the extent of saying that not all the users needed to be inhabitants of the locality in question. It was sufficient that the land was used ‘predominantly’ by such inhabitants.(emphasis supplied).

112. By defined locality, Lord Hoffmann would seem to have had in mind what Carnwath J said in R v Suffolk County Council, ex parte Steed

… it should connote something more than a place or geographical area - rather, a district and identifiable community, such as might reasonably lay claim to a town or village green as of right.33

Carnwath J, further seemingly approved what Kekewich J said in Edwards v Jenkins as to it meaning some diversion of the county defined and known to the law, as a parish is34. This was the approach adopted by Harman J in Ministry of Defence v Wiltshire County Council35.

113. In his speech in the Trap Grounds case, Lord Hoffmann went on to explain how Parliament amended the locality requirement to make it easier to register village greens. Specifically he said

27. [A]ny neighbourhood within a locality is obviously drafted with deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries. I should say at this point that I cannot agree with Sullivan J in R (on the application of Cheltenham Builders Ltd) v South Gloucestershire Council36 that the neighbourhood must be wholly within a single locality. That would introduce the kind of technicality which the amendment was clearly intended to abolish. The fact that the word ‘locality’ when it first appears in sub-s (1A) must mean a single locality is no reason why the

30 (1995) 70 P and CR 487 (High Ct); (1996) 75 P and CR 102 (CA).31 [2001] 1 AC 335.32 [2006] Ch 43 at para 55.33 At p 501.34 [1896] Ch 308 at p313.35 [1995] 4 All ER 931.36 [2004] JPL 975 at paragraph 88.

30

context of ‘neighbourhood within a locality’ should not lead to the conclusion that it means ‘within a locality or localities’.

114. What Lord Hoffmann said about the correct interpretation of any neighbourhood within a locality in its turn affected the approach of Parliament. In the Commons Bill then before Parliament it was proposed that, in order to address the continuing uncertainties of interpretation of any neighbourhood within a locality, the requirement in respect of use be amended so that use by local inhabitants would be sufficient. Following Lord Hoffmann’s speech, the words any neighbourhood within a locality were put back into the Bill, and they appear in section 15 of the Commons Act 2007. As a matter of logic, I think that it is difficult to use what is said about the enactment of a later Act of Parliament to construe what is said in an earlier Act; on the other hand if one is construing the same words, I think that it would be necessary to have considerable pause before holding that they meant different things in different Acts.

115. Finally, I need to note that Lord Hoffmann did not comment on what Sullivan J said in R (Cheltenham Builders Limited) v South Gloucestershire Council

It is common ground that a neighbourhood need not be a recognised administrative unit. A housing estate may well be described in ordinary language as a neighbourhood. For the reasons set out above under “locality” I do not accept the defendant’s submission that a neighbourhood is any area of land that an applicant for registration chooses to delineate upon a plan. The registration authority has to be satisfied that the area alleged to be a neighbourhood has a sufficient degree of cohesives, otherwise the word “neighbourhood” would be stripped of any real meaning. If Parliament had wished to enable the inhabitants of any area (as defined on a plan accompanying the application) to apply to register land as a village green, it would have said so.37

116. Against this background, it will be seen that a case like the present would not normally have any difficulty fitting in to the neighbourhood/locality requirements of the definition of town or village green as amended. The neighbourhood would be the Clothall Common Estate and the locality would be the local government ward in which that estate was situated, or perhaps the civil parish of Baldock (i.e., in this context, the boundary of the area which elected the town council).

117. However, such an analysis will not work. This is because the ideal candidate38 as locality, the Baldock East Ward, only came into existence in 1999. I have not been told what was its predecessor, but I guess that it must have been substantially different. There is not a Baldock Town Council. In these circumstances it is sometimes possible to pray in aid the ecclesiastical parish39, but in the particular circumstances of this case, this does not work. This is because, until 1990, the Clothall Common Estate was not in the ecclesiastical parish of Baldock but in the ecclesiastical parish of Clothall. This leaves the North Hertfordshire District as the only candidate for locality. I can see objections to this. Before the law was amended in 2000 it is difficult to see such an area as being a relevant locality. However the law has been amended and, moreover, the words significant number have been construed as having reference essentially to the use of the application site rather than to the total number of potential users.40 It

37 At paragraph 23.38 “Ideal” of course from the point of view of the Applicants. It would have been ideal because

the ward is predominantly made up of the homes on the Clothall Common Estate.39 See R (Laing Homes Limited) v Buckinghamshire County Council [2004] P and CR 573 at

paragraph 151.40 See per Sullivan J in R (Alfred McAlpine Homes Limited) v Staffordshire County Council

[2002] 2 PLR 1 at paragraph 71.31

seems to me that the only difficulty (which I do not overlook) to holding that the North Hertfordshire District may be the locality in the present case is that it robs the ward of any effective meaning. Every putative neighbourhood in England or Wales will be within a locality or localities. However if locality is to be given some functional meaning it is very difficult to see what that functional meaning could be. Given that Lord Hoffmann envisages that applications will not properly be defeated by technicalities, I think that the North Hertfordshire District may properly be a locality for the purposes of the present application.

118. I also have no difficulty in concluding that the Clothall Common Estate may be a neighbourhood for these purposes. The estate has a coherence brought about because it was all built at one time. It also has a coherence because all the houses on the estate share a vehicular access. I do not think that the absence of any community facilities prevents the Estate from being a neighbourhood.

119. Mr Ground advanced another argument based on neighbourhood. He argued that even if the Clothall Common Estate can now properly be viewed as a neighbourhood, this was not the case at the beginning of the 20 year period, when most of the houses were built. I see the point, but I think that it really is a way of taking generally the specific matter which I considered as Issue III. It really would be very odd if there had been significant use at the beginning of the 20 year period (or at least after the end of the archaeological dig) from a relatively small number of houses on what was undoubtedly going to become the Clothall Common Estate because (on this argument) there was no neighbourhood. I think the correct analysis is that there was a small neighbourhood which can be described as the Clothall Common Estate as then built, and which subsequently expanded. I have already conclude (see paragraph 109 above) that there was significant use of the site from 1986 onwards.

Conclusion120. I recommend that the site be not registered as a town or village green. This is because

of my conclusion on Issue I. I have concluded that the site was fenced from at least 26 November 1983 to April 1986 and was, accordingly, not physically available for use by local people as land on which they could indulge in sports and pastimes. I do not think that the application should be rejected because relevant use did not continue until the date of the application; construing the requirement in a common sense and purposive way, I think that it did (Issue II). I think that there was relevant use of the site between 1986 and 1990 (Issue III). I think that relevant use was by the inhabitants of a neighbourhood within a locality - namely the Clothall Common Estate in the district of North Hertfordshire (Issue IV).

121. I should add this for clarity. Although I have concluded on Issue II that the application should not be rejected because relevant use did not continue until the date of the application, I do not think that use after October 2003 and before November 2003 was as of right. The result of this is that I do not think that the Applicants cannot rely on this period of about one month as “counting” towards the requisite 20 years. Because of the view that I take on Issue I this does not make any difference to my recommendation. However there could be - at least in theory - cases where the inability to rely on such a period could be determinative.

Position under the Commons Act 2006122. The parties agreed that it would be helpful if I could express my views on the position

that would obtain if a fresh application to register the land were made after section 15 of the Commons Act 2006 had been brought into force. The effect of this provision is that the registration authority will (depending on the circumstances) disregard periods

32

of up to five or two years before the date of the application in which there has not been relevant use.

123. In the present case I found that the relevant use was called into question in October 2003. Accordingly I think that the registration authority could disregard the fact that there had not been relevant use for up to 5 years before the date of the application. Accordingly, once the new Act has been brought into force, Issue II would entirely disappear in respect of a fresh application, provided that it was made before October 2008. However the Commons Act 2006 would not alter the position as regards Issue I. In my view and on the material before me, the Applicants would not be able to demonstrate 20 years relevant use.

124. I should add that Mr Ground for the District Council made it clear that his concession that the land had been subject to relevant use between 1990 and October 2003 was limited to the application before me.

PHILIP PETCHEY

Francis Taylor BuildingTempleLondon

EC4Y 7BY

22 February 2007

33

APPENDIX 1

LIST OF THOSE WHO GAVE ORAL EVIDENCE TO THE INQUIRY

For the Applicants

1. BRYAN Christopher Michael 62 Westell Close

2. CEVETTE Teresa 3 Mercia Road

3. DAVE Dr Narendra 23 Stone Street

4. DAVIS Christine Clothall End House, California

5. FARRANT Paula 2 Downlands

6. GENTLE Alison 3 Downlands

7. MADDREN Christopher 22 Downlands

8. NASH Julia 2 Grosvenor Road West

9. WATTS Catherine 22 Sale Drive

10. YAXLEY Hilton 31 Mercia Road

For the Objector

1. FITZPATRICK-MATTHEWS Keith Archaeology Officer

2. TURNER Michael Property Services Manager

3. BEAVAN Andy Local Development Framework Manager

34

APPENDIX 2

LIST OF THOSE WHO SUBMITTED EVIDENCE QUESTIONNAIRES

1. AITKEN Christine and John 4 Downlands1985 to date

2. * ALDERTON Jeanette and Brian 15 Grosvenor Road1978 to date

3. * ALDOUS John 28 Westell Close1956 to date

4. ALDOUS Susan Windrush House, 9 California 1974 to date

5. ALI Sarah Jane andSTAMFORD John

11 California1997 to date

6. BARTON Ann and Colin 21 Bush Spring1997 to date

7. BAXTER Vanessa and Christopher 84 Mercia Road2000 to date

8. * BECKWITH Victor 11 Grosvenor Road1952 to date

9. BEDFORD Sarah and Keith 13 Sale Drive1994 to date

10. BELL Susan and Peter 31 Rye Gardens1986 to date

11. BENNETT Victoria 20 Maltings Close1994 to date

12. BERRY Annette Susan 24 Wynn Close1986 to date

13. BLACKMAN Marina and Charles 32 Hurst Close2000 to date

14. BLOXSOME Anthony andWILLIAMS Ruth

15 Sale Drive1999 to date

15. BOOTH Rhonda and Gavin 39 Wynn Close1988 to date

16. BRIGHT Tina and Paul 18 Sale Drive1988 to 2004

17. BROOKES Candice 18 Downlands1991 to date

35

18. * BROTHERTON, Terence and Jacqueline

1 Weavers Way1983 to date

19. BROWNE Pauline and Andrew 3 Bush Spring1984 to date

20. BROWNING Lucy and Christopher 16 Sale Drive2001 to date

21. * BRYAN Christopher 62 Westell Close1982 to date

22. BUCKINGHAM Jane andTOUGH Wes

16 Wynn Close2002 to date

23. BUDGE Jan and Graham 5 Hurst Close1999 to date

24. BURROWS Theresa and Paul 44 Sale Drive2002 to date

25. BUTTERFIELD Claudia and Peter 48 Wynn Close1980 to date

26. CAINE Christine and Darren 17 Sale Drive2000 to date

27. CARSON Nina and Michael 30 Sale Drive1996 to date

28. CARTWRIGHT Caroline and David 6 Sale Drive1996 to date

29. *CESVETTE Teresa and Colin 3 Mercia Road1985 to date

30. CHATLAND Joan and Aidan 29 Wynn Close1986 to date

31. CHITTY Angela and Clive 20 Sale Drive1994 to date

32. * CLAYTON, Ian and Tracey Linda 36 Barley Rise1988 to date

33. COCKMAN Adele andLAURENCE John

7 Downlands1985 to date

34. COOPER Sharon and Alan 4 Rivett Close1995 to date

35. COPSEY Jane and Brent 5 Sale Drive1994 to date

36. * CRUMPHOLT (Nash) Julia 2 Grosvenor Road West1983 to date

36

37. * CUMMING Lynne and Alastair 1 Downlands1985 to date

38. D’SOUZA Helen and Danziel 34 Sale Drive1996 to date

39. DAVE Bhauna and Narenda 25 Stane Street1993 to date

40. DAVIS Christine and John Clothall Homes, California1979 to date

41. DAY Janie 39 Westell Close1982 to date

42. DAYMOND Mary 46 Sale Drive1994 to date

43. DELLAR Steve 34 Wynn Close1997 to date

44. DONLING Margaret 10 Eisenberg Close1991 to 2004

45. DOWSETT Angela and Charles 23 Sale Drive2003 to date

46. EDWARDS Nicola and Colin 4 Maltings Close1997 to 2004

47. * FARRANT Paula 2 Downlands1983 to date

48. FOWELL Elizabeth and Christopher 10 Stane Street1999 to date

49. FRAZER Benny and Andy 9 Sale Drive1998 to date

50. FURNESS Philippa and Mark 41 Sale Drive1998 to date

51. GARRETT Carol and Stephen 5 Sale Drive1983 to date

52. * GENTLE Alison and Mark 3 Downlands1982 to date

53. GILLHAM Sarah and Bradley 8 Hurst Close1983 to date

54. GLUCKSTEIN Euphemia [?] and Jacob

20 Downlands1985 to date

55. GODFREY Michelle and Richard 7 Grosvenor Road1980 to date

37

56. GREEN Ellen and Andrew 27 Mercia Road1999 to date

57. GREEN Wendy and Charles 35 Sale Drive1995 to date

58. * GRUMMIT David and SANDLER Jennifer

7 Grosvenor Road West1954 to date

59. HALL Catriona and James 3 Sale Drive1995 to date

60. HALL Elizabeth and Ian 5 Grosvenor Road2001 to date

61. HALL Susan 1 California1988 to date

62. HANSEN Lone and Nicholas 54 Sale Drive1994 to date

63. HARDMAN Angela and Mark 2 Stane Street1986 to 2004

64. HARPER Carolyn and John 55 Wynn Close1988 to date

65. HATCHETT Susan and Peter 16 Westell Close1982 to date

66. HAYES Lisa and Antony 14 Westell Close1988 to date

67. * HAYZELDEN Michele and John 13 Grosvenor Road West1947 to date

68. HEMMINGS P 63 Westell Close1940s to date

69. HEWITT Karen and Mark 27 Stane Street1987 to date

70. HIGGINS Kelly 7 Sale Drive1995 to date

71. HILLS Nola and Richard 2 Grosvenor Road1951 to date

72. HORNBY Zia and Howard 25 Mercia Road1995 to date

73. HORSCROFT Marilyn and Robert 19 Jeve Close1987 to date

74. HUGHES Margaret and John 31 Stane Street1993 to date

38

75. * JACKSON Janet and Roger 13 Grosvenor Road1980 to date

76. JACKSON Roxanne and Robert 1 Bush Spring1993 to date

77. JENNINGS Bernard 25 Downlands1985 to date

78. JOHNSON Jennifer 68 Westell Close1988 to date

79. * JONES Alma and Barry 6 Weavers Way1982 to date

80. JONES Kinta and Brian 15 Stane Street2000 to date

81. JONES Nicola and Clifford 4 Mercia Road1994 to date

82. JUDGES Sally 23 Wynn Close1988 to date

83. KELSALL Michelle and Nicholas 65 Mercia Road1996 to date

84. KEMP Nicola and John 25 Sale Drive2000 to date

85. KENDLE Julie and Kevin 31 Sale Drive1995 to date

86. KINGSLEY Deborah and Paul 46 Westell Close1999 to date

87. KNIGHT Lisa and David 24 Sale Drive2000 to date

88. LEADER Sylvia and Martyn 2 Bush Spring1989 to date

89. LEGG Jacqueline and Alan 32 Sale Drive1995 to date

90. LETFORD Linda and Allan 5 Bush Spring1986 to date

91. LIDDAR Jaz and SINGH Surgit

12 Rivett Close1997 to date

92. * MADDREN Carlie and Christopher

22 Downlands1986 to date

93. MADDREN Maureen 23 Pembroke Roadlate 70s to date

39

94. * MANGHAM Clare and Duane WRIGHT

17 Wynn Close2001 to date

95. MARTIN Julia and Paul 46 Bush Spring1990 to date

96. MCDERMOTT Claire and John 71 Westell Close1987 to date

97. MCHALE Debra and John 75 Clothall Road1982 to date

98. MERRETT Shirley and John 33 Bush Spring1986 to date

99. MILLS Jeanette and Paul 51 Mercia Road1997 to date

100. MOBBS David 5 Stane Street1996 to date

101. MUGE Jane and Nick 2 Sale Drive1999 to date

102. * NICHOLLS Martine and Peter 40 Sale Drive1975 to date

103. * NUNN Georgina and Doug 11 Westell Close1982 to date

104. O’CONNOR Fiona 9 Grosvenor Road West1993 to date

105. OBERSTEIN Catalin 15 Grosvenor Road1995 to date

106. OLIVER Kathleen and Anthony 3 Ivedale View1986 to date

107. PAIN Susan and David 1 Barley Rise1987 to date

108. PAINTER Catherine andBAILEFF Alexander

2A Sale Drive2001 to date

109. PARNWELL David 20 Jewe Close2002 to date

110. PARRY Dawn and UHL Michael

21 Sale Drive2000 to date

111. PARRY Mary 3 The School House, South Road1965 to date

112. PAYNE Tiffany and Christopher 6 Grosvenor Road1999[?] to date

40

113. PORTER Karen and Simon 30 Wynn Close1996 to date

114. RAY Janet and Teresa 17 Hurst Close1998 to date

115. RIST Lindyanne and David 7 Stane StreetApril 2000 to date

116. ROBINSON Tracey and Keith 40 Westell Close1999 to date

117. * ROSS Diane and Barrie 83 Mercia Road1983 to date

118. ROWLEY Lorraine and John 36 Bush Spring1992 to date

119. * SALTER Jean and Colin 49 Westell Close1982 to date

120. SCRIPPS Hazel and Paul 29 Sale Drive1992 to date

121. SEYMOUR Jean and Kevin 9 Ivedale View1988 to date

122. SIMPSON Lindsay andSMITH Stephen

28 Downlands1990 to date

123. SMITH Julie Ann 19 Grosvenor Road1987 to date

124. STARK Mavis 5 Chauncey Gardens1995 to date

125. STRICKLAND Claudia and Christopher

3 Grosvenor Road1994 to date

126. SUMMERS Lorraine and Malcolm 29 Stane Street1981 to date

127. TAYLOR Marcia and Stephen 38 Sale Drive1997 to date

128. TAYLOR Vera and Colin 25 Wynn Close1986 to date

129. TESTER Janet and Roger 33 Sale Drive1995 to date

130. * THOMPSON Hazel and Malcolm 26 Mercia Road1985 to date

131. TIMMS Jill and John 26 Wynn Close1986 to date

41

132. UPTON Marie and Philip 25 Grosvenor Road1999 to date

133. WARD Patricia and Leslie 27 Sale Drive1995 to date

134. WATERHOUSE Lyn and Keith 27 Wynn Close1990 to date

135. WATSON Linda and Keith 41 Mercia Road2000 to date

136. WATTS Catherine and Simon 22 Sale Drive1995 to date

137. WATTS Karen 6 Downlands1991 to date

138. WEBB Colin andIVORY-WEBB Deborah

26 Sale Drive1995 to date

139. WESTON Karen and Stephen 22 Wynn Close1997 to date

140. WILCOCK Margaret and Paul 63 Clothall Road1988 to date

141. WILLOUGHBY Jeryl and Stewart 34 Hurst Close1988 to date

142. WILSON Janet and Roy 1 Stane Street1997 to date

143. WREN Colleen and John 9 Grosvenor Road West1935 to date

144. WRIGHT Helen and Derek 21 Wynn Close1985 to date

145. * YAXLEY Lilian and Hilton 31 Mercia Road1981 to date

42

APPENDIX 3

LIST OF THOSE SUBMITTING STATEMENTS AS TO THE USE OF THE SITE BY THEM AS

CHILDREN AND TEENAGERS

BIBBY Christopher 9 London Road, Baldock SG7 6LE

BRANNAN Laura 52 Bilberry Road, Clifton, Beds SG1 5HD

CADDY Alan 55 Hardwick Road, Eynesbury PE19 2LE

CADDY James 8 Paddocks Close, Stevenage SG2 9UD

CATLING Stuart 41 The Tene, Baldock SG7 6DG

COLLINS Caroline 4 Archers Way, Letchworth Garden City, SG6 4UN

GENTLE Peter 6 Canova Road, Butler, WA6032 Australia

JEFFREY Sacha 24 Boscombe Road, Southend-on-Sea, Essex SS2 5JD

LOWE Jonathan 23 St Ivel Close, Langford, Beds

MADDREN Nicholas 23 Pembroke Road, Baldock SG7 6DB

MAXWELL Amanda 73 The Hermitage, Arsley, Bedfordshire

MCDERMOTT John 71 Westwell Close, Baldock SG7 6RY

RANSFORD Sharon 3 East Darnwood Road, Liverpool L24 7RG

SMITH John 17 Salisbury Road, Baldock SG7 6PE

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APPENDIX 4

LIST OF DOCUMENTS ANNEXED TO REPORT

All the Documents are Enclosures to the evidence of Mr Fitzpatrick-Matthews

Document 1 Additional Enclosure aVertical aerial photograph from University of Cambridge library: c summer 1976.

Document 2 Enclosure A (p17)Panoramic aerial photograph: summer 1976

Document 3 Enclosure T (p71)Excavation Areas 1979 – 1984

Document 4 Enclosure X (p78b)Archaeological features of the site

Document 5 Enclosure D (p29)Areas excavated within site 1980 – 1985

Document 6 Enclosure I (p36)Western boundary of the site; summer 1984

Document 7 Enclosure M (p46)Western boundary of the site: summer 1985

Document 8 Enclosure N (p47)Western boundary of the site: summer 1985

Document 9 Document U (p75)Western boundary of the site: November 1985

Document 10 Additional Enclosure cSouthern boundary of site: spring or summer 1983.

Document 11 Additional Enclosure d View towards south-western corner of the site: 1985

Document 12 Additional Enclosure eArea 15: 1986

Document 13 Additional Enclosure fArea 15: 1986

Document 14 Enclosure Y (p78b)Aerial photograph of the Clothall Common Estate: 1984

Document 15 Enclosure C (p28)Excavation to east of Area 1: 1981

Document 16 Enclosure R (p57)Aerial photograph of the Clothall Common Estate: 1991

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