By The DCA Executive Committee
Our apologies for the legal jargon but it displays what Dr. Nick Cox has tirelessly navigated, on Diggle’s behalf, over the last eight months.
At a meeting of the OMBC Commons Registration Committee, held on 26 November, the application to register Diggle Village Green as an official village green was rejected.
It must go on record that the application met the legal test for registration in all respects except one, a subsection of the requirement that use of the land should be ‘as of right’ which defines use of this kind as being ‘without permission’. The point at issue is that the land was acquired by Saddleworth UDC under legislation which contains a clause enabling them to adopt or lay out land associated with public housing as ‘open space’. Although there is no direct evidence that the Saddleworth UDC or its successors had the express intention of providing the land we know as the Village Green as open space, the mere fact that the clause exists within the legislation has been deemed in recent case law as sufficient to indicate an effective appropriation of the land to that purpose. If the land is regarded as open space provided by the Saddleworth UDC and its successors, then use of that land is with implicit permission and therefore ‘by right’ not ‘as of right’ and the land cannot be registered as a village green.
As a result of the efforts of the DCA committee and many members in gathering and contributing evidence Dr Nicholas Cox, the applicant, was able to present a compelling argument for registration that was only narrowly defeated. FCHO, the landowner, submitted a series of objections, all of which were dismissed by OMBC after a rigorous critique of their arguments was submitted by Dr Cox. It is disappointing that the application was rejected on an interpretation of a fine point of case law but for registration to take place all the tests must be met in full.
At the meeting Dr Cox made the case to the Committee that the presence of poles and lines for hanging washing on the land, provided (as the testimony of Diggle residents proved) by Saddleworth UDC and maintained by subsequent authorities, suggested that the land was not provided as ‘open space’ as envisaged in the legislation, but rather as more narrowly defined amenity land specifically associated with the housing on Moor Crescent. It came subsequently to be used for recreational purposes by residents and the wider community. However, the Committee accepted the recommendation presented by Mr Evans (OMBC Group Solicitor) that the application should be rejected on the grounds that ‘open space’ was not defined within the legislation and could be understood to have been made available for a variety of purposes.
The DCA would like to thank Dr Cox for his work on the application, which, supported by other members of the Committee and aided by the expert legal advice of Robert McCracken QC, began in January and continued throughout the year with legal argument and counter argument. FCHO had many resources available to them to employ barristers and other legal experts, Dr Cox and the DCA defeated their arguments but were not able to persuade the Commons Registration Committee on the one issue which has proved crucial in determining the case. Although FCHO ‘won’, they only ‘won’ on a technicality. It is bitterly ironic that the argument that Diggle Village Green was intended as ‘open space’ for the use of the community has been used to take it from that community and develop it for housing. The DCA Executive Committee extend their collective thanks to Dr Cox for his efforts in seeking to prevent this from happening.
The DCA are holding the Christingle Carol Service on 8th December at 4pm on the village green and FCHO have said that they have no difficulty with the event being held on there.
FCHO anticipate that work will not start on the site until early 2014 at the earliest, more probably in the spring.