· Web viewThe application was in Form 30, as required by the Commons Registration (New Land) Regulations 1969 (“the 1969 Regulations”), and was verified by a statutory declaration

In the Matter of

an Application to Register land at

Croxley Green, Hertfordshire

as a Town or Village Green

__________________________________________________________________

REPORT

of Miss LANA WOOD

09 May 2023

__________________________________________________________________

Hertfordshire County Council

County Secretary’s

County Hall

Hertford

SG13 8DE

Ref: Deborah Davis

APPENDIX B

In the Matter of

an Application to Register land at

Croxley Green, Hertfordshire

as a Town or Village Green

REPORT

of Miss LANA WOOD

09 May 2023

1. The Village Green Application

Hertfordshire County Council, as registration authority, received on 28th July 2004 an application dated 19th July 20041 from Amanda Jane Grant and Barry Neil Grant of 93 Frankland Road, Croxley Green Rickmansworth, WD3 3AS to register land at Croxley Green, Hertfordshire, as a town or village green pursuant to s.13 of the Commons Registration Act 1965 (“the CRA 1965”)2. The application was in Form 30, as required by the Commons Registration (New Land) Regulations 1969 (“the 1969 Regulations”), and was verified by a statutory declaration of Amanda Jane Grant dated 19th July 2004.

Part 3 of the application form described the name by which the Land was usually known as “Long Valley Wood and Buddleia Walk”. The locality was described as “Neighbourhood within the locality of Croxley Green”.

Part 4 of the application form asks: “On what date did the land become a town or village green?” The Applicant replied “before 1984”.

Part 5 of the application form asks: “How did the land become a town or village green?” The Applicant replied: “Regular public use by local residents for sports and pastimes as of right for not less than 20 years”.

The application form was accompanied by a map marked Map “A”. The whole of the area shown was identified as included within the boundary of the neighbourhood within the locality of Croxley Green and an area shown by cross hatching was described as “Proposed site for Village Green status”. Various other documents were enclosed, listed on A1/7: (1) a photocopy of page 82 from LUL/Metronet’s environmental statement May 2004 commenting on the high public use of the land3 (2) a photocopy of an extract from the Watford Observer dated 1996 reporting on the Parish Council’s plans to try and purchase some of the land4 (3) photocopies of a few of the letters sent by local residents to Three Rivers District Council objecting to the development and providing anecdotal evidence of use of the land5 (4) a copy of a letter sent to Croxley Green Parish Council6 (5) a copy of a letter sent to Richard Page MP7.

1 Sent under cover of a letter dated 21st July 2004 at A1/11.2 A1/13 A1/84 A1/95 A1/15-346 A1/107 A1/13

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The application was publicised in accordance with the 1969 Regulations. The following objections were received by the Council:

(1) A letter dated 26th January 2006 from Mr Gordon and Mrs Lilyane Weston of “Owlet”, Templepan Lane, Chandlers Cross, Rickmansworth, Hertfordshire, WD3 4NH (“the Third Objectors”).

(2) A statement of objections on behalf of Lincat Group PLC as owner of the IMC Works at Croxley Green dated 2nd February 2006 (“the Second Objector”)

(3) A statement of objection on behalf of Transport for London and London Underground Limited dated 8th February 2006 (“the Lead Objector”)

2. The Public Inquiry

I was appointed by the Council (as registration authority) to hold a non-statutory public inquiry into the application and to report in writing to the Council with my recommendation whether the Council should accede to or reject the application. I gave Directions on 21st February 2007 and Further Directions on 27th February 2007 and 1st March 2007.

I held the Public Inquiry at Durrant House, Lincoln’s Way, Croxley Green, Hertfordshire WD3 3ND on Monday 12th March 2007, Tuesday 13th March 2007, Wednesday 14th March 2007, Thursday 15th March 2007 and Friday 16th March 2007.

The Applicant was represented by Mr Douglas Edwards of counsel, instructed by Freedman Sharman & Company of Kenwood House, 77a Shenley Road, Borehamwood, Hertfordshire WD6 1AG . The Lead Objector, Transport for London and London Underground Limited (“TfL/LUL”), was represented by Mr Charles Mynors of counsel, instructed by Wragge & Co LLP, Ref: 1923194/DMH/JHE, 55 Colmore Row, Birmingham B3 2AS. The Second Objector, Lincat Group PLC (“Lincat”) was represented by Mr Martin Edwards of counsel, instructed by Barton Willmore Planning Partnership, Ref: 13159/A3/MH, 6th Floor, Venture House, 27-29 Glasshouse Street, London W1B 5BW. Mr Weston appeared in person on behalf of himself and Mrs Weston.

I would like to express my gratitude to the team from the Council as registration authority, and in particular to Mr Gregory Dack, Ms Deborah Davis and Ms Monica Dyer for their help and administrative assistance in ensuring the smooth running of the inquiry.

3. The Land

The application land is a large site to the south of the A412 Watford Road in Croxley Green, Hertfordshire. The site is approximately one kilometre in length (running northeast to southwest), and about 200 metres wide at its widest point. It bounded to the southeast by the towpath of Grand Union Canal. To the northwest, at the site’s northern end it is bounded by the rear gardens of the houses on Frankland Road and the allotments behind those gardens and towards its southern end by what was known at the inquiry as the IMC site (after the last occupant of the factory premises on the site) and by Lavrock Lane. The site is bounded by the Metropolitan Line railway at its southern tip, and by Mill Lane at its northern tip.

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The application land is not crossed by any public right of way shown on the definitive map and statement of public rights of way, but there are public footpaths in the immediate vicinity. Footpath number 17 runs along Mill Lane and along the canal towpath adjacent to the southeastern boundary of the site to the bridge to Croxley Common Moor. Footpath 11 runs along the northeastern boundary of the site from between numbers 51 and 53 Frankland Road, to the rear of the allotments and along Lavrock Lane. The canal towpath runs along the whole of the south-eastern boundary of the site. Croxley Common Moor, a SSSI, is to the south east of the site on the opposite side of the Grand Union Canal and the River Gade. Croxley Hall Woods are to the north east of the site, on the opposite side of Lavrock Lane.

The application land falls into two distinct areas in terms of character: the area known as Long Valley Woods, which comprises some ancient and some secondary woodland, and the area known as the Buddleia Walk, which is scrubland covered in, as its name suggests, Buddleia. Historically there was a third distinct area known as the orchard, the land now owned by Mr and Mrs Weston. However, at the time of the site inspection, that area had become overgrown and had acquired a character similar to the remainder of the secondary woodland in Long Valley Wood.

4. Land Ownership

The land comprising the application site is in the ownership of four different entities: TfL/LUL (the Lead Objector), Lincat Group PLC (the Second Objector), Mr and Mrs Weston (the Third Objector) and Three Rivers District Council (“TRDC”). The Lead Objector produced a very helpful plan showing the precise boundaries of the land in its ownership8. Mr and Mrs Weston’s title is registered at HM Land Registry under Title Number HD210050. Neither Lincat nor TRDC produced any evidence as to its land ownership. The Applicants produced a plan9 showing their understanding as to the ownership of the land. It seems that Lincat owns all that part of the application land which lies to the northwest of the fence described at the Inquiry as the orange fence and to the south of the industrial works also owned by Lincat. This land was referred to at the Inquiry as “the IMC land”. It seems that TRDC owns all that part of the application land which to the northwest of the land owned by TfL/LUL and to the north of the industrial works owned by Lincat.

TRDC did not lodge an objection to the application and did not appear at the Inquiry.

5. Opening submissions

I received very helpful written opening submissions from the Lead Objector and a very helpful summary of legal arguments to be relied upon by the Applicants. At the outset of the inquiry, before the site visit, I heard brief oral opening submissions from all parties.

Applicant’s opening submissionsThe Applicant submitted that when I was considering the evidence in relation to recreational walking I should find that the nature orientation and extent of the walking when considered in its context is referable to a lawful sport and pastime rather than to an activity which equates to the acquisition of highway rights. I should consider the evidence in the context of the guidance given by Lightman J in the Oxfordshire case, with regard to how the appeal courts treated his guidance.

The relevant 20 year period was July 1984 – July 2004. The locality relied upon by the Applicants was the electoral ward of Croxley Green South.

8 LO/3/1 Plan A9 A/1/258

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The user had been as of right: no permission or licence had been sought or granted. The user had been overt. So far as the contention made by the Lead Objector in paragraph 20 of its opening submissions was concerned, that the local residents sought and obtained permission to go on the land in 1995 and that this broke any period of uninterrupted use “as of right”, the documentary material to which the Lead Objector referred was not capable of supporting a contention that permission had been sought or granted for use of the land for lawful sports and pastimes.

The user had not been forcible. The Applicant accepted that remnants of fencing exist within although not around the application site, but contended that the fencing had not prevented free and unimpeded access to all parts of the application site, including the former tip site. Formal access points into all areas including the former tip site had existed at all material times.

The Applicant stated that when the documents referred to in paragraph 16 of the Lead Objector’s opening submissions were subjected to proper scrutiny they would not bear the construction sought to be placed on them by the Lead Objector and will not support facts sought to be established by them.

There were no relevant notices erected on the application land prior to the submission of the application and any notices erected after the application was made should as a matter of law be discounted.

The Applicant submitted that the application site is clearly divisible along land ownership boundaries and by reference to features on the land. The Applicant’s case is that entirety of the land should be registered. However, if I were to be persuaded that any particular part of the site had not been shown to qualify, I am entitled to recommend that part only should be registered.

Lead Objector’s opening submissionsThe Lead Objector stated that there was no single officer or employee of TfL who could give evidence. There had been a sequence of people responsible for the site over the period. The Lead Objector had therefore chosen to call one witness who would summarise the position from the documents.

Although the question of the precise boundaries of the application land appeared now to have been dealt with, he suggested that it was significant that the new plan showed yet another boundary which did not correspond with any other plan so far submitted by the Applicant and stated that it would be important ultimately to ensure that boundaries are clearly defined.

Counsel stated that the former tip site includes the area which is now open ground, and cautioned me against assuming that what I can see now is what has always been there. There was an active tip on the land. The land was not necessarily like it is now at the beginning of the relevant period, 23 years ago.

The woodland area is sloping but generally open and is quite distinct from the former tip area which is now covered by Buddleia. The use of the different areas is different now because of their different features, and historically the use would also have been different. However, the witness evidence tends to be framed in relation to the whole of the application land. This brings into question the precision of the evidence being offered in support of the application. Mr Mynors submitted that I must consider very carefully the evidence of each witness, and focus on precisely what is alleged to have been done and when and where it is alleged to have been done. The woodland area is likely to have been used for general recreation, as is the open area, but possibly not for whole of 20 year period. The recreational use of the former tip, he submitted, is principally walking with or without dogs up and down the Buddleia Walk, because the remainder

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of the area is not suitable for any other activity. If I find that that is the case, that would tend to suggest the coming into force of a public right of way, rather than a town or village green.

Counsel for the Lead Objector submitted that this was an application which was manifestly suitable for splitting into parts.

He asked me to bear in mind that the evidence is from many who are in support of recreation, and also opposed to development of the land. The application owed its origin to the planning application. Those in favour of this application are those who are against development, and therefore are in favour of forcing their way onto the land, even if it involves breaking down barriers.

The documentary evidence was relevant to the question of to what extent it was physically possible to access the land and the extent to which that access was by force or by permission.

When considering the documentary evidence I should bear in mind that it was produced well before the present application and not with the application in mind. I should therefore give it substantial weight.

Mr Mynors set out various historical events which he submitted were evidenced by the documents: in 1986 the site was covered in Buddleia and brambles and could not have been used for recreation, other than walks along the path. In 1990 part of the site was occupied by travellers. He said that it may be that people have now forgotten about the travellers, but their occupation would have resulted in a break in the use of the land. In 1993 works were carried out on land by way of research. Bore holes were dug. That amounted to a physical interruption of use. Such recreational use as may have continued deferred to the landowner’s use of land for carrying out research. In 1995 a large part of land was muddied and barren.

In relation to the fencing, the fencing shown by the purple solid line shown on Plan D10 probably never actually existed. Its origin was the plan at LO/2 page 43, but the line shown on that plan was probably a diagrammatic representation of the existing fence on the orange line.

The orange fence is still in existence, although there are gaps in it. It is untrue to say (as some of the witnesses do) that there is no fencing on the site. The Lead Objector would be asking me to accept as a matter of evidence that there was a fence on the site and that it was being constantly knocked down.

Mr Mynors stated that there is a strip of TfL land which was not within the orange fencing. There is no physical boundary between the TRDC land and this part of the TfL land. The Lead Objector accepted that there would therefore have been no difference in how the TRDC land was used and how this part of the TfL land was used. Consequently the Lead Objector did not resist the registration of the TfL land to the north west of the orange fence line.

However, the Lead Objector did vigorously object to the application insofar as it related to any land enclosed within the orange line. That land had been fenced for many years. The public had got through from time to time, and now it is wide open and there is a path through it, but in the 1980s there was a relatively new fence there. That fence must have been cut with wire cutters and rolled back. This is entry by force, and therefore not sufficient to establish use as a town or village green.

The fence on the green line forms an inner fence line. The section parallel to the canal is still in good condition except for 4 or 5 points where it has been cut and rolled back. That fence was erected in 1983 and must have been new at the beginning of the 20 year period. Someone must 10 LO/2/1/4

5

have gone to the site with wire cutters. This was entry by force. The users must have been aware that they were going onto private land through gaps which had been cut within the fence line. More recently, there have been well-worn paths, and people would just have used them, but at the beginning of the 20 year period, any use was use by force. Mr Mynors said that it may be that at some point during the 20 year period the entry ceased to be by force, but that I did not need to determine that question because it was clear that at the beginning of 20 year period, entry was by force.

The return section of the fence shown by the green line across what is now the open area has disappeared across the open area, but is still very much in evidence in the bushes to either side of the open area. It is clear here that it has been broken down.

There was a period when local inhabitants were given permission to go onto the land to clear up rubbish. Insofar as that constitutes a lawful sport or pastime, it has to be discounted because it was by permission. The incident also shows that local people acknowledged that they needed permission from the landowner to clear up rubbish, and therefore that they were deferring to the landowner’s rights.

The Lead Objector did not dispute that the area specified by the Applicant was a locality within the meaning of the statute. The Lead Objector did not seek to say that the number of inhabitants using the application site was not significant.

Second Objector’s opening submissionsCounsel for the Second Objector stated that his only concern had been the question of the exact boundaries of the application land, and that, that concern having been answered by the provision of the Applicants’ latest plan, he did not have any opening submissions to make.

Third Objectors’ opening submissions Mr Weston submitted that the Third Objectors’ land has no connection with Long Valley Wood or with the Buddleia Walk. So far as the chain link fencing was concerned, he stated that he would be able to demonstrate that the only way people could have got through it was by cutting it.

6. Accompanied site visit

As provided for by Direction 24.1, Mr Weston requested that I should hold an accompanied site visit on the first day of the inquiry. All other parties concurred in this request, and accordingly I conducted an accompanied site visit on the morning of Monday 12th March 2007. The Applicant requested that I should look in particular at the fencing and at the access points to the application land. The Lead Objector said that it would be helpful for the parties to know what I had seen. In particular the Lead Objector wanted me to see the two fence lines and the remaining physical evidence at northern tip of site that some notices did exist, although what the notices said would be a matter of evidence. The Second Objector did not ask me to look at any features in particular. The Third Objector wanted me to look at the fencing.

7. The Applicant’s Evidence

Plans of the application land

The Applicants produced a total of seven different plans showing the boundaries of the application land. Plans 1-4 are helpfully collected at LO/3/541-546 and the different boundaries are shown on LO/3/App1/Plan A.

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At the outset of the inquiry, counsel for the Second Objector requested a definitive plan showing precisely what part of Lincat’s land was included in the application. The Applicant circulated a plan showing the boundary features which was inserted into the inquiry bundles at A/1/50A. During the course of the Inquiry two further plans (A/1/50B and A/1/50C) were produced on days 4 and 5 of the Inquiry respectively. The final plan and the plan on which the Applicants rely is A/1/50C.

Mr Mynors for the Lead Objector said that he did not consider that his client was prejudiced by the changes in the boundaries of the application land.

Mr M Edwards did not suggest that the Second Objector has been unfairly prejudiced by the production of revised plans during the course of the Inquiry. He said that it was not a question of fairness. He did not want any of the Applicants’ witnesses to be recalled so that he could put the new boundaries to them. However, he would be making submissions as to the effect of the changes in the boundaries on the strength of the Applicants’ evidence.

Witness evidence

The Applicants’ witness evidence can conveniently be dealt with in two parts. First, there is the evidence of witnesses who gave oral evidence to the public inquiry and were subject to cross-examination. Inevitably, this is the evidence which carries the most weight and which I must consider in detail. Second, there are a number of witness statements, evidence questionnaires and completed standard form letters submitted by witnesses who did not attend the public inquiry to give oral evidence. As this evidence could not be tested by cross-examination, it necessarily carries less weight, but must nonetheless be taken into account.

When recording the witnesses addresses, I have not specified in each instance whether the witness lives within the claimed locality or neighbourhood within a locality of the Parish Ward of Croxley Green South. Where no second line for the address of a witness is specified, that witness lives within the Parish Ward of Croxley Green South. Where a second line is given (other than Grosvenor Court, Mayfare, which is within the Parish Ward of Croxley Green South) the witness does not live within the Parish Ward of Croxley Green South.

7.1. Oral Evidence for the Applicant

I heard oral evidence from the following witnesses on behalf of the Applicant:

No. Name Address(1) Mr Barry Grant 93 Frankland Road(2) Mrs Patricia Margaret Allen 19 Frankland Road(3) Mrs Janine Dixon-Wilkinson 127 Sundon Road, Houghton Regis, Beds

formerly of 37 Frankland Road(4) Mr Ian Gordon 32 Frankland Close(5) Mr Roger Matthews 53 Frankland Road(6) Mrs Shirley Collins 39 Frankland Road(7) Mrs Margaret Leese 52 Harvey Road(8) Mr Ian Phillips 18 Watford Road(9) Mr George Horseman 29 Bateman Road(10) Mrs June Batchelor 27 Frankland Road(11) Mr Gerald Mealor 137 Frankland Road(12) Mrs Janet Christine Scammell 57 Frankland Road(13) Mrs Linda Janet Fuller 46 Harvey Road

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(14) Mr Derek Wakefield 50 Harvey Road(15) Mrs Barbara Starr 2 Nuttfield Close(16) Councillor Philip Brading 3 Grosvenor Court, Mayfare(17) Mrs June Emson 28 Frankland Close(18) Mrs Jan Rowley 20 Frankland Close(19) Mrs Judith Turnbull 127 Frankland Road(20) Mrs Amanda Grant 93 Frankland Road(21) Mr Mark Saxon 92 Frankland Road

(1) Mr Barry Grant of 93 Frankland Road

Mr Grant provided a completed evidence questionnaire dated 19th July 200411 together with a written statement in support of that evidence questionnaire dated 18th July 200412. He also provided a written statement dated 27th February 200713.

In his evidence questionnaire Mr Grant stated that he had known and used the land since 1983. He gained access to the land via the footpaths that ran behind his property to the east and to the west or via the canal towpath. He went onto the application land because there were clear paths leading through beautiful woodland, to see bluebells, to exercise dogs, to play with his children, to visit the SSSI [Croxley Common Moor], to access the towpath and Ebury Way and the bistro at Rickmansworth Lock. He used the land about 4 times per week and took part in walking, exercising dogs, jogging, photograph, fishing on the adjacent canal and river, bird watching, spotting types of deer and playing hide and seek with children. His immediate family also used the land: his wife for walking, exercising dogs, speed walking and bird and deer watching, and his children for walking and to gain access to the canal for kayaking. He knew of the following community activities which had taken place on the land: large picnics on the grassland, also schools, scouts, venture scouts, guides and brownies had used the land for trekking awards etc. There had also been community football and cricket games. He had participated in football games. He had also seen groups of hikers and bird and butterfly groups from time to time. He ticked as activities he had seen taking place on the land: children playing, drawing and painting, dog walking, team games, picking blackberries, football, cricket, bird watching, picnicking, people walking, bonfire parties and bicycle riding. Mr Grant did not believe that the owner or occupier had seen him on the land. He had never sought permission for activities on the land and neither had anyone ever given him permission to go onto the land. He had never been prevented from using the land and no attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants.

In his statement in support of the evidence questionnaire Mr Grant stated that he had lived in Croxley Green since 1982. Since that time he had used the woodland, the grassland, the Buddleia field and the paths of the application land for a variety of recreational purposes. At the time that statement was made (2004) he used the area on a regular basis either as one of his jogging routes, for exercising his dogs or for access to the River Gade and the canal, on average 4 or 5 days a week. He had never been aware of any restriction in using the paths or the adjacent land, although he had seen evidence of decrepit and neglected wire fencing in and around the wooded area. The fencing was in such poor repair that there was no restriction in accessing any part of the surrounding woodland, the Buddleia field or the canal embankment areas. Mr Grant had been involved in regular clean up projects over the years to remove litter from the area, and had pruned foliage to keep the paths passable in the summer months. The stony nature of most of the paths through the Buddleia area meant that they could be used throughout the year.

11 A/3/58512 A/3/58913 A/1/90

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In his written statement dated 27th February 2007 Mr Grant stated that he had lived at 93 Frankland Road since January 1987. Before that he had lived in New Road (north of the Watford Road, outside the parish ward of Croxley Green South) between 1982-1987. The garden of 93 Frankland Road backs onto the Frankland Road allotments. From 1982 Mr Grant used the application land as one of his jogging/cycling routes. At that time he ran or cycled most days, and would run through a part of the site on average once or twice a week. He would access the site from his back garden gate via points J and K or points I, H or G, or from his front door by those points and in addition point L.14 He had used the site virtually all year round for dog exercising, walking, running, cycling, playing football and cricket with his children (aged 18 and 21 at the date of the statement) and their friends, and for photography, sketching, and wildlife spotting. He had picked blackberries, cobnuts and mushrooms and had collected bait for fishing. He appended a plan15 illustrating where he had predominantly carried out particular activities.

He remembered an incursion by travellers in October 1989. There were 4 caravans and 6 cars and about a dozen people. The caravans were grouped together. He appended a plan16 showing the area which he remembered being occupied by the travellers. He continued to use the site while the travellers were there.

He remembered a small collection of vehicles appearing in the winter of 1994: two diggers and a lorry. They left within a matter of days, and he continued to use the site whilst they were there. When they left the large mound of earth at the end of the path reached from access point G was deposited on the site, and the three metal posts set in concrete at point G were erected.

Mr Grant had seen tracts of wire fencing in various states of decay through the site. He mentioned two particular tracts of four foot high fencing between the Buddleia Walk and Long Valley Woods. He had never seen anyone repairing the fences during the period he had known the land. The only noticeable changes to the fencing had resulted from trees falling across fence lines.

In oral evidence Mr Grant confirmed the content of his statements and evidence questionnaires.

In chief Mr Grant was asked to describe any obstructions between Mill Lane and Mr Weston’s land. He stated that the boundary between these two areas has, in the time Mr Grant has known the land, always looked the way it does today. On the boundary between Mr Weston’s land and the channel between the two fences leading down to the canal, the position of and openings in the fencing were also no different to the way they had always been. There had been no maintenance of that fencing which had reduced or eliminated the openings in the time that he had known the land.

The gaps between the fencing on the other side of the pathway and the remainder of the land (i.e. the land owned by LUL/TfL) has not been obstructed in the time he has known the land. He did not recall any wording on the boards attached to the fence in the northern-most corner of the fencing and on the fencing.

The fencing shown by the orange line on Plan D17 has remained in broadly the same condition during the time he has known the land. The gaps have never been closed. There has not been any maintenance to prevent access or consolidate the fence.

He did not remember any fencing across the line shown in green going from the north-eastern corner with the return down to the canal preventing access into and out of the area which the

14 A/1/26215 A/1/10416 A/1/93A17 LO/3/1/ Plan D

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fence appears to enclose. He had been accustomed to take a route through, which on the plan would appear to have been obstructed by the green pecked fencing.

The green pecked fencing running parallel to the canal had never operated so as to prevent access. All the time he had known that fencing it had been in the same condition. He recalled there always being a gap towards the IMC land level with the IMC works in about the middle of the pink shaded area shown on Plan D. The access into the application land from Lavrock Lane was never restricted from where the pathway was shown to the south of the IMC works leading off Lavrock Lane, although there were gates across the access point itself which were closed or locked to prevent access.

Along the boundary between the towpath of the canal and the LUL/TfL land, he did not recall the condition of the fencing being such as to prevent access. He did not recall a time when the gaps which are there at present were not there.

He personally had never removed any section of fencing and was not aware of any local resident having done so. There had never been any notice permitting or prohibiting access to the land apparently enclosed by the orange-pecked fencing, before the application was submitted. He could not remember any maintenance or repair of the fencing around the LUL land in the time he had known the land.

The fencing around the Lincat/IMC land had never, in the time he had known the land, been in such a condition as to prevent access to that land.

By reference to the plan at A/1/262 Mr Grant stated that there had always been at least one access between points H and I: one by the horse land and one adjacent to the southernmost drive to the IMC land. They had been there all the time he has known the land. There had not been any maintenance of the fencing enclosing the IMC land to his knowledge.

On the IMC part of the land, Mr Grant had seen local residents walking dogs, walking and out with the family. At various times there had been a rope swing there. There was also a hide in one of the trees (for bird watching) although that had been burnt down. The IMC land was also a place where it was possible to see a lot of Muntjac deer, early in the morning and at dusk. Local residents go there to see them, and also the badgers.

Mr Grant did not remember the travellers occupying an area nearly as substantial as the area shown on LO/2/91. He remembers rather the area being approximately of the size and in the position of the lozenge shape on A/1/93A. Mr Grant remembered there being 4 caravans. He took as a reference when indicating the lozenge shape on A/1/93A the size of the properties in Frankland Road, and estimated that the 4 caravans would fit into a pocket of land of that size. The area occupied was no larger than the totality of Mr Grant’s property (front and rear gardens and house). The occupied area was within the pink shaded area on LO/3/1 Plan D.

In relation to the 1994 incident: the occupation of the site by the diggers and other vehicles did not prevent local residents from using the site in the way they normally did. It certainly did not prevent his use of the application land.

In response to cross-examination by counsel for the Lead Objector Mr Grant acknowledged that there are tracts of wire fencing on the land, which he said had been put up for some purpose by some person at some date.

Mr Grant confirmed that he had no reason to believe that the documents in LO/2 were not genuine.

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LO/2/21 and 22 referred to a proposed bridleway, along the back of the Frankland Road houses, down the side fence and through the application land to the canal lock. LO/2/23 states that there was fencing in 1979 and that there was recurring damage to it. Mr Grant agreed that he had no reason to doubt the truth of the content of the memorandum. LO/2/24 shows that there was an existing fence at point C, although the plan attached to that document is missing (and it is not possible to determine where that fence was). LO/2/28 refers again to the proposed bridleway. Mr Grant did not know where the sign referred to in that document was and has no recollection of seeing such a sign anywhere. Mr Grant accepted that as at 1981 there must have been a fence somewhere which was preventing access by walkers onto the tip land (although he pointed out that the letter does state that the fence needed some repair in parts).

Mr Grant was asked whether the statement in LO/2/34 that notices should be put up implied that the fence is in place, but the notices are not. Mr Grant commented that it was not clear from the memo whether or not the fence was broken at the time the memo was written. Mr Grant agreed that there was no evidence of a fence along a straight line in the position shown on LO/2/40 and that the line was probably just a diagrammatic representation of the existing fence.

Counsel asked Mr Grant to look at LO/2/42 in which the Chief Engineer of Three Rivers District Council confirmed that the Council would carry out future repairs as necessary between points A and B on the enclosed plan. When asked whether there was any reason to suppose that the Chief Engineer had not carried out those repairs, he said that there could have been some reason.

Mr Grant was taken to LO/2/45, LO/2/49, LO/2/50 and LO/2/51. He commented that the documents did not prove that a new fence went up on the line shown by the orange line on the plan. This was accepted on behalf of the LO by Mr Mynors.

Mr Grant was shown LO/2/53, LO/2/55, LO/2/57 and 57A, LO/2/58 and LO/2/61. Mr Grant said that to the best of his recollection there had never been a north-south return from the canal towards the woodland. He had never seen anything other than free access.

When asked by Mr Mynors whether the documents showed that there had been a long history of local people taking down fences as soon as they were put up, Mr Grant said that he had seen notes in two memos about vandalism of fences, including the reference in the 1981 memo which said that people had taken down the fence the day after it was put up.

Mr Grant accepted that one explanation for his lack of recollection of a fence on the return from the canal towards the woodland was that the fence had been cut down as soon as it had been erected. In response to question as to whether that was the most likely explanation, he accepted that the documents suggested that the work had been done, but said that he could only speculate as to whether the fence had ever been there.

Mr Grant was taken to LO/2/77 and the plan referred to which was in the bundle at LO/2/75. He accepted that, given that the land outside the green fence line had not been sold, the green fence line does not represent LUL true boundary. He agreed that it appeared that the fence had been installed after the land was re-graded. Mr Grant was taken to the fifth paragraph of LO/2/79, dated 1986, where it is said that much of the new fencing will have to be reinstated and commented that that document suggested that the fence was gone not just in need of repair.

Mr Grant was asked about the travellers’ incursion on to the site, and asked to look at the plan at LO/2/90. He confirmed that he had drawn the plan at A/1/93A in 2007 from his recollection as to how many caravans there were and how close they were together. Mr Grant said that he thought that his plan was more accurate than the plan appended to the contemporaneous memorandum at LO/2/91, although he said that a considerable area had been affected by the

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travellers’ rubbish. The area shown on LO/2/91 included part of the slope down towards the towpath. Mr Grant said that there was no way they were that far down.

Mr Grant remembered seeing a small amount of track on the application land with buffers at the end, quite close to the entrance to Lavrock Lane. His recollection was only of part of a single track. In 1994 Greenwoods took the remaining piece. That was only a single piece which did not go too far into the site. What is shown on LO/2/61 accords much better with his recollection than LO/2/91. Mr Grant cannot remember anything like the feature shown by the short lines on LO/2/91. The travellers were to the north of the path. If this plan shows the path accurately, then the area shown is definitely inaccurate.

While the travellers were on the site, people were not put off their recreational routes, although they would not go through the middle of the caravans. They would have passed quite close to them. The travellers were well away from the pathway, on the side away from the canal, closer to the fence.

Mr Grant was shown LO/2/119. He accepted that the letter says that the fencing had been renewed but said that he did not remember any renewed fencing. He remembered one ditch being dug, but no renewed fencing.

Mr Grant was taken to LO/2/125 which contained another reference to fences being cut down or knocked down. Mr Grant said that he was not aware of any fence being erected at or about that time (1993). Mr Grant accepted that LO/2/127 suggested that Hertfordshire County Council were taking note of the alleged problem with the local residents damaging fences, although he said, and Mr Mynors on behalf of the Lead Objector accepted, that that in itself did not prove that such a problem existed.

Mr Grant was taken to LO/2/152. He said that he remembered the incident referred to in the affidavit and accepted that LO/2/159 was probably accurate when it said that the occupiers went by 17th November 1994 and that there had been no more occupiers between then and 15th December 1994.

Mr Grant was shown LO/2/165 and asked whether “muddied and barren” was a fair description of the land in 1993. Mr Grant thought that the description related to the entrance to the site from Lavrock Lane, where the mound is now. The water would drain down into there and the area was muddy. To the best of his recollection that was the only part of the land which was muddy in 1993. The rest drained freely.

Mr Grant had not seen the trial pits referred to at LO/2/182 and 183, and in the logs from page 188 onwards being dug. He accepted that the records show that the trial pits were dug over a period of a couple of days between 2-4th February 1993. Mr Grant remembered being told about something going on during the day at about that time. He said that he has seen evidence of one or two large holes still on the site inside the Buddleia, although he noted that it was recorded that the sides of the trial pits had collapsed quickly. When asked whether members of public would have stayed clear while process going on he accepted that for the 2-3 days they were being dug, the public would have stayed clear of the holes, but said that he imagined that they were filled in after that. Mr Grant did not see pits being dug, does not know whether they were covered over straight away. He said that there is evidence of one or two within the Buddleia with collapsed sides. He never saw pits in the grassy area. In fact LO/2/181 shows that trial pits were backfilled immediately to the original level using the excavated materials.

The memorandum at LO/2/245, dated 12th August 1996 stated that the site “requires significant annual expenditure in repair of the access road and perimeter fencing. Local residents have come to regard the site as public open space and as soon as fencing is repaired, break it down to

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regain access.” Mr Grant commented that he had never seen any works of repair to the access road off Lavrock Lane, and that he had not seen any repairs to the perimeter fencing, although he accepted that whoever wrote memo apparently thought that the fence was being repaired and being broken down again.

Mr Grant was taken to LO/2/324 which is a page from Hertfordshire County Council’s site inspection records. On that page the entry for 23.11.1981 states that the site fencing has remained intact over the weekend. The entry for 7.12.1981 states that the fence had been repaired with barbed wire. The entry for 5.9.1983 (LO/2/326) states that a chestnut-paling fence had been erected along the top of the batter on the canal side and north to south across the width of the tip where the footpath gives access. The entry for 5.11.1983 records that chain link fencing was in progress on that day. Mr Grant agreed that these dates tallied with the instructions given and indicated when the fencing was put up.

Mr Grant accepted that there were two fence lines shown on Plan D represented by the green and orange lines and that the evidence tended to suggest that the orange line had been there for a long time and that the green was put up in November 1983, although it was agreed between Mr Grant and Mr Mynors that the fence line along canal was the original fence and should be shown in orange only.

Counsel for the Lead Objector asked Mr Grant whether it would be true to say that there appeared to be a consistent pattern between 1979 and 1996 of fences being erected and taken down by local people. Mr Grant accepted that that was the impression given by the internal memos and letters to and from the District Council and the County Council. However, Mr Grant was not convinced that the orange fence was replaced in 1981. Mr Grant said that the orange fence is the same material as that along the canal and is probably a great deal older than 1981.

Mr Grant accepted that there were four or five points he could think of where there is a gap and a path going through and it appears that someone had cut the fence. In two sections the fence had completely disappeared apart from the fence posts. He could think of one place where the fence has been rolled around where a tree had fallen onto it and said this might just be tidying up.

When asked whether he accepted that the fence was either cut before July 1984 and whoever went through the gap after that knew that he was going through a cut fence, or it was cut after July 1984, he said that the problem he had with that proposition was that he had never seen the return line fenced. He had always been able to go through from 1982 along the wide grassy area.

Mr Grant was asked whether he accepted that the length of fencing parallel to the canal in, for example, August 1984 would either have been intact or recently cut, so that a person passing through would have known that they were entering the application land by force. Mr Grant accepted that in two places the fence appeared to be cut or missing over quite a wide area. When asked whether it would have been obvious 23 years ago, he said that there were fences in various states of decay throughout the site. He accepted that in 1983 or 1984, a person coming from the canal might be aware that he should not go through the fence because it had obviously been cut, but said that access would have been possible at other points.

Mr Grant did not accept that the orange fence could be said to be in generally in a good condition as at the date of the Inquiry. He said that it was in a terrible state. There were trees down across it and huge sections missing, including sections where people had clearly cut it at one time. There were a number of places where the fence line did not seem to exist as a result of trees coming down across it and absence of maintenance.

In relation to the area across the path (close to point K) where there are a couple of panels of fencing missing, Mr Grant said that since he had been using that area the way had always been

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open. He did not know whether it had been cut and said that he was not an expert in the matter. He accepted that there was evidence of an attempt being made to maintain the fence and that there were fence posts there, but no fence. He said that there was clear evidence that people have been going through the woodland to access the canal. He said that the fence did seem to have been trampled down at one time but that it happened such a long time ago, and he could not speculate as to how it happened. As far as he was aware there had always been access there.

Under cross-examination by counsel for the Second objector Mr Grant accepted that the village green application had been prompted by LUL’s planning application and until that planning application had been made, there had been nothing which had prompted the Keep Croxley Green Group to apply to register the land.

At the time the application was made there was no formal residents’ group which promoted the application. They did not have any advice, although they did have a booklet from Hertfordshire County Council. They must have sent out the evidence questionnaires before submitting the application form. The evidence questionnaires were supplied with the Form 30 by Hertfordshire County Council. The residents completed them and returned them and Mr and Mrs Grant submitted about 60 completed forms with the application form. There must have been residents’ meetings to consider the application. Mr and Mrs Grant knew that they had overall support from other residents because they saw other residents on the site and talked to them about what they were going to do. They had informal meetings outside or in their house with many residents before they approached Hertfordshire County Council for the application form. They did not have any formal or semi-formal meetings which were minuted.

The map showing the application land submitted with the application was Map A18. Map A was circulated with the evidence questionnaires. It was necessary to send out with a map with the application land marked on it because Mr and Mrs Grant had to tell people what the proposed application area was. They did not ask a completely open question such as whether the respondent had ever used any area. They were the applicants and were asking for evidence supporting the application. They gave people the evidence forms and the questionnaires relate quite to specifically to the area shown on Map A. They did not ask the respondents what area they considered to be the village green.

Mr Grant was aware that part of the land owned by the Second Objector had been designated as housing land and accepted that that designation did not prompt a village green application in relation to the IMC land, although he said that he did not think that he had been aware of the designation at the time it was made. He was not sure whether he knew that part of the application land belonged to the Second Objector when preparing the boundaries on Map A, and by reference to the answer at part 6 of the application form19, accepted that maybe he did not know and assumed at the time it was all owned by LUL/Metronet.

Mr Edwards showed Mr Grant the plan produced by the Lead Objector’s witness, Mr Philip Rowell showing the 5 different areas of land variously included and excluded from the application site20 and asked Mr Grant whether he would agree that there had been considerable uncertainty as to what the boundary of the application site in the vicinity of the IMC land was. Mr Grant stated that it had never been the applicants’ intention to include any area of hard standing within the application land. The line drawn on the Multimap extract had been their best effort to draw the boundaries when submitting the application. They had walked the boundary at the time they completed the application form. They had now clarified the position in the new plan produced on the first day of the inquiry21.

18 A/1/519 A/1/220 LO/3/tab2/4921 A/1/50A

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Mr Grant accepted that on the accompanied site visit he had been uncertain as to where the boundary should be at point K and said that he although was very familiar with the site itself, the difficulty had been that his wife had drawn up the 7th March map. He accepted that it was agreed at the site visit that there was no discernible boundary feature on the ground

Mr Grant said that he had been onto the IMC land fairly frequently, particularly the undulating pathway, and into the depression area with the rope swing. He had walked it extensively while exercising his dogs. He had taken the family there to use the rope swing. He had not seen children using the area so much recently because the rope swing is broken.

Mr Grant knew of what he described as a strange underground cesspit, near the depression, with a ladder down, and two manhole covers missing. His children had not been inside. They would not have been allowed there by themselves, but would always have been accompanied by at least one parent. He said that the pit was not that deep. He acknowledged that it had not been mentioned, but said that it was understandable that the witnesses had not written about it, as it was not an attractive feature. He accepted that it did pose a risk to users of the land, but said that so did using the rope swing. He acknowledged that there was also a considerable amount of industrial refuse, including asbestos, on the IMC land and said that the rubbish had accumulated over time. It was industrial type rubbish and resulted from tipping of some description, by whoever owned the factory or by fly tippers.

When asked whether it was true that IMC had abandoned the part of its land which was included in the application site, Mr Grant said that nothing had occurred on it, and it was part of Long Valley Wood. The landowners had not done anything with it and there had not been any maintenance – that to him was abandonment. The fences were all broken down by trees. The path through the woodland splits: one way goes towards the tip site and the other towards the depression. There is a pathway which leads onto an area where people have enjoyed pastimes. He did not accept that the fence had been cut at that point and said that the local inhabitants had access through a huge open area where there were holes and gaps in the fence.

In response to questions in cross-examination by Mr Weston, Mr Grant stated that the leaflets at A/3/766 and following would have been dropped through local doors by volunteers after the application was submitted.

The orchard had been included on the map because they thought it was a continuation of Long Valley Wood

Mr Grant accepts that Mr Weston and his wife have owned their land since 1999. Mr Grant knew the land from when he began the research in 2004 into making a village green application, and he knew it from before 1984. In his opinion it fulfilled the criteria for the application because it had been used for more than 20 years for lawful sports and pastimes.

Mr Weston asked about the two parallel lines of fencing 8 feet apart on the western side of Mr Weston’s land. He asked whether Mr Grant agreed that his land was at one time fenced and the fencing had been cut. Mr Grant said that to the best of his recollection what he sees now is the same as what he saw in 1984 and 1982. He did not know whether the fencing had been cut. What he saw was broken posts and missing posts, and the fence down.

Mr Grant said that he would go running in the mornings in 1984 before work. He did not have a dog until the mid-1990s. He would go running maybe twice a month in the early mornings during the weekdays. This reduced progressively up to about 2001. In the evenings through the week when daylight permitted, he would use Mr Weston’s land three or four times a month.

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He would also use Croxley Hall Woods and the remainder of the application land. As the opening at the back of his land is directly onto the site, it was extremely convenient to use that.

Mr Grant acknowledged that it would be fair to say that 80% of the towpath had fencing in good condition along it.

He recognised that he was running over private land. He thought most of the land was owned by London Underground. He knew it was private land because neighbours would say what they thought the ownership was. Some thought it was council property because it was open; others would say that some of the land was owned by the council and some by LUL. The land was open for use and its use did not trouble his conscience. The broken fencing did not signify to him that he should not go onto the land.

Whilst running through Mr and Mrs Weston’s land he had noticed the following features: the three pronged tree adjacent to Mill Lane, a clearing down to the left where the trees are felled down towards the bottom, a brick wall down towards the canal, and remnants of the orchard. He had seen cherry trees and a yellow fungus growing out of one of the trees at particular times of the year. He had also seen containers and drums bordering the land.

In re-examination Mr Grant said that he had seen other people on Mr and Mrs Weston’s land exercising dogs, walking and chatting. In the clearing teenagers gather to talk to each other. He had seen people litter picking and people with binoculars. Those uses had continued throughout the period he has known Mr Weston’s land.He commented that there was no apparent change between the LUL land and Mr Weston’s land: it remains a woodland area. Similarly there was no difference in qualitative or appearance terms between the IMC land and the remainder, it is all woodland.

So far as Mr Grant was aware neither the bunker nor the rubbish had deterred people from coming onto the IMC land. There had always been rubbish on IMC land; its presence had not discouraged him from coming onto the land, and in his opinion it had not acted as a deterrent to others.

Mr Grant did not remember any sign on the LUL land saying “private property no rights of way” or “danger keep out” such as that mentioned in paragraph 3 of the memorandum at LO/2/36.

Mr Edwards took Mr Grant to the map showing the encroachment by the travellers at LO/2/91. Mr Grant agreed that the heavy black line was intended to show the approximate area occupied by the travellers and that the curved part of that line appeared to follow embankments to railway tracks. To the best of Mr Grant’s recollection the tracks did not penetrate nearly this far into the site. He did not recollect any embankment in the position shown either. In his view, in 1989, the lines shown on the map could not therefore be referred to any particular feature on the ground. Mr Grant did not recall any new fences being put up. He remembered the green fence being there, on the section parallel to the canal, but not the return down towards the canal. He was unaware of any pattern of fences being erected and taken down.

Mr Grant was taken to LO/2/35 point 2: “The Executive’s Civil Engineer will be asked to replace the fencing at the top of the tipping site which runs roughly parallel to Frankland Road”. He agreed that as at the date of the letter was there a fence that required replacing at the top of the tipping site and said that there must have been a fence there, because the intention was to replace it. He agreed that the likely condition of fence therefore was poor. He was asked to what extent LO/2/45 provided evidence of some works taking place. He said that it was evidence of works involving minor patching having taken place, but also evidence that what had been put up was

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removed. The section of fencing removed was not going to be immediately replaced. Its replacement was contingent on the involvement of British Transport police.

There was no indication in LO/2/46 that the council had actually replaced the section of fencing removed in November the previous year. At the date of this document LT were considering abandoning tipping operations at the site. In relation to LO/2/47 he said that as of October 1982 LT were considering the future of the site. There was nothing in this document to indicate that the fencing removed in 1981 had been put back. LO/2/49 showed that as of November 1982 LT were still considering the future of the site. The memo does not suggest that the site is at the time of the memo securely fenced, rather that it will have to be securely fenced. There is no indication that further fencing has been erected since its removal in November 1981. There is no indication that the site is securely fenced.

Mr Grant agreed that at the time of writing the memo at LO/2/50 there was a contract nearing completion to stabilise the embankment. He agreed that the reference to a new fence line is the fence line shown by a green line on Plan 5. He said that the memo indicates that LT intended to erect and maintain the green fence as a secure boundary to the tip, rather than the orange fence.

In relation to paragraph 5 of LO/2/53 (dated 3rd May 1983) Mr Grant said that in the event of the contemplated disposals being implemented, the fencing line referred to on the northern boundary would be the green fence line. There was nothing to indicate that LUL were repairing or consolidating the orange fence at this time.

The fourth paragraph of the notes of an internal meeting on 19th May 1983 at LO/2/55 show that there was a discrepancy between the existing fence line in the bluebell wood and the actual boundary of the land owned by LU. This letter is consistent with the earlier documents with respect to LU’s intention to erect a new fence. The new fence mentioned is consistent with the green fence. There is nothing in the notes to suggest that the orange fence line was being maintained. It seems that the intention was that the area outside the proposed new fence would be publicly accessible

LO/2/57 and 58 show that as of September and October 1983, LUL were intending to erect a fence along the green line. The inference that can be drawn is that following the erection of the fence along the green line, no further works were carried out to the orange fence line.

Mr Grant agreed that LO/2/58 was linked to LO/2/61, which itself was a revision of LO/2/57A.

LO/2/62 referred to 6.52 acres of open re-seeded ground. The area still in use was the area within the green fencing. Mr Grant thought that the re-seeded area referred to must have been outside the green fencing. The green fence had been erected by 1984.

LO/2/119 is a letter from the Director of Property of LRT to Mr Thomas, the clerk of Croxley Green Parish Council dated 3rd July 1990. So far as renewal of the fence to prevent access to the railway was concerned, that must have been at the south-westerly corner of the site, coming up from the canal towards the smallholdings. So far as renewal of the fencing to prevent access to the site was concerned, Mr Grant agreed that the content of that letter had to be read in the context of LO/2/118 from Mr Thomas to which LO/2/119 was a response. That letter suggests that local children were playing on the site. The letter refers to the construction of a ditch across the entrance, but says that the site is in many respect still wide open to vandals. The letter also suggests that the land was being used as an amenity for local people.

There is no indication in the letter of 3rd July 1990 that LT objects to the land being used by the local people. Mr Grant said that in his view the fencing was not intended to keep local people out.

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LO/2/159 was an internal memorandum dated 15th December 1994, following the occupation by Greenwoods. Mr Grant did not recollect any notices on the site to warn off any local occupiers or indeed any notices. The notices referred to were erected in consequence of the occupation by Greenwoods.

LO/2/176 is a report dated 22nd February 1993 by ERL EnviroClean Limited commissioned by LUL. LO/2/181 refers to trial pits dug in February 1993. The fence referred to here appears to be the green fence. The report recognises public use within the area which is fenced. The report states that forty trial pits were excavated across the spoil tip area. The pits were located where possible in areas of open ground. The grassed area to the north of the site was trial-pitted along its edges to avoid disturbance of the central areas. Mr Grant thought that the grassy area referred to was the area to the eastern side of the green fence i.e. outside the fence. Those works were avoiding the central area, and Mr Grant therefore thought that local residents’ use would not have been disturbed by the digging of the trial pits. Mr Grant noted that the report records that numerous local residents visited the site, walking their dogs.

I found Mr Grant to be an honest and truthful witness. As one of the applicants he was clearly anxious for the application to succeed, but I did not consider that he overstated his evidence as a result. On the contrary, I consider that he was measured and careful in his evidence, making concessions where appropriate. I accept that in giving his evidence, he put forward his best recollection as to the historical use of the site over the relevant period. I consider that his memory for dates and events was good. During the first part of his period of user from 1982-1987 he was not living within the claimed locality. From 1987 until the date of the application he used the application land alone and together with his family extensively for informal recreation.

(2) Mrs Patricia Margaret Allen of 19 Frankland Road.

Mrs Allen provided a statement22 made jointly with her husband, Michael George Allen, dated 20th February 2007. She also provided an evidence questionnaire dated 17th July 200423.

In her evidence questionnaire Mrs Allen stated that she had known and used the land since 1973. She gained access to the land from her back garden. She went onto the application land for walks, on her own and with her children, for bird watching and observing flowers and animals. She used the land once a fortnight on average and took part in walking, cycling, bird watching and entertaining children. Her immediate family also used the land for the same activities. She knew of the following community activities which had taken place on the land: picnics, school walks, horse riding and cycling. The picnics, horse riding and cycling had taken place since 1973. She knew that the school walks had taken place during the period her sons were at the school, 1975-1984, and said that they may still take place. She ticked as activities she had seen taking place on the land: children playing, fishing, drawing and painting, dog walking, team games, picking blackberries, football, bird watching, picnicking, people walking and bicycle riding and added horse riding and cycling. Mrs Allen did not believe that the owner or occupier had seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land and no attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants. Mrs Allen attached a written statement to her evidence questionnaire, and the estate agent’s particulars supplied on Mr and Mrs Allen’s purchase of 19 Frankland Road, which mentioned the gate to the woodlands at the rear of the garden. She stated that most of the odd numbered houses along Frankland Road had access. Her children were always playing there, and children still played there. Numerous 22 A/1/5223 A/3/459

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people walked, ran and cycled along the area proposed for development as the depot. Mrs Allen listed in an attachment to the Evidence Questionnaire the birds and other wildlife she had seen whilst walking in the area.

In their statement Mr and Mrs Allen stated that from the moment they moved into the house they used their back garden gate to enter the application land and still do. They also used the access points and paths identified on the plan annexed to their statement24. When their children were young they used the application land for walks and nature studies and as a path to the canal and river. As the children got older they would play in the woods building camps in the area marked with crosses on the plan annexed to the statement. They also used to play over the railway lines and wagons. They played football and cricket on the grassy area until about 1988. Later on they used the area in much the same way with nephews, nieces and visiting friends. The schoolchildren from Harvey Road School used to be taken on walks in the area collecting wild flowers. In retirement Mr and Mrs Allen walk on the application land about once a week and enjoy bird watching. They pick blackberries in season and collect holly at Christmas. When on the land they frequently meet local people most of whom are dog walking or enjoying the wildlife. Access had never been restricted and no fences had been erected since 1973.

In oral evidence Mrs Allen confirmed the content of her evidence questionnaire and statement. Mr and Mrs Allen’s house is one of the ones with a long garden, two down from Nuttfield Close. There is access into the application land through a gate in the back fence. She would go out of gate, left, then right down the pathway between tatty fences. About halfway down that pathway there has always been an opening to the left and the right. The hole to the left was always the bigger hole. It was a huge great hole. It had never been obstructed.

She did not remember there being any fencing along the green line on the return towards the canal. She remembered the fencing shown by the green line parallel to the canal, although she described that fencing as tatty. She could not recall any maintenance work being done to the fence.

Mrs Allen stated that the fencing shown by the orange line was there when Mr and Mrs Allen moved into 19 Frankland Road in 1973, and it had not been maintained to her recollection. There had always been the odd gap to walk through. She did not make the gaps.

She remembered the notice boards on orange fencing towards the top end of the path between the fences. She had initially thought that the land was owned by Gonville and Caius College and rented to London Transport. The notices said that London Transport owned the land up to so many yards beyond those boards. She understood that that yardage took the land claimed to be in the ownership of London Transport up to her back fence.

The sort of notice described in the memorandum at LO/2/23 was the sort of notice that Mrs Allen recalled, although she did not think that the lettering had ever been renewed as was proposed in the memorandum.

Mrs Allen did not remember the 1993 trial pits. She did not remember any time when her use of the site had been obstructed by such events.

In cross-examination Mrs Allen said that the railway lines she remembered were in the position shown on LO/2/123. She thought that the tracks had disappeared about 1983 or 1985, although she could not be certain as to the date. The wagons she mentioned were much further down. The tracks once went all the way down to the open area – she could remember an incident down there when her son was 4 in 1976 – and had been gradually retreating ever since.

24 A/1/5319

Mrs Allen was asked about her recollection of the fencing. She said that when she said in her statement that fences had never been erected since 1973 she should have said re-erected.

Counsel for the Lead Objector asked her whether she remembered a fence along the line shown on plan D in green25. She said that she did remember that fence being erected along that line in 1983. The fences she was talking about in her statement were the ones up towards her house the ones shown by the orange lines.

When asked where she walks on the application land, Mrs Allen replied that she walks all over the place, not just in the woods or just through the Buddleia. Her preferred walk is along the back of Frankland Road to the alleyway and down to the Buddleia walk. They do not often cross the line shown on Plan D as the green fence line return towards the canal.

She had not studied the condition of the fence down near the lock gate but she knew that there was a big gap there. She just went through it. She said that the gap had got larger since 1973. The ones further up had always been pretty large. The one by the lock has got bigger and bigger over the years.

She did not remember the travellers on the application land. She thinks that she and Mr Allen might have been away abroad when the travellers were on the land (they were away at about this time for about 8 weeks). She did not participate in the tidy-up session.

Counsel for the Second Objector asked Mrs Allen to clarify the plan to her statement26. She explained that the line A-C was intended to represent the Buddleia walk. The line parallel to that line was intended to show the path through the woods. Access point D is off Lavrock Lane (shown as access point G at A/1/262).

Mr Weston asked Mrs Allen about the orchard. She was familiar with the orchard and had seen big cherry trees in it and walked through it. She said that she does not go there very often, although she has walked through it.

Mr Weston asked whether the fencing around the orchard was complete in 1984. Mrs Allen said not that she recollected. There was always a crossroad type of junction there. She remembered a great big gap in the fence consistently from 1973. She did not remember it being replaced in 1984.

Mr Weston asked whether Mrs Allen accepted that she should, when answering Question 34 in the evidence questionnaire “Has any attempt ever been made by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants?”27 have mentioned the fencing. Mrs Allen said that there were fences on the land but there were big gaps in them. There were signs, but they did not say the local inhabitants could not use it.

Mr Weston asked which of the activities she had specified in response to Question 25 in the evidence questionnaire she had seen take place on the orchard land other than walking through after 1984. Mrs Allen said that she had seen dog walking and thought she remembered picking blackberries in the orchard, although she could be wrong about that, it might have been on the edge of the orchard. She does like to watch birds, and often sees them in the cherry trees. She had seen people walking on the orchard land.

Mrs Allen failed in her written evidence to mention the fencing represented by the green line on Plan D, and asserted that no fencing had been erected on the application land since she moved to 25 LO/3/1/Plan D26 A/1/5327 A/3/462

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the area in 1973. In cross-examination she readily accepted that a fence had been erected on the green line in 1983 and said by way of explanation that she had been thinking about the fencing nearer her house. I am troubled by this aspect of her evidence, and consider that on balance, it is likely that, contrary to her assertion that she went all over the application land, in fact Mrs Allen tended to stay at the north eastern end of the land, nearest her home, on the open space and in the woodland marked by the crosses on the plan to her statement in the early years of the relevant period at least. Her recollection as to the signs was clear however and consistent with the documentary evidence. I accept this aspect of her evidence. Further, in my judgment, her recollection that the tracks went up as far as the open area in 1986 is likely to be accurate.

(3) Mrs Janine Dixon-Wilkinson of 127 Sundon Road, Houghton Regis, Bedfordshire.

Mrs Dixon-Wilkinson provided a written statement dated 12th February 2007 in the form of a letter from her and Karen Douglas, her sister28. She did not complete an evidence questionnaire or a standard form letter. In oral evidence Mrs Dixon-Wilkinson told me that the statement had been written between the two of them. Mrs Dixon-Wilkinson did the typing, but they wrote the statement together whilst she was visiting Mrs Douglas in Scotland.

In her statement Mrs Dixon-Wilkinson stated that her family moved to Croxley Green in 1960, when she was a few months old. In 1967 they moved to 39 Frankland Road. As children she and her siblings would spend every spare moment in the woods, on the dump and down at the canal. There was a gate in the rear fence of their garden into the woods. Mrs Douglas would between 1971 and 1992 ride her pony along Buddleia Walk and through Long Valley Woods to get onto Common Moor, rather than along the Watford Road. Mrs Dixon-Wilkinson left the area in 1984 (aged 24), although her parents continue to live at 39 Frankland Road and she comes back to visit with her children and when she does she goes for walks in Long Valley Woods and Buddleia Walk.

In oral evidence Mrs Dixon-Wilkinson told me that she left finally in 1984, although she came and went for a few years before that. She still comes back to visit her mother and stepfather who continue to live at 39 Frankland Road a few times a year. She particularly likes to come in spring and autumn.

She had never been prevented from entering Long Valley Wood or Buddleia Walk by the presence of a fence. She could not remember seeing any notices.

The area she walked through to look at bluebells is within the woods. She would come out of the gate, turn right, and join the pathway along the side of 51 Frankland Road, and either turn into the woods from that path, to the mound, or through the woods and straight down the path to the moor or straight down across the tip area to the canal.

She used to go into the orchard as a child. As an adult, if the path down towards the canal is particularly muddy, she will cut through Mr Weston’s land to get to the lane. She had been onto that land as an adult, and had seen others on that land.

In response to questions in cross-examination on behalf of the Lead Objector, Mrs Dixon-Wilkinson said that the area she walked was at the northern end of the application land, immediately behind the houses in Frankland Road, although her sister used to access the woods at Lavrock Lane and come through the woods, either through the woods or along the Buddleia Walk on her horse.

28 A/1/7521

In reply to cross-examination by Mr Edwards for the Second Objector, Mrs Dixon-Wilkinson said that although as a child she would play anywhere, as an adult she just walked through the land.

In cross-examination by Mr Weston, Mrs Dixon-Wilkinson rejected the suggestion that prior to 1984 the orchard was fenced off so that people could not get in. She said that she moved to the area in 1967 (aged 7), and would not have been allowed there by herself at that age, but certainly would have been by the age of 12. The orchard land was not fenced off, so far as she can remember, from Mill Lane. She remembered walking through the orchard onto the lane. She could recall no fencing along the edge of the road at all. As she passed through there was a well-worn path. She would have gone there most when she was in her in early teens. There were mature trees, bracken, and a structure which they used to call the air raid shelter. The “air raid shelter” was a hole in the ground, which they used to go into, fairly close to the road, and fairly close to the worn path through, on the left. She thought she could remember a square entrance to it, and a round entrance as well. There was a wall on the edge of the road, further down Mill Lane from where they used to go into the area. In 1971-1972 there would have been nothing stopping them going into the area. They would run around like kids do, and make little camps on the land.

I found Mrs Dixon-Wilkinson to be an honest and reliable witness. Much of her evidence relates to a period before the period which is relevant to this inquiry, concerning, as it does, memories from Mrs Dixon-Wilkinson’s own childhood. Her evidence that there was no fencing on the boundary between the orchard and Mill Lane by the mid-1970s is consistent with Mrs Batchelor’s evidence and I accept it. I also accept her evidence that the fencing on the boundary between the orchard and TfL/LUL’s land had broken down by that date, to the extent that passage through was readily available.

(4) Mr Ian Gordon of 32 Frankland Close

Mr Gordon provided a written statement dated 25th February 200729. He had not provided an evidence questionnaire. He also provided a response to the standard letter (2005)30.

In his response to the standard form letter (2005) Mr Gordon stated that he had used the land between 1981-2005 for jogging, walking and dog walking.

In his statement Mr Gordon stated that he lived at 250 Watford Road between 1981 and 1991 and had lived at 32 Frankland Close since October 1991. His house is five minutes’ walk from the application site. He began to use the site in 1981, primarily for dog walking. Over the next few years he also used the site for recreational activities with his family and friends. He now no longer has a dog, and his family is grown up, but he still occasionally uses the site for walking and other recreational activities. He appended a map on which he had marked with crosses the areas which he used on a regular basis and indicated by circles the points at which he accessed the site. He used those areas daily when he had dogs. He also often used the site at weekends during the summer for recreation with friends and family. There were no signs at the points at which he gained access and he could not remember any during the 1980s or 1990s. His access points had remained unaltered over the period. No one had ever challenged him whilst he was on the site, and his access had never been obstructed. He had never seen any maintenance carried out on the site.

In oral evidence Mr Gordon confirmed his written statement. He told me that he is a serving police officer. 250 Watford Road is on the south side of Watford Road, within the Croxley Green South parish ward. Mr Gordon had dogs between 1981-1991. He would walk the dog on the 29 A/1/8730 A/3/876

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application site on a daily basis. After 1991 he would only go onto the site occasionally. His use with his family was during the summer months, and mostly using the open green area. He would go onto the site from points A and B31 off the canal towpath. He had two routes from B, either straight on, or through the woods to Lavrock Lane, and either retrace my steps or come back along the canal towpath. At the time he was walking the dogs the fence at about point H or I was derelict and he would come onto the land there. He would follow a path through the IMC woodland, and would skirt around the depression, then carry straight on south through broken down fences to the main part of the site. From there he would go along the main path through the woods. The access through the broken fence was easy. He also entered the site at point F. He would go up either go up Lavrock Lane or through the woodland. In 1981, when he first knew the site, he followed pre-existing paths which appeared to have been there a considerable amount of time. There was a network of path throughout the site. He did not remember the fences ever being re-erected or maintained at points H and I so as to restrict access.

Mr Gordon could not specifically remember walking along Buddleia Walk, but said that he was sure he would have done, because he walked the whole of the site. His access had never to his recollection been obstructed by re-erected or maintained fencing.

He did not recall any maintenance of the orange fence line. He did not recall any fence on the green line on the return towards the canal to prevent him walking on either side of the green line on Plan D.

Mr Gordon said that he went through Mr Weston’s land. There were derelict fences there, but it was not enclosed in any way. It appeared to be woodland. There were gaps in the fences. Throughout the period he was using the area, the fences seemed to be run down and derelict, not maintained at all. Mr Weston’s land had tracks running through it and was no different in appearance to any of the other woodland areas. He did not see any notice on the land permitting or prohibiting public use.

Under cross-examination on behalf of the Lead Objector, Mr Gordon said that he did not remember the fence along the green line being erected. He did not remember the trial pits being dug in February 1993, but said that he would not have been using the site in 1993 anyway.

He did not usually go down to point G, to gain access; he would have been coming from the Watford Road, and would have entered at one of the earlier points, H or I. He did not normally access the land from the canal; he would either go in at the eastern or the western ends.

He had gone to the site a couple of weekends ago, and did not notice any changes from when he had been using the land regularly in 1991. It was very much as it was. He did not remember any repair work being done in 1981. He could not remember whether or not he might have crossed the green fence line.

When he came onto the site from point F he would come from point A come along the canal, and cut back through the site, either along the Buddleia Walk, or any other way he fancied. He did not remember any travellers on the site and neither did he remember any railway lines on the site.

Under cross-examination on behalf of the Second Objector, Mr Gordon stated that he had first found out that Mr Grant was co-ordinating the application about a couple of months ago.

He remembered a number of holes in the fence onto the IMC land. He did not think that the fences had been cut at the time he was using the site. He went onto the IMC land with the dog. He normally followed the paths that were already there, and used it as part of a dog-walking 31 A/1/262

23

route. He did not carry out any other activities on the IMC land, just walking the dog, passing through.

He agreed that the bunker was quite a noticeable feature. He thought that local children would be aware of it. When he was using the site, there was quite a lot of rubbish in it, so the drop was not that great. There were no covers on it when he was using the land regularly. He had not seen any activity in the factory site because he was only walking around (skirting) the edge of the depression, rather than going nearer the IMC factory area.

Under cross-examination by Mr Weston, Mr Gordon confirmed that he had passed through Mr Weston’s land. He remembered it being woodland. He said that he did not know how the gaps in the fences had appeared, but he thought they had probably appeared as a result of 60 years wear and tear and trees falling. He did not think that the fences had been cut. He thought it was fair wear and tear. He could not believe that any responsible adult would cut the fences. He accepted that possibly in some cases the fences might have been cut, but while he was using the land, he thought that the fences had gaps because of disrepair.

In re-examination Mr Gordon stated that when he had walked around the site a couple of weekends ago, there had been no maintenance on the fences since he had last been there, so far as he could see.

I found Mr Gordon to be an honest and reliable witness. I accept his evidence that he made regular use of the whole of the application land, including Mr Weston’s land and the IMC land between 1981 and 1991, for dog walking.

(5) Mr Roger Matthews of 53 Frankland Road

Mr Matthews produced a written statement dated 26th February 200732 and an evidence questionnaire dated 18th July 200433.

In his evidence questionnaire Mr Matthews stated that he had known and used the land since 1982. He gained access to the land on foot, from Public Footpath number 11. He went onto the application land daily for leisure purposes. He took part in walking, alone or with a dog, bird watching and observing wildlife. His immediate family also used the land for the same purposes. He did not know of any community activities which had taken place on the land. He ticked as activities he had seen taking place on the land: children playing, fishing, drawing and painting, dog walking, picking blackberries, football, bird watching, picnicking, people walking, bonfire parties and bicycle riding. Mr Matthews did not know who was the owner or occupier of the land. He had never sought permission for activities on the land. He had never been prevented from using the land and no attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants.

In his written statement Mr Matthews stated that he had lived at 53 Frankland Road since February 1984. The application land is behind his house, within five minutes’ walk. He had been using the site for recreational purposes on a regular basis since 1984 and continued to do so including walking with or without a dog, birdwatching and observing wildlife. He visits at least once or twice a week all year round. His wife, son and daughter made similar use of the land. When his children were growing up, the family also made considerable use of the land for picnics and ball games. More often than not when he was on the application site, he saw other local people. He had seen outsiders, but usually the people he saw he recognised as living fairly nearby. He had never sought permission to go onto the land because he thought it was common land. Other than volunteers clearing rubbish and tidying scrub and vegetation, he had not since 32 A/1/13833 A/3/639

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1984 seen anyone carrying out any sort of maintenance. He appended a map to his statement on which he indicated the area which he had used for picnics and ball games.

In oral evidence Mr Matthews told me that he is a retired police officer. He currently goes onto the application land once or twice a week. From time to time the frequency of his use has altered up and down. Shortly after he retired in 1998 he went there almost every day. He spends quite a lot of time in the West Country, and as a result his frequency varies. If he is at home, he goes there once or twice a week. His garden fence abuts onto footpath 11. He walks down footpath 11, and where it turns towards Croxley Hall Woods, he goes down the hill. He now walks. In the past he has gone for picnics with his family, ball games, and has enjoyed nature watching. The ballgames would have been played on the open green area. He walks all over the site. There is a network of footpaths all over the entire site. He meanders along the paths. He has been down to the IMC area whilst walking. He would also go onto Mr Weston’s land. He did not regard it as any different to any other part of the woodland site.

The local people he saw on the site were, for the majority, walking dogs. Others were walking, and, occasionally (but not often) playing ball games, on the grassy area to the left of the slope down from footpath 11.

Mr Matthews remembered fences, which he thought had been there since he had first been onto the land, both parallel to the canal, with no apparent end, one closer to his garden and one further down towards the canal. The fencing denoted by the orange line34 is not in very good condition and is rusty. It has not been maintained while he has been using the site. He remembers the right angle in the fencing denoted by the green line, and has seen a remnant of chain fencing coming from it, but there are no further posts, and there never have been since he has been living there. He could not remember the fencing on either side of pathway down towards the canal lock ever being complete, so as to prevent access into the woodland on either side of the fence. He did not remember any notices on the site before 2004.

Under cross-examination on behalf of the Lead Objector Mr Matthews said that he had never crossed the green fence line running parallel to the canal. He had had no need to; he had always been either one side of it or the other. He had walked along the Buddleia Walk, along the long straight path. He only rarely entered the Buddleia Walk from points D or C35, if he was coming back from the Aquadrome at Rickmansworth, along the canal towpath. He might come onto the site at point F, if he was enthusiastic for a rough hike, if wanted a smoother walk, it would be C.

He has seen the section of orange fence line running parallel to the canal. He comes through a gap in that fence to get to the canal. He said that the fence appears to come to an abrupt end, leaving an apparent gap or a gateway at the top of the path down to the canal.

As far as he was concerned it was a mystery what the fences were there for. He had wondered what they were for. He had heard that there might be an intended railway or partially built railway, and thought they might be for safety something to do with that.

About 10-15 years ago, maybe more, there were what looked like the remnants of an old track near the Buddleia Walk. He never saw any wagons there. The tracks were far too old to be used for wagons. They were hints of tracks, rather than anything more.

He would have come onto the site at point G in the mid 1980s. He did not remember there ever being a gate there. He did remember a pile of rubble there at one time. He did not remember there ever being a gate next to the smallholding. He never saw any notices on his route down from point K.34 LO/3/1/Plan D35 A/1/262

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Under cross-examination on behalf of the Second Objector Mr Matthews said that the darker patch on the photocopied version of A/1/140 is the area shaded blue on the original. This was not the area on which his activities were concentrated. The ball games were a small part of his activities on the application land. Most of his activities had been walking through the woods or the Buddleia Walk. Predominantly he would use the straight down route from K, or sometimes he would go down by J, down the steps into the woods. He did not follow a consistent path. His point of exit would vary, usually he would walk a circle and come back to wherever he had entered, but it varied. He had seen children playing on the shaded blue area and in the woods. The football he mentioned was on the shaded blue area. He had also seen children drawing and painting from the school on the blue area.

He had been told about bonfire parties, but had not seen one himself personally, and said he that he should not have ticked that box on the evidence questionnaire.

The fishing to which he referred took place on the canal. The blackberry picking was on the open area and along the Buddleia Walk. Bird watching could be anywhere in the woods.

He would not often enter the site by any access point other than J and K, because he would usually be coming from home. If he were coming from Rickmansworth, his entry point would vary, and he would walk through the woods back towards K. He could not say how often he had used the other access points, but said that it was overwhelmingly usually K that he used.

Under cross-examination by Mr Weston, Mr Matthews said that he does not often go as far as Mr Weston’s land. He rarely goes there and has not taken much notice of it, but he had not seen anything about that made it in his mind different to the rest of the land. He does not know it well. He occasionally goes into Mill Lane that way, but very occasionally.

In re-examination Mr Matthews said that he had been into the area by H and I36. There were paths there much the same as paths elsewhere. He was aware of the depression. He would have participated in ball games on the land from about 1990 up to about 2002.

I found Mr Matthews to be an honest witness. I accept his evidence. The beginning of his period of user coincides with the beginning of the relevant period, and provides a useful snapshot as to the state of the fencing as at that date. I accept his evidence that both the green and the orange fence lines were incomplete in 1984.

(6) Mrs Shirley Collins of 39 Frankland Road

Mrs Collins is Mrs Dixon-Wilkinson and Mrs Douglas’s mother.

Mrs Collins provided a written statement in the form of a letter37 a further handwritten letter enclosing various photographs dating from 1962, 1963, 1996 and 200038 and an evidence questionnaire39. She had signed the map on which a lozenge shape had been drawn by Mr Grant40 to show that she agreed that that shape represented the approximate area occupied by travellers in November 1989. She also provided a standard form letter (2005)41.

36 A/1/26237 A/1/6838 A/1/6939 A/3/51540 A/1/93A41 A/3/831

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In her evidence questionnaire Mrs Collins stated that she had known and used the land since 1960. She gained access to the land from 1960-1967 by Public Footpath number 11 between numbers 51 and 53 Frankland Road, straight down through the woods and the open space to the canal, also down Mill Lane. From 1967 to date she gained access through her back garden gate into Long Valley Wood. The gate was there when she moved in. She went onto the application land for its beauty and peace, the birdsong, bluebells, picnics, photography and as a route to Croxley Common Moor. She used the land almost daily and took part in walking, picnics, blackberry picking, ball games, including rounders, bird watching, photography, dog walking, horse riding, although at the time of filling in the questionnaire she had given up horse riding and ball games. Her children cycled on the application site and made camps in the wood. Her children now loved to show her grandchildren the site when they visited and to play all the same games. She remembered a community bonfire for Guy Fawkes night taking place on the land on one occasion. She did not know of any organisations which used the land, although she had seen walking groups on their way to the Ebury Way and beyond. She ticked as activities she had seen taking place on the land: children playing, rounders, dog walking, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking and bicycle riding. Mrs Collins believed that the application land was owned by London Transport and did not know whether the owner or occupier had seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land. In reply to the question “Has any attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants?” Mrs Collins wrote: “During the time the Buddleia path was being used as a tip, London Transport put up a fence and notice. This was soon cut through where it came across the path. It was repaired once only. It was cut again (I don’t know who by) and after that it was never repaired again, so we continued to use it. Before the tip started about 1967 this site had trees and paths going down to the canal and by turning right you came to Croxley Hall Woods and Lavrock Lane via a cart track from Common Moor Lock. It was a pretty walk. When the tip was started all the trees etc were destroyed and it became a noisy dirty area. Tipping stopped somewhere in the 1970s I think. It was left in a very bad state: old tyres were dumped and a corrugated iron building fell into disrepair and was dangerous. The rails were eventually removed and wild flowers trees and Buddleia took over. Access has always been easy via many routes, some of which were never fenced.

In her response to the standard form letter (2005), completed on behalf of her and her husband, Mrs Collins stated that she had used the land from 1960-2005 for all of the activities lists (except jogging) and also for picnics and photography and for golf pitching.

In her written statement Mrs Collins stated that she has lived at her present address since August 1967 and before that lived at 192 Watford Road. She discovered the site in the spring of 1960 at which time it was an open space. Tipping on the site began soon after she moved to 39 Frankland Road in 1967. London Transport erected a fence and sign at that time, but she could still get through the wood and onto the canal and Common Moor via her garden. The fence was cut at some time in the 1970s and the sign was vandalised and never repaired. She has continued to use the land for all manner of activities including dog walking, horse riding, golf practice, blackberrying, bird watching, butterfly spotting, ball games, hide and seek for children’s parties, identifying wild flowers with the children and grandchildren, bat watching at dusk, photography, watching the sunrise, sledging and snowball fights in winter, building dens, climbing trees, cycling, clearing letter and to access the canal. There are group rambles at bluebell time so that members of the walking group can enjoy the display. Most of the people she sees on the site are local, but she has seen people from other parts of Croxley Green and, on occasion, during the summer, groups of ramblers 12-15 strong from further afield.

In oral evidence Mrs Collins told me that in 1960 there was an open space on what is now the Buddleia Walk. London Transport started tipping on the site soon after Mrs Collins and her

27

family moved to Frankland Road. Mrs Collins’ house is to the north of point K, one of the ones with a longer garden. It has a shed shown in middle of the garden.

The fence that she remembered being put up and cut through in the 1970s was the fence depicted by the orange line on Plan D42. That fence was never a barrier to her getting through the site. She could not remember what wording had been on the sign which had been vandalised. She did not remember a fence ever at right angles to the canal in the position shown by the green line. That is an area that she used; she used the land both sides of where the fence line was shown. If the land had been obstructed by a fence she would have remembered the fence.

She remembered the travellers on the site. The area shown by the lozenge shape as having been occupied by the travellers on A/1/93A accorded with Mrs Collins’ recollection as to the area which they occupied. She did not remember them having occupied any larger area. She had a clear recollection of the incident. The travellers were to the right of the path, if you were walking away from Mill Lane (to the north west of the path). Their presence did not prevent her from using the application land. They were reasonably friendly.

She did not remember the trial pits being dug in February 1994. She did not remember her use of the site being obstructed at any other time.

In response to questions in cross-examination on behalf of the Lead Objector, Mrs Collins clarified her routes onto and within the site. She comes onto the site from her garden gate. She either turns left or right, although she would mostly tend to turn right, and come into the little cross road of paths. If she is going to the canal she turns left. Sometimes Mrs Collins and her husband do a circular walk round and back via the Buddleia Walk, sometimes they drop down onto the Buddleia Walk from there. They would go through the fence line shown by the dotted orange line. There was a gap in the fence. Whether it had been cut or rolled, she did not know. She did not investigate; she just went through the gap.

Mrs Collins had not been down to the area now called the Buddleia Walk when there was an active tip there. She had only used it since it ceased to be an active tip. When the tip was operational it was always possible to cross to the lock gate via what is now the open green area; that area was not being used as a tip.

Mrs Collins stated that she never saw the fence represented by the green dotted line on Plan D. She did not remember the return towards the canal.

Mrs Collins was taken to her answer to question 34 in the evidence questionnaire43. She said that the fence she was talking about there was the orange fence line. It was cut south of point K sometime in the early 1970s. The fence was cut quite soon after they moved into 39 Frankland Road in 1967.

She could not remember when the rails were eventually removed. When she said that “access has been easy” she meant access to the tip site.

When she said that London Transport put up a fence she meant that they had re-fenced the area. The area was fenced to start with, then the fences were cut. She remembered the fence shown by the orange line; the gap she talked about was the main way they used to go in. Her route down to the canal had been from her house down to point B.

Mrs Collins was asked about her statement “Access has always been easy via many routes some of which were never fenced” and asked whether any of the fences across the routes were ever 42 LO/3/1/Plan D43 A/3/518

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repaired or re-fenced. She could not remember any of them being repaired. She did not remember the green fence line being put up.

In response to questions in cross-examination on behalf of the Second Objector, Mrs Collins stated that the plans on pages 74 and 77 showed very comprehensively the routes that she and her family had taken and all their access points onto the site.

In response to questions in cross-examination by Mr Weston, Mrs Collins stated that she has passed through Mr Weston’s land. She has noticed a lot of litter there, ivy on the trees, and pear trees and apple trees there. In the main all she has done is to pass through, gaining access from one side to the other, down the hill.

Mrs Collins used to walk down Mill Lane with her children in the pushchair from 1960. She was not clear whether she had crossed Mr Weston’s land as early as 1960. She said she did not remember there ever being a fence preventing access to the land.

I found Mrs Collins to be an honest witness and I accept her evidence. In particular, I consider that her recollection of the tipping activities on the site and the state of the site whilst the tip was active are accurate. I accept her evidence as to when active tipping stopped. I accept her evidence that as to the cutting of the orange fence in the 1970s.

(7) Mrs Margaret Leese of 52 Harvey Road

Mrs Leese produced an undated written statement44. She did not produce an evidence questionnaire. She produced a response to the standard form letter (2005) jointly together with her husband45.

In Mr and Mrs Leese’s response to the standard form letter they stated that they had used the land between 1968-2005 for walking, bird watching and photography.

In her statement Mrs Leese said that she has lived at her current address since 1968. Her house is three houses from the end of Harvey Road, near the IMC site, just a few minutes on foot from the application site. Mr and Mrs Leese like to wander at weekends through the woods and along the canal and through the open spaces. When they retired in 1989 they spent even more time exploring the woodland and the surrounding areas including the Buddleia Walk, which they usually reached from a pathway near the canal and left via a track through the woods. Mrs Leese produced some photographs of the Buddleia Walk and the open green space which she stated had been taken about 5 years ago. Mrs Leese did not know who owned the land (other than the IMC site) until the field at Lavrock Lane had been levelled, when she had heard that London Underground owned some parts of the land adjacent to the woodland. Mrs Leese remembered that the IMC site had been fenced and that the railway had been fenced, but thought that the remainder of the land was open to the public. Since Mr Leese had died and Mrs Leese had not been in good health she had not been onto the land and therefore would not have seen any signs that may have been erected recently.

In oral evidence Mrs Leese told me that she used to access the application land by walking along Frankland Road, along Mill Lane and into the site from Mill Lane, up a bank, and along Buddleia Walk. She said that you could either leave the Buddleia Walk by going up through the woods, or go on to the end, and come out between points H and I46 onto Lavrock Lane. If they went through the woods Mr and Mrs Leese would follow the track, and come out somewhere

44 A/1/13545 A/3/92846 A/1/261

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between H and I. It was possible to go down to the canal from the Buddleia Walk, but she never went that way, she just used to go straight along.

She did not remember fences at all on the application land, or at least she did not remember any fences which were in use or of any significance. She did not remember any fences preventing her from going where she wanted to on the site. She did not remember a fence in the position shown by the green line which would have obstructed her walking through the site from Mill Lane.

She remembered the fences around the IMC site: that fencing petered out after the last of the gates into the IMC site. Around the IMC site there was the first bit of fencing and the first gate, and another bit of fencing and another gate between the bottom of Harvey Road and point I.

After Mrs Leese retired (in 1989), they tended to walk further, into Rickmansworth or Watford. They used the application land most before they stopped working, when they were busier and did not have time to go further afield. At that stage they would use the application land maybe a couple of times a month.

She did not remember seeing the travellers on the site when she was on the application land, although did remember having seen them from the railway when on the train.

In response to questions on behalf of the Lead Objector, Mrs Leese stated that she used to walk through the woodland to the Buddleia Walk and back, rather than walking along the path in the woodland.

She did not remember the land now known as Buddleia Walk being an active tip, although she did remember noise at night in the woodland. She thought it was already being grown on when she first knew the site.

She would walk straight down the Buddleia Walk, and would only go through the woodland to get home. Sometimes they would come out between H and I and at other times roughly where J is.

She did not remember seeing the fence separating the woodland area and the buddleia area.

She did not remember the fence-line denoted by the orange dotted line, further up the hill towards her house either. She said she did not remember fences at all.

She did not remember any notices, other than when you come out of Harvey Road towards Lavrock Lane there was a post with a notice on it to do with cycling.

She had walked on the land, looked at wildlife and taken the occasional photograph.

In response to questions on behalf of the Second Objector Mrs Leese stated that the last time she walked through the woods would be about 5 years ago. In the early days before she retired she would have gone onto the application land about every 4 or 5 weeks (once a month). That would usually be on a walk, down Mill Lane, through the application site along the Buddleia Walk, back through the woods and home, coming out between H and I or by J. They would have followed the Buddleia Walk to the end.

Mrs Leese stated that the woodland walk would bring her out where there was a gap, or track through the woods. She thought she came out before the track which runs up the side of the horse field to Lavrock Lane (point G). The track was through the trees; it went for a short distance through woodland and came out on Lavrock Lane. She did not remember any specific

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features on the ground. She could not recall anything noticeable, no debris or rubbish, broken corrugated asbestos. It was a bit tricky, so she would be watching her feet. She did not remember a pit.

In response to questions by Mr Weston Mrs Leese stated that she and Mr Leese would go down Mill Lane, and before they got right to the bottom, they would turn to the right up a bank into a bit of woodland, and then into the Buddleia area. That would have been in the 1970s or perhaps the 1980s. If they came from the canal walking up towards Mill Lane, they would go through to the Buddleia Walk instead.

It was a while since Mrs Leese had been on the application land and she had understandable difficulty in relating her recollection of the land to the map showing the paths and access points that existed on the land as at the date of the inquiry.47 Mrs Leese’s evidence as to whether, when coming from Mill Lane, she crossed Mr Weston’s land, was not clear. It seemed to me that she might have conflated in her mind the track up from point B and Mill Lane. Similarly, her evidence as to whether she crossed the IMC land was not entirely clear. Her evidence in the witness statement and her oral evidence contradicted each other as to the period when she had used the land most frequently. Mrs Leese’s recollection as to the early years was not good. Mrs Collins, whose evidence I preferred, had a clear recollection of tipping at the site having started in 1967 and going on into the 1970s. I reject Mrs Leese’s evidence that the tip was becoming grown on when she first knew the site in 1968.

(8) Mr Ian Phillips of 18 Watford Road

Mr Phillips provided a written statement dated 9th February 200748 and an evidence questionnaire dated 17th July 200449.

In his evidence questionnaire Mr Phillips stated that he had known the land since 1983 and had used it since 1988. He gained access to the land on foot, via the footpath. There were no fences or boundaries in place. He went onto the application because after the old rail lines were removed it formed a natural walking trail linking the canal with Croxley Hall Woods, back to his house. He used to use it weekly, and at the time of filling in the questionnaire, used it 2-3 times a week. He walked and observed the flora and fauna. His immediate family also used the land for walking, bike riding, picnics and for school homework. He knew of the following community activities which had taken place on the land: walking, bike riding, picnics, children’s homework projects, and stated that they had taken place for 15 years. He ticked as activities he had seen taking place on the land: children playing, drawing and painting, dog walking, picking blackberries, bird watching, picnicking, people walking and bicycle riding. Mr Phillips believed that LUL was the owner of the land, but stated that it was not occupied by anyone. He had never sought permission for activities on the land and was never given permission to go onto the land. He had never been prevented from using the land and no attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants.

In his written statement Mr Phillips stated that he had lived at 18 Watford Road since 1983. He can walk from there onto the application land within 5 minutes. He moved to his present address in 1983. He purchased it because of the exceptional rear outlook (his house backs onto Croxley Hall Woods). He and his family had always made use of the excellent facilities in the area for walking, and, as the children became older the family used them for playing games, bike riding, school nature projects, picnics and blackberry picking as well as walking. Mr Phillips’ children are now at university but he continues to use the land every week to walk and enjoy the flora and 47 A/1/26248 A/1/15849 A/3/683

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fauna. There is a regular “Friends” walk once or twice a month. Mr Phillips regularly uses Croxley Hall Woods, and walks through to the Long Valley Woods and the Buddleia Walk. He also uses Croxley Common Moor. Each time he goes out he sees several groups of walkers from the local area. He had assumed that the land was owned by Three Rivers District Council and that public access was permitted. He had never sought permission to use the land nor been stopped from using it. He had not seen any boundary fences or gates, nor any maintenance being carried out. There were at least 6 points at which access could be gained to the application land.

In oral evidence Mr Phillips told me that 18 Watford Road is on the south side of Watford Road, in the parish ward of Croxley Green South. He confirmed that he had moved to his current address in 1983. Mr Phillips’ children were born in 1988 and 1990. While the children were growing up, in the summer months they would go onto the application land every week, in the winter months, probably more like once a month.

When bike riding they would usually come in via point G50, and would take one of the tracks, coming out at point B and across the bridge to Croxley Common Moor. They did use other exit points on occasion, and also used a circular route along the Buddleia Walk and through the woods. They used the grassed area for picnics and for playing games.

Mr Phillips now walks over the various paths, but tends to walk a circular route, coming back out through the Croxley Hall Wood, either at point G or H, through a gap in the fence. This has been his main point of access and egress for the whole period. He would also have come out at point B on occasion. He did not recall there ever being a gate at point G. He did not recall the fence at H ever being repaired. He commented that the fence posts had always seemed to be in a state of disrepair.

Mr Phillips did not recall either a fence along the orange line or the green line, although he did remember the occasional post sticking out through the shrubbery. He stated that his way through the site had never been obstructed by fencing. He did not recall there ever being a return section of the green fencing so as to prevent access to the Buddleia Walk.

Mr Phillips did not remember ever seeing travellers on the site. He did not remember the trial pits being dug.

In his statement when he had mentioned school nature projects he meant that the children were asked to identify evidence of particular animals, or particular flowers and write it up as a project. He usually accompanied his children onto the land; they would not go by themselves.

In response to cross-examination on behalf of the Lead Objector, Mr Phillips said that he did not remember any continuous fencing; he did remember some fenceposts, but not with chain link attached to them. He did not remember seeing any chain link fencing at all. He remembered the two fences on either side of track G but did not remember them being erected.

When walking, he would not generally cross from the Buddleia Walk to the woodland walk, but would walk on one or other of the two parallel routes. He would not go off to the left or right from the Buddleia Walk. He would do a linear walk, via the open area, dropping down a bank and emerging at point B.

He did not remember the Buddleia Walk or the open area being used as an active tip. He did remember some railway lines which were stacked up, but not any lines laid out as if they were a track. Those stacked up lines were within the area known as the smallholding.

50 A/26232

In response to cross-examination on behalf of the Second Objector, Mr Phillips stated that his main access to the application land was through point G. He acknowledged that there was fencing further up Lavrock Lane, albeit with holes in it. When he said in his statement that he had not seen any evidence of commercial activity on the application land he did not mention the factory, because he had assumed that he was supposed to be talking about the Buddleia Walk area.

In response to cross-examination by Mr Weston, Mr Phillips stated that he had used Mr Weston’s land. He could not recall very many distinctive features and said that he thought it looked much the same as the rest of the woodland. They would exit the application land via point L from time to time, but they would not go that way very often, because it leads up to the Watford Road, and is built up.

In re-examination Mr Phillips said that he would often come back from point B along the canal towpath. He commented that there is a steep bank down towards point B, with a broken fence at the bottom, but that it did not obstruct his route. He did not remember any solid fence barrier between points H and I.

I found Mr Phillips to be an honest witness and accept his evidence. Although he had not observed the orange or green fence lines, I do not consider that this affects his credibility. I consider that undertaking the user that he described: using the open space and the two linear routes parallel to the canal, but without crossing between them, from 1988, he may well not have seen the fencing.

(9) Mr George Horseman of 29 Bateman Road

Mr and Mrs Horseman provide a standard form letter dated 19th March 200551 and an undated written statement52. The plan to the written statement was signed and dated on 26th February 2007. He did not produce an evidence questionnaire.

In the standard form letter Mr and Mrs Horseman said that they had used the land hatched in black on the plan accompanying the letter from 1990 to the date of the letter for walking with friends every week, for taking grandchildren for walks and picnic and observing wild flowers, birds, butterflies, wild life, deer, rabbits etc, for blackberrying, for enjoying the beauty of Buddleia Walk (Long Valley walk), for playing rounders, hide and seek etc and for generally enjoying the wonderful countryside and its peace and beauty. They had not been prevented from using the land by its owner during that period.

In the written statement Mr and Mrs Horseman said that they moved to their present address in Croxley Green in 1996. They bought 29 Bateman Road from their daughter who had lived there since 1986. 29 Bateman Road backs onto Croxley Hall Wood. There is a gate in the fence at the bottom of their garden into the woods. From there it takes only minutes to reach Buddleia Walk and Long Valley Woods. Mr and Mrs Horseman said that they walked to Buddleia Walk and Long Valley Woods from their house and had done continuously since they moved to 29 Bateman Road. Mrs Horseman walks regularly through the area every week. When Mr and Mrs Horseman’s daughter lived in the house she and the grandchildren were regular visitors to the area. They enclosed a photograph of the four granddaughters on the application land. Mr and Mrs Horseman stated that they used to make regular outings with the grandchildren to search for deer, rabbits, butterflies, have a picnic by the canal, wave to the train driver and chat to people on the canal longboats. They appended a map on which they stated that they had marked with crosses the areas which they used for recreation. In fact the map shows by a dotted line the route from Mr and Mrs Horseman’s house to Croxley Common Moor, via the application land. There 51 A/3/90252 A/1/121

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may be some crosses in the area by the canal bridge. The map is annotated with the words “glorious buddleia” just to the south of the IMC works, and “walking, butterfly watching, picnics, wild flowers, rabbits” over the whole of the area to the rear of Frankland Road to the north west of what I take to be the path through the Buddleia.

In oral evidence Mr Horseman said that the statement, signed by both Mr and Mrs Horseman, had been produced by them together. He confirmed that Mr and Mrs Horseman have lived in Croxley Green since 1996, when they bought their house from their daughter. They have known the land since 1986, when their daughter bought the house that they now live in. Their house backs onto Croxley Hall Woods, and there is a gate from the bottom of their garden into Croxley Hall Woods.

Mrs Horseman regularly walks into the application land; she meets with friends every Wednesday to do a walk through the land and across Common Moor. Mr Horseman goes when he can, although he travels a lot. He goes at weekends and in the holidays when their grandchildren are with them. Mr Horseman described his family as close, and said that they get together often, and would certainly go onto the application land together once a fortnight before they moved to Croxley Green. He knew that his daughter had used the land a great deal without Mr and Mrs Horseman, but did not know how frequently.

Mr and Mrs Horseman either walk out of Bateman Road and round via All Saints Lane or through their gate and towards All Saints Lane and down to Lavrock Lane. They enter the site through point G53, and go along the side of the horse field, then left to Buddleia Walk. They tend to walk through Buddleia Walk, stopping and looking, and to stop in the open area. They do not use the path through the woods and do not use the area owned by IMC, although Mr Horseman had seen children, deer and people coming down from that area. They exit the land at point B, going down the bank towards the canal lock, although Mr Horseman had seen other people coming out onto Mill Lane from Mr Weston’s land. He had wondered where the path to the left (the opposite way from the canal lock) went, but had not been along there himself.

Mr Horseman did not remember any gates at all. He had not seen any fences which stopped his access. He had not seen any notices, other than the recent London Underground signs. He had not seen any digging on the site, and his access had not been restricted by activities on the site.

In response to questions in cross-examination by the Lead Objector Mr Horseman stated that he had first got to know the area when his daughter moved to the area in 1986.

Mr Horseman again described his route: he comes down All Saints Lane, in at point G, turns right then left onto the Buddleia Walk. He had never been to the upper wooded area. He said he had no need to go there. He thought he might have been up the path to the woods once. They spread out on the flat land at the end of the Buddleia Walk, but had not otherwise deviated from the main path along the Buddleia Walk. He had not seen the fence between the woodland and the Buddleia area. He had not seen the travellers. He had not seen any hole digging on the Buddleia area.

There were no questions in cross-examination by the Second Objector.

In response to questions by Mr Weston, Mr Horseman stated that he never went along Frankland Road to Mill Lane. They either went along Buddleia Walk, or along All Saints Lane, right down to Lavrock Lane, to the canal, then back along the Buddleia Walk entering at point B. He had never entered Mr Weston’s land.

Mr Horseman said that he remembered his daughter taking pushchairs along Buddleia Walk. 53 A/262

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In reply to questions in re-examination Mr Horseman said that he had seen people cutting up into the woodland, and coming back from there. He was aware of people being in the woods, whilst he was walking along the Buddleia Walk. The picnics had mostly been on the flat area at the end of Buddleia Walk and sometimes on the towpath. They had found blackberries along the edge of the towpath by the canal between G and F.

In response to a further question which I permitted Mr Weston to put, Mr Horseman said that he had been up Mill Lane as well and had seen people entering Mr Weston’s land from there.

I found Mr Horseman to be a reliable witness and I accept his evidence that he had enjoyed walking along the Buddleia Walk as a local resident since 1996. However, I consider that the character of his use of the land was such as might eventually give rise to a public right of way, rather than village green-type use.

(10) Mrs June Batchelor of 27 Frankland Road

Mrs Batchelor provided an evidence questionnaire dated 17th July 200454 and a written statement dated 3rd March 200755.

In her evidence questionnaire Mrs Batchelor stated that she had known the land since 1954 and had used it between 1954-1976 and 1976-2004. During the time she had used the land the general pattern of use had remained basically the same. She gained access to the land through a gate at the bottom of her garden. She used the land daily to walk the dogs, for fishing, playing football, studying the rabbit population, deer foxes, snakes and golden salamanders. She enjoyed the bluebells in the spring. She took part in the following activities: walking, fishing, bird watching and keeping an eye on the fourth generation of munjac deer which lived behind her house. Her immediate family use the land when visiting for walking and studying wild life and plants. She stated that the Scouts used the land for studying flora and fauna or orienteering. There was an annual sponsored walk held by Joan of Arc School. These activities had taken place for as long as she could remember. She did not participate in any of them. No seasonal activities took place on the land. She ticked as activities she had seen taking place on the land: children playing, dog walking, picking blackberries, football, bird watching, picnicking, people walking and bicycle riding. Mrs Batchelor had believed that the application land was owned by the Cambridge Colleges. She did not think that the owner or occupier had seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land and neither had any attempt ever been made by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants.

In her written statement, Mrs Batchelor stated that she had lived at her present address, 27 Frankland Road, since 1976. She had used the application land since moving to Winton Drive in 1954. Since moving to Frankland Road she had accessed the site from the gate in her garden fence, and also occasionally from the front door. Until John Dickinson’s Paper Mill closed she worked there and walked through the application land to work every day. If she needed shopping on the way home she would go up Mill Hill via the orchard (Mr Weston’s land). She also used the land for recreational purposes: to walk the dogs, for blackberrying and, in the earlier days, raspberrying. She always visits the woods to see the bluebells. She played with the children when young in the woods. She cuts through the application land when walking to Rickmansworth. She enjoys watching the different seasons and looking at wildlife. Her children when they lived at home enjoyed and used the application land. When they were teenagers they

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used to take a short cut through the application land to the water with their smaller canoes. When the children come to visit with the grandchildren they use the land.

When on the application land she meets many people from the locality, many walking their dogs, some just enjoying the peace and tranquillity of the walk. There are some she recognises as not being local. She sees children with their parents running about and learning about nature. Joan of Arc School comes through application land on their sponsored walk. The Cubs and Scouts use it for orienteering. She does not know who the landowners are. No one has ever approached her saying that he is the owner. She had never sought permission to enter the site or been prevented from using it. There had never been anything preventing access nor any signs to identify the owner or warn against trespassing. The site has many points of access and is open for amenity use. She had never seen anyone doing maintenance work on the land or its boundaries.

Mrs Batchelor appended some photographs to her statement: two dating from 1995 of her grandchildren who live in the USA visiting at Christmas, one on a path on the application land and the other on the “King of the Castle” mound, one of her granddaughter, dated 1999 on the “King of the Castle” mound, and four undated photographs showing Mr Batchelor in the woods at bluebell time, which I assume are more recent. She also appended a map on which she had labelled areas “the Tip” “Long Valley Wood” and “Orchard”, and drawn some crosses.

In oral evidence Mrs Batchelor told me that her house backs onto the application land, and is one of the ones with a longer garden. She has lived at her present address since 1976. Prior to living at Frankland Road, she lived in Winton Drive (on the north side of the Watford Road) from 1954.

She now goes onto the application land perhaps once a month. She used to go every day with the dogs until their last dog died in about 1992 or 1993. Since that time she has gone less frequently. If her grandchildren are staying she might go daily, otherwise, her use now is just occasional.

However, Mr Batchelor goes onto the application land every day, when the weather allows. Mr Batchelor was not able to give evidence to the inquiry himself because he has a heart problem.

When she used to walk the dogs Mrs Batchelor varied her route, she would walk them before work, and her route would depend on how much time was available to her. Sometimes she would go through the tip; sometimes she would go through her gate to the king of the castle mound, down into the depression, then back along the perimeter fence of the IMC land. The mound that Mrs Batchelor describes as the King of the Castle mound is reached by going down footpath 11 and through the fence and then it is on the right. She would not go onto the IMC land, although she knows that her husband has been there to see the sweet chestnut trees. She would then turn left where the earth has been dumped and come back along the Buddleia Walk.

She used the whole area with her children. She picked blackberries on the tip area. The last time she went blackberrying, she went into the woods at point G. There is a bank of blackberries there which catch the sunlight. There were brambles in quite a few places. Along the canal bank was also a good place. The raspberries would be beyond the horses’ field, beyond the canal bridge (not on the application land).

Mrs Batchelor said that the area just outside her back gate is sheltered. They can stand at or just outside the gate and see deer, foxes and butterflies.

Mrs Batchelor said that she used to go onto Mr Weston’s land when she worked at John Dickinson’s. She started working there in 1958. At the beginning of the period Mr Weston’s land was an orchard. The workers started cutting the corner and walking across Mr Weston’s land, she thought in the late 1960s, but definitely by the 1970s, because the mill closed in the

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1980s, and she knew that she had done it before the mill closed. Sometimes she would go up from work and in through the back gate. She would go that via Mr Weston’s land if she wanted to go to the shops.

Now Mr and Mrs Batchelor walk through Mr Weston’s land occasionally. She used to see children playing there. The lane was not made up then. The children who lived in the houses which backed onto the lane used to play in the lane with their robot cars and things and inside the orchard site. She would see them when she was going to or from work.

Mrs Batchelor said that she was aware that there was a fence along the orange line, but said that it had not impeded her way. She had not seen a fence on the green line on the return line towards the canal. She did not remember any impediment to getting from the other areas of the woodland into the area near points H and I.

In response to questions in cross-examination by the Lead Objector, Mrs Batchelor said that when she walked the dogs she went along the long path through the woods, then left and along the Buddleia Walk. At the meadowland she went up the hill and back to her gate. Mrs Batchelor agreed that if she continued along that path, she would eventually pick up the fence line at the back of the factory. She had also seen the fence line on the orange line, but had only known it derelict.

John Dickinson’s mill used to be where the Byewaters Estate now is. When Mrs Batchelor went to work she would cross the canal at the lock gate, over the bridge. When going to the mill she would turn left immediately outside the gate, and down the hill between the two fences. She could remember there being fence to her right. To her left she thought the fence was made of packing cases, or something like that. She was conscious that there had been a fence on both sides of the path down the hill. She remembered a blackened board on the fencing, although she said that she had never been able to read the lettering on it.

She called the part of the application land nearest the canal the tip. She had heard it called the Buddleia Walk by others before the inquiry, but she had always called it the tip. She remembered having seen a bit a bit of fence between the Buddleia and the woodland, but just a stretch. Mrs Batchelor said that there is now a clear path along the middle of the tip. In the past when the children were younger she had veered off the path, but now she does a circular walk for exercise, straight along it. When it was a tip, the children thought it was treasure trove and would go to see what was there. When the tip stopped, the “treasure” hunting stopped.

Mr Batchelor is a trout and salmon fisher. Her son and grandson learned to cast in the back garden, and practised in the meadow when they were getting good.

The grandchildren will walk along the Buddleia Walk, taking their catapults along with them.

Mr and Mrs Batchelor look after their youngest grandson in the school holidays Mr Batchelor takes him out onto the application land. She understands that they meander through every avenue.

In response to questions in cross-examination by the Second Objector, Mrs Batchelor said that Mr Batchelor still walks. He takes his time, but she thought that there would not be many parts of the application land that he would not know.

Mrs Batchelor stated that she had completed the evidence questionnaire and the statement by herself, together with her husband. She had marked the areas on the plan accompanying her statement56. She herself had gone down into the depression which they called the Dell (the land 56 A/1/59

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owned by Three Rivers District Council), and then along the boundary fence with the IMC land. There must have been holes in the fence, because she had a Springer which went through, and she was worried about getting it out. She said that the fence was intact as you walked along, but at the end, where she would turn to her left to return home, by the pile of rubble, there was definitely a gap where you could get through. That was the area where the sweet chestnuts grow. Her husband would have gone through the gap, but she did not. She thought there was a depression in there, but she would have gone there, because she had limited time, as she was walking the dogs before work. She commented that she was exercising dogs, not going for a scenic walk.

The crosses on the plan symbolised points of entry, showing where you can get into the application land. The cross next to the word “works” was intended to show where Mr Batchelor has said that the fences are down. She thought that the crosses were intended to represent breaks in fences which Mr Batchelor knew of, which he must have been through, although Mrs Batchelor did not know them. She did not have any call to go through breaks in fences, if they were there.

Mrs Batchelor said that she would think that Mr Batchelor had been on the IMC land recently. He meanders every day. He has mentioned the sweet chestnuts on the land, which she thinks are on that land. She had not seen the sweet chestnuts herself.

In response to questions in cross-examination by Mr Weston, Mrs Batchelor stated that she would take the short cut through the orchard if it were dry and if she was on foot. She would not have taken the short cut when she was on her bicycle. The trees were gnarled. There was an apple tree. She would have gone past Weston’s lorries’ gates, then to her right, then straight down to cut the corner. She remembered the retaining wall. She could remember bluebells in there. It looked as though it had once been cultivated and the remnants were there. Access into the orchard became available in the late 1960s or early 1970s, rather than well into the 1970s. Dickinson’s Mill had shut in December 1980.

Mrs Batchelor’s children were born in 1960 and 1962. She has four grandchildren: two who live in America, who were born in 1990 and 1991, and two who live in England and were born in 1996 and 1998.

I consider that Mrs Batchelor was an honest witness. She was able to date the dereliction of the fence around Mr and Mrs Weston’s land, by reference to her employment at Dickinson’s Mill, as having occurred, at the latest, in the 1970s and I accept her evidence that by that date the security of the fence had been compromised to the extent that it was possible to cut through the orchard from the canal lock. Her evidence as to when the “treasure” hunting on the tip stopped provides corroboration of other witnesses’ evidence that tipping stopped in the 1970s: her children’s ages are such that they would not have been involved in “treasure” hunting in the 1980s. She herself had not used the IMC land, but I accept her evidence that her husband said that he had done so.

(11) Mr Gerald Mealor of 137 Frankland Road

Mr and Mrs Mealor produced a written statement dated 26th February 200757. Mr Mealor did not complete an evidence questionnaire or a standard form letter.

In his statement, Mr Mealor said that he is a retired university lecturer. He and his wife have lived at 137 Frankland Road since September 1969. The application land is two or three minutes’ walk from their house. He remembered the site from when he first lived at 137 Frankland Road. At that time it was an operational tip. The perimeter fence was never fully maintained, so that it was always possible to walk through the site to the canal and Croxley 57 A/1/144

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Common Moor. During the 1970s the lack of maintenance meant that more access points onto the site appeared, from fallen trees or from the activities of individuals. The use of the site as an operational tip diminished in the late 1970s and, to the best of his recollection, ceased in the early 1980s. When the tipping ceased a covering of soil was put on the levelled-out tip and tree saplings were planted. The Buddleia began to be established from this time.

From the early 1980s Mr Mealor’s use of the site changed from largely passing through to using the site as part of a recreational walk. In winter he would enjoy a shorter circular walk within the site, rather than a longer walk to Croxley Common Moor to the Ebury Way, returning by the more westerly part of the tip site up from the canal. In the late spring and summer he also used the application land for evening walks.

From the mid-1980s Mr Mealor used the flat grassy area at the eastern end of the site with his grandsons to play football. He has two grandsons born 10 years apart, and so reckoned that he had engaged in this activity for more than 20 years.

Mr Mealor had also seen other people using the site, mainly people within walking distance, although he had seen cars parked on Lavrock Lane at the bottom of Harvey Road, and concluded from this that people from a wider area also used the land, particularly for dog-walking.

Mr Mealor said that he was never challenged when in or crossing the site.

Mr Mealor remembered a London Underground notice attached to a fence demarcating the boundary, at a point where the fence subsequently became broken. He had not seen any other notices until after the village green application was made.

In oral evidence Mr Mealor confirmed that he has lived at his present address since September 1969. 137 Frankland Road is one of the pair of houses on the eastern corner of the junction with Harvey Road.

Mr Mealor remembered going onto Mr Weston’s land, usually just to pass through, although he said they had wandered around in there with the grandchildren in particular. He had seen children playing in there, particularly down the bottom end, nearer to the canal.

He remembered going onto the IMC land, although not very frequently. His youngest grandchild is now 7, the others 9 and 11, and they wanted to explore this area during the last summer. His oldest grandchild is 26. He does not remember going on the application land with the oldest grandchildren. When they were young the site had not developed in the way it has of recent years. He has seen other people going through the IMC land.

He did not recall the orange fencing being repaired in the 1980s. He did not remember a line of fencing on the return line shown in green towards the canal, so as to prevent access to the Buddleia Walk.

In response to questions in cross-examination by the Lead Objector, Mr Mealor said that he had lecturered in economics and industrial studies.

The walks with his children would have taken place from the end of 1969 through to the end of the 1970s, long before the steps appeared. At that time they would just be passing through the LUL site. Over time the LUL fencing became much less well maintained. Breaks in the fencing creating openings remained openings, so that you could cross the corner of the former tip site to go down to Common Moor lock.

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In the 1980s his most regular route would be to come out of his gate, along Harvey Road, along footpath 11 to point K, then straight down the hill, through a wide opening in the fence to the open space, from which he would cut across to B and out to the lock. The slope down to B is very steep and slippery in the wet. If it was wet they would go through a pathway in the woodland along the rear fences of Frankland Road and would cross Mr Weston’s land to reach the lock.

The shortest loop would be down through into the tip site, along the tip site, and back up to his house via Lavrock Lane exiting the application land at point G. The medium loop was along the towpath and the longest across the Moor, back along the canal, then back through the site coming in at point F and exiting at G. From G he would carry on up Lavrock Lane to Harvey Road, and from there home.

Mr Mealor did not remember there ever being a gate at point G. He did remember the signs on the fence between points K and B, which said something like “the boundary of LU’s land extends 6 foot beyond this fence”. A tree fell on the fence and brought it down at the point where the sign was.

Mr Mealor remembered the time when the Buddleia Walk was an active tip. He walked along it when it was still an active tip. He would have walked along it with his own children when they were teenagers. He said that since that time the Buddleia Walk has become a more defined path, and he walks up and down it when he goes with his wife, although his grandchildren might veer off the path to go exploring. Last summer there were a couple of occasions when Mr Mealor’s grandchildren went up to the depression on the IMC land. He remembered there having been more than one occasion, and could remember two occasions in particular this last summer.

Mr Mealor said that at the time of the inquiry he would regularly walk through the land once or twice a week, and occasionally more than that. The loop chosen would depend on the weather and time. Mr and Mrs Mealor would do the longer loop once a fortnight, perhaps, the shorter loops are perhaps an evening walk in the summer, along the Buddleia Walk to listen to the birdsong or alternatively in the winter if the weather is not very good.

Mr Mealor remembered that when the tip site ceased to be a tip and the top covering of soil was put on it, things began to grow quite rapidly, particularly the Buddleia. He remembered it having been a working site until it closed, and said that therefore the brush and undergrowth did not develop in the same way until it closed. It was running down as a tip in the 1970s, but he thought that its actual closure had occurred somewhere in about 1984.

He did not remember the fence on the green line between the tip and the woodland going up, and said that, to his knowledge, there was not currently a fence on the line shown by the green line.

In response to cross-examination on behalf of the Second objector, Mr Mealor said that he was reasonably familiar with the development of the IMC site, and that he had been aware of it as he lived so close. His house had been one of the first pair to be built on the estate, and had been occupied by the foreman of the concrete works, which had been there since the beginning of the Second World War. He believed that the area referred to as the dell had been excavated to provide the gravel for the original Wembley Stadium building. He always knew the site as the IMC works, but knew that it had been Sangers Pharmaceuticals before that. As he understood the position, IMC had developed out of Sangers Pharmaceuticals. At its height the site had employed more than 100 workers, perhaps as many as 160.

Mr Mealor was not aware that there had been other buildings on the IMC site which had burnt down. He said that he had not really gone onto the IMC site, other than this last summer.

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Mr Mealor said that the gates at the turning head had last been in operation a good time ago. Even then they were not regularly used, but were an alternative access. The gateway adjacent to Harvey Road was resurfaced a few years ago, to make access better. After the resurfacing, all the vehicular traffic went through there and the alternative access was not used at all.

About 15 years ago, in the early 1990s, parts of the fencing along Lavrock Lane would have been extremely corroded. He remembered that new fencing had been erected outside the old fencing. So far as he was aware, nobody had broken the old fencing down, but it was rusted and dilapidated and the concrete posts showed the reinforcing rods. He thought that the original fencing was about 60 years old.

Mr Mealor said that he could not bring to mind any plastic coated fencing along Lavrock Lane, although he was fully aware of the new galvanized fencing around the IMC site.

In response to questions by Mr Weston, Mr Mealor said that he might expect a fence to last for 40 years, although he accepted that the fencing along the towpath had probably been there for 40 years. He said that that fencing was non-existent in some places. If it were his fencing he would renew it, if it was of value and use to him.

Mr Mealor said that he had crossed Mr Weston’s land since 1969. He had been across Mr Weston’s land maybe 4 or 5 times in the last 3 months. Every year there would be a number of occasions he would go across it, if the path down to the lock (to point B) was slippery. He would go along the top pathway from point K and rather than going down to exit at B, he would pass through Mr Weston’s land out onto Mill Lane at point L.

Mr Mealor said that it was quite a common sight to see children playing down at the bottom end of the orchard, towards the canal.

Mr Mealor goes into Croxley Hall Woods as well. His most frequent use of the application land has been of the grassy area, playing football with his grandsons. He has seen a burnt out motorbike and a burnt out car on Mr Weston’s land within the last 2 or 3 years.

He has seen dilapidated and overgrown fruit trees on Mr Weston’s land.

In re-examination Mr Mealor described the galvanized fencing erected around the IMC site within the last 4 or 5 years as being about 8 foot tall, made of angular metal, with the top splayed into two or three spikes.

Mr and Mrs Mealor would walk along Buddleia Walk looking at what flowers were coming into bloom, what birds were around. They would sometimes see herons roosting in the trees on their way to the canal. Both Mr and Mrs Mealor have an interest in birdsong, and the evening time song is very good. When he goes with his grandsons they explore. That involves them running ahead, climbing particular obstacles, and chasing each other around. Mr Mealor would be passing through, but they run and chase about.

Mr Mealor remembered the site being levelled and soil put on top in about 1984. The tracks were still in place at this time. They were gradually removed as the soil was levelled. At the same time saplings were planted in the slope down towards the canal. The area developed fairly soon after that. It would have taken maybe a minimum of a year, before it got to a stage similar to what it is now.

Mr Mealor recalled going onto the area now known as the Buddleia Walk before 1984. He recalled the odd conversation with the two men who used to work at the tip. Mostly it was because of his idle curiosity as to what was coming in onto the tip, but on one occasion he

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acquired some old scaffolding poles from the tip. He did not recall seeing other people on the tip at the time it was working.

I permitted the Lead Objector to ask further questions in relation to this point. Mr Mealor said that in around 1984, he could not remember precisely when, there were still tracks in place. He described the process of levelling the tip. The operators were ensuring the levels. There were level markers put in to ensure stability, and to get the banking down to the canal right. The deepest level they had to come to was on the grassy area. That was the final area for tipping, but would have been levelled first, as they took the track out and levelled the land. The final tipping was part of the stabilising process. They then worked backwards out of the site. This was happening in about 1984. He could recall playing football from about 1986 with his grandsons on the open area. He knew it was 1986, because his first two grandsons were born in Australia, and came back to this country in early 1986. At that time the elder would have been 6, and the younger 4.

Mr Mealor was an honest and careful witness. His recollection as to the operation of the tip was good. By reference to the documentary evidence, his recollection that the levelling works were completed in 1984 is accurate. I accept his evidence that there was some final tipping in connection with the levelling process, but that the use of the tip was running down in the 1970s. I accept his evidence (which is again consistent with the documents) that the tracks were removed during the levelling work. I do not consider that the fact that Mr Mealor had not noticed the green fence where it runs parallel to the canal means that his evidence is less credible, as I consider that it is entirely possible that he might not have seen it. I accept his evidence that there was no gate at point G. In my judgment Mr Mealor used the application land, with the exception of the IMC land, but including Mr and Mrs Weston’s land, for informal recreation for the whole of the relevant period.

(12) Mrs Janet Christine Scammell of 57 Frankland Road

Mrs Scammell provided a written statement dated 4th March 200758 but did not provide an evidence questionnaire or fill in a standard form letter.

In her written statement Mrs Scammell said that she is a part-time accounts clerk. She had lived at her present address, 57 Frankland Road, for 24 years and 5 months (since October 1982). Her house is about 100 yards from the application site. It takes her about two minutes to walk there. She started to use the land in October 1982 when she first moved into 57 Frankland Road and has used it continuously since then. Whilst she owned a dog she walked the dog on the application site approximately three times a day. She walks on the land at all times of year. Her family uses the site as well for dog walking. Mrs Scammell had made friends with others whom she had met walking their dogs on the site. She enjoys the bluebells in the spring and the Buddleia in the summer and is a keen birdwatcher. Mrs Scammell said that she was never granted permission to use the land and that there were no signs prohibiting her from using the land. She mainly entered the site from the Frankland Road footpath between the two houses and straight down the hill. She was aware of a very old chain link fence with a large gap in it. The path through the gap was obviously very well used and it did not impede her access.

Mrs Scammell had seen work on the site on one occasion a few years ago, when she saw a couple of men testing for gases with bore holes. She spoke to them to find out what they were doing. Their work did not prevent her use of the land at the time or subsequently. The men did not say that she should not be on the land. She saw them on the allotment footpath and on the Buddleia Walk.

58 A/1/17142

In oral evidence Mrs Scammell told me that 57 Frankland Road is the third house in from the passage between 51 and 53 leading to footpath 11. She has lived at 57 Frankland Road since October 1982.

Mrs Scammell uses the network of paths through the application land depending on the time available to her and the weather conditions. She usually enters the site at point K59, and goes straight down the hill.

Mrs Scammell said that there are birds all through the site. The bullfinches and chaffinches can be found in the Buddleia. She sees children and parents on the grassland, through the Buddleia and in the woodland. Occasionally children camp on the grassy area in the summer. Mrs Scammell has been onto Mr Weston’s land; for instance she goes on his land when she goes to get the newspaper on a Saturday morning. She has seen children on their bikes or mucking around on Mr Weston’s land, congregating and chatting. She believes that her own children have played in there. Mrs Scammell’s children were born in 1969 and 1972. They used the site for playing; they would go onto the grassland and play there. In 1982 the grassland was bumpy, and the rail tracks were still down with buffers at the end. It was rocky. Later on they used to go down and play football.

Mrs Scammell had been onto the IMC land near points H and I. Mrs Scammell’s children had told her that they had played in the concrete bunker with the missing inspection hatches. There was also a metal tank in which they used to play. She had not seen her children there and was not aware of any other children playing there.

Mrs Scammell’s husband also goes onto the land. They used to walk the dog together on the land.

Mrs Scammell was frightened by the travellers on the site. She went through the travellers’ camp with her husband. She felt threatened, and did not go there again while the travellers were there. She used other walks while they were there.

In response to questions in cross-examination by the Lead Objector, Mrs Scammell said that she had used the whole of the area as if it were part of her back garden. The grassy area was not as it is now when she moved in. She could not remember how far the track came. She remembered the children climbing over the buffers when they went for a walk. They were there for a while after she moved to the area, but she could not say how long.

Mrs Scammell would usually come down from access point K to the open space. Occasionally she would go along footpath 11, sometimes down to access point G and up the lane from there, sometimes behind the IMC site along the path through the woodland to the king of the castle mound, or along the Buddleia Walk. Mrs Scammell said that there is what remains of a fence between the two paths, which she described as very broken down, with the odd concrete post. She remembered the fence shown by the orange line being very dilapidated. She had noticed the green fence since the application was made, but had not noticed it before that.

She could not put an exact date on when the boreholes were dug. The men were drilling down and told her that they were testing for methane and various gases which might be present on the site and around the area. They were there for a couple of days.

In response to questions in cross-examination on behalf of the Second Objector, Mrs Scammell said that she had used all the access points at various times. She would come onto the site maybe once a week, once a month, usually via access point K. Occasionally she would use an alternative access point.59 A/1/262

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When Mrs Scammell last looked at the concrete bunker, it was full of rubbish. She was last on that part of the land about a month ago. The bunker is about 10 feet by 5 feet. She did not know how deep it was. It has two inspection chambers on the top, which should have had covers, but they are gone. She could not remember when she first saw it. It is in the Dell. There are three gates to the IMC land. Just past the third gate there is a big gap in the fence. It is through there, and on the left hand side of the big dip; the metal tank (now corroded) is on the right hand side. She did not let her children play there; she found out that they had been playing there subsequently. Her son tells her that he used to get into the inspection chamber. She did not mention going to the IMC land in her statement specifically because she accesses all areas and did not think one was more significant than the others.

In response to questions in cross-examination by Mr Weston, Mrs Scammell said that she remembered a big gnarled tree on Mr Weston’s land, which her Jack Russell used to climb up. There was also a big oil drum which had fallen down, and a metal carton which had fallen onto the land. There were lots of fallen trees, which you might have to walk round. She goes across there maybe once a week. She has been across Mr Weston’s land for the whole of the period since 1982, but only in the last 10 years, since her boys have got older and have not wanted to go to the shops for the paper.

In re-examination Mrs Scammell said that she uses the footpaths throughout the whole area. She does not go off the footpaths and scrabble through the undergrowth.

Her sons would have stopped playing football when they got to the age of about 15. The climbing into the bunker would have been between the ages of 13 and 16. It was the older boy who had climbed into the bunker, not the younger.

I found Mrs Scammell to be an honest witness. I accept her evidence that the testing of the land by digging bore holes did not impede her use of the application site. I accept her evidence that she was scared of the travellers and avoided the land during their occupation, and find that otherwise she has used the application land, other than the IMC land and Mr Weston’s land, for the whole of the relevant period.

(13) Mrs Linda Janet Fuller of 46 Harvey Road

Mrs Fuller provided a written statement in the form of a letter dated 25th February 200760 and a second written statement of the same date, specifically dealing with the occasion on which part of the application land was occupied by travellers61. She did not complete an evidence questionnaire. Her husband completed a standard form letter on 10th March 200562, but Mrs Fuller did not complete one herself.

In her first written statement, Mrs Fuller said that she had lived in South Croxley Green for the last 30 years during which time she has worked as a nursery assistant in Croxley, Watford and the surrounding areas. Her house is five minutes’ walk from the application site. She and her husband have enjoyed using the land for over 25 years mostly for walking with their children and dog, and occasionally for playing ball.

At first they used only the Mill Lane side of the site as a cut through from the woods towards the canal, but after a short time they began to use a circular walk entering the site from the woods behind Frankland Road and leaving it in Lavrock Lane. Mrs Fuller used this route every day to walk the dog. She still walks on the application land. She has rarely been walking without 60 A/1/8461 A/1/25262 A/3/871

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meeting someone else, sometimes three or four other people. Occasionally she sees people she does not know, but thinks that most of the users are locals, as there are very few places to park cars and most outsiders would not be aware the site was there.

Mrs Fuller has never been granted permission to use the land and has never been told not to use it. As far as she was aware, no maintenance work had been carried out on the land or its boundaries since June 1984 other than by local people. She had not seen any signs on the land until after the application was made. Mrs Fuller appended a map to her statement signed and dated 25th February 2007, on which she had drawn a number of crosses63.

In her second written statement Mrs Fuller said that she had a fairly clear recollection of the travellers’ camp on the Buddleia Walk in October 1989. She remembered there being about five caravans, plus a van, a car and a lorry, although she was not sure how many vehicles there were in total. She saw three men and a woman, but said that there must have been more people there than that. Men from the travellers’ camp used often to drive up and down past 46 Harvey Road. They had dogs. The caravans were close together behind the IMC factory, on the open land. At that time the land was flatter and not as pretty as it is today. Mrs Fuller continued to use the site several times a week, but her dog was afraid of the travellers’ dogs, so she gave the caravans a wide berth. Mr Fuller told Mrs Fuller of an incident during which he had felt intimidated by some of the gypsy men driving towards him in a van when he was walking the dog on the site. After that he used to walk along the edge of the site to avoid the travellers. Mr and Mrs Fuller did not find the travellers friendly and were glad when they left. She remembered there having been an eviction order in January 1990, and thought that some of the caravans had left before the order was enforced. Afterwards a large ditch and a mound of rubble and soil appeared at the entrance of the walk, preventing the travellers’ return. Some of the rubbish left behind by the travellers was removed by local people as part of one of the “Clean up Croxley” campaigns. She did not recall any fencing being renewed at that time.

In oral evidence Mrs Fuller told me that she has lived at 46 Harvey Road since 1977.Her children were born in 1977 and 1979. She was pregnant with her elder child when they moved in.

When walking, the area she used varied. She tended to keep to the same sort of route coming out of the woods, along the Buddleia Walk and up Lavrock Lane. If she wanted to go to the shops she would either go along the canal or through the woods out onto Mill Lane. Her children would play all over the place, and her husband was also more adventurous.

They played ball games on the flatter grassy area, between the woods and the slope down to the canal, near point B. The ball games would have taken place from about 1983 until now. She did not let her daughters play there by themselves; they would always have been accompanied.

Mrs Fuller did not go onto the IMC land, but said that when she and her husband they were talking about the application the other day, he had said that he used to go down there.

The rabbits and butterflies referred to in her statement were on the grassy area, up from B. There were little blue butterflies. If you kept quiet the rabbits would come out. The children used to go down the slope towards the canal. She did not like that, as she could not see what they were doing.

She did not remember a fence across between the open grassy area and the Buddleia Walk. She would have had to climb it, and would not have done so.

63 A/1/8545

Mrs Fuller’s dog was frightened of the travellers’ dogs, so she stayed away from them. She tried to see what they were doing through the woods, but could not because they were behind the IMC site. She was annoyed by the travellers because they mucked up her walk. She did go through one day when it looked quiet and there was just a woman there. Mr Fuller was determined that they were not going to stop him. She tried to see what they were doing from the Lavrock Lane end. She was deterred from going near, because she did not know whether they would be rude or whatever.

Mrs Fuller signed the plan appended to Mr Barry Grant’s statement showing where the travellers had been64. She thought that the area marked was correct because she could not see them through the woods, but could get a glimpse from the path by the smallholdings.

In cross-examination on behalf of the Lead Objector, Mrs Fuller said that her house is on the north-eastern side of Harvey Road almost at the junction with Frankland Road.

She would go out at least once a day with the dog, usually when she came home from work. Her main route was along footpath 11 to access point K, then straight down to the grassy bit, along the Buddleia Walk, up to access point G, and then back up Lavrock Lane. If she needed something at the shops she would turn left through the woods to Mill Lane and come out at access point L.

When walking the dogs she would just walk, but her daughters would look around for things. They found a fossil once, and after that they would look for fossils for a few weeks. They would play Frisbee on the grassy bit at the end, but not on the Buddleia walk itself. Mrs Fuller did not go into the woods other than along the routes stated. She believed that her husband used a much wider area than she did.

She did not remember any fences as she came down the hill from K. She remembered an old tree stump. She did not remember having seen a fence along the line shown in green. If Mr and Mrs Fuller were feeling energetic they would walk to Rickmansworth. If they did that they would come down Lavrock Lane to access point G, then through to point F, then along the towpath to Rickmansworth. They have done that walk maybe once every three months. Mr Fuller used to do it more regularly; he used to go out jogging and would take the dog down to Rickmansworth until the week she died.

Mrs Fuller remembered broken bits of buffers, but could not remember any railway lines on the land. She remembered the land being levelled, but said that the levelling had taken place before her main period of walking on the land. Her main walking time would have started about 1983 or 1984. She remembered the levelling happening, but could not remember when it happened. They got the dog in 1984 and started walking along the Buddleia Walk from then on.

She did not remember any trial pits or holes being dug.

In response to cross-examination on behalf of the Second Objector Mrs Fuller said that the crosses on the map appended to her statement were supposed to show a route exiting at point G. Mr Fuller had talked about the dell, and he said he had been there with the dog, jogging or walking, but she had not.

In response to questions in cross-examination by Mr Weston Mrs Fuller said that she used Mr Weston’s land to go to the shops while the dog was alive. The dog died in about 1997. The Fullers have not had a dog since. Since the dog died she has just stayed to the west of Mr Weston’s land. Mr Fuller does shift work, and she described them as being a bit like the weather people, one out while the other was in. They did not often go out together onto the land. She 64 A/1/93A

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said would not have crossed Mr Weston’s land for at least 5 years. Mr Fuller jogs at the weekend and goes all over the place. She said that she would be surprised if he did not go onto Mr Weston’s land. She did not remember anything particularly about Mr Weston’s land.

I found Mrs Fuller to be an honest witness. I accept her evidence that she has made use of the application site, other than the IMC land and Mr Weston’s land, since 1984 for recreational purposes, but that the intensity of her use diminished after the death of her dog in 1997.

(14) Mr Derek Wakefield of 50 Harvey Road

Mr Wakefield provided a written statement dated 15th February 200765, but no evidence questionnaire. He produced a response to the standard form letter (2005)66.In his response to the standard form letter Mr Wakefield stated that he had used the land from at least 1980 to 2005 for unspecified activities.

In his statement Mr Wakefield said that he is a 68 year-old retired civil servant. In 1958 his parents moved to Lot Mead House on the Grand Union Canal, about 600 metres from the west end of the site. He returned to his parents' house on completion of National Service in 1960. He lived in Chorleywood between 1964 and 1970, and had lived at 50 Harvey Road since then. He has three children who lived at 50 Harvey Road until leaving home.

Mr Wakefield said that he had regularly used the application land over the years to walk his dogs, take the children for walks and to observe the animals on the land. He had gained access to the site via the access points marked with numbers on the map appended to his statement67. He also crossed the site when visiting his parents, using access points 5 and 6. His sons would use the area to kick a football about, and would cross it on their way to the canal to fish. He frequently sat on the open space at the west end to observe the wildlife.

Mr Wakefield remembered there being rails on part of the site many years ago, but could not remember them being used. He did not remember there being any signs regarding ownership before the application was made.

He remembered that travellers had arrived on the site in November 1989 and stayed for about two months before moving out. He was aware on his regular walks of rubbish building up. He thought (although in oral evidence he said that this was just an assumption) that the rubbish had been cleared by the local authority when the travellers left. While the travellers were on site the locals were able to continue using the site.

At no time had he been prevented from using the site, and he had not seen anyone purporting to be the landowner or been questioned by or granted permission by the landowner.

Mr Wakefield had not used the site so frequently during the past two years as a result of ill health, although his children and their respective spouses still walk through the whole length of the site when they visit.

In oral evidence Mr Wakefield told me that his house is on the northeastern side of Harvey Road, and is the fifth house up from the bottom of Harvey Road. He has at 50 Harvey Road since 1970. As a child he lived at Lot Mead House on the canal. Mr Wakefield’s children were born in 1967, 1969 and 1972. His “dogs” have been consecutive dogs. He had his first dog in about 1974 or 1975. His last dog died in 1997.

65 A/1/19866 A/3/102867 A/1/199

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When walking with the dogs Mr Wakefield would have used pretty well the whole of the application land. He did small mammal surveys with his daughter. He did not confine himself to any particular area when walking with the children either. He did a census on bats, relating to a particular roost in Croxley Hall Woods. He used to sit and watch them come over the grassy area at the western end of the site. He also saw weasels, although he has not seen them for many years, including on one occasion a female taking young over Lavrock Lane to the site, and Muntjac deer.

In order to do a small mammal survey, Mr Wakefield would put sticky tape over where he thought the runs were. Hair would be left on the tape. The small mammal surveys were done up by the IMC site, along the IMC fence line.

He had seen people going through access point H next to the field with the horses in it. He thought that he had been through there himself twice. He might have heard children’s voices when walking down Lavrock Lane, which must have been coming from that area.

When visiting his parents Mr Wakefield would come down Lavrock Lane, in at G and out through F. At other times he would come out of the house, along the back of the allotments, and onto the site at access point J, which is now steps but which for many years was just a slope, then along until he came to the king of the castle stump, then from there down into the wide grassy bit. He would sit there or kick a ball about with the boys when they were younger, or walk through the Buddleia walk.

Mr Wakefield described the Buddleia walk as like an avenue now, but said that previously there used to be lots of little clearings, which he used to explore to see what wildlife there was there.

The other access point Mr Wakefield used was access point K near the passageway between the houses in Frankland Road. From there he would go straight down through the woods and to the mound.

Mr Wakefield had used Mr Weston’s land, known as the orchard, but until the application happened he did not know who owned it. Members of his family remember it as an enclosed cultivated orchard, but he himself did not remember it being enclosed in any way. He had often walked through that land, or down Mill Lane and noticed other people walking through there. He had not used it that much, but being lazy, it takes quite a chunk off the corner.

He did not remember there being a fence on the return section of the fence shown by the green line on Plan D.

In response to questions in cross-examination by the Lead Objector Mr Wakefield said that he remembered seeing fencing of a sort along the line shown by the green line, but could not remember it being a continuous run. He did not know whether it was still there, or what bits of it were left. He could not recall a continuous line of fencing there.

Mr Wakefield said that he burrowed into the undergrowth off either side of the Buddleia Walk. There are glades on either side, where you are likely to find animals, rather than on the path, and he would go off the path to look for animals. Earlier on there was less Buddleia and more teasels and other things. He remembered there being rails towards the horse field end, although did not remember them ever being used. He could not remember the extent of them, but did not think they went very far. The rails disappeared, although he could not say when.

His recollection as to fencing was that there were various strands of fencing at odd angles right through the woods, mostly in bad state, rusty and fallen through. Parts of that could be the orange line. He did not really wonder what the fencing was about. It had always been his

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assumption that the land had been owned at one stage, like the orchard, and had, over the years, become open space. He did not know the life of fencing, but thought that it was obviously very ancient, and not serving any real purpose.

Mr Wakefield said that after 1989 he had taken a part time job as an usher/clerk at Watford County Court. Before that he worked in London for British Telecom’s predecessor.

The land had always been called the railway tip, but he would not have known which railway’s tip it was. He did not know that it was London Underground until at least after the travellers’ incursion, when he discovered that London Transport owned it. He did not have any idea who owned it before that.

No one had ever said anything to Mr Wakefield about him being on the land. He did remember a couple of chaps doing something there once, and they said good morning. They were not walking or with dogs, they might have had some pallets with them. He did not remember anyone digging holes.

In response to cross-examination on behalf of the Second Objector Mr Wakefield said that he might have been on the IMC site twice, but his main access to the site was via point G on his way to the canal. On the map appended to his statement, access point 5 was intended to represent access point G.

He had heard voices from the direction of the IMC land, and thought they must have been on that land, but could not be sure.

He agreed that there were three access points into the IMC site. He said that the fencing is now broken, and that he could not remember the fencing being repaired, although he could remember the new fencing going up, probably within the last 10 years, although he could not be sure. He had seen the original wire fencing, but did not remember there being a sign on it saying “private”.

In response to cross-examination by Mr Weston Mr Wakefield said that he had been on Mr Weston’s land infrequently, from time to time. He would have taken a diagonal route across it. He agreed that there was evidence of a wall on Mr Weston’s land and that there were fruit trees there.

Mr Wakefield’s parents moved from Lot Mead house in about 1978.

I found Mr Wakefield to be an honest witness. I accept his evidence that from 1970 it was possible to cut through the application land from point G and exit at point F, and that he did that when he visited his parents between 1970 and 1978. Mr Wakefield was not asked for his recollections as to when the tip was active and did not suggest that his pattern of user changed with any changes in the tip. I accept his evidence that he used the whole of the land, with the exception of the IMC land and Mr Weston’s land, for dog walking between 1974 and 1997.

(15) Mrs Barbara Starr of 2 Nuttfield Close

Mrs Starr provided a statement in the form of a letter dated 25th February 200768 and a completed evidence questionnaire dated 18th July 200469. She also provided a response to the standard form letter (2005)70.

68 A/1/179.69 A/3/73670 A/3/1006

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In her evidence questionnaire Mrs Starr stated that she had known the land since 1955 and used it continually between 1955-2004. During the time she had used the land the general pattern of use had remained basically the same. She gained access to the land from Mill Lane and from the footpath in Frankland Road. She used the land weekly for recreation and dog walking. She played on the land and used it for sports as a child. As an adult she has used it for dog walking and wildlife observation. She stated that the Scouts, Guides and Brownies had used the land for picnics, nature watch, walking, kite flying and camping. Walkers’ Associations also use the land. Fishing and camping take place on the land seasonally. She ticked as activities she had seen taking place on the land: children playing, rounders, fishing, drawing and painting, dog walking, team games, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bonfire parties and bicycle riding. She ticked “other” and wrote in elderberry picking. Mrs Starr believed that the application land was owned by London Transport. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land and neither had any attempt ever been made by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants.

In her response to the standard form letter (2005) Mrs Starr stated that she had used the land between 1955-2005 for playing games etc, nature watch, walking dogs, fruit picking and picnics.

In her written statement Mrs Starr said that she had lived at 2 Nuttfield Close for 52 years. Her house is about 50 metres from the site, and it takes her about 2 minutes to walk there. She began using the site in 1955, accessing it from Mill Lane, and has continued to use it to the present day. As a child she used the land for playing games, nature watch, picking fruit, picnics and dog walking. As she grew up she continued to walk the dogs on the land up to the time of writing her statement. She used the large grassy area for games. She used the rest of the area for the nature watch and dog walking. She uses the site daily all year round both in daytime and at dusk. She has seen other people using the land for the same purposes. She has seen many different people dog walking. She has seen people walking, but presumes they come from outside the locality.

As the landscape has changed and the Buddleia has grown the local residents have trimmed the bushes to maintain the paths. She had never seen anyone else doing anything else on the land since 30th June 1984. She had not seen any notices before the application was made. She appended a picture of her dog, dated May 1993, and a map on which she had drawn crosses to her statement.

In oral evidence Mrs Starr confirmed that has lived at her present address for about 52 years, since 1955.

Mrs Starr said that she accesses the application site from access point L71 which is the nearest access point to her home. She comes out of her back garden onto the lane, and walks across Mr Weston’s land. There is a footpath straight through. She sees other walkers and children playing around both on that initial part of the land, and further up near the grassy part.

She usually goes either straight through the application land towards the grassy part and down on to the Buddleia Walk, or straight across and along the woodland path. If she were going towards the canal, she would turn left and exit at point B.

Mrs Starr has owned dogs herself since the 1990s. As a child she walked other people’s dogs, or her parents’ dogs.

Before the 1990s she would have gone onto the site daily. The nature watching she might do at the weekends, when she has more time, not on a dog walk, although she might see Muntjac deer 71 A/1/262

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when walking the dog early. She sees other people walking their dogs as well. She sticks to the main paths, and the people she sees have also mainly stuck to the main paths, although she is aware that there are other paths.

The community activities take place on the big piece of grass. That big area of grass has been there ever since she can remember. It might have changed and got more overgrown over the years, but it has always been there in some shape or form. She did not remember there ever being a return section to the green fence to prevent access to and from the Buddleia Walk from the grassy area.

Mrs Starr said that she did not go onto the IMC land.

In response to questions on behalf of the Lead Objector, Mrs Starr said that at the end of the woodland path she might go up Lavrock Lane, but more usually she would go down to the Buddleia Walk. If she went up Lavrock Lane, she would continue up footpath 11, by the allotments, then up into Frankland Road.

She only remembered there being broken down fences in the land. She did not remember any fence between the woodland and the Buddleia, just bits of broken netting. The land falls away from the IMC, and there might have been some fencing there parallel to the higher level path. She did not know whether there was any of that fencing still left. She remembered seeing odd bits of fencing in the area of the land behind the houses in Frankland Road with the longer gardens (the northwestern end of the site), but she did not remember seeing any proper fencing anywhere.

She did not remember any notices on the site. She said that she had not seen the travellers, although she remembered people talking about them. She confirmed that she walks the dogs every day. She did not remember anyone digging holes on the site.

She was between 4 and 5 when she moved to the house, having been born in 1950. She said that she did not remember the Buddleia land being used as an active tip but that she would not really have known what it was being used for when she was a child.

She did remember remains of railway lines and circular sleeper things. She did not remember any gates at all.

There were no questions from the Second Objector

In response to cross-examination by Mr Weston Mrs Starr confirmed that she is Mr Weston’s next door neighbour but one. Her mother had a poodle. She never left home and returned, she lived there all the time. She first got married in 1970. During her second marriage, she did have a dog. She got re-married in 1994 and had a dog prior to that. At the moment she has three dogs. Previously she had two Alsatians and one large cross (called “the donkey”). She used to walk the dogs two or three times a day, although she walks them less often now, because they are older. She goes onto the application land once a day. She goes other places with the dogs as well: the community centre field, the playing field the other side of Barton Way and Cassiobury Park.

She agreed that she knows the layout of the woods extremely well and where all the chainlink fencing is. She thinks she has been entirely honest about where it is.

The land has become gradually more overgrown.

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She did not remember anything happening on the tip land. She said that perhaps she did not go up that far when there were things happening on it. She did not remember the tip site being levelled and landscaped. She worked full time outside the home between 1965 and maybe 1995. During that time she would still have gone out twice a day onto the application land, early in the morning before she went out and later on when she got home from work.

In my judgment Mrs Starr’s recollection was not very accurate. She had known the site for a long time, but was very unclear about the changes in its character (in particular that part of the site which was used for tipping), which, on the basis of other evidence, undoubtedly took place. There were a number of events reported by other witnesses including the removal of the rails, the levelling of the tip site and the incursion by the travellers, which, if she had been visiting the site every day as she said, she would have remembered. I am not convinced that she was a user of the Buddleia area at all until comparatively recently. In my judgment she had probably used the application land as stated since about 1994, but not to any great extent before that date.

(16) Councillor Philip Brading of 3 Grosvenor Court, Mayfare

Mr Brading produced a written statement dated 27th February 200772 and a completed version of the standard form letter dated 22nd March 200573.

In his response to the standard form letter Mr Brading stated that he had used the land for recreational walking between 1985-2005.

In his statement Mr Brading said that he is the district councillor for the Croxley Green South ward and has served in that capacity for the last nearly 21 years. He lives in Mayfare, and has done so since February 1984. Mayfare is at the northeastern end of the Croxley Green South ward. It takes him approximately 15 minutes to walk from his home along the Grand Union Canal towpath to Croxley Common Moor Lock. He could also reach the application land via the A412 and Mill Lane. It would take him about 25 minutes to reach the furthest point of access of Lavrock Lane, via the A412, Frankland Road and Footpath 11.

Mr Brading stated that he has known and used the application land for occasional recreational walking since about 1985, using the three points of access mentioned. He visits the site less than once per month on average, during daylight hours, when conditions are suitable for walking. Sometimes he walks alone, and sometimes with his wife. His typical walking route would be along the footpaths through the wooded area in the north west of the site, sometimes also including the former tip area. The former tip was open and relatively free of vegetation when Mr Brading first knew it, but now has a significant growth of Buddleia, silver birch and hawthorn on it, with a network of clearly defined footpaths through it.

Mr Brading has participated in occasional clean-up operations with other residents, picking up litter and other rubbish in the area bounded by Mill Lane, at the northern end of the site.

Mr Brading said that it was not uncommon to meet other Croxley residents on the site, walking, with or without dogs, jogging or cycling.

He had never felt it necessary to seek permission to use the site, and no one had ever challenged his right to do so. Such fences as there were around or within the site had, over time, become dilapidated and broken through in places. He had never seen anyone carrying out any maintenance work on the land or its boundaries, other than the local residents’ litter picking. He did not remember seeing any notice restricting access to the site, prior to the signs erected by London Underground after the application was submitted.72 A/1/6373 A/1/796

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In oral evidence Mr Brading said that the clean-up operation he referred to had taken place in the area near points L and A. In the mid-1980s there was an initiative by local residents to carry out an annual a litter-pick and clean-up. The District Council would drop off a skip, and local residents would use black plastic sacks to clear up rubbish. There was a lot of rubbish in that area initially.

Mr Brading said that he would come onto the site from point L74 either up or down Mill Lane. When he comes along the canal towpath, point B would be another favourite. The subsequent access points along the towpath are more recent. Going right back to when he first knew the site, the boundary fence was intact along that boundary, although open at F, allowing a circular walk.

In response to cross-examination on behalf of the Lead Objector, Mr Brading said that from his house he can either walk up to Cassio Bridge to join the towpath there, or cut through Sycamore and Valley Walk, via footpaths that cut through and link to the towpath. Alternatively he might approach the site from point G, if he had come in via Frankland Road and Harvey Road. He might also use point A.

If he went in at L he would walk along the established footpath through the woodland, and perhaps up to footpath 11 at K, or up to the steps at J. His routes are not regular. Because of the distance he lives from the site, he would not put himself into the same category of user as others. As a ward councillor he tries to walk different parts of the ward from time to time. The route would be dictated either by what took his fancy, or something specific he wanted to look at. From time to time he has walked across the tip, or more recently, from the tip down to the tow path, exiting at one of the gaps where the fence has been broken through within the last 10 years or so. The fence was broken through certainly within the last 20 years, as he has only known the site for about 20 years, and the fences were not broken through there when he first knew it.

Mr Brading said that he would go to the application land more frequently than once a year. Until relatively recently he was full-time employed, with tied-up evenings, so his visits would have been weekends only, and only during the clement months. He thought he would certainly have gone quarterly, and possibly more frequently than that. He accepted that he might only walk each route no more than once or twice a year.

Mr Brading said that he had seen other fences on the land as well as the fences along the canal. He said that the remnants of the orange fence were there to be seen, although you have to look for them. In some places they are trodden down, but the remnants are there. The fence on the green line is easy to miss, although more of it is in evidence, if you look for it, certainly the bit parallel to the woodland. Buddleia has grown up to it, and in some places through, so people might not realise that it was there. When he first knew the site, the fences were in better condition than they are now. Mr Brading said that there are places where the orange fence line is still very visible, for example on the corner up from Mr Weston’s land. In other places, it might have been down for as long as he has known the land.

He remembered the travellers’ incursion, although he was not sure how good his recollection of it was. He could see the travellers’ encampment from the train on his daily commute, hidden amongst the undergrowth. He remembered that Three Rivers District Council was frustrated that it could not effect quick action to remove the travellers, as it had no jurisdiction over London Underground’s land, and neither did the police.

Mr Brading was asked why Three Rivers District Council had not, as owner of part of the application land, put in an objection to the village green application. He said that the Council’s officers had taken the view there was no purpose in putting in an objection, and as a ward 74 A/1/262

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councillor he would support that view. He considered that the whole point of a local authority owning woodland, unless it specifically designated as nature conservation area, with the intention of keeping the public out, is to enable the public to enjoy that area.

Mr Brading commented that he did not think that the question of ownership would cross people’s minds. He would not be able to point to a particular part of the wood and say this bit belongs to Three Rivers District Council and this bit to London Underground.

When he first knew the site (probably at least a year after moving to his present address, maybe the summer of 1985) the area now covered in Buddleia was reasonably clear. He believed it had been levelled and it had a length of single track on it. He could not recall how far the track extended, maybe a couple of hundred feet, but not as far as the open space.

He did not remember any trial pits being dug. There had been occasional plant on the site which he had seen from the railway, but he could not be more specific.

There were no questions from the Second Objector.

In response to questions by Mr Weston, Mr Brading said that apart from offering to be a witness, he had not been connected with the application, because he wanted to avoid any apparent conflict of interest as a councillor. He had tried to keep his distance from the residents’ group who were organising the application.

He was clear what the purpose of the application was, and what land was included. He took the boundary of Mr Weston’s land to be the fence line from point B to the corner of Mr Weston’s yard, although he said that that fence line was not a complete line.

The skips used for the clean-up operations would have been there for maybe a weekend at time. There was also a skip at the end of Harvey Road from time to time.

Councillor Brading did not know the land when Mr Weston’s land was completely fenced. He said he had no way of knowing how the fence had come down.

In order to gain the 8 foot wide corridor between the two fence lines Mr Brading thought that you would have to cross between the first and second fence posts on the line of Mr Weston’s fence. He therefore thought that that gap must have been there for as long as the path had been there, or there would be no point to the path. The fence is still there more or less for 8 or 9 posts, then it disappears. Mr Brading accepted that it had maybe been trodden down. At the crossroads it is down. Mr Brading said that it had been down there for so long that he could not comment on how it might have come down. He said that it may have rusted through and fallen down. He had never known the fence on either side on the track-way as complete, and did not think that it had been put up as recently as 1984. He had thought it was much older.

When asked what features on Mr Weston’s land he could recall, Mr Brading said that the fence along the boundary was one feature, and at the corner at the bottom of Mill Lane there is a wall. On the northwestern side is the back of Mr Weston’s yard, raised up at a higher level, which is a bit of an eyesore, and dominates that side of the woodland. There is a dead Christmas tree about 20 feet in from access point L.

I found Mr Brading to be a straightforward and honest witness. He was careful not to exaggerate his evidence and to make plain the limits of his personal knowledge. I accept his evidence. In particular I accept his evidence as to the condition of the fencing along the boundary with the canal tow path: that from when he first knew the site in 1985 there was a gap at point F, but that the other gaps have emerged subsequently. His recollection as to the condition of the tip site in

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1985 was good. I accept his evidence that access was available via points B and F and that a single line of track had been re-laid after the levelling works.

(17) Mrs June Emson of 28 Frankland Close

Mrs Emson produced a written statement dated 24th February 200775 and a completed evidence questionnaire dated 16th July 200476. She also produced a response to the standard form letter (2005), signed jointly with her husband77.

In her evidence questionnaire Mrs Emson stated that she had known the land since 1943 and used it between 1982-2004. During the time she had used the land the Buddleias, teasels, evening primrose and wildlife had increased profusely. She gained access to the land from the canal towpath, from the pathway in Lavrock Lane and from the pathway from the allotments. She went on to the land to walk her dog. She used the land frequently when her children were young and used it daily at the time of completing the questionnaire. Her children would play on the land and she would pick blackberries and pick hazelnuts. At the time of filling in the questionnaire she used the land mainly for walking and for collecting blackberries and hazelnuts. Her immediate family used the land for walking. She stated that local schoolchildren used the land to look for insects as part of their science lessons and had done so for many years. She ticked as activities she had seen taking place on the land: children playing, fishing in the canal below, dog walking, picking blackberries, bird watching, picnicking and people walking. Mrs Emson believed that the application land had been compulsorily purchased by London Underground from Gonville and Caius College, Cambridge in 1953 and that London Underground was the occupier of the land. She did not know whether the occupier had ever seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land and no attempt had been made by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants recently, although when the dumping of rubbish from the London Underground was taking place in the 1950s 1960s and early 1970s there was fencing. The fencing had been allowed to rot and no attempt had been made to replace it. In fact, near the entrance in Lavrock Lane, walking the land had been made easier.

In the response to the standard form letter (2005) Mr and Mrs Emson stated that they had used the land between 1982-2005 for dog walking, picking blackberries, collecting hazelnuts, getting wood for bows and arrows and playing with children.

In her written statement Mrs Emson stated that she had lived at 28 Frankland Close since 1965. She is a retired School Bursar. She gains access to the application land by walking through her neighbour’s garden into Croxley Hall Woods, across Lavrock Lane and onto the Buddleia Walk. This takes her about 5 minutes. She started to use the land regularly, having been taken there by her father on 7th November 1982 (two days before he died). Mrs Emson inherited her father’s dog, and has walked the area daily with the dog, and sometimes with members of her family, from then on. When Mrs Emson’s children were younger they would play hide and seek along the route. Her son visited the land with his friends who lived in Frankland Road to play football and cricket. More often than not Mrs Emson meets neighbours on the land. On several occasions she has seen school parties doing projects on the land. She had never seen any maintenance work being carried out by any landowner, although she was aware that rubbish had been cleared regularly from the land by local people.

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Before the village green application was made Mrs Emson had no idea who owned the land. She did not realise when she made her various walks that she was traversing land belonging to four different owners. She had never sought permission to use the land, been prevented from using the land, nor had to climb a fence or gate to gain access to the land. She had never seen the owners or their employees. She had never seen any signs on the land prior to the application being made.

In oral evidence Mrs Emson told me that Frankland Close is the continuation of Frankland Road. 28 Frankland Close is on the northwestern corner of Frankland Close.

Mrs Emson walks through her neighbour’s back garden and out through Croxley Hall Woods. She accesses the land through all the access points78, except D, although she only occasionally uses point I.

She does not remember there being a gate at point G, although there is a pile of rubble at the bottom end of the path, as you go onto the site from point G.

Point H is a gap in the fence, as is point I, although I is smaller than H. She does not recall the fencing being in any different condition to how it is now, nor does she recall it being repaired.

She uses the land near points H and I and walks her German Shepherd through there. She has had sweet chestnuts picked by children from there, although she has not seen the children because she goes out with the dog between 06:30 and 07:00.

Mrs Emson’s father made her husband stop the car by point K and they went onto the application land there and went left, to find the area where he used, as a boy, to gather materials to make bows and arrows and where the best hazelnuts could be found. The green area was not as good at that time as it is now. It was not as flat as it is now.

From 1982 she has gone onto the land every day with the dog she inherited from her father. They have had two more German Shepherds since then, the second of which died about a month ago. She wanders wherever there is a path, and does not confine herself to any particular area. She meets others doing the same. Mrs Emson has two children: a daughter who was born in 1971 and a son who was born in 1973.

When she first started using the land the Buddleia was much less thick than it is now. The children and the dog used to play hide and seek in about 1984 or 1985. At that time the land was much more open. It has got much more dense, although there are still ways in and out. Her son would have been going to play football when he was 10 or 11 (1983-1984).

Mrs Emson did not recall any fence along the line shown by the orange dashed line, although there was a bit of tatty fencing behind Frankland Road, when her father took them down onto the application land.

She did not remember a return towards the canal along the line shown by the green dotted line.

Mrs Emson’s daughter and son had done a wild flower project in their last year at Harvey Road School. Other children had done the same before and since.

Mrs Emerson remembered seeing things that looked like stopcocks on the land, and that she had been concerned in case they were putting water on the site. No one is on the site when she is, because she is on so early, so there was no one to ask. She asked other residents and was told that they were testing for methane gas.78 A/1/262

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In response to questions in cross-examination by the Lead Objector, Mrs Emson said that she had not noticed the green fence line until in last two or three years she had come across it when they have been having the clean ups. She was going towards it from the wood side. She said that you cannot see it from the Buddleia Walk side. The fence line was not intact. There were large gaps all over it. The number of gaps was nearer 10 in number than one. The gaps were quite large, big enough to walk on the pathways through. She was not aware of the fence until then. She knows that there is a fence near point F to keep you off the railway line. She goes there to pick blackberries. There are brambles, and then the fence.

She is aware of the fence around the factory, although some of that is quite badly fallen down, and of the bit behind the houses in Frankland Road, where her father took them, but not the rest of the fencing shown by the lines on Plan D. She commented that the fencing was all quite rusty and tatty, all the way along.

When she first started using the land, probably in January 1983, the tip was walkable. The buddleias were smaller, and more sparse. As you came down to access point G she had to walk over railway lines, which went for about 30 feet into the land, and ended in buffers. She was told it had been pinched in 1994, which was when it disappeared.

Mrs Emson had no knowledge of the travellers, although she did say that the route of her walks varied greatly.

She had no standard route. She might start at J or K and go to the open space and back along the Buddleias to G, then across Croxley Hall Wood. When her son started at the grammar school in 1984, she would come in at access point L and then go to the open space, leaving at access point G. She would also go round All Saints Lane across the moor and back through the woods.

When she goes along the woodland path, she comes out at point H. Sometimes, when she is cutting up through the Buddleias, she turns right and goes up to the woodland path, through a gap in the fence that she had not realised was there until a couple of years ago, and out through point H.

At the end of the woodland path, there is a gap in the fence. She did not question whether it had been cut or not, because there was a well-worn path through it.

She walked for about an hour before work in the morning with all three dogs. In winter, as she has got older, she has taken a torch. Since she has retired she sometimes does not go out until 07:30 or 08:00. With her second dog, she used to go out with her neighbour, and they would walk the woodland path sometimes in the dark.

In response to cross-examination on behalf of the Second Objector Mrs Emson said that she had been to Cambridge herself and seen the documents mentioned in her statement personally. She said that the documents stated that Siegwarts had the right to use the land for its factory in support of the war effort, and that they must return the land to greenbelt afterwards. She was sure this was right, even though there were other documents which said that the greenbelt designation had not happened until later. She thought it would go back to being woodland, as her husband had known it in the 1940s, with free open access for children to run around.

When talking about “the owners who state they own the land” she was referring to Mr Weston, although she had been surprised when she discovered that IMC owned the land all the way down to the horses’ field.

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She is more likely to go out through point H than in through it, she would enter the IMC land through the hole in the fence from the woodland path, skirting the dip usually to the left. You would not be aware of the tanks unless you skirt the dip to the right. She had only gone around the edge of the dip, left or right, and exited at point H. She had not gone anywhere else on the IMC land.

In response to questions by Mr Weston Mrs Emson said that she had walked over Mr Weston’s land for many years for before he owned it. There is a big chunk of a tree where the children meet with a lot of rubbish around it at the moment. She had used the pathway at A. The main lane would often be muddy before it was made up.

Mrs Emson was an honest witness. I accept her evidence that she has used the application land since about 1983, and that when she began to use the tip area, it was walkable. Mrs Emson described the tip as walkable when her use started in about January 1983. I approached this evidence with caution because it seemed to me unlikely that she would have described it thus while the levelling works were going on. However, her regular route changed when her son went to the grammar school in September 1984 and that she was able to say that she had walked the tip area before that. Further there are other witnesses whose use of the tip area did not seem to be affected by the levelling works. I therefore conclude that her evidence that she used the tip area from 1983 is likely to be accurate. I accept Mrs Emson’s evidence that she has used the application land, excluding the IMC land but including Mr and Mrs Weston’s land for the whole of the relevant period. I accept her evidence that she has walked in the IMC land in the area around the depression.

(18) Mrs Jan Rowley of 20 Frankland Close

Mrs Rowley provided a witness statement in the form of a letter dated 2nd February 200779, and an evidence questionnaire dated 18th July 200480. She completed a standard form letter (2005)81.

In her evidence questionnaire Mrs Rowley stated that she had known the land since 1970 and had used it most days between 1983-2004. During the time she had used the land the general pattern of use had remained basically the same. She gained access to the land via her garden gate, through Croxley Woods, crossing Lavrock Lane into Long Valley Wood. She went on the land to get fresh air, to exercise safely with her children and to learn about nature. She used the land most days. She took part in school nature trips, games for children, bird and butterfly observation, information gathering for school projects and hide and seek with her children amongst the Buddleias. At the time of filling in the questionnaire she took part in bird, butterfly and insect watching, walking and jogging. Her immediate family used the land for the same purposes. She stated that the land was used for school outings, scout and brownie camps, orienteering, nature trails, bird and butterfly watching. Local groups and local schools had been using the land since the 1980s. She ticked as activities she had seen taking place on the land: children playing, rounders, fishing, drawing and painting, dog walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking and bicycle riding. Mrs Rowley did not know who owned the land until 2004. She did not think that the owner or occupier had ever seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She thought it as public land. She had never been prevented from using the land and had never noticed any attempt by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants.

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In her response to the standard form letter (2005) Mrs Rowley stated that she had used the land between 1983-2005 for nature walks, educating her children, hide and seek, football, cricket, blackberrying, bird spotting and rambles with neighbours and friends.

In her statement Mrs Rowley stated that she is a part-time receptionist, working in central London. She has lived at 20 Frankland Close for over thirty years. Her garden backs onto Croxley Hall Woods and is a few minutes’ walk from the application site. She has gain access to the site from her back gate at all times of the year, walking through Croxley Hall Woods then crossing Lavrock Lane and entering via a path which leads to the Buddleias. At first she used the site to exercise her dog, and was joined regularly by neighbours doing the same. Later she used the site with her children, from when they were born to adulthood, for walking, cricket, football, bird watching and nature trails, and an annual Easter egg hunt. By the 1980s when the children were older, she used the site with them and with her sister (who lives in Bateman Road) and her sister’s children for activities such as team games, hide and seek and treasure hunts. Mrs Rowley’s children also used the site to gather information for school projects. As a family they would roam through Long Valley Wood, stop for a picnic, usually on the Buddleias, before completing a circuit, emerging through the orchard onto Mill Lane to watch the narrow boats on the lock. They would return along the towpath, cutting up through the Buddleias and home. When using the site she saw the familiar faces of local residents and neighbours regularly. Mrs Rowley stated that she was never challenged about her presence on the site. She never had to climb a fence to gain access. She thought the site had been abandoned and left to return to nature. Mrs Rowley appended a plan to her statement on which she had marked with crosses and labels the areas used for blackberrying, ball games, bird/butterfly watching and where there were bluebells.

In oral evidence Mrs Rowley told me that her house is at the southern end of Frankland Close. She has a gate in her garden fence leading onto Croxley Hall Woods. Mrs Rowley moved into her house in 1977. Her two sons were born in 1975 and 1979. Mrs Rowley most commonly uses access point G82 to get onto the application land. She does not remember there ever being a gate at the junction of access point G and Lavrock Lane.

Mrs Rowley owned a dog when she moved into her house in 1977. She ceased to be a dog owner in 1979, although after that date on occasion she walked her sister’s dog and her mother’s dog until her sister’s dog died. Mrs Rowley’s sister acquired her dog in 1983. Mrs Rowley walked her sister’s dog, both with her sister, and by herself if her sister was unable to walk the dog herself, until about the mid 1990s.

Mrs Rowley did not enter the site through points H and I, although she would have entered the site from behind the small horses field with her children, as there was a pair of lesser-spotted woodpeckers there. On one occasion Mrs Rowley and her children had met a Young Ornithologists group in that area, who were also watching the woodpeckers. The family also used to play at the depression on the IMC land. They would throw a ball into the pit for the dog to retrieve. She found the depression when out with her children, and would go there regularly through the summer, perhaps more than once a week, most weekends, unless the weather was very poor. She would also have been there when walking the dogs. Mrs Rowley said that she believes that she has walked every inch of the application land. Her children were forbidden to play on the application land unaccompanied, but recently, reminiscing, she has found out that they did.

Mrs Rowley used to take her younger son down to look at boats on the lock. She used to cut through Mr Weston’s land up to the shops to get drinks and ice creams. There were some cherry blossom trees there, and there were often bullfinches eating the blossom in the spring. They

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would take their binoculars up there to watch the bullfinches. There were other finches there as well, but the bullfinches were a “spot”, so she remembered them particularly.

The cricket and football mentioned in her statement and bat and ball were played where the Buddleias are now. That would have been in the 1980s. The area was at that time very open. As the children got older they would play more on the big open area, and would hope to meet up with others to make up a couple of teams.

Mrs Rowley and her family wandered the site when they were bird watching. There were often flocks of goldfinches in the teasels. When her sons were younger they used to find, for instance, shed skins of snakes. She used to set the children (including her sister’s children) tasks to go and find something interesting.

The neighbours in Mrs Rowley’s part of Frankland Close used to put Easter eggs down on the application land, rather than in the back gardens, if the weather was good. They did this for a few years. Mrs Rowley’s neighbour introduced the practice of the Easter egg hunts, initially in her back garden. As the children grew up they used to do it down in the Buddleia area. The treasure hunt and hide and seek took place in the woodland area. Picnicking was mostly where the Buddleias are now, before it was as overgrown as it is now.

Mrs Rowley did not remember there ever being a fence on the return fence shown by the green line on Plan D so as to prevent access between the open area and the Buddleia Walk.

In response to questions in cross-examination on behalf of the Lead Objector, Mrs Rowley said if the weather was fine they that she would come in at point G and turn left at the triangular area, across the Buddleia Walk, via Mr Weston’s land, and back along the canal. If the weather had been very wet they would reach point G via the front door, Harvey Road and Lavrock Lane. Those were her most common routes. Sometimes they would go and have a look at the allotments.

Mrs Rowley said that the Buddleias sprouted quite quickly. In about 1980 the Buddleias was a scrubby piece of land. The Buddleias were there as low plants in the 1980s then she started to notice the shrubs growing. It was the early 1980s when they used to loiter on that area with the children. It would still have been scrubby in about 1982, when she went down there with her younger son in a pushchair. The land started growing shrubs and they grew and grew. The shrubs included buddleias but also other things. In the early days they enjoyed the area where the buddleias now are in much the same way as the open area is now enjoyed. That part of the site was never quite as pretty as the open area is now. The open area became green and was levelled off. You could not play cricket on the land which became the Buddleias, but you could play bat and ball.

When she first went to the land, the thing that attracted them was a set of rails and buffers, and an old broken carriage. Her older son was the train fiend. That would have been about 1981 or 1982. They used to play on the tracks, in the early 1980s. She remembered carrying the pushchair there. It would have been both when her younger son was in and out of the pushchair.

The tracks started at the Met line, they did not reach the open space, but maybe went halfway towards the open space. She did not see the track being removed. She noticed that parts had disappeared. The buffers certainly went, although she was not sure when. They went first. There was some track left there quite late, probably the mid 1980s. At that time the land was stony, you could not play cricket on it. You could kick a football or play bat and ball. She used to do that to occupy her younger son while her elder son played about on the track.

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Once the tracks were removed the buddleias took over gradually. She and her younger son would then meander up into the woodland along the paths off the buddleia walk, to watch the birds. He was as boring as her older son was about the tracks, about birds.

She had thought hard about whether there were fences, and did not remember there being any, although she did say that she had not been looking for fences. There certainly had not been any fence that she had negotiated. She had tried hard to remember the green fence line. She had a dim recollection of rusty bits of fencing. She said that there are now bits of remnant rusty wire left which she assumes were a fence. She did remember bits of fence along the orange line, because that was where they had bird spotted. She did not remember any complete sections, but she did see some fencing. She thought she remembered incomplete fencing down the pathway to point B. As she recalled the fence was never actually completed. There were bits of fence.

Sometimes she went up to point K. She did not remember having seen any notices anywhere. She had not seen any gates, and was sure that there had never been any gates at point G. She would have remembered that particularly, as that had been her point of access since 1977.

Mrs Rowley remembered the travellers on the land. She remembered them particularly because they were there the year her father died, and she had worries with her mother at the time. Mrs Rowley’s mother still had her old dog, and Mrs Rowley used to take the dog for walks because her mother did not feel like doing it herself. She had not known the travellers were there. She came from her mother’s house, and the dog ran down to the vans, and Mrs Rowley had to follow her into the site to get the dog back. It seemed like a lot of vans, but she did not suppose it was that many, maybe 4 or 5. There were dogs, piles of refuse, some bagged, but maybe the dogs or foxes had scattered it. They were not unpleasant to Mrs Rowley, but she was worried at the time. The travellers did not take any notice of Mrs Rowley, so she did not worry about them any more. They did not stop her going onto the site, but it was winter, and she was not going onto the site at that time as regularly as she would have been in the summer in any event.

She did not remember any holes being dug on the site.

Mrs Rowley stopped using the land daily when she went back to work in 1994. After that she still used it at the weekend, and in the summer after work. Since 1994 she would have gone down with visitors at the weekend, mostly walking along the path, although they would have meandered about. She still takes her binoculars when she goes out. She still uses the land quite regularly, because now she and her husband have more time at the weekends. They will usually go onto the application land every weekend in the spring summer and autumn, except if there is bad weather.

In response to questions in cross-examination by the Second Objector Mrs Rowley said that the plan appended to her statement did not show all the areas she used, and said that had she shown all the areas, the map would have been obliterated. The areas shown were the ones which came to mind when she did the map. They were probably the ones she enjoyed the most.

Mrs Rowley confirmed that her normal access point is G and that she did not enter the site via points H or I. She went onto the IMC land with her children, although she did not know it belonged to the IMC, from by the fence round the horses’ field. She went onto the IMC land for bird watching, but not just for bird watching. This would have been in the early-mid 1980s. Their entry to the IMC land was confined mainly to the dip, although they wandered a bit further along looking for the birds for two or three seasons.

Mrs Rowley said that she stopped going onto the IMC land when her sons no longer wanted her with them, which would have been about 1990. Mrs Rowley said that she had forbade her sons to go onto the IMC land unaccompanied because there was an old rope hanging over the pit, and

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she was always worried that they might injure themselves on it. There were also some quite deep holes in the ground, which she told them to keep well clear of when she was with them. She remembered telling them that if they were to fall down there, they would not be able to get out again. She was referring to the bunker with the missing manholes. She could not remember discussing her concerns with her neighbours, although she would have expected a responsible parent to accompany their children wherever there was a potential hazard.

Mrs Rowley’s children had told her recently that they used to go onto the land unaccompanied in contravention of her instructions.

In response to questions by Mr Weston, Mrs Rowley said that her mother had lived firstly in New Road, then later in Evans Close, north of the Watford Road. She would have come down All Saints’ Lane from her mother’s house.

Mr Weston asked about Mrs Rowley’s reply to question 8 on the evidence questionnaire where she had written that she had used the land between 1983 to date. Mrs Rowley said that she had thought the question was asking when she had used it most frequently, and that although she had used the land before then, her use was not so regular. From 1983, when the children were more mobile, they were using it daily.

She acknowledged that in her reply to question 10 in which she said that her pattern of user has remained the same was not consistent with what she had just said.

In reply to question 12, Mrs Rowley had stated that there were public paths crossing the land. She said that she meant by this that the public were walking on footpaths. She accepted there were no footpath signs on the site; what she had meant was footpaths used by the public.

Mrs Rowley said that she knew Mr Weston’s land as “the orchard”. The trees were old but they still blossomed and fruited and attracted birds. She and her son observed the birds from underneath the trees. The bullfinches were a “tick”. The access to their positions under the trees was easy. She had not seen anyone playing team games in there, or football, cricket or kite flying. When asked to recall the features of Mr Weston’s land Mrs Rowley said that there was a bit of an old wall. There was a very old tree, knotty and knobbly, quite large. The trunk was still there, right near Mill Lane.

Mrs Rowley said that she would have passed through Mr Weston’s land reasonably frequently, because she would go to get the ice creams and drinks while the children played. If they came along Frankland Road down Mill Lane they would cut through Mr Weston’s land to get to the lock.

The snakeskins she had referred to her children finding were big; she assumed grass snake skins, although they were unable to identify them from the skins.

Mrs Rowley acknowledged that she did not seem to notice fences where they did exist. She said that a bit of fencing had never been put across the routes she has used since the 1970s. She said that she had to accept that there are pieces of fencing on the site which she had never noticed. She said that if had been complete fencing between two posts, she would not cross it, but she said that there had been no need to cross any fences. She just followed paths, and went where the paths lead. There were no fences across the paths she used.

There was no re-examination.

In my judgment Mrs Rowley was an honest witness. Mrs Rowley and her family have clearly used the site extensively from before the beginning of the relevant period until 1994 for informal

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recreation and regularly from that date at weekends and in the evenings. Her son’s interest in bird watching meant that she was able to give clear evidence as to the use of the IMC land in the vicinity of the dip and of Mr and Mrs Weston’s land for bird watching in the 1980s. She remembered going onto the tip site whilst the tracks and buffers were still there, which must have been before the re-grading works.

(19) Mrs Judith Turnbull of 127 Frankland Road

Mrs Turnbull provided a witness statement in the form of a letter dated 22nd February 200783, an evidence questionnaire dated 18th July 200484 and a completed standard form letter dated 13th March 200585.

In her evidence questionnaire Mrs Turnbull stated that she had known the land since 1958 and used it between 1958-2004. During the time she had used the land the general pattern of use had remained basically the same. There were permissive paths crossing the land. She gained access to the land at six points: (1) from Lavrock Lane (2) from the footpath from Frankland Road down the steps (3) Through the Long Valley Wood by the side of 5 Frankland Road (4) from Common Moor Lock (5) halfway down Mill Hill and (6) from the towpath. She went on the land to walk, to see the bluebells and Buddleias, to gain access to the canal and the Moor to collect leaf mould and logs from storm damage, to play as a child and to picnic after school, to exercise the dog. She used the land frequently, especially when a child, and at the time of completing the questionnaire used it frequently. She took part in children’s play, picnics, dog walking, walking and bike riding and tree climbing when small. At the time of filling in the questionnaire she took part in walking, especially with her grandchildren and playing. Her immediate family used the land for walking and animal spotting. She did not know of any community activities which had taken place on the land, any use of the land by organisations for sports and pastimes or any seasonal activities. She ticked as activities she had seen taking place on the land: children playing, dog walking, picnicking and people walking. Mrs Turnbull said that she did not know who owned the land until recently. She did not know who the occupier of the land was. She did not think that the owner or occupier had ever seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She thought it was public land. She had never been prevented from using the land and had never noticed any attempt by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants. On the map appended to the evidence questionnaire Mrs Turnbull had marked 127 Frankland Road and access points 3, 4 and 5.

In her response to the standard form letter Mrs Turnbull said that she had used from 1958-date for walking, butterfly spotting, blackberry picking, picnicking, playing, hunting for four leaf clovers and photography.

In her witness statement Mrs Turnbull said that she lives with her husband at 127 Frankland Road and had done since 1988. Prior to that she and her husband had lived in North Watford. Until her marriage in 1968 she had lived with her parents at 60 Frankland Road. She had used the site as a young girl, and since her marriage, while she was living in North Watford, and since moving back to Croxley Green, for recreation together with other family members and friends.

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From 60 Frankland Road it only took a couple of minutes to walk to the open green area, gaining access to the site at access point K86. Mrs Turnbull used the open green area with her parents, her husband, her daughter, and now grandchildren to play on, for ball games, for sketching whilst at college, to picnic and make daisy chains as a child, to bike ride, to watch the rabbits and to walk the family dog. Over the years successive children in the family have played “King of the castle” on the mound halfway down the Long Valley Wood pathway. She would exit the site at access point B to gain access to Common Moor Lock, the towpath and Croxley Common Moor where the four leaf clovers grew and return home through the site via the same route.

Together with her family, Mrs Turnbull would gain access at access point K to find leaf mould for the garden and logs for the fire. It was a family tradition to go and see the bluebells every year. As a child she used to make camps and dens on the land, gaining access via access point J. A regular route for a family walk was along footpath 11, straight along Lavrock Lane, returning along the canal and cutting up through Buddleia Walk, gaining access to the site at access point F, or vice versa. As a child she used to climb the trees. A favourite tree was the one overhanging the edge of Long Valley Wood, near access point J.

As a teenager and before she married, Mrs Turnbull spent time with her now husband playing with the family dog and courting within the Buddleia area. When living in North Watford she would often return with her husband, and later with her daughter to walk, ride bikes, and to pick flowers to sketch and paint whilst on the site. Whilst a mature student in 1983-1984 undertaking an art course she would visit the Buddleia area to take photographs of the teasels and Buddleias to use as design starting points for projects. In 1985-1986 whilst taking a City and Guilds embroidery course she would visit the site to photograph flowers and leaves to use in her embroidery designs. She picked wild flowers to press from the Buddleia area and the green area to use to make cards to sell at craft fairs.

Since moving to 127 Frankland Road Mrs Turnbull has often used access point G and walked down through the site exiting at point F to walk along the towpath towards Rickmansworth or watch the boats. At weekends with friends they have gone this way to a restaurant on the canal (until the restaurant closed, although they have continued to do the walk since) and returned entering the site at access point F, then walking the whole of the Buddleia Walk and emerging at access point K by 51 Frankland Road. She often sees dog walkers, ramblers, riders and families with bikes using this or similar circular pathways. She had also cut through from the towpath at access points E and D, and had used access point L halfway down Mill Hill, to vary the walks. They would tend to use access point L when with her mother, as it is a gentler slope than the hill itself. Mrs Turnbull’s daughter used to camp as a teenager with friends in the Buddleia area and on the green area. She now takes her grandchildren onto the Buddleia area to see the butterflies, look for lizards, to pick flowers and to ride their bikes, push their prams or use scooters.

She had never been stopped or challenged or seen any signs warning of trespassing, and neither, so far as she knew, had her family or friends. She had only discovered that the land was private land as a result of recent publicity.

In oral evidence Mrs Turnbull told me that has lived at her present address since 1988. Mrs Turnbull’s house is on the southern side of Frankland Road, backing onto the allotments. Prior to that she lived in North Watford, although as child and up until her marriage in 1968, she lived at 60 Frankland Road, on the other side of the road. She moved there in 1958, when she was about 10, from the southern side of Watford Road, near the BR station, backing onto Beechcroft Avenue. In the period 1968 to 1988 she visited the application land. Mrs Turnbull’s mother still lives at 60 Frankland Road. Mrs Turnbull has a daughter who was born in 1973.

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Mrs Turnbull’s mother used to work at the British Friesian Cattle Society on Scotts Hill, from where you can access the site via Lavrock Lane. Mrs Turnbull did not remember there ever being a gate at access point G. She remembered the Buddleia Walk being more sparse in the early and mid 1980s than it is now, but said that the buddleias and teasels were coming up and were all around. Mrs Turnbull uses the network of paths throughout the site. If she is going onto the site after work, when her husband gets home, then the route will depend on how tired he is, or how much time they have before dinner. Mrs Turnbull said that she and Mr Turnbull also used to go onto the land at access point I and cut through the IMC land. When she went down onto the land at point J, the areas merged into one, and she could not be sure whether or not she had been onto the IMC land from that side.

The ball games she referred to were played on the existing green area at the end. That was where as a child they used to have picnics. The bike riding was through access point G and along the Buddleia walk, when she was growing up. She has also gone biking on the land as an adult.

Mrs Turnbull said that she finds it difficult to remember how the land was previously. She knows it was a tip, but at the time to her it was just an area she grew up with as a child. She has a photograph which she took of her husband leaning up against the buffers but does not remember the rails. She remembered that she used to see the ceramic plates lying around throughout the period. When she was courting, she might have seen them. She began going out with her husband in 1965. She did not recall any tipping of materials, or lorries.

The family dog was originally Mrs Turnbull’s dog, but she stayed with Mrs Turnbull’s parents when Mr and Mrs Turnbull got married. The dog died when it was 17 and was quite elderly when Mrs Turnbull got married. She would have acquired the dog in about 1960.

At access point K there were considerable numbers of bluebells to the left, and to the right as you went past the king of the castle mound. The deer would be in the woodland area, as would the squirrels. Birds could be anywhere, round the Buddleia or in the woods. The badgers and foxes would be in the woodland area at dusk.

Mrs Turnbull’s daughter left home when she was about 20 (about 1993). She would have been camping on the existing green area or the Buddleia area.

Mrs Turnbull’s grandchildren were born in 1999 and 2002. She has taken them down to the Buddleia area from when they were born. When they were little she would push them down there in a buggy. The elder grandchild would be on a bike with stabilisers when she was 3 or 4 (2002-2003).

Teenagers, including Mrs Turnbull’s daughter, used to frequent Mr Weston’s land in the early evening. It was a favourite spot. They would then go through point L and up Mill Lane to sit at the station on a bench. That area is fairly close to the shops, and they like to congregate there.

She had never seen a fence on the return line shown by the green fence line on Plan D such as to prevent passage to and from the Buddleia Walk and the open area. She did not remember the travellers at all.

In response to questions in cross-examination on behalf of the Lead Objector, Mrs Turnbull said that she did not remember a fence along the line parallel to the canal along the green line, but said that she never used to go the very back of the Buddleia area. She could not say whether there is a fence there now.

She remembered the fence along the canal towpath, and said that they had walked through breaks in the fence, but probably only fairly recently. They enjoyed walking along the towpath, because

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they are interested in narrowboats. More often than not they would walk along the towpath. Any fence along there would have been so overgrown that you would not have seen them.

She did not remember seeing any fence by the king of the castle mound and going down towards the canal lock bridge.

One of her routes was entering the site at access point K, going down the steep slope down to the lock, unless the slope was very muddy, in which case they would cut through the orchard, coming out at point L. They would sometimes go through the wood finding fuel for the fire and leaf-mould. They used the uphill area near the allotments quite a lot. When on family walks they entered the site at G or sometimes at H or I, then cut along the Buddleia Walk, sometimes straight along to the open area. If she was sketching or taking photographs, she would be stopping for that and searching out, for instance, white buddleia or an individual spray to press. There was a lovely circular walk round. Mrs Turnbull had studied at Wall Hall College whilst living in North Watford. Her mother was looking after her father, who was very ill at that time, and she used to come and visit her parents, then when he died she would come and visit her mother. She did a foundation art course as part of a three year course. The course started in September 1983. The students were told to go out take photographs as design starting points. This would mostly have been black and white photography. Both she and her husband have been interested in black and white photography. The painting was more when she was doing the City and Guilds course.

In 1983 the land was not as covered in buddleia as it is now, but there were definitely buddleias and teasels all around, definitely a fair number. She had always known that part of the land as the buddleia area.

Before 1983 she did not go onto the application land so much when her daughter was very little, although they would come over to visit her parents.

Occasionally she would bring her daughter when sketching, but sometimes her daughter would be out with her husband, and Mrs Turnbull would be over seeing her mother by herself. In 1983 the land was fairly bumpy, but smooth in areas. You could definitely go down the green area.

She did not remember the area being used as a tip when she was younger. She did not ever remember it being other than a place to go. She did not remember the travellers on the land. She did not remember any holes being dug.

In response to questions in cross-examination on behalf of the Second Objector, Mrs Turnbull said that she used to skirt through the IMC land on the way to the railway bridge. That was mostly just passing through, although if the dog was off the lead and went off, it did not always come when called. Access point G was her main access point. Her use of access points H and I was not that frequent, but she would use them, because she would use the whole of the area. When coming down through point K or J, they would walk through the woodland area, and that would merge into the IMC land. She would go along the woodland path, eventually coming down towards the railway bridge. She would follow a pathway. She knew the dip was there, although she did not use it, but would pass by it on the lower pathway, rather than going near it.

In response to questions in cross-examination by Mr Weston, Mrs Turnbull said that she had been on Mr Weston’s land since 1988, crossing through either from Mill Hill or to Mill Hill. The hill within the site was quite steep, and could be slippery. It was easier to cross via the orchard. They would go from there onto the green area. Right at the bottom of Mill Hill there is a very steep access to the green area. If you cut through, you avoid the steep access. Mrs Turnbull would cut the corner off by going through Mr Weston’s land. She could not remember whether there were any fruit trees at point L and said that there are trees all around and that Mr

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Weston’s land is very much like the other area of woodland. She would have passed through the orchard every couple of months or so. Mrs Turnbull just crossed through but she had seen groups of teenagers in there at early dusk on occasion. Her daughter had also told her that she had congregated with her friends there.

In re-examination Mrs Turnbull said that she and Mr Turnbull still enjoy photography. She has taken pictures of the boats from within the buddleia area, because it gives a good depth of field. She is also interested in reflections, and would take photographs of the water and the boats in the water from the buddleia area. She photographs the bluebells and the buddleias. She has also photographed the shapes of the trees and the bark for her embroidery and the common blue butterflies. She still sketches when she has time and has sketched in the woodland and on the green area. Mrs Turnbull still occasionally picks flowers to press, as she is trying to show her granddaughter how to do it now. She would pick buddleia all the way along in and out of the area, off the walk. She would pick daisies from the green area.

Mrs Turnbull was an honest witness. Mrs Turnbull’s evidence that no tipping was taking place on the site when she and her husband use the Buddleias area for courting in about 1965 is consistent with the evidence of Mrs Collins. Mrs Turnbull, having used the application site extensively herself as a child, has used the site with her own children and grandchildren from 1988, including Mr and Mrs Weston’s land, as a local resident when she moved to 128 Frankland Road. She did not use the IMC land. She also used the site, although living elsewhere, between September 1983 and 1984 and between 1985-1986 to photograph plants. These activities were concentrated on the tip area because she was interested in the teasels and Buddleia. I accept her evidence of these activities, and conclude from this that the tip area was accessible at this time.

(20) Mrs Amanda Grant of 93 Frankland Road

Mrs Grant provided a written statement dated 30th January 200787, an Evidence Questionnaire dated 21st July 200488, appended to which was a further statement of one page, and a response to the standard form letter dated 16th March 200589.

In her evidence questionnaire Mrs Grant stated that she had known the land since 1984 and used it continuously between 1984-2004. During the time she had used the land the general pattern of use had remained basically the same. There was a definitive footpath running adjacent to Frankland Road, and several well-worn paths crossed the land, two of which led off the definitive path. She gained access to the land from her back garden, across her allotment and down steps which had been built into the woods. She went on the land to walk her two dogs, to play with her children and nieces and nephews and to enjoy the wildlife – flora and fauna. She used the land regularly when her children were growing up, and at the time of completing the questionnaire used it five times a week. She took part in ball games including Frisbee, walking for pleasure, exercising her dogs, power walking with girlfriends, picnics with the family, enjoying the flora and fauna, hide and seek and blackberry picking. Her husband used the land for jogging and playing with the dogs. Her sons regularly socialised on the land and crossed the land to take kayaks to the canal. She believed that the Brownies had used the land and that Joan of Arc School walks across the land as part of a charity walk. She also thought there had been community bonfires and possibly use by the Venture Scouts, but said in relation to all of these activities that she had no idea when they had taken place or for how long. Blackberry picking and butterfly watching were seasonal activities which took place on the land. She ticked as activities she had seen taking place on the land: children playing, fishing (which she specified as taking place on the adjacent canal), drawing and painting, dog walking, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bonfire parties and 87 A/1/10588 A/3/57989 A/3/878

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bicycle riding. Mrs Turnbull said that she now knew that the owner of the land was LUL/Metronet. She said that no one was the occupier of the land. She did not think that the owner or occupier had ever seen her on the land. She had never sought permission for activities on the land and neither had anyone ever given her permission to go onto the land. She had never been prevented from using the land and had never noticed any attempt by notice or fencing or by any other means to prevent or discourage the use being made of the land by the local inhabitants.

In the statement appended to her evidence questionnaire Mrs Grant stated that she had been enjoying the land for 20 years. She first visited the site in approximately 1983/1984 when she and her husband first moved to Croxley Green, living then at 116 New Road. Mr Grant knew the site because he had been visiting Croxley to fish since he was young. He had taken her walking through Long Valley Woods and onto the Buddleia field. She was aware of broken down, very old, dilapidated fencing in some areas, but there was no reason to think that the land was not open for public access. The footpaths were well worn and there were no signs of any sort. Since her first visit she has visited the land regularly. Mr and Mrs Grant moved to 93 Frankland Road in 1987/1988 and there is a gate in the back garden fence which leads out, through allotments, to Long Valley Wood. She initially visited the land as a place for a quiet Sunday walk with her first child. Later she visited it to explore, climb trees, play hide and seek, have picnics, play ball, and pick blackberries with her young children. Her children are now teenagers and still use the land, both as a cut through to the canal and to socialise with their friends and escape from their parents.

Mrs Grant herself uses the land about 4 or 5 times a week, mainly to exercise her dogs. Sometimes she does not meet anyone else on the land, but often as not, particularly in the summer, she will see others using the land. She has seen bird-watchers, dog-walkers, cyclists, horse riders, children playing, couples enjoying the sunshine, youngsters building dens and families enjoying the open area for games. She has gone onto the land with her nieces to pick blackberries and to show them the wildlife.

In her response to the standard form letter (2005) Mrs Grant stated that she had used the land from 1982 to date for walking, cycling, playing ball games, blackberrying and wildlife spotting.

In her written statement Mrs Grant stated that she is a teaching assistant at a primary school in North Croxley where she has worked for over 11 years. She had lived at 93 Frankland Road for over 20 years, having moved there in January 1987. Prior to that she lived in New Road, central Croxley, for 5 years. She had used the entire area for well over 20 years. Initially she used the site for occasional walks with family and friends. After moving to Frankland Road she used the site more regularly. The site is approximately 50 metres from her back garden gate and she walks it almost daily with her dogs. She normally accesses the land via point J90, but she varies her walks depending on the weather, time of year, and time constrains, and also enters via Lavrock Lane, past the small holding or by the alleyway between the houses in Frankland Road (point K).

Mrs Grant’s use of the land has changed over the years as her children have grown up. Her children learnt to ride bikes on the Buddleias area and have built dens in the woods with their friends. They have enjoyed swinging on the rope swing hanging from the tree in the dell (on the IMC land) and have played football and other ball games with the neighbourhood children on the open grassy area.

Whilst on the site Mrs Grant often meets neighbours or fellow dog-walkers and regularly sees families enjoying the site. Occasionally there are visitors from outside the locality, for instance in summer 2006 the Hertfordshire orienteering group used parts of the site for the day.

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Mrs Grant did not know who owned the site before she made the application. She only learned of IMC and Mr Weston’s interests after she had lodged the application. She first learnt of London Underground’s ownership when they applied for planning permission to build a depot in early 2004. At that time she mistakenly believed LUL owned the whole site. Mrs Grant said that it had taken her several trips around the site to try and define accurately the boundaries between the four separate landowners, and even after that she felt the boundaries were vague. She was not sure of the boundary between the land owned by Three Rivers District Council and London Underground. She commented that it was not always possible to relate the ownership boundaries to the dilapidated fencing on the site. There is a well-maintained fence around the IMC site which she had assumed marked the extent of their ownership, but she now knew that assumption to be incorrect and knew that IMC also owned part of the woodland.

She had never seen any of the landowners on the site or any signs restricting access until after the application was lodged. She had never witnessed any maintenance of old fences, erection of new fences or land maintenance of any description by the landowners. The local residents had organised regular rubbish clearance and the cutting back of foliage and fallen trees to keep the pathways open. Mrs Grant had never forced entry to the site or seen anyone else forcing entry. She had used the site in the belief that she was entitled to do so. The steps at access point J, which were provided by the Parish Council, lead to well-trodden paths, which provide unrestricted access throughout the whole site.

In oral evidence Mrs Grant confirmed that she has lived at her present address since January 1987. Prior to that, she lived at 116 New Road, to the north of the Watford Road.

She remembers coming across the IMC land fairly early on, when they were living in New Road. At that time there was a rope there. Her children were very keen on the area. She used to go and sit whilst they played when they were younger. When they were older she thought that they would have gone there by themselves. She did not consider that there was any difference in the character of the IMC land from the remainder of the woodland. She described a tree as you come in from the rest of the site (the southern side) on the right hand side of the dell which has had either a hide or a tree house in it, the remnants of which were still there.

Mrs Grant had used Mr Weston’s land to enter the site regularly when living in New Road. She said that there is a bank of bluebells on Mr Weston’s land, so it forms part of an extended part of her bluebell walk. She has seen children in there.

She did not remember there ever being a fence between the open area and the Buddleia Walk as shown by the green line on Plan D. She said that she regularly uses paths crossing the site. The woodland path is quite raised up and some distance from the fence line. From it you see land and trees. There is a lot of growth around the fence line, so it is not apparent as a long stretch of fencing. If you cut through the side paths, there are gaps in fencing, but the paths go through those gaps.

From her observations when walking through the site she would say that the fencing is fairly dilapidated. She would put the green fence in the same category of dilapidation as the orange. Until she was trying to work out the boundaries she had not noticed the fencing and commented that when walking you are not looking at fences. She did not remember any gate at point G.

The photographs which accompanied the application and which had been inserted into the bundle at A/1/111A were attached to someone else’s evidence form. She does not know whose. She would have said that they came from the mid 1990s.

In response to questions in cross-examination on behalf of the Lead Objector, Mrs Grant said that her house is on the southern side of Frankland Road and backs onto the allotments. She

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normally comes out of her back gate, across the allotments, down the steps (previously just a slope), then into the woods. Where she went would depend on weather and the time of day. In the mornings she might not go as far as the Buddleia Walk, but in the afternoon she would go further. On a weekend walk she might go down to the lock. She had been through access point G. She has two small dogs.

She was not specifically aware of the green fence, until she was first trying to draw up her plan for the application. More recently she had been very aware of it. Mrs Grant said that she has looked carefully at the area surrounding the return to the green fence. A section can be seen going up from the canal towpath at a 90-degree angle to the fencing along the towpath. There is a post at the corner as shown on Plan E and a bit of fencing coming round the corner. There is no evidence of a formal end to that length of fencing. There is a gap between the two. There is no evidence of fence posts across the central section.

Mrs Grant accepted that LO/2/57A shows a return back to the canal. The drawing referred to on page LO/2/58 (LO/2/61) also shows a return. She said that she could not say why the contractors might have erected the fence with a gap in it.

LO/2/59 says that the local authority will have access from the entrance gates on the northern boundary. Mrs Grant accepted that the gates referred to could have been at point G. She acknowledged that LO/2/57A refers to “existing gates to be maintained”. Mrs Grant pointed out that at present there are gates near that point onto the smallholdings.

She had no recollection of the entrance road ever being made up in any way. It was only ever a track.

Mrs Grant acknowledged that LO/2/270 (a photograph taken in 1996) shows the fence going up on either side of the entrance road, in reasonable condition, although she pointed out that there was a gap in the fencing on the right hand side of the picture.

Mrs Grant said that the entrance road was extremely muddy. There was a gravely part where they walked, which looks white in the photograph, but the rest was mud.

Mrs Grant acknowledged that the reference in the third paragraph of the memorandum at LO/2/62 might well be to the green fence. However, Mrs Grant does not believe that the workmen did anything to the road, and she does not believe that they completed the fence either. She thinks if it had been completed, there would be evidence of fence posts in the ground. Having read the documents, she does not think LUL did half the things that they said they were going to do on the site.

Mrs Grant was taken to LO/2/324 which is part of Hertfordshire County Council’s site inspection records in respect of the tip. The entry for 7th March 1983 on LO/2/326 states “Levelling of site and reinstatement continues.” Mrs Grant accepted that this refers to the tip site and Buddleia Walk. The entry for 17th May 1983 states “Site is now being levelled, the two excavators i.e. JCBs working on the last section at the eastern end of the site.” The entry for 27th July 1983 states “Site gates closed and locked unable to gain access”. The entry for 15th August 1983 says “Entrance gates padlocked shut at time of visit at 2.30 pm” and for 5th September 1983 “Access can only be gained to this site now via the public footpath halfway along Frankland Road signposted “Croxley Woods”. This gives access to the site approximately 200 years from the east end of the site. … The site now appears to be permanently locked and no vehicular access is possible.” The entry for 5th November 1983 reads “Fencing in progress with chain-link on concrete posts.”

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Mrs Grant accepted that the County Council’s records suggested that the fencing was put in at the end of 1983 or beginning of 1984, contemporaneously with the memorandums.

Mrs Grant does not remember any gates, not locked ones or even open ones, apart from on the smallholding.

Mrs Grant said that she was not disagreeing that fencing took place, but that she did say that there is no evidence about the return section, and says that there is no comment on the fencing from the canal towpath, in which there was gaps.

The entry for 7th April 1984 suggests that vandals got onto the site and removed trees and shrubs.

Mrs Grant was asked whether, if the fencing was put in in accordance with the drawings, might it have been removed? Mrs Grant said that she could not see why they would have done that. Mrs Grant did not accept that the orange fence was removed by vandals.

Mrs Grant accepted that LO/2/45 refers to an incident when newly installed fence was removed between Sunday 15th November 1981 and Tuesday 17th November 1981. Mrs Grant said that she does not know where the fencing to which the letter refers was. She commented that there is no suggestion in the documents that the fencing which had been removed was replaced.

Mrs Grant was asked whether someone might have removed the green fencing on the return line as well. She said she thought not because on the green return line there is no evidence of fence posts.

Mrs Grant said that before 1987 she used to visit the land in the summer quite regularly from New Road, but did not know the land as well as she came to know it when she moved to Frankland Road.

She did not really recall the buddleia being there in 1983/1984, and thought that the vegetation had been rather wildflowers. The green area at the far end was already established, but not as established as it is now. There was definitely a bit of rail track on the site.

Mrs Grant did not remember the travellers, although she did remember her husband telling her about them. She said that her children were very young at that time, and she doubts she would have gone onto the land with the children much at that time in the winter.

She did not recall the boreholes being dug. She has seen markers in the ground. There is evidence of one test pit in amongst the Buddleia, but she did not remember it being dug. She did see tracks along the site at one time, showing that a vehicle had been on. She was surprised because that was after the bund had been put down, and there was not an obvious route onto the site for vehicles.

She remembered Greenwoods being on the site. She did not remember that they cleared a lot of the site. She saw a couple of vehicles when she came along the Buddleia Walk one day, although it is possible that the vehicles they saw were Greenwoods.

Mrs Grant was shown the photographs dated 11th November 1994 produced from LUL's files. She said that the photographs look like they were taken on the Buddleia Walk. She is not sure whether the area represents what Greenwoods did or not.

The gate into the smallholding was at the bottom of the unnamed lane, going away from point G. Mrs Grant had no recollection of a barrier of any sort at the top of the lane at point G. There were posts sticking up in the lane to prevent vehicular access, which had been there for donkey’s

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years, but no gateposts. Recently (within the last couple of weeks) LUL have been upgrading Lavrock Lane, because they wanted to go into the smallholding to do some track maintenance works, she presumes, and it now looks quite new where the posts are, but the posts were always there.

Mrs Grant accepted that LO/2/158 shows where the deponent of the affidavit says the gate installed by Greenwoods was, but said that she thinks that the gate could not have been there because there is a mound of rubble there now, and she cannot remember when the mound of rubble went there. She had never seen a closed or open gate there.

Mrs Grant acknowledged that the letter at LO/2/339 refers to the erection of a gate, although it is not clear from that letter where the gate was. She said that she does not remember a gate being erected at that time.

In response to questions in cross-examination on behalf of the Second Objector, Mrs Grant said that she accepts that her evidence is to be taken no higher than anyone else’s. She knows the test in law that will be applied on the village green application, and knows that it must be satisfied in relation to IMC’s land individually.

Mrs Grant said that when she initiated the application she first sent round the Hertfordshire County Council form. There was a map appended to that form. She did not know that IMC owned land, or Mr Weston. She first became aware of that shortly after submitting the application. She was told it was not for her to find out who the owners of the land were.

Mrs Grant said that if she had had a map like the one at LO/3/Appendix 7.2/49 when she made the application, she might not have made a perfect job of defining the application land, but she would have made a better job of it.

Mrs Grant acknowledged that the material behind divider 41 of LO/3 shows the various plans which have been put forward by the applicants and that the Applicants had submitted a further plan on the Friday before the inquiry, and a further one on the day on which she gave evidence.

Mrs Grant said that she did walk the boundaries when preparing the plans, but did not have the maps with her when walking. She completed the maps when she got home. LO/3/544 was coloured by Mr Grant.

Mrs Grant accepted that a not insubstantial amount of the IMC land is no longer the subject of the application. She said that at the time the Hertfordshire County Council evidence questionnaires were sent out, she did not know that IMC owned the land. She does not know whether the recipients knew or not. By the time the standard form letter was produced, she was aware of IMC's ownership.

Mrs Grant accepted that on the latest version of the plan showing the boundaries (A/1/50B) there is no discernible physical boundary between K and L. On the ground there is nothing to indicate whether you are within or without the application site.

Mrs Grant accepted that there is a lot of debris and asbestos closer to the new fence now. She does not know how long it has been there.

She was asked why the bunker was not mentioned in anyone’s written evidence and said that there were lots of things people have done on the land which they have not mentioned. Mrs Grant said that she has had discussions with people about the possible asbestos on the site. There have been clear-ups on that part of the site.

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She thinks a lot of people have been onto the IMC land. There is evidence of a hide or tree house. She knows Mr Batchelor goes there. There is another bunker near the fence, but she thinks that has been covered up.

When asked whether she still maintained that the IMC part of the application land was of the same character as the rest, Mrs Grant acknowledged that there was fly tipping on the boundary by the gates, but said that most of the area claimed is clear of debris. She does not think that it has always been in that condition. She said that she had written to IMC after making the application, and asked about clearing up the rubbish which was coming out of their factory perimeter into the surrounding woodland. The rubbish was both within and without IMC land. In the southeastern corner of the IMC land there is quite a lot of debris, within the old rusty fence.

In response to questions in cross-examination by Mr Weston, Mrs Grant said that Mr Grant was correct with the dates. They moved in in 1982 and got married in 1983. They got to know the area pretty soon after that.

She had included Mr Weston’s land in the application site because Mrs Grant believed and does believe that it is part of Long Valley Wood. On the upper slope there are bluebells, and ancient trees. She now knows that the lower area is secondary woodland, but there are many areas within Long Valley Wood which are secondary woodland. Before the application, she did not pay much attention to the fencing, and did not see it as different to any other area. The application was made in good faith for the area she and many others to her knowledge had used. Even had she known about the different ownership she would have included it, because it is part of the area which is used. The same applied to the IMC land.

She had never come across a fence preventing her free and open access to the whole area. She had seen fencing. She did not know whether or not it might have been cut. She did a lot of research during the summer of 2003 in trying to prevent LU building a railtrack depot.

Mrs Grant said that she has been advised that it does not matter who owns the land. She does not believe that including Mr Weston’s land was deceitful. The one page letter was circulated in 2005. Mrs Grant and Mr Weston had an unfruitful meeting after that, Mr Weston having become aware of the application because a copy had been dropped through the door of a house owned by him in Nuttfield Close. It was not until then that Mrs Grant knew that Mr Weston owned the orchard.

Mrs Grant does not remember the orchard being completely fenced. She had not spoken to anyone else who remembers the land being completely fenced.

Mrs Grant said that she believed the question of ownership was not relevant to the application so far as the applicant is concerned. She said that Hertfordshire County Council might have had to find out, but it was not Mrs Grant’s job to do so. She had assumed that LUL owned what she now knows to be Mr Weston’s land.

She has not noticed any evidence on the site of fencing being patched, and Mrs Grant does not believe that it has been patched while she has been using the site. She thinks there is evidence that fences have been cut in places, rather than just dilapidation, but she thinks that in the main the gaps have appeared through age and decay, and trees falling over it. There is a very long stretch along the canal maybe 80% still standing. It has buddleia growing through it, and at one point a fairly substantial tree, with fence marks around the trunk. She would think that the fence had been there for about 40 years or more. She thinks that fencing probably becomes weaker with age and is more vulnerable to damage by foliage and so on.

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She does not know what happened to Mr Weston’s fencing. She said that some of the gaps in the fencing on the towpath have been there in excess of 25 years; 2 or 3 in the middle section may have been cut by people living on boats. There would be no need for Croxley inhabitants to cut them, because there is easy access to the site from many points. She accepted that some areas of fencing have been cut, but in the main she believes that it has decayed as a result of age and foliage falling on it.

Mrs Grant has often entered Mr Weston’s land, generally as part of a round walk with the dogs, either exiting at points L or A. When asked to describe some features of Mr Weston’s land Mrs Grant said that she likes the gnarled three-pronged tree there. If you walk from her house to Mill Lane, just before you turn right to come down to point A there is a hole. There is an area where the older children congregate, in early summer evenings. There was a problem with drugs at the back of the shops at the top of Mill Lane, but does not think there is any more.

In re-examination Mrs Grant said that she does not remember the gaps in the fence ever being patched or maintained so as to prevent passage through them. She does not remember the fence at points H and I being patched, or going up from point B.

She was asked to look at LO/2/153 and LO/2/158 and agreed that a gate at the point marked X would not be a gate across the path coming down from G.

Mrs Grant said that the gate into the smallholding has been in the same position for as long as she can remember. She acknowledged that the plan at L0/2/140 shows the smallholding being part of the tip area. When asked about the entry at LO/2/326 for 5th September 1983, Mrs Grant said that there has always been public access onto the site. She has no recollection of a gate at point G.

Mrs Grant said that it was clear from the request in the memorandum at LO/2/57 “check your records and confirm the situation regarding road access to the tip” that the position of the gates (and indeed the position in relation to any road access at all) as shown on the plan at LO/2/57A was not definitive.

Mrs Grant recalled no fence preventing access along the line of the green fence return.

As one of the Applicants, Mrs Grant, like Mr Grant, was clearly keen for the application to succeed. She and Mr Grant had co-ordinated an impressively thorough evidence-gathering exercise. However, I consider that in giving her evidence as to her own user of the application land, she was honest, and put forward her best recollection. I am satisfied that she has made extensive use of the whole of the application land, including Mr and Mrs Weston’s land, and that part of the IMC land around the dip, for informal recreation as a local resident since 1987.

(21) Mr Mark Saxon of 92 Frankland Road

Mr Saxon produced two written statements, the first dated 29th January 200791, and a second dated 24th February 200792, dealing specifically with the occupation of the application land by travellers in 1994. He also produced an Evidence Questionnaire dated 17th July 200493 together with a letter dated 17th July 2004 and a standard form letter dated 9th March 200594.

In his evidence questionnaire Mr Saxon stated that he had known the land since 1987 and had used it since that date. His general pattern of use of the land had remained basically the same

91 A/1/16892 A/1/25393 A/3/70994 A/3/993

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during the time he had used the land. There were no official paths crossing the land, but he thought that a path was marked on the map. He gained access to the land via Footpath 11 from Frankland Road, via Lavrock Lane and via the Grand Union Canal towpath. He went onto the application land because it was an open area of land and woods for recreation and dog walking. He used the land daily normally twice daily for the whole period for dog walking and cycling. His immediate family used the land for the same activities. He stated that in the 1990s the land had been invaded by travellers and that after they were removed the local community had cleaned up the area. He ticked as activities he had seen taking place on the land: children playing, dog walking, picking blackberries, bird watching, picnicking, people walking and bicycle riding. Mr Saxon believed that London Underground Limited was the owner of the land, but stated that it was unoccupied. He did not believe that the owner or occupier had ever seen him on the land. He had sought permission for activities on the land from London Underground for the community clean-up. He had never been prevented from using the land and no attempt had ever been made by notice or fencing or by any other means to prevent or discourage use being made of the land by the local inhabitants.

In the letter dated 17th July 2004 accompanying the Evidence Questionnaire, Mr Saxon stated that he had moved to his present address in September 1987. Since then and up to the time of writing he had been using the Buddleia Walk and Long Valley Woods (Old Croxley Tip off Lavrock Lane) normally twice a day for the purpose of dog walking. He was aware that numerous other people used the area as well and treated the path through the site as giving open access to the canal and other adjacent footpaths. He knew that the site belonged to LUL. He first knew this in about 1990 when he was secretary of the Croxley Green Residents Association. The Residents’ Association applied for and received a grant of £500 from funds available from (he believed) Three Rivers District Council to improve areas of open access. At about that time a group of travellers had established a camp on the site. They had been moved on but had left the area full of filth and rubbish. Mr Saxon applied to LUL for permission to tidy up the area and plant grass seed in appropriate areas. This permission was granted, and the work was undertaken by neighbours and members of the Residents’ Association. Subsequently there were problems with fly tipping at the entrance to the site in Lavrock Lane. LUL placed two barriers across the entrance to prevent future occurrences. The first barrier was an earth mound approximately 15 feet high, with a gap to one side to allow pedestrian access. The second barrier was three metal posts sunk into the ground.

Numerous people used the area for walking, running, dog walking, horse riding, cycling, orienteering, to gain access to the canal for fishing, bird watching. Residents of the canal boats use the paths to take their children to local schools and access other amenities. Local residents regularly maintain the pathways through the area and prevent them becoming overgrown. Mr Saxon and other public-spirited members of the community regularly clear the area of litter and other rubbish. There has been an annual “Clean-up Day” in which a large number of people have participated.

To Mr Saxon’s knowledge, LU had not taken an interest in the site at all, apart from the matters he mentioned. When Mr Saxon was a Parish Councillor, Croxley Green Parish Council had approached LUL with a view to purchasing or leasing the site in order to maintain it as a site for open access. A price was agreed in principle of £500 per acre for a total of 25 acres. The sum of £12500 was placed into the Parish Council’s reserves. The deal failed, as Mr Saxon understood it, because when initial contracts were drawn up LUL realised that it would be responsible for clearing the site of any noxious substances, even if the Parish Council were to purchase the site and withdrew from the sale.

In his response to the standard form letter (2005), Mr Saxon stated that he had used the application land between 1987-date for dog walking, walking and cycling.

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In his first written statement Mr Saxon stated that he is a Police Sergeant with almost 28 years’ service with the Metropolitan Police. He moved into 92 Frankland Road, together with his wife and two dogs, in September 1987. He can reach the application site via an alleyway 200 yards away, to Long Valley Wood. From there he can continue to the Buddleia Walk and the other woodlands running east towards Mill Lane. He can also reach the site from the end of Harvey Road, and from Mill Lane at its junction with Frankland Road. He started using those areas as soon as he moved in for dog walking and has continued to use the land for this purpose, although with different dogs now. He walks twice a day, throughout the year. His wife uses the land for the same purpose when Mr Saxon is unable to exercise the dogs. He can also gain access through the application site to the canal, and to the Ebury Way cycle path.

Mr Saxon stated that he regularly sees a number of people from the local area also using the site, dog walking, cycling or just walking. He had also seen individuals orienteering using Long Valley Woods and the adjacent woodland and Buddleia areas. He also regularly sees runs and horse riders on the application land.

Mr Saxon first became aware that London Underground owned part of the land quite soon after he first moved in. He knew that some of the land was owned by IMC and that a small area of land adjacent to Mill Lane had been owned by a Mr Pitkin. He had never sought authority from any of the landowners or of anyone else to use the land, and had walked over and through it with impunity. He had not seen any signs indicating who owned the land until recently, and his access onto the land from the public highway or public footpaths surrounding the land had not at any time been impeded. Mr Saxon had seen numerous signs of very old fencing throughout the area, and said that all that remained of most of it was very rusty chain-link fence and broken concrete pillars. He considered that there was only one fence of note, which also had holes in it, which was the outer fence-line running to the south of the Imperial Machine Company. He said that no effort had been made, to his knowledge, since 1987 to maintain this fence, and a number of years previously a new inner fence-line had been erected by the Company. Mr Saxon said that he had never seen any landowner undertaking work on the site, other than London Underground on one occasion. On that occasion he had seen London Underground placing a large earth barrier at one of the entrances to prevent access by travellers after a travellers’ incursion in about 1990. He appended a map to his statement on which he had marked with “W” areas on which he walked, and, with a “G” two spots where he groomed his dogs.

In his second statement, Mr Saxon stated that he remembered that in late 1989 or at the beginning of 1990 a group of travellers got onto the application site from the entrance in Lavrock Lane. Mr Saxon remembered there being about a dozen caravans and associated vehicles situated fairly close to each other, some way off the already-established pathway that ran parallel to where they were. He spoke to the occupants on occasion and continued to use the pathway whilst they were in occupation. He did not remember them being threatening or abusive towards him, although he did clip his dogs back on their leads as he passed, as he did not want them getting involved with the travellers’ animals. Mr Saxon said that he was aware that attempts were being made to evict the travellers, and that after a few weeks a number of them left. The last of them did not leave the site until early January 1990. A ditch, later superseded by an earth barrier, was erected at the entrance to prevent further vehicular incursions.

In November 1994 Mr Saxon became aware of vehicular activity on the site when walking on it. There were a group of men with diggers and some heavy lorries. They had broken through the earth barrier to gain access to the site. Mr Saxon asked them what they were doing. He thinks that they told him that they were going to turn the area into a nature reserve. He was surprised by this, as no information had been circulated about the sale or lease of the land. He may as a result have contacted either Three Rivers District Council or London Underground, but could not remember exactly. The men were quite friendly, and Mr Saxon continued to use the site whilst they were there. They would stop using the plant equipment to allow him to pass. After they

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had finished on site and replaced the earth barrier, Mr Saxon discovered that they had stolen the rails and sleepers.

In oral evidence Mr Saxon told me that 92 Frankland Road is on the northern side of Frankland Road, opposite the houses which back onto the allotments, by the “R” in Frankland on page A/1/262. Mr Saxon has lived at his present address since 1987. He had dogs when he moved in, and has had dogs ever since.

Mr Saxon sometimes enters through point H, where there is an old rusty chain-link fence with a hole in it. From there he walks in a south-easterly direction, to the right of the depression, to join the footpath to the south of the IMC land. The use Mr Saxon makes of the land is dependent on the time he has, but that is a regular walk three or four times a week. He goes onto Mr Weston’s land to walk the dogs, up Mill Lane to the shops or to the canal, to further his walk. He has seen children cycling through the area. There are also some clearings at the southeastern area of Mr Weston’s land, where children gather and have over the years sat on logs.

The photographs at page 111A had been taken by Mr Saxon. He took them a couple of years apart to show the difference in the land over that period. They give a good impression of the appearance of the land and the Buddleia Walk at those dates.

Mr Saxon had signed the map at page 93A indicating his agreement that the lozenge shape represented the area on which the travellers were. He looked at the rear of the IMC, because he used to walk along the track at the rear of there, and you could walk a fair distance before coming across the travellers. It was a compact traveller site. The size of the lozenge is comparable to the Harvey Road gardens. They are about 120 feet long, and the area occupied was a similar size. The area shown on LO/2/91 as being occupied by the travellers is far larger than he recalls.

Mr Saxon was shown a letter dated 3rd February 1995 that he had written to Mr Bannister of London Underground (LO/2/165). The letter stated that it was written in regard to the area known as Long Valley Tip, Croxley Woods. Mr Saxon wrote “As you are aware, over the last 6 months various nefarious activities have taken place on the site mainly concerned with the theft of rails & sleepers. I am aware that LRT have now cleared the site of the remaining rails & sleepers but this has left a large part of the land muddied & barren. The buddleia bushes & trees that had grown up have been broken down & left as rubbish & the whole area could do with a general clean up.” Mr Saxon stated that, as Secretary of the Croxley Green Residents’ Association, he had applied to Three Rivers District Council for a grant of £500 in order to tidy up the land. He wrote: “Members of the Association would be willing to re-seed and re-plant the area with hardy grass seed and a selection of spring & summer bulbs. We would also seek to do a general tidy up of the site. This tidy up would have to include the burning of the foliage that has been left. We would not seek to do anything else on the land except as stated above. However, before we start work & pending the grant being made available, it is of course only right that we seek permission from you to carry out this work.”

Mr Saxon said that the work referred to was clearing rubbish. The background to the request was that the travellers had come and gone. The rails and sleepers which had been left had been stolen, as he subsequently found out. The area at the end of the pathway from G was rather muddy. He used that quite a lot. The council had some environmental grants available. The Residents’ Association applied for a grant for equipment and seed to tidy up the area. The permission he was seeking was permission to go onto the land and tidy it up. He did not consider that he needed permission to go onto the land to walk the dog, or carry out other leisure pursuits.

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Mr Saxon does not remember there ever being a fence along the green line returning down to the canal shown on Plan E, preventing access from one area to the other, in the time he has been using the land.

In response to questions in cross-examination by the Second Objector, Mr Saxon said that he had entered the IMC land at point H. The depression would have been to his left as he walked through the IMC land. He walked through and that was the purpose of his entry. He has noticed both the newer and the older fences around the IMC land. There are now more holes in the newer fencing. There is a line of fencing from the works all the way down to point G, although the fencing in some places is in very poor condition. There is fence on the left hand side of the passage down from G. There is a hole in it where the upper path through the woodland meets that path. If you turn through onto that pathway, then the old IMC fencing is a few yards to your left. The recognisable boundary is the new inner fence. He would not have known that the area he walked in was part of the IMC site, but accepted that there was a recognisable line of broken fencing and posts along the old fence line. Mr Saxon had not seen the sign on the older fence saying “Private”.

In response to questions in cross-examination by the Lead Objector Mr Saxon said that when he is walking his dog, he either turns left and enters the land at point K, then southeast, straight down the hill, turning left along the path at the back of the houses, or left adjacent to the fence line shown in orange on plan E or left at the king of the castle mound (which is about 20 yards south of the mound) and down to point B or cuts across to L. He said that the orange fence line is noticeable but very rusted. In 1987 the fence was no different then to how it appears today: dilapidated with holes in, and in some parts, folded onto itself.

Mr Saxon accepted that a falling tree could not roll back a fence, although Mr Saxon does not know how such gaps might have happened, he accepted that a gap like that did not simply appear.

Mr Saxon said that he uses all the paths, the woodland path and the Buddleia path. Going along the upper path, he goes round the back of the factory, then either cuts through to point H, or (depending on time) walks straight to the pathway to G and turns left or right. If he goes down to the Buddleia, he comes out at point C onto the canal, or E (if that is where there a very large tree) or F. He has used D in the past, but thinks there is a lot of foliage across there now.

Mr Saxon said that the green fence line is noticeable from the upper pathway, looking down, certainly in the wintertime. In the summer it is covered with the foliage of the trees. He has been through that line of fencing in recent years. He did not remember going through it when he first moved to the area; that had been in more recent years.

He did see people digging holes and pits in the area. There were a number of trial pits being dug, and a very large metal container was taken out of one. The work took place over two or three days. It did not prevent his access to the site.

The litter picking was a community outing, because everyone was fed up with the state of the site. It would have been over probably one weekend.

In response to questions in cross-examination by Mr Weston Mr Saxon said that he has been the Chairman of the Parish Council for two years now. He remembered being told that Mr Weston had telephoned the Parish Council office and said that the Council rangers were on the far eastern side of the land and had cut down trees. Mr Saxon had not been with the rangers. Mr Saxon said that the Council had apologised and said they would not do it again.

78

Mr Saxon accepted that he has no evidence as to how the fencing came down. He can see that it is down, but has no evidence as to how it has come down. He said that anything could have happened. He looked at the fence line yesterday. At the base of a lot of the trees the trees have grown into the chainlink or around it. There are 4 or 5 trees leaning across the boundary fence to Mr Weston’s land. It may be that the fencing has been cut, but Mr Saxon could not say that that had happened. He would have no idea how a reinforced concrete post would get knocked over and bent as some are.

When asked to describe the features of Mr Weston’s land, Mr Saxon said that coming in from point L, between lampposts 4 and 5, immediately on the left hand side is the gnarled tree. There is an old brick wall. After the tree there is a footpath running down to the canal. A few yards in there is a hole in the ground with an old brown Christmas tree sticking out of it at the moment. He does not know what the hole is. On the left hand side further in, there are two distinct clearings, where he has seen children sitting. He had not seen drug taking. The trees are in a similar condition to those on the other parts of the land, and so is the fencing.

Mr Saxon said that with the Three Rivers District Council grant the Residents’ Association had bought grass seed and tools. The tools belong to the Residents’ Association, of which he is no longer a member.

The photographs at A/1/111A were taken so that he could see the difference to keep a record of the regeneration of the area for himself. He also keeps a wider photographic record of things that are going on in Croxley Green.

Mr Saxon was in my judgment extremely careful to provide evidence which was as accurate as possible, and I have no hesitation in accepting the whole of his evidence. He has taken a particular interest in the site, both as chair of the Residents’ Association and as a Parish Councillor and had a clear recollection as to its condition at various dates. His photographic record was extremely useful. He has used the application land, including Mr Weston’s land for recreation since 1987, and has also walked through the IMC land to exit the site at point H on a regular basis.

7.2. Evidence of witnesses for the Applicant who did not attend the inquiry

There were three types of written evidence submitted by witnesses for the Applicant: evidence in the form of a written statement or letter, completed Evidence Questionnaires (in the Hertfordshire County Council standard form) and responses to a standard form letter. The standard form letter was circulated on two occasions: in March 2005 and in March 2007.

The following witnesses who did not give evidence at the inquiry submitted written witness statements. Where the same witnesses also submitted Evidence Questionnaires or responses to the standard form letter, I have included details of that evidence in this table. I bear in mind that there has been no opportunity for cross-examination of these witnesses.

Name and address User Period Evidence Bundle refMr P Alexander1 Bateman Rd

1979-2005 User: Dog walking, children roamed and explored. Used the land with friends and family to play football and cricket. Bird watching and nature observation throughout the seasons. Annual Easter egg hunt. Met up on regular occasions with sister-in-law’s family (who live in

A/2/265

79

1979-2005

Frankland Close), and children played together. Never observed any fences, or any indication that the application land was anything other than open land with right of way through the many well-trodden paths which criss-cross it.Standard form letter (2005): Jogging, dog walking, blackberry picking

A/3/766

Mr M G Allen19 Frankland Rd

1973-date Joint statement with Mrs P M Allen A/1/52

Mrs J Benn46 Claremont Cr

1991-2005 Teacher and head teacher at Harvey Road School. School has used Long Valley Wood and Buddleia Walk for habitat studies and as a general environmental study area.

A/1/60

Mrs B Brackley24 Frankland Cl

1976-date

1976-2005

2 sons born 1970 and 1968. Access through back garden via Croxley Hall Woods on a daily basis. User: dog-walking, children’s exercise, games and picnics, cycling, bird-watching, wildlife observation, blackberrying. Usual route: entering from Lavrock Lane (G?) along Long Valley behind IMC land through the Buddleia Walk and on towards Mill Lane (L?) or down to the canal towpath (B?). Used by immediate family on a daily basis. Regularly meet friends and neighbours. Occasionally see people from outside the locality especially in the summer months. There are many fences on and adjacent to the site, but they have been in a poor state of repair for at least the last 20 years. Never prevented from using the land. Never seen any signs warning against trespassing until recently. Many access and exit points.Standard form letter (2005): dog walking, children’s games and picnics, wildlife observations, blackberrying

A/1/61

A/3/795

Ms L Brooks9 Harvey Rd

1969-19741998-2007

Lived at present address for 8 years. Used the application land as a child attending Rickmansworth School. Left the area on leaving school in 1974. User: mainly at weekends. When two children younger, walking and gathering flora, cycling and walking to the canal with fishing nets and jam jars. Now self, husband and daughter use the application land for walking, at weekends in winter months, but also in the evenings in the summer – on average twice a week. Access via steps (J) or off Lavrock Lane. Often meet other local people walking, cycling, picnicking or dog walking. Never noticed any signs

A/2/266

80

1968-2005

identifying landowners. Believed land available for general access. Never approached by any landowner. Standard form letter (2005): Walking, rounders, cycling, running

A/3/799

Mr M BurchNot specified

Not specified

Governor of Harvey Road Primary School. School has used Long Valley Woods and the Buddleias on a frequent basis for recreational purposes and for study of nature. The children have told him that they and their families also use the area for recreational activities outside school hours. He and his family have used the site as part of local walking and cycling trips.

A/1/65

Mr R Cattermoul14 Frankland Cl

1980-2007

1980-2005

Used site for dog walking and as a short cut to the canal and Croxley Common Moor, 2-3 times per week over the whole of the period. The site is used mainly by people from the locality: dog-walkers or ramblers. There are a few people that he does not recognise who may come from outside the locality. Cars are parked at the end of Harvey Road. He remembered when travellers settled on the Buddleia Walk railway tip. The caravans covered an area about 20 yards long just to the north of the Buddleia footpath, up to the boundary fence. He continued to walk the site. A bulldozer made a barrier to prevent vehicular access to the site off Lavrock Lane after the travellers left. A gap was left, which allowed pedestrian access.Every spring a skip was left in Lavrock Lane and Mr Cattermoul, together with other local residents, would fill the skip with rubbish. They also put hardcore on the path through to the Buddleia Walk. He assumed that the tip land was owned by LU. The land had fences which seemed not to have been repaired for a very long time. Much of the fencing had completely gone in parts. He had never been challenged about using the land and had assumed that the local council owned the land, other than the land belonging to the railway.Standard form letter (2005): walking, bird watching (hawks and goldfinch)

A/1/66andA/1/250

A/3/815Mr & Mrs Clarke2 Poplar Close, CheshamFormerly of 21 Frankland Rd

1980-2002 Lived at 21 Frankland Road 1980-2002. Had a gate at the bottom of the garden giving access onto the application land. Two children, then aged 9 and 6, played with friends on the application land at least once a week, and nearly every day in the

A/2/269

81

school holidays, until they were in their teens. Mr and Mrs Clarke used the area for family walks. They would quite often meet other local people dog walking etc. Never challenged, never seen any maintenance work or any signs.

Ms J Cunningham62 Sycamore Rd

2003- Lived at 62 Sycamore Rd since 2003. Stumbled on application land soon after moving in. User: cycling and walking through Buddleia Walk. Frequency: weekly. Always passes local residents with children and dogs. Takes family and friends to the application land when they visit. Has never been given permission to use the land. Access has never been restricted in any way. Never seen work being carried out on the land, or signs denying access.

A/2/270

Mrs K DouglasEllon, Aberdeenshire

1969-1992 Joint statement with Mrs Dixon-Wilkinson A/1/75

Mr R Emson28 Frankland Cl

1947-date

1948-1950s1982-date

Used as a child. Dog-walking in latter years, almost daily, through Long Valley Wood, across Buddleia Walk, exiting onto Mill Hill. Wildlife-watching in recent years. Occasional Sunday litter-picks and tidy-ups with other volunteers. Tipping completed in 1982. From that date Mr Emson resumed walking around the area on a regular basis. Never challenged when on the land, including the IMC land and the orchard. Never seen any signs, prior to 2005. Map appended on which marked access points and paths.Evidence Questionnaire: Known as Long Valley and latterly Buddleia Walk. The break was caused by London Transport using the area to dump spoilage from excavations for a new tube extension in London. Pattern of use remained the same apart from the 1950s. Land is bounded on one side by Grand Union Canal towpath and accessed by probably a dozen or so “ancient” footpaths. Access: from Croxley Hall Woods or canal towpath or Long Valley itself. Use: in early days “playground”, in later years family walks, then dog-walking. To gain access to Croxley Moor. Bird spotting and hide and seek with his children. Frequency: formerly frequently. At time of questionnaire: weekly. Immediate family uses land for walking. Seasonal: blackberry picking. Ticked: children

A/1/80

A/3/554

82

1982-2005

playing, dog walking, picking blackberries, bird watching, picnicking, people walking. Owner: LUL?, occupier unknown. Permission never sought. Never prevented from using the land. Some fencing was erected during the spoilage dumping but since then the fences have been left to decay.Standard form letter (2005) competed jointly with Mrs Emson

A/3/856

Mr M Fletcher114 Frankland Rd

1981-date

1981-2005

Used site for recreation. Accessed site from Croxley Hall Woods (G?) and from Common Moor lock (B?). Cycled and walked through to access canal towpath and to enjoy amenity of the area. Appended plan on which paths used shown by crosses. Use: once or twice a month, more in the summer than in the winter. Two sons frequently played on land when growing up. Has met other people, local and not local on the site. Once participated in a clean-up exercise. Never challenged, never sought permission. Access never obstructed. Never witnessed any maintenance being done. Observed boundary fence to canal towpath in an increasing state of disrepair.Standard form letter (2005): not specified

A/1/82

A/3/864Mrs A Gauntlett9 Orchard Dr, Watford

1988-2002

Lived as a child in Frankland Close 1969-1980 and used land then. Mother still lives there. Visits with children and walks through the woods.Teacher at Harvey Road School 1988-1997. Head teacher 1997-2002. Woods used by children from the school for various studies. Told by members of school area still regularly used by school.

A/1/86

S Gohel32 Beechcroft Av

1982?-2007 Lived in area for 25 years. Moved to current address almost 10 years ago. As a child cycled along the towpath, played football on the grounds. In recent times he has walked to the site and enjoyed a family walk. The children play ball and run around the grounds. Their use is more frequent in the summer months. They look at wildlife and plants to help with the children’s homework. He always sees other people there. Map appended showing where the family currently enjoys walking and playing.

A/2/271

Mr and Mrs Hale49 Harvey Rd

1970-date Used Long Valley Wood and Buddleia Walk for over 37 years. Access the site: from Lavrock Lane along a footpath at the far end of the industrial works (G?); from

A/1/112

83

1980-2005

Footpath 11 (J?); from the end of Mill Lane near the canal lock (A or B?). Now use with granddaughter and by themselves for cycling and walking. Over the years have used with their children, children’s friends to walk, cycle, picnic, observe insects and play ball games on the grassy area. Blackberrying in late summer. Use at all times of year but mainly in the spring and summer months. Access never challenged. Never sought permission. There is a sign in Lavrock Lane saying footpath. There is some old wire fencing in one part of the woods, but it has never blocked the path. Have seen others using the site for similar activities and dog walking. Never seen anyone doing maintenance, other than local residents litter-picking. On holiday at time of inquiry. Map appended marking access points, picnic area, ball game area, area for observing insects/flowers and area for blackberrying.Standard form letter (2005): Walking, picnics, looking at wildlife with children/grandchildren, ball games

A/3/885

Ms B HaroldFarthings, The Green, Sarratt

1991-date User: to photograph wild flowers. Area used: the path parallel to the canal and all accessible areas to either side within Buddleia Walk. Not Long Valley Wood. Few times per year, during the flowering season (June-October). Has seen dog-walkers and joggers, and children playing on the grassy area. Tries to avoid busy times. Found the site by accident when walking along the towpath. Followed an obviously well used path into Buddleia Walk (F?). Access never obstructed or challenged, permission never sought or granted.

A/1/115

Ms C Hearnshaw10 Bateman Rd

1994-date User: for walking and exercise. Access: from Lavrock Lane (G?) or via Croxley Hall Wood and entering near the canal (F or E?). Currently using the site less frequently than previously, maybe 4 times per year. Walk along path through Buddleias and up to Footpath 11. Bird watching with son. Guide leader: has taken Brownies to the site for scavenger hunts on the flat area, to see bluebells in that part of Long Valley Wood which is behind the allotments, outdoor games on flat area. Been onto site with local mothers’ group with toddlers and pushchairs. Common to meet others (sometimes 7-10 people) on the

A/1/118

84

1993-date

1993-2005

site, mostly dog-walking or exercising. Seen a kite flyer and picnickers. Mostly locals using the site. Never been challenged, never granted permission. Has not seen any fences or gates in the site. Never seen anyone doing maintenance on the land or its boundaries or been impeded by work on the land. Map appended on which areas for various activities marked.Evidence Questionnaire: Known as Buddleia Field. Pattern of use remained the same. Access: via public footpaths. Use: for exercise, walking with friends and family, bird watching with 10-year-old son. Frequency: 3-4 times a year. Immediate family uses for recreation. Brownie leader 1994-2002. Has taken her group of Brownies there at least 3 times over the years for scavenger hunt, to see bluebells in nearby wood and to play. Other Brownie and Rainbow groups have had similar evenings on the land. Ticked: children playing, fishing, dog-walking, picking blackberries, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: London Underground. Never seen on the land by owner or occupier to her knowledge. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): not specified

A/3/596

A/3/895Mr & Mrs K Honour34 Harvey Rd

1975-2007

1975-2005

Lived at current address for 44 years. Used land since 1975 with free access for walking and cycling. Allowed children to play on application land unsupervised. Now stroll through and return by the canal or Frankland Road. Use different access points and different paths. Regularly see people walking dogs past their house. Never prevented from using the land. They have never encountered a fence or gate preventing them from accessing the land. They have never seen the owners on the land.Standard form letter (2005): Walking, cycling

A/2/273

A/3/901

Mrs B Horseman29 Bateman Rd

1986-date1990-2005

Joint statement with Mr HorsemanJoint standard letter with Mr Horseman

A/1/121A/3/902

Mr J Horsfall42 Frankland Cl

1981-date Use: to train and walk his Police dog and his own dogs until 2000. Daily, once or

A/1/125

85

twice a day. Access points: G and a number of other points not specified. Areas used shown on attached map, but considers has walked virtually every bit of the site. Family came with him on occasion, for walking, cycling, playing. Held several outdoor children’s parties there. After 2000 use went down to a few times a week. Unusual not to see others using the site, except when he went there at night (2-10 people). Dog walkers, cyclists, horse riders and walkers. Would chat with other locals. Over the years got to know a number of other users; the majority were local. Access never obstructed. Saw old fencing, but assumed it was left over from when the land was a dump and that the land had been returned to public use.Travellers started living on the site in the winter of 1989. Around 6 caravans at most. Site fairly small. From where the Lavrock Lane entrance starts for 50 yards at most. Mr Horsfall contacted LU and local authorities to get them removed. He continued walking the site, but left his dogs at home. Travellers were not friendly. Mr Horsfall participated in the clean-up after the travellers left. Earth barrier put in at the entrance to prevent vehicular access, but pedestrian access left to the right hand side.A number of years later saw several men working clearing a small area of land just by the Lavrock Lane entrance (roughly where the travellers had been) with machinery. Telephoned LU and asked them to check whether the people were legitimate. Work then stopped within a fairly short time. The earth barrier was increased to a large mound of earth, but pedestrian access was left to the right of the mound. Photographs appended (dated 1987) showing Mr Horsman and his family on the buffers, on a path which appears to be what has become Buddleia Walk, and on the open green area.

Mr & Mrs HumphreysThe Weather HouseCroxley Hall Woods

1988-2007 Lived at current address since 1987. Used application land for recreational and exercise purposes since 1988. Access gained by the track. Often accompanied by family members. Frequency: several times a month in all seasons. See mainly local residents using the area, but some others who they do not recognise. Never been challenged or denied access. Never met

A/2/275

86

anyone claiming ownership.Mrs J Jenkins50 Frankland Rd1984-1987 lived in Barton Way, Croxley Green

1987-dateSome use from 1984

1986-2005

When lived in Barton Way regularly walked throughout the whole area. Since moving to Frankland Road, regular user of the whole area for dog walking, throughout the year (possibly twice a day) until dog died in 1997. Walking (not as frequently since dog died). Also picnics with family and friends. In the past used site as a jogging circuit. Played with children in the woods and played games with children in the Buddleias (2-3 times a week). Children used land to meet friends when older. Husband regularly walks on site. From November 2005 new dog: back to walking every day, occasionally 3 times a day. Met many people when using site, some of whom she recognised as being local, walking, dog walking, cycling, with children. Never granted permission, never challenged, never encountered any obstruction, fence or gate. Never seen any maintenance being carried out on land or boundaries other than by local residents or any notices until 2005. Map appended showing access points (G, E or F, J, K and A).Standard form letter (2005): walking, jogging, cycling, bird spotting, picnics, games

A/1/130

A/3/911

Ms S Kassemzadeh20 Bateman Rd

1987-date

1988-2005

User: running, at least once a week. Access points: at least 3 from towpath, and access points onto Harvey Road and Lavrock Lane. Over the years these have developed into well-trodden trails used by runners walkers and cyclists. Knows of a number of residents of Bateman Road who regularly walk on the site. Runs with others. Knows others who use the site, including runners and walkers who live on the far side of Croxley. Believed site belonged to the public. Never seen any signs. Saw fence behind IMC works.Standard form letter (2005): running and walking between the canal and Harvey Road to Watford Road or to All Saints Lane

A/1/133

A/3/916

Ms J McLay (Creak)58 Frankland Rd

2000-dateSome use 1987-2000

Lived in Oxhey Hall and had a horse stabled in Rickmansworth 1987-2000 which she rode each week through the site. Also cycled to the area when her children were young and had family outings to the area.Since moving to Frankland Road walks in

A/1/142

87

the site every day, using different paths, with her dog. Access: initially (B), nowadays (J or K?) Has used access point onto Mill Lane (A or L?). Also blackberry picking. Met neighbours and friends on many occasions. Large number of local people use site. Unaware of owners, no knowledge boundaries existed, no secure fencing or gate or other obstruction, only very rusty and dilapidated remains of fencing in a few places. No signs until 2005. Never seen owners undertaking work. Never sought permission. Map appended showing routes and access points (L, A, C, D, G, I?, J and K).

Mr R G Mitchell10 Oakleigh Drive

1964-date

1964-2004

1965-2005

From 1964 the orchard used by Mr Mitchell’s foster brother and his friends to play. By the time Mr and Mrs Mitchell’s sons were born and were old enough, much of the fencing around the dump had disintegrated and it too was being used as an adventure playground by the local children. Access: L or A? at first; later by towpath, G, and J and K. User: at present about twice per week for nature observation. Previous use depended on commitments and interest. Met others with similar interests on the site and dog-walkers, walkers with children, horse-riders, cyclists and people litter-picking. Never given permission, never challenged. Avoided travellers’ site because of a previous experience with travellers’ dogs.Evidence Questionnaire: Known as Railway Dump. Pattern of use remained the same. Access: mostly through gaps in rotting fencing. Use: nature observation. Frequency: about 50 times p.a.. Immediate family: used in the past for play (2 sons). Ticked: children playing, dog-walking, picking blackberries, bird watching, people walking, bicycle riding. Owner/occupier: not known. Does not believe owner/occupier has seen him on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): nature study, jogging, walking, accompanying young children at play

A/1/146

A/3/658

A/3/954Ms N Murtagh2 Oakleigh Drive

1996-date Use: walking, blackberry picking, bluebells, nature watching. Nature walks, treasure hunts and Easter Egg hunts with

A/1/148

88

1996-2005

son (aged 7 at date of statement). Access: B in summer, in winter L or B. Exit F or B. Brought a group of Beaver Scouts for a treasure hunt. Tend to keep to paths parallel to canal. Frequency: at least every couple of months, more in fine weather. Meet others dog-walking or walking (up to 12). Thinks most are local. Never seen anyone representing an owner on the land. Access always open: no signs, fences or gates. Many access points. Never sought permission. Never seen maintenance or commercial work of any sort on the land or its boundaries. No signs until 2005. Map appended showing areas used for particular activities and exit and entry points.Standard form letter (2005): walking, blackberry picking, bluebell viewing, children’s nature walks.

A/3/881

Mrs S Maunders4 Oakleigh Drive

1997-date

1990-2005

Mr Maunders also played in Croxley Woods throughout his childhood (mid 1970s).Use: playing with children in the woods, play football on grassy area, cycling, Mr and Mrs Maunders use woods and adjoining land as part of their regular running circuit. Frequency: at least weekly in summer. Access points: B, A or L and K or J. Meet others when using the land: dog-walkers, runners, cyclists, people strolling and enjoying nature. Not aware of ownership. Never seen anyone representing an owner on the land. Never seen maintenance or commercial work of any sort on the land. No signs until 2005. Map appended showing areas used for particular activities and access points L, E or F and G.Standard form letter (2005): walking with kids, blackberry picking, cycling

A/1/151

A/3/942

Ms J O’Beirne87 Frankland Rd

1989-date Use: with children to play football, cricket etc, butterfly spotting, blackberry picking. Open space has become smaller over time as Buddleias have spread. Children 15, 17 and 19 at time of statement tend to go with friends. Mr and Mrs O’Beirne walk at least a couple of times a month. Access: point J. See others using the site (4-6), whom they do not always recognise, generally walkers. Unaware of identity of owners of land prior to the application. Does not know if they have seen her on the land. Never sought permission, access never prevented. Never encountered a fence or gate, or any other

A/1/153

89

1989-2004

obstruction. Never seen anyone carrying out maintenance work on the land. No signs prior to 2005. Photographs of a cricket game on the open space dated August 2003 appended. Map appended showing access points K, J, G and E or F.Evidence Questionnaire Known as Long Valley Wood and the Buddleias. Pattern of use remained the same. Access: from back garden, across allotments and into woods. Use: for family recreation (games: cricket, football, hide and seek) and walking. Frequency: once a month at least. Immediate family: use for same. Brownies use the land for some of their meetings. Ticked: children playing, rounders, dog-walking, team games, picking blackberries, football, cricket, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: believed to be LUL. Believes owner/occupier has probably not seen her on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

A/3/663

Mr P Rowe18 Frankland Cl (since 1997)

Previously 49 Dickenson Sq, Croxley Green and 109 Winton Drive, Croxley Green

1984-19901994-date

1984-1990 then1994-2004

1984-1990 and 1994-date used as part of a running route. 1990-1994 not living in the area. 1997-date used on a daily basis for dog walking. Used by family for walks, games, picnics, blackberry picking, and football. Used field for golf practice. Access always open. Never met anyone claiming to be a representative of the owners. Never refused permission to go onto land. All maintenance carried out by local residents. Map appended showing network of paths throughout site, recreational areas and access points.Evidence Questionnaire Known as the Buddleia Walk and Long Valley Wood. Pattern of use remained the same. Access: land open and freely accessible all the time he has used it with no evidence of any upkeep by the owners. Use: from the early 1980s as part of running route. Since moving back to the area in the mid 1990s, dog walking, family walks, running, family picnics on the Buddleia Field. Frequency: at least once a day, often twice. Immediate family: use for family walks, picnics, etc. Scout and Guide groups use the. Ticked: children playing, dog-walking, picking blackberries, football, cricket, bird

A/1/160

A/3/688

90

1984-2005

watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: believed to be LU. No one occupies the land. Believes owner/occupier has not seen him on the land. He has never seen anyone from LU on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): running, dog walking, photography, picnics, nature walks with daughter

A/3/985

Mr M Saunders11 Hazelwood Rd

1992-date Also lived at the same address from 1961-1985. Lived elsewhere in the locality 1992-2002. Use: as a child. Since 1992 with his own children. Football on open space, walking the length of the site to gain access to Croxley Hall Wood, or on circular routes through the site and along the canal towpath. Occasional bike rides through and around the site to meet up with the Ebury Way. Primary areas used: walkways through woodland, central grassland area, and Buddleia Walk. Frequency: no less than once a fortnight during the colder months, more frequently during spring and summer: then most weekends once or twice. Access: from Mill Lane (L), railway bridge/tow-path (F), end of Harvey Road (IMC) (G?), alley-way along Frankland Road (K). Meets others, neighbours and other local people, walking, cycling, horse riding and dog walking (up to 6 during a normal hour and a half’s visit). Unaware of owners until recent planning applications. Never seen any boundaries differentiated around or within the site. Various disintegrating internal fence-lines not restored as they have collapsed or become overgrown over the years. Never been approached by anyone purporting to be an owner, never challenged. Never encountered a gate or fence or any other obstruction preventing access before or since June 1983. Never seen any owner carrying out maintenance or any commercial activity before or since June 1983. No signs until 2005. Obvious access points, plus smaller points which have appeared or developed over time to overcome natural obstructions following storm damage or the like.

A/1/164

91

1970-2005Standard form letter (2005): sports, football, walking A/3/991

Mr T P Saunders49 Frankland Rd

2003-dateplus earlier use

1976-2004

1975-2005

Use 1975-unspecified date (during time at Harvey Road Primary School and Rickmansworth Secondary School – 1975-1987?), playing as a child with friends: access primarily K, but others used. Cycling, building camps and football on the grassy area. Dog-walking whilst at secondary school.2003- use with family since moving to 49 Frankland Road for family walks, and wildlife spotting. No permission, no challenge, not stopped from accessing land. Vast majority of land remains without fences or gates. Seen other local residents using the land throughout period of his use.Evidence Questionnaire Known as Long Valley Wood or Croxley Moor. Pattern of use remained the same. Access: via footpath. Use: for family picnic, football, general play, showing children wildlife. Frequency: fortnightly in summer (used weekly as a child). Immediate family: use for walks and picnics. Ticked: children playing, rounders, fishing, dog-walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: only recently known due to proposed development. Occupier not known. Believes owner/occupier has not seen him on the land. Permission never sought nor granted: thought not needed, assumed common land – no clear fences. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): no activities specified

A/1/166

A/3/704

A/3/992Mr & Mrs Secker88 Frankland Rd

1985-date Use: walking, recreation and access to the towpath, with visiting friends and their dogs and with grandchildren for games on Buddleia Walk and Long Valley Green. Frequency: regular basis from early Spring to late Autumn. Meet other members of local community dog-walking, jogging or cycling through to the towpath. Never challenged. No signs until 2005. Never sought permission. No fences or signs restricting the use of the land. They

A/1/173

92

Mrs L Secker

Mrs L Secker

1985-date

1985-2005

understood it to be common land. Never impeded or obstructed by any work being carried out on the land. Map appended on which paths marked.Evidence Questionnaire Known as Long Valley Wood. Pattern of use remained the same. Access: via public footpath in Frankland Rd. Use: walking. Frequency: most weeks, once a week. Immediate family: use for walking and relaxing. Ticked: children playing, fishing, dog-walking, picking blackberries, football, cricket, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: believed to be LT. Believes owner/occupier has probably not seen her on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking, blackberry picking, cycling

A/3/716

A/3/998

Mr B Sharp7 Nuttfield Close

1983-2005

1983-2005

Use: for recreation, including rounders with children and grandchildren and their local friends, blackberrying, bird-spotting and walking. Use prevented by health problems since 2005. Frequency: up to a dozen times a year in spring, summer and autumn. Access points: via Harvey Road or when coming from Rickmansworth, from Lavrock Road.Recognised other users from Watford, Croxley Green and Rickmansworth. Had assumed land belonged to Three Rivers DC. Never sought permission. No boundary markings. Identity of owners not advertised. No one prevented use. Never encountered fence, gate or obstruction preventing public access. There are many access points. Never seen any maintenance. Map appended on which main areas of use marked, and area used for ball games marked.Standard form letter (2005): rounders, blackberrying, walking, bird spotting

A/1/175

A/3/999

Mr A P Sheppard55 Harvey Rd(since Nov 1986)

1978-date 1978-1986 walking. 1986-date: dog walking, cycling, recreational games with his children, blackberry picking. Using well-defined paths through the wood and along the Buddleia Walk, down to the canal, and the open area at the Mill Lane end. Frequency: 1986- date: many times a week (6-7). Prior to 1986, less frequent.

A/1/177

93

1978-2005

Access: from Lavrock Lane (G and I), from Footpath 11 (J and K), from the towpath (F?) and from Mill Lane (A). See others using the area (at least 3-4 every time, more when the bushes are in flower), usually dog-walkers, some of whom he recognises as members of the community, but others he does not recognise and assumes to be from outside the area. Never been granted permission, never challenged. Site never fenced off, except in 2004. Never seen maintenance being carried out other than by local residents (in which Mrs Sheppard has participated). Access never impeded by work on the land. No signs restricting access. Map appended showing access points.Standard form letter (2005): blackberry picking, walking, cycling A/3/1000

Mrs J Snell15 Frankland Cl

Mr and Mrs Snell

1980-2007

1980-2004

Lived at current address since October 1980. Walked on the application land since moving to current address. Access: from the track from the footpath at the end of Harvey Road. User: walking, playing with his children, blackberrying. Frequency regularly, and certainly weekly between 1986-1999, when children were younger, at all times of year, weather permitting, usually accompanied by her husband and two children, and sometimes by other family members and friends. Usually met other families and walkers using the site, some of whom she recognised as local. It would be unusual not to meet at least one or two other groups on each walk, more in good weather. Never sought nor granted permission. Access has never been challenged. Access never obstructed by gate or fence between June 1984 and June 2004. Never seen anyone doing maintenance on the land. Never seen a notice prohibiting or restricting access, prior to 2005.Evidence Questionnaire: Known as Long Valley Wood or Buddleia Wood. Pattern of use remained the same. Access: along a track from the footpath which runs from the end of Harvey Rd. Use: walking. Frequency: in the past: once a week at weekends. Not so regularly recently. Immediate family: use for walking. Community activities: local primary school (Harvey Road) uses it for nature studies. Ticked: children playing, dog walking,

A/2/277

A/3/726

94

Mr & Mrs Snell 1980-2005

picking blackberries, picnicking, people walking. Owner: LU? Not occupied. Do not believe owner/occupier has seen them on land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking, blackberry picking, nature observation, relaxing

A/3/1003

Mrs M Tatham2 Hazelwood Rd

1967-date

1976-2005

Use: from 1968 able to wander freely over the area, gathering raspberries, blackberries, elderflowers and elderberries. No reason at that time to suppose it was private land. No restrictions to access, well-defined paths from Mill Lane to Lavrock Lane. Officer in Girl’s Brigade 1976-date: led hikes and litter-picks. Remembered rubbish from LU being dumped as distressing because it destroyed the habitat, but found insulators to examine and old lamps. Seen others throughout period: walkers, dog-walkers, cyclists, horse riders and bird-spotters. The only stranger she ever saw was a traveller/scrap merchant removing bolts from the sleepers at the Lavrock Lane access. She assisted in the first clean-up when the Council put skips down the land to gather rubbish from Buddleia Walk and the surrounding area. The land to the rear of old Nuttfield House (Mr Weston’s land) has never been fenced. There are no old posts or signs of fencing. The only boundary is a small section of wall at the bottom of Mill Lane which was adjacent to the cottages which were there. The orchard area includes old varieties of many fruit trees. She has spoken to Mr Weston on many occasions and he has never mentioned that he is the owner. She had always understood that the land was owned by a builder called Pitkin. The whole are has always been open. She cannot recall any barriers anywhere to prevent her walking and at times taking a pushchair along. She had understood that the area had been given to the Council who grassed it for a playing field. Map appended on which network of paths drawn.Standard form letter (2005): walking, bird watching, Girls’ Brigade, picking up litter, picking yellow raspberries and blackberries

A/1/183

A/3/1013

95

Mr M Thomas54 Beechcroft Av

1973-date

1973-2005

Use: Dog walking, bird watching. Frequency: in the evening after work, and in the morning on Saturday and Sunday. Two sons used to play on the site until they grew up and moved away. Takes his granddaughter (aged 5 at date of statement) on occasion. Sees familiar faces often, usually dog-walkers. Quite often sees groups of local boys cycling, or playing in the open spaces. Never sought permission, been challenged, or had access obstructed by a fence, gate or any other obstruction. Never seen anyone other than local residents doing maintenance on land or its boundaries. No signs before 2005.Standard form letter (2005): walking, blackberry picking, bird spotting

A/1/185

A/3/1015Mr R Thompson19 Harvey Rd

1977-date

1977-2004

1977-2005

Use: formerly: dog walking, Frisbee, blackberry picking, approximately twice a week all year round. More recently: cycling to and from the Moor, approximately twice a week in summer, once a week in winter. Sees local people on the site (2-3 per visit), generally walking or dog-walking. Has seen others whom he presumed not to be local, walking, dog walking, horse riding and camping on the grassy area. Access never restricted by a fence or gate. No signs until recently. Never told that he should not be on the site. Map appended showing cycle routes and grassy area.Evidence Questionnaire: Known as the Buddleias. Pattern of use remained the same. Access: via Lavrock Lane. Use: walking, cycling and dog walking. Frequency: 2-5 times a week. Immediate family uses land (activities not specified. Ticked: children playing, dog-walking, picking blackberries, bird watching, people walking. Owner/occupier: not known. Does not believe owner/occupier ever saw him on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants: fencing was broken down when he first moved to the area then missing.Standard form letter (2005): walking, cycling and dog walking

A/1/186

A/3/746

A/3/1016Mrs B E Tomsett19 Frankland Cl(since 1970)

?- date Use: formerly: walking, playing with children when young. Children taken from Harvey Road school to site for nature

A/1/189

96

1969-date

1980?-2005

studies. Now: walking with friends and grandchildren. The local “Walking for Health” group to which she belongs uses the area as one of their walks. Always meets people she knows. Never barred from walking in the area by fences or notices. Knew IMC site was privately owned, but did not know that the orchard was. Nothing to indicate private ownership. Assumed LU had no further use for the land and had left it to go back to its natural state. Nothing saying that was private land. Map appended on which areas where children played and where nature studies were carried out and paths marked.Evidence Questionnaire: Known as Buddleia Wood. Pattern of use remained the same. Access: from Harvey Road. Use: walking, picking blackberries, formerly: taking her children into the woods to play and to discover wildlife. Frequency: about twice a month. Immediate family: use for walking, playing, for wildlife. Community activities: local Cubs, and Brownies and schools use the land for nature and wildlife, and have done to her knowledge since 1969. Ticked: children playing, fishing, drawing and painting, dog-walking, picking blackberries, bird watching, kite flying, people walking, bicycle riding. Owner: not known until recently. As far as she knew, unoccupied. Owner/occupier has not seen her on the land as far as she knows. Permission never sought. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants, and in fact a set of steps has been built for ease of access to the area in the woods.Standard form letter (2005): walking, taking grandchildren to the woods, picking blackberries

A/3/752

A/3/1019

Mr J White12 Beechcroft Av(since 1999)

1971-date Lived at three different addresses on Scotts Hill between 1966-1999 apart from a total of 24 months, not continuous, elsewhere.First used site in 1971, for recreation, dog-walking and as a route to his mother’s house at Scots Hill (exiting onto Lavrock Lane.Now visiting the site is not a main priority, although he has continued to use it regularly for recreations exercise, most recently with his wife on cycling

A/1/200

97

1967-2005

expeditions. Has known other local people in the past who use the site for exercise for themselves and their pets. Occasionally saw people that he knew during his walks or while cycling, but not often. Does not know whether other people came from out of the area or not.Never sought or been granted permission. Use never challenged. Have not noticed any signs or fences. Never seen anyone undertaking maintenance, but could not see that no maintenance has taken place.Standard form letter (2005): walking, cycling A/3/1037

Mr M Withington52 Frankland Rd

1997-2007 Lived at present address since July 1997. Used land since moved in for running. Access gained by a variety of routes: most commonly the footpath opposite his house. He crosses the application land either down to the lock and Moor or goes along Buddleia Walk to the canal by the railway bridge. He also regularly uses the access via the path from Lavrock Lane. Frequency: several times a week throughout the year. With the family, he walks through the application site, especially at bluebell time, and uses the tracks for children’s cycling to gain access to the Ebury Way. His wife also runs. He did not know who owned the land until recently, and had assumed it was common land. Never prevented from using the land by people or fences. Never sought permission to use it. Frequently sees dog walkers, other runners, ramblers and cyclists.

A/2/279

The following witnesses who did not give evidence at the inquiry submitted Evidence Questionnaires but no written statement. All the Evidence Questionnaires were completed in July 2004. Where these witnesses have also submitted responses to the standard form letter, I have included a summary of their response to the standard form letters here. I bear in mind that there has been no opportunity for cross-examination of these witnesses.

Name and address User Period Evidence Bundle refMs L Alexander1 Bateman Rd

1983-date Known as Buddleia Trail. Basic use remained the same, but number of local inhabitants using it for recreation has increased. Access: via Grand Union canal, via All Saints Lane, via Croxley Common Moor, via lane at the bottom of Harvey Road. Use: Dog walking, nature watching, football, cricket, rocket launching, bicycle

A/3/454

98

riding, children playing, picking blackberries. Frequency: twice a week. Husband uses as well for exercise and nature observation. Community activities: school nature trail, cricket and football matches. Used by schools and clubs. Seasonal activities: nature watching, harvesting berries. Ticked: children playing, rounders, drawing and painting, dog-walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner not known. Permission not sought or granted. No barriers or fences – assumed land part of local amenity. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

Mrs B Anthony43 Frankland Cl

1950-2000No longer using

1950-2005

Use changed – was timber storage. Access: open entry. Use: observe nature. Frequency: weekly when children were young. No longer uses. Community activities: school nature study. Ticked: children playing, fishing, dog-walking, picking blackberries, football, cricket, bird watching, picnicking, people walking, bicycle riding. Owner: Cambridge College. Permission not sought. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walks, blackberrying, nature observation with children, then with grandchildren, hide and seek etc, picnics.

A/3/466

A/3/772

R A Astbury 1956-19661987-date

1950-2005

Known as Croxley Wood. Pattern of use remained the same. Access: from Harvey Road. Footpath and towpath cross land. Use: walking, cycling. Frequency: 8-10 times p.a.. Used by immediate family for cycling. Ticked: children playing, dog-walking, picking blackberries, bird watching, kite flying, people walking, bicycle riding. Owner not known. Permission not sought or granted. No barriers or fences – assumed land part of local amenity. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): no activities specified

A/3/471

A/3/774

Mrs T Bass 1997-date Known as Long Valley Wood. Pattern of A/3/47699

47 Frankland Rd use remained the same. Access: via Frankland Road/ numbers 51-53. Use: to explore the woods and land with children, collecting leaves, looking for rabbits, birds and plants. Frequency: every month at least. Immediate family uses for same. Community activities: school nature trail, cricket and football matches. Used by schools and clubs. Seasonal activities: nature watching, harvesting berries. Ticked: children playing, fishing, drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: LRT. Owner has not seen her on the land. Permission not sought or granted. Never prevented from using. There is some very poorly maintained wire fencing in the woods, but in the time that she has lived at her current address she has never seen it maintained and there is easy access through it. She had never seen anyone in the wired-off section.

Mr & Mrs Brackley24 Frankland Cl

1983-date Known as Long Valley Wood. Pattern of use remained the same. Access: from adjacent footpaths and towpaths. Use: Dog walking, bird watching, picnics, rambles. Frequency: daily. Immediate family uses for recreation. Scouts/Guides may use the land. Ticked: children playing, fishing, drawing and painting, dog-walking, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: British Railways. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

Mrs J Bruni111 Frankland Rd

1985-date Known as Buddleia Walk, old Railway land. Pattern of use remained the same. Public paths all the way down it. Access: along the bridle path behind the allotments and down into the woods to the open land. Use: walking, or to get to the canal, bird watching, picnicking. Frequency: previously twice a week; once a month at time of Questionnaire. Immediate family uses for walking and cycling. Community activities: bonfire parties with music on summer evenings. Seasonal activities: walking in summer, tobogganing in snow. Ticked: children playing, fishing, dog-walking, picking blackberries, football,

A/3/491

100

1985-2005

bird watching, picnicking, people walking, bicycle riding. Owner not known. Last page of Questionnaire missing from bundle.Standard form letter (2005): activities not specified

A/3/802

Mrs P Clapham65 Harvey Road

1960-date

1960-2005

Known as Long Valley Wood. Pattern of use remained the same. Access: from footpaths. Use: dog-walking, walking. Frequency: constantly in the past, often at time of questionnaire. Immediate family no longer uses land. Ticked: dog-walking, picking blackberries, football, picnicking, kite flying, people walking and either bicycle riding or carol singing. Owner: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants to her knowledge.Standard form letter (2005): dog walking, walking with sons when young.

A/3/499

A/3/825

Ms S Clifford40 Oakleigh Dr

1965-dateintermittently18 years

Known as Long Valley Wood. Pattern of use remained the same. Access: from Croxley Hall Wood or the canal. Use: Dog walking and bird watching. Frequency: weekly at time of Questionnaire, formerly intermittent. Immediate family uses for same. Ticked: children playing, dog walking, bird watching, people walking, bicycle riding. Owner: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

A/3/505

Mrs SJ Colbourne2 Frankland Cl

1980-date Known as Buddleia Walk/ Long Valley Wood. Known since 1972. Pattern of use remained the same. Access: through woods from back garden, down public footpath, turn left into track to Buddleia Walk and canal (G?). Use: take children to canal, collecting wild flowers, and dog walking. Frequency: daily to walk dog previously; once a week now dog is dead. Immediate family used when they were children. Community activities: Boys’ Brigade trips, Harvey Road School used to walk and collect flowers. The wild flower collections have now stopped. Seasonal activities: bird watching. Ticked: children playing, dog-walking, picking blackberries, bird watching, picnicking, people walking, bicycle riding. Owner: Railways. Not seen on the land to her knowledge. Permission

A/3/510

101

1985-2005

never sought nor granted. Prevented from using the land when the horse field was being used as a tip or infill. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants in her time.Standard form letter (2005): dog walking, showing children the flowers etc A/3/828

J W Cornwall21 Harvey Rd

1965-date

1965-2005

Known as Long Valley Wood, Buddleia Walk. Pattern of use remained the same. Access: unrestricted pedestrian access. Use: walking, with friends and children, and now grandchildren (2-12 years) access to canal, goat walking, dog walking, kite flying, picnics, games, blackberrying, wild flower collecting for school projects. Frequency: formerly 3 or 4 times a week; at time of Questionnaire: once per month on average. Immediate family uses for same. Community activities: Scouts, Girls’ Brigade, Boys’ Brigade, School curriculum activities, for many years. Ticked: children playing, rounders, dog-walking, picking blackberries, picnicking, kite flying, people walking, bonfire parties, bicycle riding and other: horse riding. Owner: known, but not specified. Not occupied for 40 years except for period of tipping by London Underground more than 20 years ago. Never seen by owner on the land. Permission never sought nor granted. Never prevented from using. At the start of tipping some fencing was erected, but it never prevented access. This was more than 20 years ago and was never maintained or repaired. As soon as it was erected people working on the far side of Common Moor broke through and it was never repaired.Standard form letter (2005): no activities specified

A/3/521

A/3/836

Mrs C Critcher113 Frankland Rd

1952-19881994-2004

Known as Long Valley Wood / Buddleia Wood Walk. Pattern of use remained the same. Access: from back garden and allotment, either from Lavrock Lane or down the steps provided by Croxley Green PC into the woods and directly into Long Valley Wood. Use: recreation and relaxation. Enjoying the wildlife and bluebells in season. Walking and dog walking. Frequency: previously daily; at time of Questionnaire: weekly. Immediate family uses for walking, dog walking, bird watching, fishing. Community activities:

A/3/526

102

children’s picnics/games, during summer weather permitting. Ticked: children playing, rounders, fishing, drawing and painting, dog-walking, team games, picking blackberries, community celebrations, football, cricket, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

Mr & Mrs Dean39 Harvey Rd

1984-2004

1990-2005

Known as The Buddleia Wood. Pattern of use remained the same. Access: on foot/ by bicycle. Use: relaxation, family time, talking, enjoying countryside, dog-walking, bike riding with friends and family, walking to Rickmansworth, hazelnut gathering, looking at bluebells. Taking children cared for as a childminder. Meeting place for their children. Frequency: regularly. Immediate family uses when visiting. Community activities: nature trail, teddy bears’ picnic for local childminders or families with children, tidy-up days for local residents, bird watching. Ticked: children playing, drawing and painting, dog-walking, team games, bird watching, picnicking, kite flying, people walking, bicycle riding. Added: leaf printing, collecting small articles for craft to do with children cared for as a childminder. Owner: not known. Not aware of being seen by owner or occupier. Permission never sought nor granted. Never prevented from using. Hardcore was place by lorry at the entrance to stop travellers with caravans destroying the area and leaving rubbish. Permission was given for this by local police and council.Standard form letter (2005): walking, jogging, nature walks with children.

A/3/532

A/3/844

Mr M Delaporte37 Frankland Rd

1983-date Known as Long Valley Wood and Buddleia Field. Pattern of use remained the same. Access: through Long Valley Wood/Croxley Hall Wood. Use: walking, playing football/cricket with son, picnicking. Frequency: previously: very often in summer, less frequently in winter; at time of Questionnaire: about fortnightly. Immediate family uses for walking. Ticked: children playing, rounders, dog-walking,

A/3/537

103

Mr & Mrs Delaporte

1981-2005

picking blackberries, football, cricket, bird watching, picnicking, people walking, bicycle riding. Owner and occupier: London Underground. Very unlikely to have seen him on land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants. Accompanying letter: used for 22 years. When LT stopped using the area for tipping purposes the site gradually became overgrown and was left to its own devices. There was no maintenance of the site and no groundwork was done so local residents began to walk the site and use it for other activities, such as picnicking or playing ball games.Standard form letter (2005): not specified

A/3/846

Mr M Eley38 Watford Rd

1981-date Known as Long Valley Wood. Pattern of use remained the same. Access: from the towpath. Use: nature photography, walking, mountain biking. Frequency: once a month, more often in summer. Immediate family uses for mountain biking and walking. Ticked: dog walking, people walking, bicycle riding. Owner: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

A/3/543

Ms R Finnegan3 Frankland Rd

1996-date Known as Croxley Hall Wood/Long Valley Wood. Pattern of use increased 1998-2004. Access: from Mill Lane and Harvey Road, Lavrock Lane. Use: walking, playing with children, looking at wildlife and plants, kite flying, picnic, jogging. Frequency: 3 times a week average. Immediate family uses for same. Community activities: bug catching, hunting butterflies, woodland treasure hunt during school holidays once a week. Used by Rainbows. There are more events on the land in the summer. Ticked: children playing, drawing and painting, dog-walking, picking blackberries, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): playing with

A/3/559

104

1998-2005children, walking, cycling

A/3/863Mrs Y Fitton22 Winton Cr, Croxley Green

1964-date Known as the old orchard. Pattern of use remained the same. Access: from Mill Lane. Use: young children walking and playing, dog walking, bike riding, walking. Frequency: every day (1980-1996), formerly once each week, now approximately once a month. Husband uses for walking, children have moved away. Ticked: children playing, fishing at river, drawing and painting, dog-walking, picking blackberries, bird watching, picnicking, people walking, bicycle riding. Football and cricket: not in wooded part. Owner: British Rail owns part of the land; the rest is “open”. Occupier unknown. Never seen by owner. Permission never sought nor granted. Never prevented from using. There are large (almost permanent) holes in the fencing.

A/3/564

Mr C Foley 2003-date

2003-2004

Known as Long Valley Wood or Buddleia Wood. Pattern of use remained the same. Access: from garden gate. Use: walking with children, picnicking, walking, blackberry picking, looking at plant and wildlife, pushchair walking, educating the children, kites. Frequency: on average once a fortnight. Immediate family often accompanies him. Scouts and schools use the land. Seasonal: blackberry picking, bird watching. Ticked: children playing, fishing, drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: believed to be Metronet. No one currently occupies the land. Don’t know whether owner has seen him. Permission never sought nor granted – he simply followed others who use the land. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking, kite flying, picnicking, educating the children, football, cycling

A/3/569

A/3/866

Mr & Mrs Grogan109 Frankland Rd

1999-date Known as Long Valley Wood or Buddleia Walk. Pattern of use remained the same. Access: through rear gate of house, across allotments and into Long Valley Wood. Use: walks, bike rides, kite flying, blackberry picking, Frisbee. Frequency: every week. Immediate family uses for

A/3/574

105

2001-2005

walking, cycling, etc. Used by local school: children taken every spring to see bluebells especially off Lavrock Lane and parts of Long Valley Wood. Have accompanied the children. Seasonal activities: blackberrying, fishing. Ticked: children playing, fishing, drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: had thought Crown or local council. Now know it is railway land. Not seen to their knowledge on the land by the owner. Did not believe permission required. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): family walks, jogging, picnics, playing games A/3/882

T D Haynes18 Bateman Rd

1985-date

1985-2005

Known as Long Valley Wood. Also known as railway dump. Pattern of use remained the same. Access: via Grand Union Canal towpath or Lavrock Lane. Use: pursuit of model aircraft and exercise of dog, walking. Frequency: weekly. Ticked: dog walking, picking blackberries, people walking, bonfire parties, bicycle riding. Owner: not known. Not seen on land by owner. Permission never sought nor granted. Never prevented from using. Fenced when in use as the railway dump.Standard form letter (2005): dog walking, walking the nature area

A/3/591

A/3/894

Mrs J Hollands40 Frankland Rd

1994-date Known as Long Valley Wood/ Buddleia Walk/ tip site. Pattern of use remained the same. Access: via public footpath from Frankland Road. Use: walking the dogs, general recreation, walking, cycling. Frequency: every day. Immediate family uses for same. Ticked: children playing, drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: London Underground. Occupier not known. Does not know whether owner or occupier has seen her on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants. Letter appended: Using since June 1994 for recreation. 2 children then 5 and 3. Never refused access

A/3/601

106

by notification or barriers erected by the owners. Acquired 2 dogs, which are walked in the area on a daily basis. There is a regular dog group which meets at various points around the area whilst exercising their pets.

Mrs M Horsfall42 Frankland Cl

1980-2004

1980-2005

Known as Long Valley Tip or Buddleia Field. Pattern of use remained the same. Access: open footpath. Use: dog walking, walking, children’s parties (1988/89), tidying up the land after travellers had encamped there. Frequency: daily. Immediate family: children used land until they moved elsewhere for walking, playing and cycling. Land used for School nature lessons from 1983 onwards. Ticked: children playing, fishing (for access), drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, people walking, bicycle riding, other: children’s parties. Owner: believed to be British Rail. No one currently occupies the land. Don’t know whether owner has seen her. No one has ever approached her. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): dog walking, cycling, blackberry picking

A/3/607

A/3/903Ms A Hutson20 Harvey Rd

1995-2004

1995-2005

Known as Long Valley Wood. Pattern of use remained the same. Access: various ways: end of Harvey Road, behind Frankland Road allotments, down Mill Lane. Use: weekend walks, bike rides and nature trails with the children, butterfly watching. Frequency: usually every weekend. Immediate family: use for same. Ticked: children playing, fishing, dog-walking, bird watching, people walking, bicycle riding. Owner: previously believed to be local parish, now believed to be LU. There are no gates/signs to say permission is needed. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants: it is just part of the beautiful local greenbelt countryside.Standard form letter (2005): cycling with the family, insect watching, teaching the children about wildlife and plants

A/3/612

A/3/905

Mr D Judge 1980-2004 Known as Long Valley Wood. Pattern of A/3/618107

77 Frankland Rd

1972-2005

use: used originally as a Cub and Scout. Now use it as a pleasant place to walk the dog and take his children. Access: from Harvey Road/Lavrock Lane or Croxley Moors. Use: Cub/Scout expeditions, nature trails with his children, dog walking, mountain bike riding. Frequency: most days. Immediate family also use land (activities not specified). Land is still used by Cubs and Scouts, so far as he is aware. Ticked: children playing, rounders, fishing, drawing and painting, dog-walking, picking blackberries, bird watching, picnicking, people walking, bicycle riding. Owner and occupier: not known. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): dog walking, cycling trips with his children, previously with Cubs and Scouts

A/3/914

Mrs B Lavington119 Frankland Rd

1980-2004

1984-2005

Known as Buddleia Field or The Dump. Pattern of use remained the same, apart from a few months when travellers camped on the land. Access: via Lavrock Lane, Mill Lane and Footpath 14. Use: recreation, dog walking, walking and bird watching. Frequency: previously 5 times a week, now once a week. Immediate family do not use the land at present, but did so in the past (c.1980). Land used for Scout Meeting. Ticked: children playing, dog-walking, picking blackberries, bird watching, picnicking, people walking, bicycle riding. Owner and occupier: known but not specified. Does not believe owner or occupier has seen her on the land. Permission never sought nor granted. Never prevented from using. Attempts by notice or fencing or other means to prevent or discourage use by local inhabitants: gates off Lavrock Lane and some fencing which were not maintained and collapsed.Standard form letter (2005): no activities specified

A/3/624

A/3/925Ms V Lofty9 Old Barn Lane, Croxley GreenPreviously 17 Lewes Way, Croxley Green

1976-2004 Known as Long Valley Wood/ Buddleia Walk. Pattern of use remained the same. Use: walking, horse riding, dog walking. Frequency: previously twice weekly, sometimes 3 or 4 times a week, now weekly. Immediate family: use for same. Ticked: children playing, drawing and painting, dog-walking, picking

A/3/629

108

blackberries, community celebrations, football, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding, other: horse riding. Owner: believed to be LT. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

Ms C Maddison51 Frankland Rd

1950-2004 Known as Buddleia Walk. Pattern of use remained the same. Access: public footpath 11, turn right, Mill Hill, Lavrock Lane, steps into wood along “back path” behind Frankland Rd. Use: walks, dog walking, walking through to towpath, seeing bluebells, playing, picnicking, currently mostly walking. Frequency: previously: weekly on weekends as a child, daily walking dog. Now: weekly. Immediate family: use for walking. Used the land as a Brownie (1958-1959), weekly in summer; believes Cubs and Brownies still use land. Ticked: children playing, rounders, fishing, dog-walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking. Street bonfire party organised in the pit behind 57 Frankland Road in 1957/58. Owner: believed to be LT, believe part was owned by Gonville & Caius. Does not know whether owner/occupier has seen her on the land. Permission never sought nor granted. There was a fence at one time in Long Valley Woods behind Frankland Road, but it was always cut down overnight by persons unknown.

A/3/633

Ms Linda Matthews53 Frankland RdPreviously New Road, Croxley Green, and Ivy Lane, Grove Cr, Croxley Green

1955-2004 Known as the Woods and Buddleia Way. Also known as the Rabbits. Pattern of use remained the same. Access: walks from her house. Use: walking, running, observing wildlife, improving health, picnics. Frequency: most days. Immediate family: use for health improvement, ball games, camping, picnics. Community activities: horse riding schools, ramblers, schools walking. Organisations which use land: horse riding organisations, young people’s groups, ramblers, schools. Ticked: children playing, rounders, drawing and painting, dog walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bonfire parties,

A/3/643

109

1983-2005

bicycle riding, other: horse riding, camping, barbecues, watching rabbits and wildlife. Owner: believed to be the Queen and the people. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitantsStandard form letter (2005): hide and seek, walking, rounders, blackberry picking.

A/3/940

Ms Lisa Matthews53 Frankland Rd

1984-2004 Known as the Woods, Buddleia Way, Rabbits Patch. Pattern of use remained the same. Access: on a footpath through the woods on foot. Use: with family for education, games, school projects, exercise, dog walking, walking, jogging, drawing the flowers, playing ball, watching rabbits and birds, learning about local wildlife, cycling, picnics, football, badger watching. Frequency: at least 7 times a week. Immediate family: use for walking, jogging, cycling, walking the dog, watching the wildlife, drawing and painting. Community activities: local youth group used to take walks in the area. Groups of children seen on the land. Seasonal activities: painting, flower-pressing, photographing wildlife. Ticked: children playing, rounders, drawing and painting, dog-walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding, other: horse riding, camping, wildlife watching. Owner: assumed to be public land owned by the Crown and country. Permission never sought nor granted: no apparent need, or any clear boundaries. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants, and in fact a set of steps has been built for ease of access to the area in the woods.

A/3/648

W Milne7 Frankland Close

1997-2004 Known as Long Valley Wood. Pattern of use remained the same. Access: on foot. Use: walking, walking with son and grandsons, previously pushing grandsons in prams every day, enjoying nature. Frequency: previously every day when the weather is fine, now about once a week. Immediate family: grandsons use for cycling. Seasonal activities: fireworks on Guy Fawkes day. Ticked: children playing, fishing, drawing and painting, dog

A/3/753

110

1997-2005

walking, picking blackberries, football, bird watching, kite flying, people walking, bicycle riding. Owner/occupier: not known. Does not believe owner/occupier has seen her on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking, cycling with grandsons, sledging in the snow

A/3/952

Ms T O’Brien5 Frankland Rd

1998-2004

1987-2005

Known as Buddleia Field. Access: walked down Mill Lane towards the canal. Use: exercising sister’s dogs, observing wildlife, walking, bird watching, feeding swans and ducks, picnics. Frequency: three or four times a month. Immediate family use the land for walking and picnics. Ticked: children playing, fishing, dog walking, bird watching, picnicking, people walking. Owner: believed to be LT. Believes owner/occupier has not seen her on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking, jogging, bird/butterfly spotting, blackberry picking, dog walking and picnicking

A/3/668

A/3/962

Mr C Paine6 Frankland Cl

1982-2004 Known as Long Valley Wood or Buddleia Wood. Pattern of use remained the same. Numerous paths, some marked, some established by usage cross the land. Access: walks from his back gate, through bluebell woodland to bridle path then along marked footpath to application land. Use: walking, contemplating life, nature watching, self-education, fishing on canal, bird watching. When children were smaller: games, exercise and education. Frequency: most days. Immediate family use the land. Community activities: local groups such as Scouts, Guides and schools use the land for recreation and education (although no recent personal knowledge of this as his children are now grown up). Maybe Herts and Middx Bat Group. Occasional clean-up days. Seasonal activities: picnics, unorganised family games, bird watching, blackberry picking. Ticked: children playing, fishing, drawing and painting, dog walking, picking blackberries, football, bird watching,

A/3/673

111

1982-2005

picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner: believed to be LUL and/or its predecessors/successors in title. No one has occupied the land for over 20 years. Owner/occupier has not seen him on the land to his knowledge. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants. Three Rivers District Council erected a physical barrier to stop vehicular access to stop dumping etc, but the footpath access was not barred. No notices erected to restrict access or intimate private property.Standard form letter (2005): playing with his children, walking, access for fishing, picking blackberries, bird watching, bonfire parties, general nature study

A/3/966

Mrs L Peralta178 Watford Rd

1978-2004 Known as Long Valley Wood/ Buddleia Field. Pattern of use remained the same. Access: on foot. Use: formerly: walking, dog walking, cycling, playing with children, enjoying peace and quiet, wildlife observation, blackberry picking, games. Now: walking, wildlife spotting, dog walking. Frequency: 2 or 3 times a week. Immediate family: use for walking, bird spotting, cycling, enjoying the wildlife. Community activities: use by local school for children to run through (son participated 12 years ago, and she has seen the same activity more recently. Seasonal activities: blackberry picking, spring walks (bluebells), camping in summer, bonfire parties, leaf collecting in the autumn. Ticked: children playing, drawing and painting, dog-walking, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding, other: camping, fireworks, jogging, horse riding, children on a run. Owner: now believed to be LUL. No one occupies the land. Does not believe owner has seen her on the land. Permission never sought nor granted: there was never anyone to ask. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants: the land is open to all.

A/3/678

Mr R Rowley20 Frankland Cl

1983-2004 Known as Buddleia Woods. Previously known as the Tip. Pattern of use remained

A/3/698

112

the same. Access: usually via the lane from Harvey Road, sometimes from the canal side. Use: initially bird watching and nature walks, plus entertaining the children. Now: escaping the stresses of life. Frequency: previously: often daily. Now: daily. Immediate family: use for dog walking and as an amenity to enjoy with others in the neighbourhood. Community activities: school outings, cricket/football, Brownies, regularly over the last 21 years. Organisations which use land: RSPB groups, botanists, a man who was studying the spiders and other insects, another man who was watching snakes. Seasonal activities: school nature lessons in spring/autumn, blackberry picking. Ticked: children playing, rounders, fishing, drawing and painting, dog walking, team games, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bicycle riding. Owner: not known until recently. Does not believe the owner has seen him on the land. Permission never sought: it was not necessary as the land was and is open space. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

M Sims2 Cranefield DrGarstonWatfordPreviously of The Stables, Lavrock Lane, Croxley Hall Woods

1992-2004 Known as the Buddleia Walk. Pattern of use remained the same. No footpaths or bridleways cross the land, but free access for walkers and horses has always been available. Access: from Lavrock Lane. Use: to gain access to Mill Lane and thence Croxley Moor, horse riding and dog walking. Frequency: approximately twice a week. Immediate family: use for horse riding and dog walking. Ticked: children playing, dog-walking, picnicking, people walking, bicycle riding. Owner: known but not specified. Land is vacant. Does not know whether owner/occupier has seen him on the land. Permission never sought nor granted. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.

A/3/721

Mr P J Sorrell21 Frankland Cl

1980-2004 Known as Long Valley Wood or Buddleia Wood. Pattern of use remained the same. Access: from back garden gate through

A/3/731

113

Croxley Hall Woods, crossing Lavrock Lane, into Long Valley Wood. Use: walking with dog and family, enjoying beauty and peace and nature, helping to keep environment clean, bird watching, nature trails, feeding wildlife. Previously: when children young, fishing, Scout and Guide groups, nature trails, bird watching, school projects, blackberry picking, hide and seek, etc. Frequency: every day a.m. and p.m. in all weather. Now: daily. Immediate family: use for activities for children/grandchildren: picnics, nature projects, dog walking. Community activities/ use by organisations: camping, kite flying, cycling, Brownies/Guides/Scouts get-togethers, Scouts Night Patrols, organised nature walks/trails, since 1968 as his children were growing up and at local schools. The grandchildren have continued with these activities. Seasonal activities: camping, fishing, waling, children’s team games and matches, kite flying, football. Ticked: children playing, rounders, fishing, drawing and painting, dog-walking, team games, picking blackberries, football, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding, other: children/Scout projects. Owner: believed to be LT since planning application read. Not occupied. Unaware whether owner/occupier had seen him on land. Permission never sought nor granted: it did not seem necessary. Never prevented from using. Since 1968 he had noticed broken chain-link fences in some areas. These have never been maintained or repaired. These fences were at the date of filling in the questionnaire, unrecognisable or in some areas, non-existent.

Mr I Thompson23A Stapleton Road, Tooting BecPreviously of 19 Harvey Road

1977-2004 Known as the Buddleias. Pattern of use remained the same. Access: through a public footpath. Use: dog walking and exercise. Frequency: 3/4 times per week. Immediate family: use for dog walking and exercise. Ticked: children playing, fishing, picking blackberries, football, cricket, bird watching, picnicking, kite flying, people walking, bonfire parties, bicycle riding. Owner/occupier: not known. Permission never sought nor granted: no apparent need, or any clear boundaries. Never prevented from using. No attempt by notice

A/3/741

114

or fencing or other means to prevent or discourage use by local inhabitants.

Mr K Turnbull127 Frankland RdPreviously 40 Gonville Ave

1970-2004

1988-2005

Known as the Woods, Buddleia Way, Rabbits Patch. Pattern of use remained more or less the same. No public paths cross the land, but permissive paths do. Access: from path off Lavrock Lane/ from footpath off Frankland Road through Long Valley Wood/ from Common Moor Lock/ from path off canal towpath. Use: walking: pleasant walk from canal to Frankland Road. Frequency: once or twice a month. Immediate family: use for walking. Ticked: children playing, dog-walking, picnicking, people walking. Owner: LU? Unoccupied. Does not believe owner/occupier has seen him on the land. Permission never sought nor granted: no apparent need, or any clear boundaries. Never prevented from using. No attempt by notice or fencing or other means to prevent or discourage use by local inhabitants.Standard form letter (2005): walking

A/3/761

A/3/1023Ms Jackie Webb49 Frankland Rd

1976-2004 Joint evidence questionnaire with Mr T Saunders (substance set out above).

A/3/704

The following witnesses who did not give evidence at the inquiry completed responses to the 2005 standard form letter, but no evidence questionnaire or witness statement. I bear in mind that there has been no opportunity for cross-examination of these witnesses.

Name and address Period User PageK M Allen24 Harvey Rd

1988-2005 Walking, blackberry picking, cycling, games, nature, recreation, dog walking

A/3/767

Ms K Allison17 Harvey Rd

1984-2005 Walking with family, dog walking, watching variety of butterflies, picnic in summer

A/3/768

Ms A Altman19 Hazelwood Rd

1964-2005 Walking, blackberrying A/3/769

Mr I Anderson40 Beechcroft Ave

1985-2005 Walking, sketching A/3/770

Mr & Mrs Andrews46 Frankland Rd

1988-2005 Walking, cycling, jogging A/3/771

Mr C Artiss82 Frankland Rd

1981-2005 Walking A/3/773

Mr P Atkins98 Frankland Rd

1977-2005 Walking, jogging A/3/775

R Atkins55 Bateman Rd

1970-2005 Walking, rambling, enjoyment A/3/776

115

Mr R Atkins98 Frankland Rd

1963-2005 Football, walking, blackberry picking

A/3/777

P Audsley40 Bateman Rd

1998-2005 Walking with children, jogging, playing

A/3/778

S J Bacon34 Valley Walk

1978-2005 Walking with dogs and child, play with balls

A/3/779

Bain8 Frankland Rd

1987-2005 Cycling, running, walking, exercising dogs and children, blackberrying etc

A/3/780

Ms J Baker15 Grosvenor Court, Mayfare

1979-2005 Walking A/3/781

M Balderstone99 Frankland Rd

1957-2005 Walking, bird watching, looking for wild flowers, insects etc to identify, blackberry picking

A/3/782

Mr & Mrs Bale36 Beechcroft Ave

1957-2005 Most activities listed in letter A/3/783

Mr M Barnes & Ms J Barsby133 Frankland Rd

1998-2005 Regular running, blackberrying, bird watching

A/3/784

Mr S Bass36 Harvey Rd

1955-2005 Playing as a child, now walking A/3/785

Mr J Baxter & Ms C Garibaldi81 Frankland Rd

2004-2005 Football, walking, jogging A/3/786

Mr & Mrs Bennett97 Frankland Rd

1994-2005 Cycling, walking, fishing, feeding swans/ducks

A/3/787

D Bennett84 Frankland Rd

1990-2005 Walking, picnics, football, blackberrying

A/3/788

M Bennett51 Harvey Rd

1978-2005 Not specified A/3/789

Mr & Mrs Bennett95 Frankland Rd

1983-2005 Walking, exercise, Beaver Cub walks, sport (ball games)

A/3/790

Mr M Best15 Frankland Rd

2004-2005 Dog walking A/3/791

Mr & Mrs Blakemore26 Hazelwood Rd

2000-2005 Walking, jogging, nature trail, collecting, climbing, peace, quiet, tranquillity

A/3/792

A Bolton4 Frankland Cl

1995-2005 Walking, cycling, jogging, with children

A/3/793

Ms E Brabham71 Frankland Rd

2002-2005 Walking, nature walks, bike rides, with young children, blackberry picking

A/3/794

Mr M Braude23 Oakleigh Dr

1999-2005 Walking and access A/3/797

Mr K Bright5 Bateman Rd

1983-2005 Country walks A/3/798

Mr & Mrs Brown33 Frankland Rd

1977-2005 Country walks, playing with son when he was young, bird watching

A/3/800

Miss S Brown4 Bateman Rd

1986-1994 Walking A/3/801

116

Mr P Bruni111 Frankland Rd

1985-2005 Not specified A/3/802

E Burch36 Bateman Rd

1994-2005 Cycling, walking with the family, looking at flora and fauna

A/3/803

Mr & Mrs Burke6 Nuttfield Cl

1998-2005 Walking, bird and butterfly spotting, blackberry picking, jogging, cricket

A/3/804

Ms S Bussey50 Valley Walk

1980-2005 Walking, bird spotting, blackberry picking

A/3/805

Mr & Mrs Byrne14 Oakleigh Dr

1987-2005 Nature rambles, butterfly and reptile spotting, dog walking (from 2000), snowball fights, blackberry picking, photography

A/3/806

C Calliou8 Hazelwood Rd

1991-2005 Walking A/3/807

Ms A Campbell131 Frankland Rd

1980-2005 Family walks, cycling, flying kites, football

A/3/808

Misses O & B Carelse14 Hazelwood Rd

1995-2005 Walking, blackberry picking A/3/809

Ms S Carlyon38 Frankland Rd

1998-2005 Walking, cycling, looking for rabbits, blackberry picking

A/3/810

Ms C Carter40 Frankland Cl

1990-2005 Dog walking, cycling, blackberry picking

A/3/811

Ms E Carvafal116 Frankland Rd

1974-2005 Walking, enjoying surroundings A/3/812

Ms J Carval30 Beechcroft Ave

2001-2005 Walking A/3/813

Ms L Catlow17 Hazelwood Rd

1995-2005 Walking A/3/814

Ms K Cavender44 Frankland Cl

1995-2005 Walking, rambling, nature trail A/3/816

Mr N Cavender44 Frankland Cl

1994-2005 Walking, rambling, blackberrying, activities with children

A/3/817

Mr & Mrs Chamberlain42 Frankland Rd

1979-2005 Bird watching, nature walks, ball games with children and grandchildren

A/3/818

A Charlesworth13 Grosvenor Ct, Mayfare

1987-2005 Walking, cycling A/3/819

Mr & Mrs Charnley33 Frankland Cl

1979-2005 Not specified A/3/820

Mr L Checkley, Mr A Pettit, Mrs E Saintdizier11 Frankland Cl

1990-2005 Sports (running and walking) A/3/989

Ms S Cheetham90 Frankland Rd

1987-2005 Walking A/3/821

S Chiwara85 Frankland Rd

1993-2005 Bike riding, walking, photographing wildlife and fauna

A/3/822

C Christophara-Hanson32 Valley Walk

1980-2005 Walking with children A/3/823

117

P L Clarke62A Valley Walk

1988-2005 Walking, bird watching A/3/824

S Cohel32 Beechcroft Av

1982-2005 Walking, cycling A/3/826

Mr & Mrs Cohen17 Frankland Cl

1996-2005 Walking, cycling, running, playing games with children

A/3/827

Mr T Coles21 Bateman Rd

1985-2005 Walking, cycling with family A/3/829

E W Collins15 Oakleigh Dr

1935-2005 Walking, playing A/3/830

Mrs P Collins55 Frankland Rd

1989-2005 Walking, playing ball games with grandchildren

A/3/832

Mr A Colman45 Bateman Rd

1991-2005 Walking, cycling, nature hunt A/3/833

Mr A Cook22 Hazelwood Rd

1987-2005 Walking, bird watching, cycling, blackberry picking

A/3/834

Ms Y Cooke39 Bateman Rd

1990-2005 Cycling, family walks, running A/3/835

Mr N Cornwall10 Frankland Rd (previously 21 Harvey Rd)

1977-2005 Rabbit spotting, torch-guided walks with kids, cycling, photography, walking, playing as a child (football, fantasy games, camps etc)

A/3/837

Ms J Creak58 Frankland Rd

1987-2005 Horse riding, cycling, dog walking, family outings

A/3/838

M Critcher113 Frankland Rd

1979-2005 Walking, cycling, football, blackberry picking, jogging

A/3/839

Cross family9 Hazelwood Rd

1978-2005 Walking, birdwatching A/3/840

C Crowder129 Frankland Rd

1991-2005 Walking, cycling, bird/butterfly spotting, sport

A/3/841

PJ Crowley8 Bateman Rd

1952-2005 Woodland walks A/3/842

Mrs R Cumming29 Frankland Rd

1989-2005 Walking, jogging, bird watching with her 2 children. Every weekend for a family walk

A/3/843

Mrs C Dean53 Harvey Rd

1977-2005 Not specified A/3/845

Ms L Dixon29 Frankland Cl

1985-2005 Walking, rounders, cricket, blackberry picking

A/3/847

Ms R Dobson52 Beechcroft Av

2004-2005 Walking, playing with children A/3/848

H Dores54 Frankland Rd

1985-2005 Walking, kite flying, dog walking

A/3/849

Mr R Doughty80 Frankland Rd

1993-2005 Running, cycling, walking, fishing, dog walking

A/3/850

Mr & Mrs Dresh126 Frankland Rd

1999-2005 Cycling, walking A/3/851

Mr & Mrs Dunderdale25 Frankland Cl

1969-2005 Walks with children and grandchildren, children played football, picking blackberries, nature walk with Girl Guides, fieldcraft with Guides

A/3/852

118

Mr P Edwards20 Hazelwood Rd

1995-2005 Blackberry picking, walking A/3/853

Mr N Embling35 Frankland Rd

1977-2005 Walking, children playing, exploring and building camps

A/3/854

Mr and Mrs Emmett16 Harvey Rd

1998-2005 Cycling, walking, feeding ducks/swans, observing wildlife, walking with children

A/3/855

P Emdon23 Bateman Rd

1972-2005 Walking, children’s hide and seek and games

A/3/857

Mr C Evans14 Harvey Rd

Blank Blackberry picking, dog walking, walking

A/3/858

Ms P Evett30 Frankland Cl

1991-2005 Walking, running, blackberry picking, cycling

A/3/859

P Farrell1 Hazelwood Rd

1992-2005 Walking A/3/860

Ms A Federico13 Bateman Rd

1989-2005 Dog walking, football, kite flying

A/3/861

P Fineberg23 Harvey Rd

1995-2005 Not specified A/3/862

Ms A Flood36 Frankland Cl

1999-2005 Walking, jogging, cycling, watching birdlife, enjoying bluebells

A/3/865

Mr I Frazier-Barnes13 Harvey Rd

1989-2005 Walking, nature spotting (plants and animals), jogging, cycling

A/3/867

Mrs A Frederickson103 Frankland Rd

1980-2005 Not specified A/3/868

Ms J French83 Frankland Rd

1970s-2005 Walking, picnics, children’s games, blackberrying

A/3/869

Ms E Frow24 Bateman Rd

1986-2005 On horseback to access Croxley Moors

A/3/870

Mr S Fuller46 Harvey Rd

1985-2005 Not specified A/3/871

Dr L Galpin51 Bateman Rd

1987-2005 Walking, nature observation A/3/872

Mr & Mrs Gilbert5 Hazelwood Rd

1990-2005 Walking, cycling, bird/butterfly spotting, blackberry picking

A/3/873

Mrs H M Giles48 Harvey Rd

1980-2005 Used by members of her family A/3/874

Mr & Mrs Goodwin19 Bateman Rd

1979-2005 Walking, picnics, blackberry picking, enjoying the Buddleias

A/3/875

Mr L Gormley73 Frankland Rd

2004-2005 Walking, jogging A/3/877

Mr & Mrs Gray72 Frankland Rd

1998-2005 Walking with the children, kite flying

A/3/879

D M Green107 Frankland Rd

1983-2005 Dog walking, blackberry picking

A/3/880

C & S Gregory2 Oakleigh Dr

1996-2005 Walking, blackberry picking, bluebell viewing, children’s nature walks

A/3/881

Mr & Mrs Grosso46 Valley Walk

1989-2005 Walking A/3/883

Ms S Guest1 Oakleigh Dr

1981-2005 Walking, blackberrying, jogging

A/3/884

119

Ms J Hall48 Bateman Rd

1993-2005 Walking and cycling with children

A/3/886

E J Hanchard14 Frankland Rd

1987-2005 Not specified A/3/887

Ms J Grant-Hapeshi 1995-2005 Dog walking, cycling A/3/888

120

Mr A Harding12 Bateman Rd

1990-2005 Family games, walking A/3/889

Mr & Mrs Hargrave26 Bateman Rd

1980-2005 Walking A/3/890

Mr M Harries14 Beechcroft Ave

1997-2005 Walking, cycling A/3/891

Ms P Harris & Mr S Hankin26 Frankland Cl

1996-2005 Walking A/3/892

D Harvey43 Frankland Rd

1995-2005 Dog walking, playing with children

A/3/893

Mr & Mrs Hewett89 Frankland Rd

1988-2005 Walking, football A/3/896

Mrs K Hewett47 Harvey Rd

2001-2005 Walking with children, cycling, jogging (Mr Hewett) feeding the ducks

A/3/897

Mr & Mrs Heyburn15 Harvey Rd

1995-2005 Walks, playing with children A/3/898

Mr J Hickson32 Harvey Rd

1984-2005 Walking A/3/899

P Hoad12 Hazelwood Rd

1993-2005 Bird watching A/3/900

Mr & Mrs Hussey3 Harvey Rd

1960-2005 Walking, blackberry picking, football

A/3/904

Mr K Hutson 1995-2005 Joint letter with Mrs Hutson A/3/905P Ibbott20 Frankland Rd

1977-2005 Walking, dog walking, nature walks with children

A/3/906

Ms A Ives120 Frankland Rd

1993-2005 Dog walking, cycling, horse riding, bird spotting, blackberry picking, picnics, jogging

A/3/907

K Jackson8 Oakleigh Dr

1995-2005 Walking, recreational activities A/3/908

R Jackson59 Harvey Rd

1995-2005 Playing football with son, cycling through Buddleia Walk to the canal towpath

A/3/909

Ms A Jenkins134 Frankland Rd

1986-2005 Walking, wildlife watching A/3/910

Mr A Jenkins50 Frankland Rd

1986-2005 Joint letter with Mrs Jenkins A/3/911

Mr G Jones13 Frankland Cl

1996-2005 Regular walks A/3/912

Mr M Joyce15 Hazelwood Rd

1996-2005 Walking, cycling A/3/913

Mr M Kamine122 Frankland Rd

1990-2005 Walking A/3/915

Mr & Mrs Kirby86 Frankland Rd

1990-2005 Walking, cycling, blackberry picking

A/3/917

121

R Kircher47 Bateman Rd

1963-2005 Running, bird watching A/3/918

V Kirubaharan188 Watford Rd

1998-2005 Walking A/3/919

Mrs I Knapp33 Harvey Rd

1985-2005 Walking, cycling, blackberry picking, football, cricket

A/3/920

Mr I Knowles75 Frankland Rd

1983-2005 Walking, children’s recreation/games

A/3/921

Ms P Kossoincz50 Bateman Rd

1996-2005 Walking, cycling, children’s recreation, picnics

A/3/922

Ms D Lambert124 Frankland Rd

1999-2005 Walking A/3/923

Mr L Lambert124 Frankland Rd

1999-2005 Walking, cycling A/3/924

D Lawson21 Frankland Rd

2000-2005 Walking, cycling, jogging A/3/926

Ms A Lee78 Frankland Rd

No use We have not used this land A/3/927

Mr P F Leese52 Harvey Rd

1968-2005 Joint response with his wife, Mrs Leese.

A/3/928

D Leonard38 Hazelwood Rd

1975-2005 Walking, playing with kids A/3/929

Mr G Lewis43 Harvey Rd

2003-2005 Walking, cycling, blackberry picking, football

A/3/930

Ms N Lewis & Mr M Payne45 Harvey Rd

1999-2005 Family walks and bike rides. Nature observation with children

A/3/931

Y M Lewis & C Turner16 Hazelwood Rd

1988-2005 Walking on a weekly basis, wildlife watching

A/3/1024

Ms B Lindsey60 Frankland Rd

1960-2005 Walking, picnics, blackberry picking

A/3/932

Ms A Lowe13 Frankland Rd

2004-2005 Walking, bird spotting A/3/933

Mr P Lovejoy4 Hazelwood Rd

2002-2005 Walking with his children A/3/934

Mrs S Malcolm48 Frankland Rd

1985-2005 No activities specified A/3/935

Mr & Mrs Marioni 1985-2005 Dog walking, bird watching, jogging, country walks, nature studies

A/3/936

Mr R Marsh24 Beechcroft Av

1985-2005 Walking, hide and seek with children

A/3/937

Mr P Marriott57 Harvey Rd

1996-2005 Walking, bird watching, educating his children about flora and fauna

A/3/938

Ms L Mason66 Frankland Rd

2000-2005 Walking, exercising dog A/3/939

122

Mr N H Matthews112 Frankland Rd

1954-2005 Walking A/3/941

Mr M McFall67 Frankland Rd

1984-2005 Cycling, footballs, various sports throughout childhood.

A/3/943

D McGrath39 Frankland Cl

2001-2005 Walking, blackberry picking, cycling, dog walking, picnics

A/3/944

S McMellin46 Bateman Rd

1988-2005 With 3 children, cycling A/3/945

Mr & Mrs McNiven64 Valley Walk

1995-2005 Walks: alone, as a family and with friends

A/3/946

Ms I Mellowship68 Frankland Rd

1980-2005 Walking, blackberry picking, butterfly spotting

A/3/947

Mr & Mrs Merritt 1988-2005 Activities not specified A/3/948Mr P Middleton60 Beechcroft Av

1968-2005 Cycling and walking A/3/949

Ms P Mills30 Bateman Rd

1953-2005 Walking, blackberry picking, bird spotting

A/3/950

Mr & Mrs Millward30 Hazelwood Rd

1963-2005 Walking, cycling, blackberrying, bird watching, picnicking, courting, family games

A/3/951

Mr & Mrs Mitchell9 Frankland Cl

1984-2005 Walking, blackberry picking A/3/953

Mr & Mrs Morris37 Frankland Cl

1984-2005 Activities not specified A/3/955

O Moshtaef4 Grosvenor Court, Mayfare

2005-2005 Walking A/3/956

Mrs M Murphy2 Beechcroft Av

1980-2005 Walking, blackberry picking A/3/957

Ms P Neal22 Frankland Rd

2004-2005 Jogging, cycling, walking, feeding wildfowl with children

A/3/958

Mr A Newson74 Frankland Rd

1997-2005 Walking, jogging, cycling, wildlife spotting, blackberry picking, football, dog walking, child education.

A/3/959

Ms L Norman102 Frankland Rd

1993-2005 Dog walking, picnicking with children, jogging and cycling

A/3/960

C Oborn34 Bateman Rd

1979-2005 Walking, entertaining children A/3/961

B Oliver10 Hazelwood Rd

1940-2005 Walking, dog walking A/3/963

Mr & Mrs Olney11 Bateman Rd

Not specified Not specified A/3/964

Mr T O’Sullivan36 Valley Way

1999-2005 Walking, cycling A/3/965

Mr & Mrs Parikh17 Bateman Rd

1989-2005 Not specified A/3/967

Mr D Parker31 Bateman Rd

1977-2005 Walking A/3/968

D Patel196 Watford Rd

1996-2005 Walking, riding with children A/3/969

123

Y Patel69 Frankland Rd

Not specified Not specified A/3/970

D M Peaseland101 Frankland Rd

1945-2005 Football, cricket, cycling, jogging, games, camping during school summer holidays

A/3/971

Mr & Mrs Pedrick28 Harvey Rd

1996-2005 Walking, blackberry picking, football, watching wildlife, hide and seek

A/3/972

Perry family31 Frankland Cl

1972-2005 Jogging, walking, blackberry picking, football, cycling

A/3/973

Mr J H Pettifer117 Frankland Rd

1920s-2005 As a boy, for recreation. As an adult for walking

A/3/974

Mr R Phillips18 Beechcroft Av

1986-2005 Walking, dog walking, jogging, cycling, bird watching

A/3/975

Mr & Mrs Pickering11 Harvey Rd

1980-2005 Dog walking, children’s hike A/3/976

Ms H Pidding79 Frankland Rd

1980-2005 Walking, jogging, cycling, picking blackberries, Easter egg hunts

A/3/977

Mr A Plant22 Frankland Cl

1995-2005 Ball games, jogging, walking, cycling

A/3/978

Mr M Proctor19 Oakleigh Dr

1995-2005 Walking, nature-watching with family

A/3/979

Putman130 Frankland Rd

1972-2005 Dog walking, walking with children, enjoying peace and beauty of the woods

A/3/980

S Reeves20 Oakleigh Dr

1999-2005 Cycling A/3/981

Ms J Reilly8 Nuttfield Cl

1992-2005 Walking and cycling with the family

A/3/982

H Rickwood23 Frankland Cl

1977-2005 Blackberry picking, cycling, walking, jogging

A/3/983

Mr S Rose17 Oakleigh Dr

1987-2005 Cycling, playing with kids, walking

A/3/984

Mr & Mrs Rudge28 Bateman Rd

1980-2005 Walking, bird watching, fruit picking

A/3/987

Mr & Mrs Rule 1975-2005 Walks with the family and pets A/3/988Mr & Mrs Salter27 Bateman Rd

1982-2005 Walking A/3/990

Mr & Mrs Scarle28 Sycamore Rd

1996-2005 Walking, blackberrying A/3/994

Mr K Schife21 Oakleigh Dr

1993-2005 Walking, playing with children A/3/995

Ms J Scott35 Bateman Rd

1964-2005 Walking, playing with children A/3/996

Mrs J M Scott35 Frankland Cl

Not specified Not specified A/3/997

Mr & Mrs Sheriff41 Harvey Rd

1983-2005 Walking, picnicking, ball games A/3/1001

Mr & Mrs Smith31 Frankland Rd

1983-2005 Walking, bird watching A/3/1002

124

Mr P J Sorrell21 Frankland Cl

1979-2005 Walking, entertaining children, games, nature trails, blackberrying, de-stressing

A/3/1004

Sparrow6 Frankland Rd

1976-2005 Walking, cycling, blackberry picking, football

A/3/1005

Ms B Stathakis45 Frankland Rd

1996-2005 Blackberry picking, picnics, walking, introducing children to natural environment

A/3/1007

Ms E Stewart8 Grosvenor Court

2000-2005 Walking, blackberry picking, bike riding

A/3/1008

Mr & Mrs Sturman27 Frankland Cl

1957-2005 Walking A/3/1009

C Sutcliffe110 Frankland Rd

2001-2005 Walking, cycling, blackberry picking

A/3/1010

Mr & Mrs Sylvester125 Frankland Rd

1997-2005 Riding, walking, cycling, blackberry picking, rounders

A/3/1011

K Symonds13 Oakleigh Dr

1983-2005 Walking, bird watching, blackberrrying

A/3/1012

Mr J Tatham2 Hazelwood Rd

1976-2005 Joint letter with Mrs Tatham A/3/1013

Mr D Taylor50 Beechcroft Av

1999-2005 Walking, cycling A/3/1014

P Thorpe22 Bateman Rd

1995-2005 Walking, picnics, pursuits with the children, rabbit watching

A/3/1017

Ms T Tilsley46 Beechcroft Av

1993-2005 Walking, nature watching A/3/1018

Mr P Trainor9 Bateman Rd

1998-2005 Walking, exploring with the children

A/3/1020

Trumper13 Hazelwood Rd

2002-2005 Walking A/3/1021

V J Turner58 Valley Walk

1992-2005 Walking (on a reasonably regular basis)

A/3/1025

A J Vane24 Hazelwood Rd

1990-2005 Not specified A/3/1026

Vaughan family38 Valley Walk

1979-2005 Not specified A/3/1027

Mr & Mrs Ward5 Harvey Rd

1970-2005 Walking A/3/1029

Mr & Mrs Warner16 Frankland Cl

1976-2005 Walking, nature walks with schoolchildren, blackberrying, butterfly/bird spotting

A/3/1030

M C WattNo address given

No to VG No use A/3/1031

Mrs D Webb35 Frankland Cl

1952-2005 Walking, children cycling, flower collecting

A/3/1032

G Webb7 Frankland Rd

2003-2005 Watching, bluebell walks, nature watching, spring watch

A/3/1033

Ms D Webber70 Frankland Rd

1988-2005 Dog walking, cycling, blackberry picking, walking, ball games, badger and bird watching

A/3/1034

Mr M J Welch 1980-2005 Walking, cycling A/3/1035

125

40 Bateman Rd

Mrs D West123 Frankland Rd

1975-2005 Walking A/3/1036

Ms C Whitley18 Frankland Rd

2004-2005 Walking A/3/1038

Mr & Mrs Wicke7 Hazelwood Rd

1999-2005 Walking, cycling A/3/1039

Ms N Wildman61 Frankland Rd

1993-2005 Walking, cycling, running, hide and seek etc

A/3/1040

R L Williams2 Grosvenor Court, Mayfare

1997-2005 Walking, cycling A/3/1041

Wilson family38 Frankland Cl

1991-2005 Dog walking, jogging, cycling, bird/butterfly spotting

A/3/1042

Wingfield10 Nuttfield Cl

1995-2005 Taking children for walks A/3/1043

Mr & Mrs Withington52 Frankland Rd

1997-2005 Walking, jogging A/3/1044

Ms J Wood41 Frankland Cl

1979-2005 Walking, cycling, bird and wildlife watching, river/pond dipping

A/3/1045

S A Worly48 Valley Walk

1991-2005 Walking A/3/1046

Mrs A Wrangles9 Nuttfield Cl

1978-2005 Walking A/3/1047

M Wright61 Harvey Rd

1993-2005 Walking, football, hide and seek, cycling

A/3/1048

Mr T Wynne-Jones 1998-2005 Walking, bird watching, butterfly and moth collecting, dog exercising, general recreation, wildlife observation

A/3/1049

E Yates44 Valley Walk

1996-2005 Walking, cycling, jogging A/3/1050

Mr & Mrs Young31 Harvey Rd

No to VG No use A/3/1051

126

The following witnesses submitted a reply to the 2007 standard form letter, but no witness statement or evidence questionnaire. Again, I bear in mind that there has been no opportunity for cross-examination of these witnesses.

Name and address Period User PageB Askew233 Watford Rd

1994-2007 Walking A/2/282

F Avey23 Valley Walk

1985-2007 Dog walking, bike riding, walking with children

A/2/283

J Avey23 Valley Walk

1985-2007 Dog walking, recreation with children

A/2/284

Mr & Mrs Baldwin316 Watford Rd

1995-2007 Walking A/2/285

C Bardini213 Watford Rd

1990-2007 Walking A/2/286

E J Barringer67 Beechcroft Ave

No to VG A/2/287

Mr Bates19 Gonville Ave

1990-2007 Children playing, walking and blackberrying

A/2/288

Ms Bates19 Gonville Ave

1990-2007 Children playing, walking and blackberrying

A/2/289

Ms Baxter201 Watford Rd

1959-2007 Played down there as a child A/2/290

K Baxter3 Valley Walk

1970-2007 Jogging, walking, football, family walks, cycling

A/2/291

Mrs Baxter3 Valley Walk

Not specified Blackberry picking, walking, cycling

A/2/292

Ms Beeson50 Watford Rd

1997-2007 Dog walking, cycling, ballgames

A/2/293

Pat Beirne235 Watford Rd

Not specified Not specified A/2/294

Mrs Bhinder56 Sycamore Rd

1981-2007 Dog walking A/2/295

Illegible 2003-2007 Pastimes, walking A/2/296J Birt129 Watford Rd

2002-2007 Horse riding, dog walking, picnicking

A/2/297

C Bland17 Evensyde

1998-2007 Walking A/2/298

Mrs Botwright99 Byewaters

2000-2007 Family walks, enjoying the view

A/2/299

Ms Boucher126 Watford Rd

1999-2007 Walking and playing games with children, cycling

A/2/300

L Breed306 Watford Rd

1970’s-2007 Walking and playing A/2/301

Mrs Brooks25 Scots Hill

1990-2007 Walking A/2/302

B Bull96 Watford Rd

1980-2007 Walking dog and cycling A/2/303

L Bull96 Watford Rd

1980-2007 Walking and playing with children, blackberrying

A/2/304

N Catalana239 Watford Rd

2002-2007 Walking dog and family A/2/305

127

Mrs Chanell174 Watford Rd

1979-2007 Taking the children for walks & playing games, walking the dog, bird watching & nature walks, cycling

A/2/306

Mr Chanell174 Watford Rd

1979-2007 Taking the children for walks & playing games, walking the dog, bird watching & nature walks, cycling

A/2/307

E Charlesworth13 Grosvenor Court

1987-2007 Dog walking A/2/308

J Cheek11 Sycamore Rd

1955-2007 Walking and dog walking A/2/309

Mrs Cheek11 Sycamore Rd

1946-2007 Dog walking, to observe flora and fauna, slow worms too & bee orchids

A/2/310

Dr Chorbach1 Basildon Close

1999-2007 Walks, children school trips A/2/311

Ms ClarkThe Coach HouseCroxley Hall Woods

1993-2007 Not specified A/2/312

Ms Clarke249 Watford Rd

1967-2007 Playing as a child A/2/313

Miss Clarke31 Scots Hill

1973-2007 Walking, horse riding, bird watching

A/2/314

Ms Collies126 Watford Rd

1995-2007 Walking with children A/2/315

Mr & Mrs Conn12 Gill Close (Bywaters)

1999-2007 Walking, watching wildlife A/2/316

Mr Connor134 Bywaters

1999-2007 Walking, football, bird watching, cycling

A/2/318

M Connor4 Valley Walk

2001-2007 Walking and watching the wildlife

A/2/319

Mrs Cullum62 Gonville Ave

1960-2007 Not specified A/2/320

Mr Cullum62 Gonville Ave

1980-2007 Not specified A/2/321

Ms Davies270 Watford Rd

Not specified Not specified A/2/322

J A Denny11 Longmans Close

Not specified Dog walking, enjoying view and peace & quiet

A/2/323

Dias16 Gill Close

2000-2007 Riding, walking A/2/324

F Downard20 Sycamore Rd

1987-2007 Walking and cycling A/2/325

Ms Edwards28 Gonville Ave

1964-2007 Played with children, walking, blackberrying

A/2/326

128

J Elvin75 Byewaters

1999-2007 Walking A/2/327

Mr Everett30 Evensyde

2003-2007 Walking A/2/328

Mr Eyers46 Watford Rd

1993-2007 Walking and bird watching A/2/329

Ms Eyers46 Watford Rd

1993-2007 Walking A/2/330

Ms Fedreico13 Bateman Rd

1989-2007 Walking the dog & somewhere close by to take the children to observe the wildlife

A/2/331

Mrs Finch28 Valley Walk

1999-2007 Running, walking, blackberry picking, family outings, bike rides

A/2/332

Mr Finch28 Valley Walk

1999-2007 Running, walking, blackberry picking with child, family outings, bike rides

A/2/333

Mr Finn2 Cavendish Court

1970-2007 Dog walking, training A/2/334

Mr Foster37 Valley Walk

2005-2007 Walking and dog walking A/2/335

Mrs Foster3 Dorchester Court, Mayfare

1965-2007 Walking A/2/336

Ms Foulkes98 Watford Rd

1976-2007 Walking dog and pleasure A/2/337

Mr Fox326 Watford Rd

2006-2007 Walking and games with children

A/2/338

Mrs Francies116 Watford Rd

Not specified Walking and relaxing A/2/339

Mr Fredericks12 Longmans Close

1999-2007 Dog walking A/2/340

Mrs Gibson9 Valley Walk

2000-2007 Walking with the children, picnics and blackberry picking

A/2/341

Mrs Gobel312 Watford Rd

1997-2007 Bike riding and playing games and walking, picking flowers

A/2/342

Mr Gorry4 Dorrofield Close

1975-2007 With my children and now grandchildren playing and bird watching, cycling, football, cricket, walking

A/2/343

Ms Gregory292 Watford Rd

2005-2007 Walked along there A/2/344

Ms Hallgreen74 Byewaters

1999-2007 Walking, cycling, nature walk with grandchildren

A/2/345

Mr Harris79 Byewaters

1999-2007 Running and cycling A/2/346

E T Harris258 Watford Rd

Not specified Not specified A/2/347

Ms Harrison40 Basildon Close

1979-2007 Walking, pick blackberries, cycling, enjoy view & horseriding

A/2/348

Mr Harrison40 Basildon Close

Not specified Walking A/2/349

129

L Healy2 Basildon Close

1999-2007 Walking dog & admiring the open landscape

A/2/350

Mrs Herbert44 Gonville Ave

1930-2007 Played there as a child as have my children and grandchildren, and dog walking

A/2/351

Mr Herbert44 Gonville Ave

1960-2007 Dog walking and walking my grandchildren

A/2/352

K Hewston58 Sycamore Rd

1976-2007 Walking, children playing A/2/353

Mr & Mrs Hiscock101 Byewaters

2000-2007 Walking, blackberry picking, watching wildlife

A/2/354

K F Howes22 Valley Walk

1981-2007 Dog walking, children playing, blackberry picking

A/2/356

Mr Howes22 Valley Walk

1981-2007 Dog walking, bird watching, peace & quiet

A/2/357

A K Hughes6 Valley Walk

1964-2007 Walks and wildlife interests with the children

A/2/358

Mr Hull13 Dorrofield Close

1988-2007 Walking A/2/359

Mrs Hull13 Dorrofield Close

1988-2007 Walking A/2/360

Mr Islam296 Watford Rd

Not specified Not specified A/2/361

Mr Jarritt6 Scots Hill Close

1956-2007 A play area for our children and for those from other Frankland Rd neighbours: regular walking and use for dog training and exercise

A/2/362

Ms Johnson3 Basildon Close

2006-2007 Walking A/2/363

P Johnson260 Watford Rd

1965-2007 Not specified A/2/364

F A Karim282 Watford Rd

Not specified Not specified A/2/365

Mr King138 Byewaters

1996-2007 Walking & cycling A/2/366

S F Kingham20 Evensyde

1999-2007 I walk my dog regularly through there

A/2/367

Ms Lai61 Byewaters

2000-2007 Walking , cycling A/2/368

Ms Larkman207 Watford Rd

Not specified Not specified A/2/369

Mrs Lynham310 Watford Rd

Not specified Not specified A/2/370

Ms Mackay12 Grosvenor Court Mayfare

1979-2007 Walking, cycling A/2/371

S Mallett284 Watford Rd

Not specified Walking A/2/372

Ms Man20 Valley Walk

1999-2007 Cycling & walking, blackberry picking

A/2/373

K Man20 Valley Walk

1999-2007 Walking, jogging A/2/374

130

Mr Manley16 Gonville Ave

Not specified Not specified A/2/375

D R Martin3 Dorrofield Close

1970-2007 Walking, blackberrying, children play

A/2/376

Ms Martin-Morrissey19 Longmans Close

2006-2007 Walking, de-stressing A/2/377

Ms Maxwell Smith137 Harefield Rd

1955-2007 Walking and rambling A/2/378

Ms McCourt7 Heckford Close

1999-2007 Dog walking, enjoy watching birds and flora

A/2/379

J Mighie?19 Evensyde

1998-2007 Walking A/2/380

Mr McFall82 Watford Rd

1979-2007 Walking – children’s activities (bike rides)

A/2/381

Mrs McFall82 Watford Rd

1979-2007 Walking, children’s bike rides, games

A/2/382

S Meehan11 Heckford Close

1999-2007 Walking, cycling, photography A/2/383

Ms Morphen?290 Watford Rd

2004-2007 Regular health walks (CMS & PCT) using area

A/2/384

O Moshtel?4 Gorsvenor CourtMayfare

2005-2007 Walking A/2/385

Mr Mulcahy2 All Saints Lane

1984-2007 Dog walking, blackberry picking

A/2/386

Mrs Mulcahy2 All Saints Lane

1984-2007 Walking, dog walking, blackberry picking

A/2/387

Mr Neill4 Dorchester CourtMayfare

Not specified Walking and enjoying the space

A/2/388

Ms O’Connor268 Watford Rd

Not specified Not specified A/2/389

Y C Overy81 Evensyde

2004-2007 Dog walking A/2/390

J Overy81 Evensyde

2004-2007 Dog walking A/2/391

K M Owen39 Valley Walk

1987-2007 Dog walking – walks with children

A/2/392

Ms Owen39 Valley Walk

1987-2007 Dog walking – walks with children

A/2/393

J A Page223 Watford Rd

1985-2007 Dog walking and taking the children walking

A/2/394

Mr Palmer322 Watford Rd

1980-2007 Walking A/2/395

Ms Palmer322 Watford Rd

1935-2007 Various pursuits over 72 years A/2/396

Mr Parker112 Watford Rd

1974-2007 Walking, dog walking, bird watching, taking children in woods (now 18& 20)

A/2/397

Ms Parker112 Watford Rd

1977-2007 Walking our dogs also our grandchildren when young

A/2/398

Mr Perisitiani39 Basildon Close

1999-2007 Walking & relaxing A/2/399

131

M F Pewney144 Watford Rd

1983-2007 Children, cycling, dog walking A/2/400

D Pope332 Watford Rd

Not specified Not specified A/2/401

S Powney110 Watford Rd

1987-2007 Bird spotting A/2/402

S C Powney110 Watford Rd

1987-2007 Bird spotting A/2/403

Mr Randall4 Basildon Close

2003-2007 Walking with family A/2/404

Mr Richardson116 Valley Walk

1977-2007 Walking and jogging A/2/405

Mr Robins1 Cavendish Court

2001-2007 Walking, cycling A/2/406

Mrs Rummery16 Valley Walk

1967-2007 For myself and my children & grandchildren for walking, running races, hide & seek, camps and picnics

A/2/407

Mr Rummery16 Valley Walk

1967-2007 For my children and grandchildren playing games like hide and seek, picnics and making camps

A/2/408

Mr Russell22 Sycamore Rd

1983-2007 My wife and I have walked our dogs over this land

A/2/409

Mrs Russell22 Sycamore Rd

1983-2007 Dog walking particularly, but also for collection of seeds, pods for flower arranging

A/2/410

P Ryan34 Evensyde

1999-2007 Walking, recreation and dog walking, enjoyment of flora and fauna

A/2/411

Mr Salmon14 Watford Rd

2001-2007 Walking, cycling and ball games

A/2/412

M B Samuel172 Watford Rd

1970-2007 Walking A/2/413

P H Samuel172 Watford Rd

1970-2007 Walking A/2/414

Ms Sanderson60 Gonville Ave

Not specified Walking, enjoying peace and fresh air

A/2/415

Mr Sansom251 Watford Rd

1960-2007 Bird watching A/2/416

Mr Sansom249 Watford Rd

1990-2007 Playing and walking in my youth

A/2/417

M Saunders334 Watford Rd

1979-2007 Walking my dogs A/2/418

Ms Savage134 Byewaters

1986-2007 Walking, bird watching, cycling

A/2/419

Mr and Mrs Scales215 Watford Rd

1960-2007 Looking at wildlife, walking A/2/420

V Shenali38 Gonville Ave

1986-2007 Walking & relaxing A/2/421

Mrs Shine12 Watford Rd

1969-2007 Walking, courting, blackberrying, wildflower spotting, rural pursuits

A/2/422

132

Mrs Slade56 Gonville Ave

1975-2007 Walking, dog walking, enjoy fresh air

A/2/423

R Smith17 Gonville Ave

1960-2007 Walking A/2/424

S Smith23 Watford Rd

Not specified Not specified A/2/425

Mr Southam5 Valley Rd

1943-2007 Walked along there with the children & grandchildren, we picked raspberries, strawberries & nuts

A/2/426

B Southam5 Valley Rd

1964-2007 Walking, nutting, blackberries & taking grandchildren

A/2/427

M Spiegl81 Byewaters

2007 Running, cycling, walking, enjoying the green

A/2/428

Mr Stubie28 Gonville Ave

1978-2007 Walking, pick blackberries, ball games

A/2/429

Ms Stone184 Watford Rd

1981-2007 Dog walking, looking at views, general ??? to the environment

A/2/430

Ms Stungo52 Gonville Ave

1998-2007 Walking, cycling, looking at the bluebells and showing them to my London friends

A/2/431

Ms Stungo52 Gonville Ave

1999-2007 Walks and bike ride A/2/432

Mrs Taylor124 Watford Rd

1985-2007 Walking A/2/433

Mr TibblesThe School House, Rickmansworth School, Scots Hill

1971-2007 Walking the dog A/2/434

Timberlake1 All Saints Lane

1972-2007 Walking & bird watching & dog walking

A/2/435

D Thowfood64 Watford Rd

1980-2007 Children’s nature projects A/2/436

Mr Wareham54 Watford Rd

1989-2007 Dog walking A/2/437

Mr Walker278 Watford Rd

Not specified Walking, biking A/2/438

Mr Ward17 Valley Walk

2003-2007 Walking, enjoying bluebells A/2/439

Ms Welch8 Valley Walk

1944-2007 Blackberrying, walking, spent much time there with my son when he was small. Although my grandchildren don’t live locally, they love going there during their visits.

A/2/440

Ms West75 Sycamore Rd

1974-2007 Walking and used by my children

A/2/441

Mr Whittaker109 Byewaters

2000-2007 Walking and cycling A/2/442

Mrs Whittaker109 Byewaters

2000-2007 Walking and cycling A/2/443

Mr Wilkins27 Sycamore Rd

1980-2007 Dog walking A/2/445

133

Mrs Wilkins27 Sycamore Rd

1980-2007 Dog walking A/2/446

R L Williams2 Grosvenor Court, Mayfare

1999-2007 Walking, cycling A/2/447

Ms Williams52 Byewaters

2001-2007 Walking with my family A/2/448

Mr Mitchell & Ms Woodvine84 Watford Rd

2002-2007 Walking and cycling A/2/449

Zeisel54 Byewaters

2004-2007 Dog walking, running A/2/450

P J Wilson13 Berkeley CourtMayfare

1993-2007 Walking with dogs, friends & cycling with children

A/2/451

Further documentary evidence provided by the Applicant

The Applicant relied upon a report dated March 1996 produced by Aspinwall & Company, Consultants in Environmental Management (“Aspinwall”) and commissioned by the Clerk to Croxley Green Parish Council95. The scope of Aspinwall’s instructions was set out in a letter dated 14th February 199696. The report concerned a site of 25 acres, comprising 11 acres of woodland and 14 acres of an old landfill, overgrown at the time of the report. The site plan at figure 297 shows the area under consideration, which appears to have been the whole area now within the Lead Objector’s ownership.

Paragraph 1 of the summary states that the report was a desk based study consisting of a review of available information concerning the historic use and environmental setting of the site and records that the local Waste Regulation Authority and the National Rivers Authority had been contacted for pertinent information. Paragraph 2.1 of the report sets out all the sources from which information had been collected. The sources included discussions with London Transport Property Services and London Underground Limited Engineering Information Services.

Paragraph 2 of the summary sets out the author’s understanding of the history of the site: it had been used as a landfill since the 1930s, and prior to 1953 was not regulated. In 1953 it was formally designated a landfill by the British Transport Commission for use by London Transport Company. The author’s conclusions as to the history of the site are set out in more detail in paragraphs 3.9-3.14. From 1953 use of the site was determined by an undertaking given to Hertfordshire County Council that it would be used “to deposit spoil and waste materials resulting from the construction and maintenance or alteration of the British Transport Commission’s railways”. In 1967 London Transport Property agreed to apply for a license for waste disposal for the site, but this requirement was waived. Waste disposal at the site continued to be active throughout the 1960s and 1970s. The site was formally licensed under the Control of Pollution Act 1974 in 1977. The primary types of wastes deposited were spoil and rail ballast. It is possible that waste oils and other contaminants from the 1978 Moorgate underground train accident may have been disposed of at the site. In paragraph 4.3 the author states that there was no specific data available which defined the exact nature of the material deposited within the landfill. Use of the site for waste disposal was discontinued in the early 1980s. Thereafter the site was levelled, fenced and opened for public right of way. The site was briefly occupied by travellers in 1988 and 1989.

95 A/1/20496 A/1/20297 A/1/222

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Paragraph 2.5 records that the author undertook a site visit on 23rd February 1996. Photographs were taken which form Appendix 1 to the report. Paragraph 2.6 records that 10 exploratory test pits had been dug at the time of the site visit. Eight had been infilled and two remained open. The author understood the test pits to have been dug by an un-named third party interested in purchasing the site.

Paragraph 3.5 records that the area which had been used as landfill (a large worked terraced area of approximately 16 acres) was at the time of the report covered by grass with clumps of Buddleia and other tall-standing invasive plants. The remainder of the site was under mature woodland (approximately 9 acres). Photograph 1 in Appendix 1 and its caption show that the site rises approximately 2.5 metres above the edge of the canal to a level area of about 16 acres, and states that the rise is accounted for by landfilled waste material. Paragraphs 3.15-3.16 describe the use current at the date of the report: the author states that the site is currently Metropolitan Green Belt land to which local residents have full access. A bridleway runs through the length of the site. Photograph 3 in Appendix 1 shows a view over the site from the southwest corner and what is described as the bridle track or bridleway. Photograph 5 shows a view across the site towards the northeast from the central area and comments that the grassed pathways and bridleway are typical of the whole site. The bridleway shown is the path running through what is now known as The Buddleias. The woodland portion of the site has a number of pathways running through it, which locals use for bird watching and walking. Approximately 35 m3 of rubble and demolition waste had been dumped at the site entrance to prevent vehicle access to the site and to inhibit fly tipping and this seemed effectively to have discouraged subsequent illegal dumping. Photograph 4 in Appendix 1 shows the rubble at the southern end of the track from point G98. There appears to be a hole in the fencing on the right hand side of the photograph at approximately the place where the path now comes out of the woodland to join the track. The location of the vehicle access was identified in paragraph 3.3 as being via the Lane leading from Harvey Road. On the site plan two access roads are marked: Lavrock Lane and Mill Lane. Photograph 6 and its caption record that the boundary fence had been broken through in many places allowing access from both the canal path and the pathway running parallel to the residential area. The commentary to photograph 7 notes that despite the lack of cover, re-vegetation had taken place in most places.

8. Evidence for the Lead Objector

The Lead Objector called one witness, Mr Phillip Rowell, to give oral evidence at the Inquiry, and did not rely on the evidence of any other witness. A large number of documents were produced as appendices to Mr Rowell’s statement. The Lead Objector did not rely on any other documents.

Oral evidence for the Lead Objector

Mr Phillip Rowell

Mr Rowell is an Associate in the firm of Adams Hendry Consulting Limited, chartered Town Planners and Environmental Consultants.

Mr Rowell first became involved personally with the site in April 2004. At that time a planning application to use part of the site as a track renewal depot and environmental statement in support of that application had already been submitted by Adams Hendry. On Mr Rowell’s advice, Metronet and LUL decided to withdraw that application and to submit a revised application. Mr Rowell co-ordinated the production of the revised planning application and environmental statement. That application was refused by the planning authority. An appeal was lodged.98 A/1/262

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Mr Rowell became aware that an application had been submitted at the time the appeal was lodged, although Hertfordshire County Council had not at that time accepted it as a valid application. Metronet and LUL decided to withdraw the appeal in March 2005, as it was considered that there was no prospect of the appeal and the village green and a right of way claim being resolved in time to ensure that the proposed depot would be completed in time to meet the contractual obligations of the PPP contract.

Following the withdrawal of the appeal Mr Rowell was asked to research the history of the site from information contained in Transport for London (“TfL”)’s files. Paragraphs 3 and 4 of his statement contain his conclusions drawn from the information obtained from that research.

Mr Rowell attached as appendices to his statement copies of what he considered to be the relevant documents from TfL’s files. He also produced and appended a series of maps of the application land and surrounding area.

In oral evidence Mr Rowell stated that he had asked TfL to provide him with all the historic files they had, in relation to the site. They provided three or four original document wallet files. He has not seen any other files. He cannot be sure, but he thinks that somewhere within LUL there might be other files, but that is pure supposition, he has not seen any reference within the files he has to other files.

He pulled everything that he thought was of relevance out of those files, whether he thought it helped or hindered LUL’s position, for internal purposes in about January 2005, and the files were then returned to LUL. When he said relevant, he meant relevant to the TVG application and also relevant to the history of the land. He tried to be as comprehensive as possible.

Following the instruction of counsel, it was decided that that internal document would form the basis of the evidence Mr Rowell would give. At that point he asked for the original files back again, and checked them again. The current files contain some documents copied in January 2005, which he was unable to find again within the original files. He does not think that he has removed any documents, although he may have thinned down correspondence which related to the possible disposal of the site. He thought that the flavour was in there. He did not add anything that he is aware of, although in each case without comparing the two side by side he cannot be definitively sure.

The photographs produced on day 4 of the Inquiry he had remembered had been in the original files, so he went back to the original files to see if they threw light on the condition of the site at particular dates.

There may be other relevant documents within the files, but he has tried to be as comprehensive as possible.

The documents which the Applicants asked for included the documents at tabs 23 and 24. The documents as provided are extracts of larger documents. He thinks he had seen the complete document in January 2005, but when he came to look at the original files again, he could not find them within the files. He had only photocopied extracts in 2005. In January 2005, he would have skimmed through the document and extracted the pages he thought were relevant at that point.

There are two drawings LO/1/57A and 61, different versions of M52421, the first marked provisional and the second revision A. He looked for a version which had not been revised but which was not marked provisional, because he thought such a document may exist because the

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memo at LO/2/58 refers to a drawing M52421 but does not specify provisional, but did not find one.

On plan E there should be a little bit of fencing shown at the southern end of the blue fence where it joins the green fence on the plan shown in orange, because it is of the same construction as the fencing shown by an orange line. Mr Rowell thinks that the orange line to the north of the horse field is correctly shown, but takes no particular point on it, as it is no longer relevant to the issues in the inquiry.

LO/2/50 is a memorandum from the Director of Civil Engineering to the Estate Manager dated 28th April 1983. Mr Rowell said that the Director of Civil Engineering is recommending to the Estate Manager that a new fence should be put along the foot of the woodland, in the context of tipping activities being reduced in scale, but continuing over the main area for at least the next ten years.

This is the first reference in the bundle to the green fence, and as far as he is aware the first reference anywhere in the files.

LO/2/51 is a memorandum from Director of Civil Engineering to Deputy Chief Estate Manager and Solicitor (Civil Litigation) dated 29th April 1983. Mr Rowell said it suggests taking a pragmatic approach to the problems in managing the site: erecting a new fence around the area which would still be used for tipping.

LO/2/53 is a letter from the County Planning Officer of Hertfordshire County Council to the Director of Civil Engineering dated 3rd May 1983, apparently following a site visit. Mr Rowell thinks that the reference in paragraph 5 is to the green fence. A drawing for which the source drawing is M52300 which is the drawing referred to in the letter appears at LO/2/310. Mr Rowell looked for the original drawing and could not find it. This plan should be treated with caution, because note 1 on the right hand side says Site Plan taken from Drawing No 107593, and we do not have that drawing. However, Mr Rowell said that it would appear to be a reasonable inference that the line shown as CS2 on that plan is the same line as is referred to in the letter. Line CS2 appears to be in the same place as the green fence line return on Plan E. The link from the canal to the River Gade acts as a useful reference point as does the footpath between numbers 51 and 53 Frankland Road on the northern side.

LO/2/55 is the note of a meeting on the future use of Croxley Tip held on 19th May 1983. There is a reference in paragraph 4 to various drawings showing the area of land and position of the boundary fences being tabled. Mr Rowell does not know what drawings were tabled. The reference to the proposed new fence (“Mr Gage would arrange for a new 4’6” high chain link fence to be erected just outside the wooded area with a return to the canal boundary fence at the north end of the tip”), he thinks is a reference to the green fence line.

LO/2/57 is a memorandum from the Director of Civil Engineering to the Director of Estates and Valuation dated 20th September 1983. Mr Rowell said that he thought that the existing fence line referred to was the orange fence line, and the proposed is the green fence line. In the copy to section a drawing is shown as having been enclosed. Mr Rowell said that it looked as though “M52412” had been used as shorthand for “M52412 provisional drawing” here.

Mr Rowell said that he thought that the person who drew the plan at LO/2/57A had been onto the site, because there are measurements and it is drawn to scale. The proposed line of the new (green) fence includes a return towards the canal.

LO/2/58 is a memorandum from the Civil Engineer to the Permanent Way Engineer dated 11th October 1983. It states the erection of the fence would be commenced on 13th October 1983, and

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would be completed in two or three weeks (i.e. by the beginning of November 1983). This memo appears to refer to M52421, which we do not have. Bearing in mind that the provisional drawing and revision A99 are largely similar, Mr Rowell said that he would not have thought that M52421 would be very different.

LO/2/59 is a memorandum from Structural Maintenance Engineer to Operational Estate Manager dated 30th April 1984. The memo talks about “the new operational boundaries”. Mr Rowell said that he would conclude from this that the new operational boundaries are now present on site.

LO/2/61 is drawing number M52421 Revision A dated February 1984. Mr Rowell said that this was a detailed survey drawing. There are pegs on the site, and a table showing the distance between the pegs and various fence lines. There is a measurement on the plan from peg 4 to the return of the green fence. The green fence line is described as “Line of new LTE chainlink boundary fence enclosing land to be retained” [my emphasis]. Although revision A of this plan does not show existing gates, the site location plan on that document does show entrance gates across the track from Lavrock Lane to the site.

LO/2/62 is a memorandum to the Operation Estate Divisional Meeting dated 18th July 1984. Mr Rowell said that he thinks the reference to the area still in use and its being fenced off, is a reference to the green fence. He looked for plan 2 referred to in the memorandum, but could not find it.

LO/2/64 is a letter from the Operational Estate Manager of London Transport to the Chief Estates Officer of 3 Rivers District Council. It contains an offer to lease part of the land owned by the Corporation to Three Rivers District Council. Mr Rowley thinks that the reference to the drawing M5241 was a typographical error for M52421, which does show the area that LT intended to dispose of. He has not found a drawing M5241. The same reference is also given at LO/2/67

LO/2/65 is a letter from the Director of Housing and Estates of Three Rivers District Council to London Regional Transport dated 24th October 1984. It contains the Council’s terms for a transfer of the whole of the land to them. The letter refers to phases of land to be transferred. The woodland strip to the north, Mr Rowell thinks is the woodland to the north of the green fence. The planted banks are the banks down to the canal. He thinks this refers to land outside of the green fence line.

LO/2/77 is a memorandum from Structural Maintenance Engineer to Civil Engineer dated 13th November 1985. Mr Rowell thinks that the contract referred to was the contract to re-grade the site and replant the embankment slopes. The fence referred to is the green fence, apparently already damaged by the date of this memo, 13th November 1985.

LO/2/77 enclosed the document at LO/2/76, which in turn enclosed the document at LO/2/73-75. Thus Mr Rowell thought that the area hatched red referred to in LO/2/77 must be the land shown coloured red on LO/2/75 and the fence must be the fence around the blue area.

LO/2/79 is a memorandum from Civil Engineer (Premises & Structures) to Operational Estate Manager dated 9th January 1986. Paragraph 5 of the memorandum states that “A considerable sum of money has been spent by LUL on new fencing and tree planting and this is now becoming a liability due to trespass and vandalism. It is a statutory obligation to ensure that the site is adequately fenced and now that much of the new fencing will have to be reinstated LUL will again have to meet the costs involved.” Mr Rowell said that the new fencing referred to can only be the green fence. In his view “reinstated” means there is either something there, or there was something there which will have to be put back.99 LO/2/61

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LO/2/80 is a letter from the Civil Engineer (Premises and Structures) to Hertfordshire County Council County Planning Officer dated 7th January 1986. Mr Rowell does not know what the previous correspondence referred to in the first paragraph concerned. The final sentence of the fifth paragraph of the letter stated “I cannot accept that the site has been neglected, trespass and damage by vandals has always been a problem”. Mr Rowell said that the Civil Engineer was saying that he did not think that the site had been neglected. Mr Rowell does not know in what area the alleged trespass and damage by vandals had taken place.

Mr Rowell compared the plan at LO/2/82 with a different version at LO/2/61: the differences were the red shading, and the handwritten word “note” over box to the right of the plan.

LO/2/119 is a letter from LRT to the Parish Council dated 3rd July 1990. Mr Rowell said that he does not know what fencing was referred to as renewed.

Mr Rowell said that LO/2/123 was with LO/2/122 in the file, although not attached or stapled to it. The brown line shown on LO/2/123 is pretty close to the green fence line, except up towards the railway. He has no idea of the provenance of the plan and does not know whether the author went on site to draw it. He commented that it is the first plan in the files which shows the LUL boundary correctly.

LO/2/125 is a letter from the Commercial Property Manger to Hertfordshire County Council Waste Regulation Unit dated 26th July 1993. The fourth paragraph states: “Unfortunately every time London Underground erect a new fence it is either knocked or cut down by local residents in order to gain access to the site.” Mr Rowell said that he could not say what fencing was referred to.

LO/2/127 is a letter from the Head of Waste Management at Hertfordshire County Council to London Transport Property dated 4th August 1993. The fourth paragraph states: “If the proposed scheme were implemented it would not of itself solve the problem of local residents damaging fences to gain access to the site.” Mr Rowell said that he had no idea what incident the reference to local residents damaging fencing related to. He also commented that it was not clear to what part of the land the correspondents were referring.

LO/2/152 is part of an Affidavit of G Bannister which states that it was made in support of London Underground Limited’s application for possession of the property known as Croxley Tip shown edged red on the plan marked GB1. The plan appears at LO/2/158. Last sentence of paragraph 4 of the affidavit says: “I am informed and verily believe that over the years various attempts have been made to fence the land but these fences have been broken down by vandals.” Mr Rowell does not know what land or what attempts were being referred to there.

LO/2/245 is a memorandum from Commercial Property Manager to General Manager, Metropolitan Line dated 26th July 1996. Mr Rowell did not find a plan attached to this memo or with it in the original file. Mr Rowell thinks the reference in paragraph 2 “It requires significant annual expenditure in repair of the access road and perimeter fencing. Local residents have come to regard the site as public open space and as soon as fencing is repaired, break it down to regain access” is to repair of perimeter fencing. He said that the Commercial Property Manager would clearly have had an eye on budgets. He does not know which fence is referred to.

At LO/2/277 there is an extract from a Report entitled “Environmental Assessment of Croxley Landfill Site” written by Dr G Bestall for London Transport Property Services and dated May 1997. At LO/2/779 it says, “From the 1980s onwards, waste deposition at the site was discontinued and the site was ‘made good’ i.e. levelled, fenced (the integrity of which has since been breached) and allowed to self re-cultivate.” Mr Rowell said that he thought that that the

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fencing referred to is more likely to be the green fence than the orange fence, because of where the waste deposition was latterly taking place, although he does not know for sure. Whichever fencing it was had been breached.

At LO/2/315 and following are copies of Hertfordshire County Council’s site inspection records. On LO/2/326 the entry dated January 1984 “Site has now been fenced and the batter along the canal side planted with willow trees”, Mr Rowell thinks is a reference to the green fence, because that reference ties in in time with the erection of the fence by Messrs Mabey & Co.

In the light of the documents, Mr Rowell concluded that it was LU's intention in November 1983 to erect a fence along the line of the green fence including a return to the canal. His conclusion from the documents is that the fence was put in, primarily because of M52421 Revision A, which shows the boundaries on site. By November 1985 that fence had already been breached in places. He does not know where the fence was breached, whether it was the return or somewhere else, because the documents do not say.

So far as the present position on the site is concerned, Mr Rowell visited the site again on Wednesday morning (day 3 of the Inquiry) to examine the fencing. Starting at the woodland end there is a corner post, with a buttress support with wire coming off it both along the back of the woodland and towards the canal. From that corner post there is about 5.5 m of chain link material running down from the post towards the ground and stopping. Inside the green fence line in the corner there is a fence post lying on the ground, square in cross-section, it appears to be the same as the rest of the posts along the green fence. There is a lump of concrete still attached to the base of the post, which Mr Rowell takes to be the concrete footing of the post. He thinks that it has been pulled out of the ground and put in that position. He does not think it originated from the position where it is now. He thinks it has been pulled rather than fallen, because if it had fallen he thinks that part of the footing would still be in the ground. There is no longer any wire straining or chainlink attached to it that he can see, although he could not get close to it because it was right in the bushes.

Mr Rowell has been told by representatives of TfL who put the 2005 signs up, that when they were erecting the sign close to the return, it took them three attempts to get a hole into the ground where that sign could be securely fixed.

At the end of the 5.5 m of fencing there is a gap of about 25 m into the edge of the Buddleia and the bushes. There is one post there, again a square post, which appears to be in line with the corner post in the woodland. There is no tensioning wire or chainlink fencing around that post. Under the bushes there is second post, approximately 2.5 m towards the canal, with no wire or link attached, square in cross-section. 2.5 m further back there is another post, which has a buttress on each side, which he thinks marks the top of the embankment. Fencing is attached to that post, and from the canal, the fencing is complete to the back of that post. The end of the fencing has been rolled around that post to the left hand side, looking from the canal. Mr Rowell thinks that that wire has been cut because the ends of it look as if they have been cut. In addition to the wire which is attached to the post and rolled back, there is also a jumbled up roll of wire on the ground of the same appearance. He put a tape measure around it and estimated that there might be 5-6 m of wire rolled up.

The line of fencing then has 5 square posts after the buttressed post towards the canal down the embankment, which has fencing attached all the way along it. At the bottom of the embankment, there is another post with a buttress on each side with fencing still attached, then beyond that one more post on its own, before the end post, which is hard up against the triangular post of the orange post, and which has a buttress support back up the slope. In total therefore 11 posts from the canal up with wire fencing to 9 of them. The posts are not set at regular intervals, but at about 2.5 m intervals so there is about 25 m of fencing posts upright from the canal. His

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estimates, giving a total distance of 55.5m ties in with the measurements shown on M52421 A (which shows the return section as being 57.8 m long.

At some point between 1984 and present, that bit of the fence has gone. There are references in the file to the fence being breached, but no mention of where. He does not know how it happened.

There are also breaks in the section of the green fence which runs parallel to the canal. The applicants’ plan A/1/262 shows 4 footpath routes through, which he thinks is right. There is also the occasional point where a tree has brought down or fallen across the fence. Where there are holes, the fence has been broken, in some places rolled back, in some places fence posts have been laid to the side. Gaps have been created at some point in time, but Mr Rowell has no idea when, by whom or with what.

The fences on either side of the track going to point G: on the woodland side have been broken in one place to get access to the woodland path. A panel of fencing no longer exists. The Aspinwall report from 1996 has a photograph from the end of the tip (Photograph 4, A/1/226 and LO/2/270) which shows the fence line. Mr Rowell thinks that the panel missing there is the same panel which does not exist at present, and thinks he can see some wire rolled back towards one of the fence posts in that photograph.

At point G at present across the path there are 3 metal posts sticking out of the ground, which do not stop pedestrian access but would stop vehicular access. There is nothing in the files which indicates when they might have been put in.

As to the question of whether there were gates to the site and where they were, at LO/2/102 is a letter from Mr LJ Scammell dated 5th December 1989. The sixth paragraph of the letter states “The gates to the site have been broken for some time”. Mr Rowell said that the gates referred to must be gates which were intended to prevent entry by vehicles. He thinks the gates referred to here and at LO/2/326 (entry for 15th August 1983: “Entrance gates padlocked shut at time of visit” must be the gates indicated on the site location plan drawn on M52421 Revision A100 at point G. There is no reference in the files to gates at any other position.

Mr Rowell said that at present there are gates to the smallholdings. Walking down into the site from point G, in the hedge overgrown by ivy on the left hand side, there is a metal gate attached to a gatepost. It is not long enough to have gone across the whole of the path. It has a slide locking mechanism on it, which could either have been slid into a post or into another gate on the other side, although there is no evidence of a second gate on the other side.

The gate referred to in Mr Bannister’s affidavit and shown by an X on LO/2/158 would be on that part of the fencing shown on the Aspinwall photograph. Mr Rowell thinks that the X was probably put in the wrong place and should have been at point G.

LO/3/339 is a letter from the Quality Manager of Three Rivers District Council to the Commercial Property Manager of London Transport Property. The second paragraph refers to the erection of a gate leaving approximately 2 feet for pedestrian passage. “The remedial action complies with the expectations in your letter of 27 January, namely the removal of the rubbish and the erection of a gate, leaving approximately 2 feet for pedestrian passage. The agreed completion date for the work was 6 February next.” Mr Rowell said that it appeared that the gate had not been erected at the date of the letter, and that he did not know whether it ever was erected.

100 LO/2/61141

The earliest reference to the orange fence line was at LO/2/30 which is a letter dated 17th February 1970 from the Chief Solicitor to London Transport to the Clerk to Rickmansworth UDC: “It is proposed by the Executive to move the fence back from its present position to the edge of the area upon which tipping is permitted, thus leaving the woods free for such persons as choose to wander in them.” Mr Rowell said that the edge of the area on which tipping was permitted as at that date was the area shown on Plan 2101 which shows the area on LO/2/7. That was the most recent consent prior to 1970; a subsequent licence was granted in 1977. There is no clue as to where the fence was: you could assume that it might have been on the edge of the land owned, but there are now no remnants there. The intention was to move the fence to the edge of the area on which tipping was permitted, and the orange fence line corresponds quite closely (although not exactly) with the boundary of that area. There is no evidence in the files that the fence proposed was ever erected. The intention was to move the fence “back” i.e. to enclose a smaller area. There is no indication in the woods that Mr Rowell has seen of any other fence line. It could be that the intention was to move the northern end (the return section) back to the boundary of the permitted tipping area.

LO/2/23 is a memorandum from the Chief Estate Manager to the Chief Civil Engineer dated 3rd April 1979. The second paragraph states: “It is noted that the fencing nearest to Frankland Road is not placed along the Executive’s line of ownership and that there is a board on the fence indicating that the Executive’s line of ownership is “so many” feet from the face of the fence and it would seem appropriate for the lettering on this board to be renewed even if this proposal does not proceed.” Mr Rowell said that there is no evidence either way as to whether the boards referred to were ever renewed.

LO/2/28 is a letter from the Director of Planning for Three Rivers District Council to the Estate Manager for London Transport. Paragraph 2 states: “You will recall when we made a joint site inspection in 1979, that a right of way was, and still is, marked by means of a notice on the fence, and although this is somewhat defaced, it cleared states ‘Highways Act 1959. This Path is Dedicated to the Public as a Highway. By Order L.T.E.’ It would be helpful if you could let me have details of the terms of the Agreement.” Mr Rowell said that he does not know where the “Highways Act …” sign was. The third paragraph continues: “There is already a fence separating the upper (northern) part of the woodland from the lower section which immediately adjoins your tipping land and although this fence needs some repair in part, it appears to give adequate security against trespass by walkers on to your tip area.” Mr Rowell thought that the fence referred to was probably the orange fence, the part parallel to the canal and Frankland Road.

On LO/2/32 and 33 which are respectively a memorandum from Civil Engineer (works) to Estate Manager dated 19th May 1981, and the plan enclosed with that memorandum, the approximate line of the operational boundary fence is shown in blue. Mr Rowell said that the blue line is described as an approximate line, and he thinks that the line shown on the plan is a diagrammatic representation of the orange fence. The proposed route is the route shown in brown. The section A-B described as suffering from vandalism, is the fencing going down the hill towards the canal (the return section of the orange fence).

LO/2/35 is a letter from the Estate Manager to the Director of Planning at Three Rivers District Council dated 29th June 1981. Paragraph 2 states “The Executive’s Civil Engineer will be asked to replace the fencing at the top of the tipping site which runs roughly parallel to Frankland Road. Mr Rowell thinks that this refers to the orange fence. Paragraph 3 states: “Between the points ‘A’ and ‘B’ on the attached plan your Council will pay the cost of the renewal of the fencing. No plan is with the letter, but Mr Rowell said that A and B are presumably the same points as are shown on LO/2/33. The letter goes on to say “The Executive will arrange for new notices being erected to the effect that the woods are private property and that no rights of way 101 LO/App/6

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exists through them and in addition I will ask the Executive’s Civil Engineer if it is possible for signs to be erected on the Executive’s side of the operational fence saying ‘DANGER – KEEP OUT’”. Mr Rowell said that he does not know if the new notices in the last paragraph were ever put up.

LO/2/36 is a memorandum from the Estate Manager to the Civil Engineer (Works) dated 29th June 1981. The engineer was in asked to repair “the broken fencing at the front of the tip where it fronts onto the woods”. Mr Rowell said that there is nothing on the file to confirm whether the engineer did put the work in hand, but there is reference later to the works having been done.

LO/2/44 is a letter from the County Planning Officer of Hertfordshire County Council to the Chief Civil Engineer of London Transport Executive dated 16th November 1981. Paragraph 2 of the letter refers to a broken boundary fence. Mr Rowell said the broken boundary fence cannot be the green fence because that fence had not been erected by that date. Mr Rowell thinks it must have been the orange fence.

LO/2/45 is a letter from the Principal Permanent Way Assistant to the County Planning Officer of Hertfordshire County Council dated 19th November 1981. The letter states that work was carried out on Sunday 15th November 1981: minor patching and replacement of approximately 30 m of chainlink fencing wire. The third paragraph states: “The work was completed on the Sunday despite the protests but on Tuesday 17 November 1981 a site inspection revealed that not only had the 30 m length of new wire been taken down it had been removed from the area and could not be located by our staff.”

Mr Rowell said that at present the only gap where fencing has been taken and removed of that kind of length is the one at point F. Otherwise there is not now any other gap in the orange fence of 30 metres in length.

Mr Rowell has not had the opportunity to look at point F again to see whether there is fencing on the ground. If it is not point F, then wherever it was must have been repaired, because there is no other 30 m gap, without fencing on the ground, there now.

Mr Rowell thinks the November 1981 works may be the works instructed in June of the same year, although he cannot be sure whether works were carried out in the intervening period or not.

LO/2/38 is a letter from the Director of Planning for Three Rivers District Council to the Estate Manager of London Transport dated 11th December 1981. Paragraph 1 states that the District Council will undertake fencing repairs along the northeastern boundary of the Executive’s tipping area (between points A and B). The letter enclosed an estimate (LO/2/39). Mr Rowell does not know whether that repair work was ever done.

A further letter at LO/2/42 from the Chief Engineer of Three Rivers District Council to the Estate Manager of London Transport dated 10th September 1982 confirmed that the Council would agree to carry out future repairs as necessary between points A and B on the enclosed plan (LO/2/43).

LO/2/49 is a memorandum from the Solicitor (Civil Litigation) to the Director of Civil Engineering and the Managing Director (Property) dated 16th November 1982. The third paragraph read: “The problem with the tip is not only is it unsightly, but dangerous. I believe it is not thought to have been used for dumping dangerous materials, but it is nevertheless in the nature of tips to be less stable than natural ground and also prone to fires. Thus the unused tip will present a hazard and if accidents occur, especially to children, the Executive will be liable. Whether sold or retained, therefore, the tip will either have to be securely fenced (and this is a continuing problem since local people pull down the fences as soon as they are erected) or

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money will have to be spent on making it safe and generally fit for public access. It may be that the local authorities would not be prepared to take on the site unless those works were done. In that case, if we were not prepared to do the work, we would be faced with the perpetual headache of securing the site.” Mr Rowell said that it could be inferred from the content of this memorandum that the Solicitor’s view was that there was a continuing problem in securing the site.

LO/2/51 is a memorandum from Director of Civil Engineering to Deputy Chief Estate Manager and Solicitor (Civil Litigation) dated 29th April 1983. Paragraph 5 states: “Clearly the local residents feel strongly that they should have access to the wooded areas to the North of the tipping area and the fence defining the boundary in the woos is constantly being broken down in many places and is completely non-effective.” Mr Rowell said that the use of the phrase “constantly being broken down” suggested an ongoing problem, with the fencing being re-erected and taken down again. The fence is non-effective means at keeping people out of the site, (although not necessarily ineffective as marking a boundary).

In LO/2/55 the reference to the boundary fence in the bluebell wood must be a reference to the orange fence. It is stated in the fourth paragraph: “This particular fence line had been difficult to maintain as it had been constantly broken down by members of the public who claimed it crossed a public right-of-way.” Mr Rowell said that the use of the word “constantly” again implied an ongoing problem. It suggested that efforts had been made to maintain the fence, but it had been difficult. Mr Rowell said that the last paragraph of the note suggests that those present at the meeting took the view that if they put a new boundary around the area they wanted to retain, they would be able to maintain that, and would not have the perpetual headache of trying to maintain the orange fence.

In response to questions in cross-examination on behalf of the Applicant, Mr Rowell stated that he is a planner, working for a firm of chartered town planners and environmental consultants. He does not have any surveying qualifications, nor any cartography qualifications, and neither is he an expert in researching historical documents. He accepted that so far as his evidence goes to an interpretation of documents, he is no more of an expert than anyone else.

Mr Rowell confirmed that he has not worked directly for LUL or TfL.

He first visited the application site in May 2004. Between then and July 2004, he visited probably twice in total, including the initial visit. He had no personal knowledge of the site before May 2004. He cannot contradict or affirm the Applicant’s witnesses’ recollection from his personal experience. He agreed that there was no witness called by LUL who had personal knowledge of the application site. Mr Rowell said that he had discussed the site with members of LUL but does not know whether those individuals had personal knowledge of the site prior to April 2004. He had not carried out any inquiries as to whether there remained within LUL any persons who do have personal knowledge of the application site.

Mr Rowell accepted that the documentary record within the files is incomplete and was incomplete in January 2005. He said that some further documents disappeared from the files between January 2005 and when Mr Rowell asked for the files back.

Mr Rowell exercised his judgment in January 2005 and extracted what he thought was relevant, whether it helped or hindered. He did not have any legal advice at that stage. One of the TfL solicitors was involved on the fringes, but did not give advice.

Mr Rowell said that he had had one dealing with a TVG application prior to this one, in Kent, but he was very peripheral to that matter.

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The internal document he had prepared had appended the extracts from the documents which Mr Rowell had copied in January 2005. That internal document is not in evidence before the inquiry.

So far as Mr Rowell’s evidence (including appendices) is concerned, he had thinned out the correspondence from the internal document. He went through that document and where, for example, there was correspondence referring to LUL disposing of the site to various parties, he tried to put in the documents which showed the conclusion of that correspondence. He went through the documents again considering whether each document was relevant and whether it added anything to the evidence. He did not take out anything he considered relevant, irrespective of whether it helped or hindered LUL.

The material before the inquiry is the result of the exercise of Mr Rowell’s judgment on two occasions. There may well be documents in the file which help one party or the other. He has not gone back through the original files again since the inquiry started, except once to extract the photographs.

Tipping

Mr Rowell was asked about the history of tipping on the site. The original consent to tip to LPTB was granted in 1938102. There was then an undertaking by the British Transport Commission to Hertfordshire County Council in connection with the promotion of the Bill before parliament in the 1952-53 session103.

Mr Rowell said that he thought that Stage 2 was approximately where the open space is now. The requirement was that Stage 2 had to be completed before Stages 3 and 4.

The land was conveyed by Gonville and Caius College to BTC on 31st May 1954104. Mr Rowell said that tipping could have started any time after that.

LO/2/234 was an internal file note dated 31st May 1996 recording a conversation the author had had with a David Mole on 29th May 1996 as to what was tipped on the site. The third paragraph stated “David’s further observation was that bearing in mind the tip was last used 10/15 years ago that there was not very much meaningful vegetation growing on the site. Even the buddleias were not flourishing.” Mr Rowell accepted that Mr Mole thought that it had been 10-15 years since tipping had taken place (i.e. 1981-1986).

Paragraph 3.13 of the Aspinwall Report105 gives the date as the early 1980s. Aspinwall were retained by the Parish Council not LUL, but Mr Rowell accepted that the report recorded that they had discussions with LTPS and LUL Engineering Information Services, although there is no record of what those discussions were. The date given was the author’s conclusion following discussions with at least two arms of the landowning party.

The second paragraph of the memorandum to the Operation Estate Divisional Meeting LO/2/62 dated 18th July 1984 states that operations had been reduced in recent years to the tipping of light ballast and track dust.

In the letter at LO/2/80-81 it is stated “Although no tipping has taken place since the landscaping works…”. Mr Rowell accepted He accepted that the landscaping works are the works referred to in the second paragraph of the same letter, which took place in 1983.

102 LO/2/1103 LO/2/4104 LO/2/8105 LO/2/258

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Mr Rowell said that he had not gone to the County Council and asked for the tipping records. He accepted that there should have been annual records submitted to the council as to what had been tipped and the volume.

Levelling

Mr Rowell agreed that the 1953 undertaking required that when tipping had finished, there should be a horizontal surface.

The memorandum at LO/2/51 dated 29th April 1983 stated in the second paragraph: “Our contractor is now well advanced with the work of readjusting levels and should be complete by the end of next month”. Mr Rowell accepted that this would have been May 1983. In the fifth paragraph the memorandum stated “At the NE end of the site spoil will be adjusted to final levels and no additional tipping will be possible. For the rest of the site however, I would wish to cover the flat area with say 6” to 12” of spent ballast as this is removed from the track in the next ten years.” Mr Rowell accepted that this was a reference to the ongoing process of adjusting levels. The reference in paragraph 7 to “complete adjustment of levels and slopes as agreed with the Councils” was also a reference to the same process.

The letter at LO/2/53 dated 6th May 1983 written by the County Planning Officer for Hertfordshire County Council recorded the agreement reached on site with the Director of Civil Engineering. Point 1 was: “The reshaping of the tip would be completed in accordance with your drawing M52300”. In point 5 there is reference to final contours on the eastern end of the site: “In that the most easterly end of the site (up to about Section Line CS2) is likely to be level to final contours as part of the present contract.”. Mr Rowell agreed that it was apparent from the tense used in the third paragraph of the memorandum at LO/2/62 (dated 18th July 1984) that the levelling off had been completed by that date.

Mr Rowell stated that there was no document in the files describing the physical process of the levelling process. However, he said that he does not think that the documents necessarily show that the whole levelling process had been completed by 18th July 1984: the memo shows merely that the surplus land had been levelled. He agreed that the entries on LO/2/326 for March-May 1983 were consistent with the levelling process taking place during that period.

Mr Rowell agreed that the levelling process was taking place in spring 1983, to be completed by May 1983, and in July 1984, LUL stated that the surplus area had been levelled. Mr Rowell said in his view the area referred in the 18th July 1984 memo was the area outside the green fence. That was the only area in relation to which there was evidence that the works had been completed in the files. He accepted that provided that the works envisaged were completed, the whole of the site would have been levelled. The levelling works anticipated had included the area within the green fence.

Fencing

Mr Rowell agreed that it can be seen from LO/2/23 that the condition of the orange fencing was damaged as at April1979. From LO/2/32 it can be seen that as at May 1981, the condition of the section A-B was such that it required renewal.

Mr Rowell was asked whether the phrase used on LO/2/34 “as long as the fence remains broken” presupposed that the fencing was broken. Mr Rowell said in his view the phrase was ambiguous, and that he could not reach a concluded view as to whether the fence was broken; it may be a contingency. He accepted that LO/2/34 was written a month after the memo which says that A-B needed renewal.

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Mr Rowell accepted that LO/2/35 shows that the section A-B was still in a condition requiring renewal and that the section parallel to Frankland Road needed to be replaced.

Mr Rowell accepted that LO/2/36 showed that as at June 1981 both the section of the return and the section parallel to Frankland Road were in need of repair. He was asked whether the works referred to at page LO/2/45 were those works, and he said that it may be that those were the works that were done, or it may be some other works were done, he could not be sure. He said that he thought that Point F could have been the 30 m referred to. When asked whether it was necessarily one 30 m section, he said that the third paragraph suggests that it is one 30m length of new wire “the 30m length”. He agreed that it was clear from the letter that the intention was not to replace the 30 m immediately, but that this would only be done when British Transport police were available.

Mr Rowell accepted that there was no document to indicate that the intended works of replacement of the fence, accompanied by police support, were ever carried out. Rather, in 1982 LU was considering their options in relation to that site (LO/2/46-49). LO/2/49 says “Whether sold or retained, therefore, the tip will either have to be securely fenced (and this is a continuing problem since local people pull down the fences …” Mr Rowell was asked whether there was any evidence to indicate that since November 1981 the fence had been re-erected and taken down again. Mr Rowell said that there was no document of which he was aware.

Mr Rowell agreed that the third and fifth paragraphs of LO/2/50 showed that by April 1983, LT were considering, and it was recommended to the Estates Manager that a new fence should be erected at the foot of the woodland

In November 1981, works to orange fence were carried out, and were almost immediately reversed. Thereafter there was a debate by LT as to future of site, then by April 1983, recommendation of a new fence line, which Mr Rowell takes to be the green fence line. There was nothing in the documents to indicate that between November 1981 and April 1983 any works were carried out to the orange fence. Thus although LO/2/51 refers to the fence being “completely non-effective” and “constantly being broken down”, there was no evidence of any works to orange fence. By this date work on the green fence had been recommended.

Looking at point 5 on LO/2/54, in April 1983, LU’s proposal to Hertfordshire County Council was not works to the orange fence, but the erection of new fence on the green line.

The reference to “This particular fence line” in the fourth paragraph of LO/2/55 (May 1983) was a reference to the fence line inside the bluebell wood. This is consistent with the preceding documents: the Executive’s intention at that stage was to put up a new fence along the green line. Although document refers to the fence having been constantly broken down, that is not a reference to works having been done to the fence. Looking at LO/2/56 Mr Rowell agreed that the possibility of allowing public access was to be the subject of future discussions between those present before a formal approach to the local authority, although he pointed out that ultimately there never was any sale or other disposal to the local authority.

Mr Rowell agreed that there is no documentary evidence of any work to the orange fence after 1981.

Proposed bridleway

Mr Rowell said that the materials behind divider 5 starting at LO/2/21 are an exchange of correspondence between 1979 and 1982 concerning a proposed bridleway, later downgraded to a footpath. Mr Rowell has no knowledge as to whether the notices referred to at LO/2/38 were

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ever actually put up. LO/2/42 is the end of the correspondence so far as Mr Rowell is aware. He has no idea what happened after this. He does not know from the documents whether the arrangement that the Council would carry out future repairs to the fence line between A-B was ever put in place. Mr Rowell accepted that at the same time as this correspondence ends, LT were considering future proposals for the site.

The documents behind divider 7 (LO/2/57-) are the documents on which Mr Rowell bases his conclusion that a fence along the line of the green fence was erected. That fencing work, if carried out in accordance with LT's stated intentions, would have begun on 13th October 1983.

Mr Rowell was asked about his answer that the fence had gone some time between 1984 and now and whether he had meant some time between 1983 and now? Mr Rowell said that the drawing M52421 Revision A showing the line of the new fence, is based on a site survey. It is a reasonable assumption that the survey was carried out in February 1984. The fence was there at the time of the survey. The fence was put up probably starting 13th October 1983, and should have been finished some time in 1983.

Mr Rowell said that the gap from the end of the wire to the first post on the return line towards the canal is about 25 metres. In terms of the distance between existing posts, that would make about 30.5 metres where there are no posts. On average the distance between the posts is 2.5 meters. That would be 11-12 posts across the gap. Now there is one post lying on the ground near the corner with a concrete foundation. There is also one lump of concrete on the ground at the end of the run up from the canal in the line, about 2.5 metres from the last post, which might be the remnants of a post.

Mr Rowell was asked whether, where posts were broken in the orange fence you could see broken posts. He said that you could in certain instances, but not others. There was one stub of a post in the woodland floor where there was no post. He agreed that there was nothing like that in the gap in the return section of the green fence.

The drawing number M52421 without qualification of either provisional or revision A was not before the inquiry. Mr Rowell agreed that this was the document on the basis of which Mabey did the work referred to on LO/2/58. He has not made enquiries as to whether Mabey is still in existence, nor of any project manager within LT who might have been responsible for the works.

Mr Rowell was referred to his evidence in chief as to the difficulty of putting up the 2005 notices. He said that the difficulty referred to was the difficulty in penetrating the ground in this area. He does not know how Mabey dealt with this, if they did.

In the memorandum at LO/2/59 it is not possible to tell what “this matter” is (“I apologise for the delay in dealing with this matter”), because Mr Rowell does not have a copy of the memo to which this is a reply. It is not possible to tell what the context of the exchange is and why the drawing was passed between the two officers. He said that it did not seem from the content of the memo that the purpose of passing on the drawing was to verify that Mabey had actually built the green fence on the line shown, but rather to identify operational boundaries, and the surplus area available for sale. The drawing, so far as it was generated for the purposes of this memo was produced to show what land was to be for sale.

He agreed that LO/2/59 was not a document from which it was possible to draw conclusions as to what Mabey had done, but said that the drawing does purport to show the boundary by reference to an existing fence. The drawing appeared to Mr Rowell to be based on a survey, although he does not know whether Mr Ruddock did in fact go on site and do a survey.

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Mr Rowell was taken to the plan to the Conveyance at LO/2/17. He agreed that the conveyancing plan shows a right of access from Mill Lane, as well as from Lavrock Lane. There are pecked lines showing access routes through the site. LO/2/7 has marked on it “alternative road access” from Mill Lane (LO/2/140 is the same base plan). The original conveyance included a right of access to the land conveyed via Mill Lane.Mr Rowell was asked whether a possible explanation for the gap in the green fence would be to allow that access to continue to be used. He said that if that were so he would have expected there to be a gate across the green return.

Mr Rowell agreed that LO/2/57A has to be viewed in the context of the document at LO/2/57. It was a provisional map and it was agreed that the situation regarding road access would need to be checked. However, the Revision A plan, which Mr Rowell assumes must have been produced after the situation was clarified, does show the access from Lavrock Lane, although Mr Rowell accepted that the context in which that document had been prepared must be taken into account (so that its accuracy could not be relied upon for this detail). So far as the licence was concerned, it was envisaged that an access from the canal would be maintained. LO/2/20 has marked “access from towpath of canal to be maintained”.

Mr Rowell accepted that there is no document in the bundle showing that any repairs were carried out to the green fence.

How a landowner would have viewed the activities by the local people

The internal document at LO/1/141 shows that in 1993 LUL thought that local people considered the land to be common land. Mr Rowell accepted that that conclusion would have been reached against the background of recognising and appreciating what was going on on the land.

In the 1996 internal document at LO/1/245 it is said that “local residents have come to regard the site as public open space”. Mr Rowell agreed that in 1996 LU thought that local residents regarded the site as public open space.

In the internal document dated 21st March 1996 at LO/2/230 it was said that “there are few restrictions to access by the public, who regularly use tracks across the site”. Mr Rowell agreed that LUL recognised there were few restrictions to access by the public.

A/1/8 was an extract from the May 2004 Environmental Statement for which Mr Rowell was responsible. That document recognised at paragraph 7.65 the “high public use of the site”.

LO/3/473 is a letter dated 7th August 2002 from the Environment Agency to STATS Environmental who were consultants engaged by LU in connection with the issue of a Certificate of Completion for the site. Point 3 of the letter states: “I note that the current use of the land is public open space”. Mr Rowell said that the Colne Operations Team and the Waste Licensing Team referred to in the letter were probably part of the Environment Agency. He agreed that the letter said that their comments arising from a joint inspection relate to the land being used for “public open space”.

LO/3/477 is a letter dated 13th August 2002 written by STATS Environmental consultants who were engaged by LU in connection with the surrender of the waste management licence to LT Property seeking instructions. Point 1 says: “We consider that it would be feasible to handpick material from the areas highlighted in the photographs and areas which are easily accessible to the public, but not across the entire site.” Mr Rowell said that the photographs were not in the file.

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LO/3/480 is a letter dated 9th September 2002 written by STATS Environmental to the Waste Licensing Officer at the Environment Agency. Paragraph 2 states: “The site is currently private property, although members of the general public use the site as public open space.” Mr Rowell agreed that the view of LT’s consultants as at the date of writing this letter was that the site was used by the public as public open space.

Fence cutting

Mr Rowell accepted that he cannot say that it was members of the local community who cut the fence, or gainsay the witnesses’ evidence that it was not they or anyone associated with them who cut the fence.

There were no questions from the Second Objector or from Mr Weston.

In re-examination Mr Rowell was taken to LO/2/35. He said that there is no mention of the remainder of the orange fence running along the canal towpath. The fact that the request for renewal is only in relation to the top bit and the return, suggests that the bit along the canal did not need renewing. You would not repair two sides and leave the remainder open.

He was asked about the 30m gap referred to in LO/2/45 and agreed that any gap at point F would have been in the orange fence, along the canal bank itself. He does not know why there might have been a gap there.

He was referred to LO/2/140 and asked whether the access shown there could be the gap now present at point D. He said that it is near to point D, but he does not think it is that gap, he thinks the proximity is purely coincidental. The drawing must have been done before 1953, as it was with the licence of that date. Comparing it with A/1/262 the gap shown is between E and D. The pre-1953 drawing was before filling, and the contours of the land would have changed with filling.

Mr Rowell said that a deliberate gap in the green fence would probably have been marked by end posts. There is no sign of any end posts on the return section of that fence. There is no sign of a gate in the middle of the return section either. He said that the green fence went in after the site had been levelled and the steep embankment created. Any traffic would have had to come up the steep slope from point B, so he doubted that there was either a gap or a gate.

9. Evidence for the Second Objector

The Second Objector had not served a bundle or any witness statements, and did not call any witnesses at the Inquiry.

10. Evidence for the Third Objector

Evidence of witnesses who gave oral evidence at the InquiryMr Weston himself gave oral evidence. Although he had not submitted a written witness statement, no other party objected to him giving evidence and I permitted him to do so.

Mr Gordon Weston of Owlet, Templepan Lane, Chandlers Cross, Rickmansworth

Mr Weston stated that he and his wife have owned the land known as the orchard at the bottom of Mill Lane since 1999. Mr Weston was born at 4 Nuttfield Close in 1935. He had also lived at 5 Nuttfield Close after his marriage. His family business premises were at the bottom of the garden, on Mill Lane. He has known the orchard for many years. For many years it was fenced.

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Mr Weston pointed out that the application site is described as Long Valley Woods and the Buddleia Walk. Mr Weston stated that his land is included within the pencil line on the plan, but is not named by description.

Prior to 1951 there was never any fencing anywhere. In his younger days it was a paradise. People used to swim in the canal in the summer. Mr Weston joined the RAF in 1951. He served his apprenticeship and remained in the RAF until 1959. Between 1953 and 1959 he did not know very much about what was going on the area. He did not know that LUL had purchased the land, and when he did return, he was amazed and disappointed to find that the land had been fenced. From September 1959 he joined the family haulage business. They operated out of the Mill Lane premises. The bulk of their work was for Dickinsons, although they also used to work for Oddhams press. When Dickinsons closed in 1980, the partnership between Mr Weston and his brother was dissolved, and Mr Weston retained the yard, selling number 5 Nuttfield Close.

In 1949 it was decided that the yard was not large enough, so Mr Weston’s father bought 30 feet of the orchard. It was not until 1967 when they purchased the next 30 feet that both purchases were recorded in a formal conveyance. Throughout the 1960s and 1970s and the 1980s until the mill closed they were very busy. Mr Weston worked 7 days a week. He had Saturday and Sunday afternoons off. Sunday mornings were given over to maintenance. On Saturday mornings they were out loading. He was lucky to get 2 weeks holiday in the year. In the 1970s he spent most of his time in the open or in his garage which was open. He could hear noise from the canal. He did not think that the tip had got to the end by the 1970s but he was not sure. On one occasion he heard a lot of screaming from youngsters playing around by the canal. One came running into the yard and said another had fallen into the canal. He said he was telling the tale to illustrate the fact that he could hear.

Mr Weston said that he was at the yard most days until 2000. He does not believe that people have done half the things they say they have done. The green area was very close, and he could have heard things from there. He thinks there has been a well-organised presentation. Most of the photographic evidence he thinks post-dates 2000.

Mr Weston said that only two people had identified two specific points in the orchard correctly: as you enter from point L, as you go in, there is a hole in the ground, which only Mrs Grant mentioned. Also on the main track, past the hole in the ground, there are two beech trees, the most mature and finest trees in the wood. Half of one of the trees is burnt out at the bottom, and it is impossible to miss. Others did not mention the containers or the wall. The cherry and apple trees mentioned are there, but are totally overgrown.

The land was offered to Mr Weston by Mr Pitkin, the owner of Croxley Estates’ widow. Mr Weston’s site was chain-linked off and he has had a lot of security problems on his site. One Friday night all his containers were broken open, and £50,000-worth of precious metal ingots were stolen. After that his insurers would no longer cover the content of his containers. A brand new transit was also stolen. He has had many other break-ins and has lost thousands of pounds worth of electrical tooling equipment. He lost all the chain link fencing around his site. He now has a line of shipping containers (erected since he bought the orchard in 1999) along the line between his yard and the orchard to provide security.

He remembers seeing a complete line of fencing on both sides up from point B in 1984. He thinks that the fences were cut.

Mr Weston thinks that Hertfordshire County Council gave him too short a time to respond to the initial application, but accepts that he has now had enough time to prepare his response adequately.

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In 1999 Mr Weston bought a JCB with a boring attachment, which he intended to use to put a fence around the orchard, but he did not get around to it before the application was made. He was going to put RSJs all the way around the site, because, as he saw it, that was the only way to keep the site secure. He is supplied with the RSJs by a local scrap merchant as and when they become available and does not yet have enough to secure his land.

Mr Weston thinks that most of the user, considering the whole site, has originated from forced entry, albeit many years ago. The original fences were up, certainly not long after he came back from the Middle East, in about 1960 or 1961. In his view most of the original fencing is still standing.

He thinks the fencing along the canal is possibly later, but he cannot be sure. He thought that the orchard fence had started to deteriorate probably just before the 1980s. He said that people were pulling the fences down. He thinks the people from the barges are a serious problem.

As far as Long Valley Woods is concerned, Mr Weston has no opinion about whether the application should succeed or not. It is just that he cannot understand why the orchard had been included in the application land.

Mr Weston knows people cross the land and that people go onto it, but as to numbers he is not sure. He said that it was not a matter of what people allege they have done, but what they can prove. The only evidence is what they say.

Mr Weston drew the Inquiry’s attention to the response given by Mr Barringer of 67 Beechcroft Avenue at A/2/287 to the standard form letter (2007): “In my opinion the Buddleia should be cut down and burnt and replaced by native woodland trees. The old orchard that belonged to Nuttfield House is private and should not be included in this application. Please note that I am not an incomer but have lived in Croxley since 1935.”

Mr Weston was not cross-examined. I accept his evidence.

Evidence of witnesses on behalf of the Third Objector who did not give oral evidenceThe Third Objector relied on a letter written by Mr Donald Peasland of 101 Frankland Road dated 28th February 2007. Mr Peasland stated that he had lived at 101 Frankland Road for 42 years. He stated that the land owned by Mr and Mrs Weston was not part of and had never been an integral part of Long Valley Wood. Mr Peasland did not give oral evidence to the Inquiry. Mr Weston said that he was an employee of Mr Weston’s company. As there was no opportunity to test his evidence by cross-examination, I must treat it with caution.

Documentary evidence

The Third Objector produced extracts from a Lease of Nuttfield dated 24th November 1891 and made between (1) the Masters and Fellows of Gonville and Caius College, Cambridge and (2) John Dickinson & Co Limited of four acres of land with a messuage thereon known as Nuttfield for a term of 99 years from 29th September 1890 and from a Conveyance between the same parties dated 24th February 1933 of the freehold land messuage and premises known as “Nuttfield”. Mr and Mrs Weston also produced an extract from a Conveyance made between (1) John Dickinson & Co Limited and (2) Croxley Estates Limited and dated 17th January 1934 of the freehold land and dwellinghouse known as “Nuttfield”, and an Agreement for Sale dated 9th February 1967 and made between (1) Croxley Estates Limited and (2) Weston Haulage Limited. They also produced the official entries of title (edition date 1st July 1999) of Title Number HD2100050.

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The Third Objector also produced a number of old maps and plans, including a copy of the 1896 Ordnance Survey, on which a boundary was marked between the Third Objector’s land and Long Valley Wood, a map marked 1964 on which a boundary was marked between the Third Objector’s land and Long Valley Wood, the plan to the British Transport Commission Act 1953, showing the Third Objector’s land marked “Croxley Estates Limited”.

The Third Objector also drew my attention to three documents from the Lead Objector’s files which were of particular relevance to its case: a letter from the Director of Planning of Three Rivers District Council to the Estate Manager for London Transport dated 11th December 1981, a letter from the Director of Works and Services of Three Rivers District Council to the Estate Manager for London Transport dated 10th September 1982 and the plan appended to that letter.

The Third Objector produced an extract from the Three Rivers District Council Local Plan showing the total number of dwellings in (amongst other areas) Croxley Green, Croxley Green North and Croxley Green South between 1991 and 1999. In 1999 there were 1437 dwellings in Croxley Green South.

11. Closing Submissions

The evidence concluded late in the afternoon on the fifth day of the Inquiry. In order to avoid re-convening the Inquiry for closing submissions, I directed that closing submissions should be made in writing. I set out a timetable for closing submissions at the conclusion of the Inquiry. I directed all Objectors to serve their written closing submissions on all parties to the Inquiry by 4pm on Monday 26th March 2007. I directed the Applicants to serve their written closing submissions on all parties by 4 pm on Thursday 5th April 2007.

I received written closing submissions from all parties, in accordance with my directions. The Third Objector did not serve its written submissions on the Applicant before 5th April 2007. Mr Weston stated that he had not appreciated that it was necessary to serve his closing submissions on any other party and had only provided them to me. I arranged to have the bundle copied and the Registration Authority sent copies to the Applicant's solicitors and counsel. The Applicant was not able to respond to Mr Weston's submissions when lodging its closing submissions, and, as I made clear at the close of the inquiry, was entitled to have an opportunity to respond. I therefore directed that the Applicant should lodge any submissions in response to Mr Weston's submissions by 4 pm on Friday 4th May 2007. The Applicant lodged further submissions in accordance with my direction.

11.1. The Lead Objector’s closing submissions

TfL accepts that that part of the Application Land owned by TfL which lies to the north-west of the Orange Fence has probably been freely used for lawful sports and pastimes by local people without its permission for over twenty years and that there is nothing on the ground to demarcate it in any way from the adjacent woods owned by the District Council. The application is contested in relation to the remainder of the Application Land that is owned by TfL, that is, the land owned by TfL that is bounded to the northwest and northeast by the Blue and Orange Fences, to the southeast by the Canal, and to the west by the Pink and Green Fences106 (“the Contested Land”).

The relevant definition of a town or village green is in the Commons Registration Act 1965, section 22, as amended by the Countryside and Rights of Way Act 2000. The definition falls to be considered as at the date of the application – in this case, 19th July 2004. The relevant period is thus the 20 years starting on 19th July 1984. 106 Those fences whose line is indicated in the relevant colour on Plan E produced by Mr Rowell

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The Lead Objector accepts that even if an electoral ward does not constitute a “locality” for the purposes of the Act, it must be a neighbourhood. TfL accepts that the use of the Application Land for lawful sports and pastimes has been (at least predominantly) by qualifying local inhabitants and that those using the land constitute “a significant number” of the inhabitants of the locality or neighbourhood.

TfL accepted that all of the Application Land has been used at various times for lawful sports and pastimes for a number of years. However, such use had not been “as of right”.

Evaluating the Applicant’s evidenceIn evaluating the evidence as to the use of the Contested Land I should bear in mind that the evidence is given by local residents who are opposed to development, and keen that the whole of the Application Land should be available for recreation as it is now. Their evidence should be treated with a good deal of caution.

The Evidence Questionnaire was an unsatisfactory document: it suggests a number of possible answers to several of the questions; it also gives no opportunity to indicate how often each claimed use took place or was observed. Almost no-one filling in the questionnaire stated which bits of the Application Land they had used for any of the various activities claimed. There were 7 different boundary plans submitted by the Applicants. The supporters in giving their written evidence were not party to the later plans and their evidence cannot be relied upon to identify with certainty which areas they have used. Very few of the respondents (in answer to question 34) admitted that they had noticed any fencing on the Land, even though there is a great deal of fencing at various locations (in particular the Green Fence), and no-one had noticed any gate even though there had once been one at Point G. That suggests either that the respondents had seen the fences and the gate, but chose to pretend that they had not – or that they had not seen them, in which case their powers of observation were very limited. Either way, that limits their usefulness as witnesses. The standard letter provided even less information and gave no indication of what part of the Application Land was claimed to have been used, or how often. These forms of written evidence need to be treated with a great deal of caution, not least in the light of the direct oral evidence given at the Inquiry.

There was astonishingly little knowledge of any gates and fences amongst those who gave oral evidence. Many of those giving evidence claimed not to have seen any fences on the land; and no one had seen the gate at Point G. Those who did remember the fences still attempted to persuade themselves that “there was no discernable reason for their presence” (e.g. Grant A/1/92). The witnesses inevitably sought to remember the land as it used to be, in the light of their more immediate knowledge of the land as it is now. Twenty-three years is a long time – and few people can remember with precision what they were doing that long ago, or where, when, and how often.

TfL accepted that there was evidence as to fairly general use of a section of the Contested Land to the north-east of the Green Fence; and the use of two paths running parallel to Canal – the Buddleia Walk, as it has become known, and the woodland path, immediately adjacent to the Blue Fence and to the north-west of the main section of the Green Fence. There was also some evidence of the communal tidying up exercise, which would seem to have been undertaken in a community spirit, and would seem to constitute lawful sports and pastimes (see, for example, the

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reference to litter picking as recreation – in questionnaire 7) – even though that was by permission.

Evaluating Mr Rowell’s evidenceMr Rowell was quite clear as to the process he had undertaken to produce his evidence: he had looked through the property files held by TfL, and had endeavoured to produce (and reproduce) all material that was in any way relevant to the matter in hand – whether or not it assisted TfL. He referred to several specific documents, plans etc that were or appeared to be missing; but in each case he had looked carefully for them in the file, and had failed to find them – notably, the possible “missing” version of drawing M52421 (neither “provisional” nor “revision A”) and the full reports at Tabs 23 and 24 of his documents. There was no reference during the inquiry to any specific document that might have been held back.

Mr Rowell had also physically explored the Land with care; and his evidence as to what he had found (notably as to the remains of the Green Fence) was careful and precise, and accurate. Although Mr Rowell had not known the Land for the whole of the 20-year period I should find that his evidence was unbiased, clear and credible and, in relation to factual matters within his knowledge, much more accurate than the assertions of the local residents.

The Land within the Green FenceThe land within the Green Fence (between it and the Canal) had changed over the relevant period, and the use of it will also have changed. The evidence suggested that tipping continued into the start of the relevant period. The land was fenced and gated at the start of the 20-year period, so that it could not have been used then in the way that it was at the date of the Inquiry. Even if there were lawful sports and pastimes taking place in recent years within the Tip they could not have been indulged in at the start of the 20-year period. Even if they were, the use must have been “by force”, and thus not “as of right” within the meaning of the 1965 Act, at least in the early part of the relevant 20-year period. This area has not become a town or village green. Furthermore local residents sought and obtained permission to go on the Tip in 1995 (pp 165, 166, 168). This broke any period of uninterrupted use “as of right”, and thus defeats any claim to registration of that land as a town or village green. In any event the recreational use of the land within the Green Fence was not such as to justify its registration as a town or village green.

Evidence as to the history of the tipTfL submitted that the primary source of evidence as to the history of the Tip was the documentary evidence produced by Mr Rowell, and the secondary evidence the oral and written evidence of those in support of the Application who appeared at the inquiry.

TfL submitted that I should find that the principal use of the Tip, at the beginning of the 1980s, was for tipping. That finished in the early 1980s (see p 258), or in 1981-86 (p 234). Thus in a letter of October 1984 from the Council was a reference to discussions that took place “last year” (1983) on the basis that “tipping was nearly complete” (p 65). It was then restored, phase by phase. That accords with a memorandum of July 1984, that notes that “the surplus land” has been levelled and seeded (p 62) and with the site inspection forms – but that land was the land outside the Green Fence, as the land within the Fence was to be retained for possible future tipping. Mr Rowell concluded that in cross-examination, and that must be the correct interpretation, in the light of all the circumstances. Overall, the evidence is that the use of the tip

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for waste disposal – and consequential landscaping – continued until after 1984. It was a very different site then (Mealor).

In a memorandum of 18th July 1984, the day before the start of the 20-year period, it is stated that

“The Corporation has been using the tip continuously since 1954, but in recent years operations have been reduced to the tipping of light ballast and track dust.

Various areas have now become surplus, and have been levelled off, re-seeded with grass and fenced off from the area still in use (see plan 2). The vacant area of 6.52 acres [2.64 ha] of open re-seeded ground with the remaining area being poor quality amenity woodland.”

This indicates that the tipping of light ballast and track dust was either still taking place at that date, or that it had stopped relatively recently. The area being levelled and re-seeded must have been the area outside the Green Fence, and in particular the open area immediately adjacent to the return section of the Green Fence.

On 31st July 1984 LT offered to lease that land to the District Council [p 64]. That offer was accompanied by “drawing M5241” (presumably a misprint for M52421), which shows “the land to be sold” double hatched, being the land between the Green Fence and the Orange / Blue Fence. The Council was to maintain “all boundary fences” presumably including the Green Fence. In return, the Council offered (in October 1984) to buy the land freehold [pp 65-66] and to maintain and fence as necessary. In January 1985, LT repeated its earlier offer [p 67], still by reference to the same drawing.

These documents, taken together, indicate that the tipping ceased at around the end of November 1983.

The evidence as to the use of the Tip for any other purpose was decidedly patchy. A number of residents (Matthews, Scammell, Rowley) testified as to the existence of the railway tracks and trains. Several referred to the bumpy conditions, at least initially. The fact that this area was known as “the Tip” is very significant. Dixon-Wilkinson, and Collins, for example, stated that they didn’t use the area whilst it was still a tip.

There was evidence that more recently, the tip area has come to be used by local people for recreation. Most of those giving such evidence indicated that they had gone up and down the buddleia walk. In latter years, that may have been true, but such use – even if proved for the relevant period, and subject to the usual caveats – would have gone to establish a right of way, if anything, and not a town or village green. There was some degree of using the small paths through the buddleia; but not on any significant scale, and only through broken down sections of the Green Fence. Much of the evidence as to general recreation – picnics, games etc – related to the open space, just outside (to the north-east of) the Green Fence.

The gate at Point G

The HCC site visit sheet records that on 27th July 1983, the site gates were closed and locked, so that it was impossible to gain access [p 326]. The gates referred to must have been those at Point G. It has already been noted that the gates at Point G were shown on both versions of drawing

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M52421 as to be retained. Mr Scammell, a local resident, noted in December 1989 that the gates to the site had been broken for some time [p 102]. That makes it clear that he knew that there were still gates in existence.

It would seem that at some point after July 1983, the gates at Point G were no longer locked; and that eventually they were no longer even used. There is still a gate in existence there now (in 2007), albeit overgrown.

The decision to enclose the Tip

The Green Fence was first mentioned in a London Transport (LT) internal memorandum of 28th April 1983 [p 50 .in PR’s documents]. “We will also be recommending a new fence line along the foot of the woodland. We expect to continue tipping over the main area for at least the next ten years”. So the fence would have been of a standard suitable to keep people out of an active tip. A similar reference appears at the foot of a memo on the following day [p 51].

The County Council and LT then agreed at a meeting (confirmed in a letter of 3 rd May 1983) “to put in a secure fence roughly along section line CS2 [on drawing M52300], and also fence the northern boundary so that the fence runs parallel with the woodland but on the tip” [pp 53-54]. The drawing referred to is reproduced in substance at p 310, and shows section line CS2 as being on the line of the section of Green Fence returning down to the canal. The necessary work was agreed at a meeting on 19th May 1983 – again “with a return to the canal boundary fence at the north end of the tip” [pp 55-56]. It was also agreed at that meeting that an accurate survey of the land would be prepared.

That meeting was referred to in an internal memorandum of 20 th September 1983 [57], to which was attached drawing M52421, marked “provisional”; and the work on the erection of the new fence was programmed to start in October that year. That drawing is at p 57A [originally p 60], and shows in diagrammatic form the revised boundary fencing to be erected and the gates to be maintained. The former is exactly on the line of the Green Fence; the latter is at what was referred to at the inquiry as Point G.

The erection of the Green Fence

The work then started, in accordance with drawing M52421, on 13 th October 1983, to finish in two or three weeks (around the end of October) [p 58]. It is not clear which version of drawing M52421 is referred to there, but the provisional version and the “Revision A” version are sufficiently similar – and in particular both include a return section of fence down to the canal – that it is very unlikely that, if there was indeed an intermediate version of the drawing, it would have been significantly different from the versions that have survived.

On some date in November 1983, but before 5th November, a distribution of concrete fence posts had taken place, indicating that a more substantial fence was to be erected shortly [p 326]. That fencing was in progress on 5th November; and was complete by January 1984 [ibid].

“The new operational boundaries at Croxley Tip” as at 30 th April 1984 were shown on drawing M52421 Revision A [p 59]. That plan was dated February 1984, and shows the line of the “new LTE chain link boundary fence enclosing land to be retained” plotted more accurately, by

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reference to a series of pegs which had been measured on the ground, and (on the site location plan) the entrance gates at the bottom of Lavrock Lane, at Point G [p 61].

The plan at p 123 – of unknown origin and date – shows the “line of existing fence” as including the short return section to the canal.

I should find that those documents, and in particular the plans, make it perfectly clear that:

the Green Fence was intended to be erected, with a return to the canal, and was indeed so erected – at the end of October 1983;

the Fence included a return section to the canal;

the existing gate at Point G was retained; and

the Fence (including that return section) was still in place in February 1984, and probably in April 1984.

Damage to the Green Fence

The trees planted at the time of the erection of the Green Fence were by 7 th April 1984 being pulled out of the ground and left to die – “probably the work of vandals”. As for the fence itself, by 13 November 1985, an internal memo of London Underground Limited (LUL; the successor to LT) was stating that:

“… due to pressure from the local authority, the tip has been re-graded, and the embankment slopes planted. A new chainlink fence was installed at the completion of the contract in anticipation of the sale of the land hatched red. Without the sale of the land, the new fence, already damaged by vandals, no longer indicates the true LUL ownership boundary. …” [p 77]

The “land hatched red” refers to the land between the Green Fence and the Orange / Blue Fence – see the plan at p 75. The fence referred to was thus the Green Fence, which had therefore been vandalised by that date.

By 7 January 1986, LUL noted in a letter to HCC that no tipping had taken place since the landscaping work, but that trespass and damage by vandals had always been a problem [pp 80-82]. However, in 9 January 1986, an internal memo states that LUL needed to retain the tipping option on the land within the Green Fence for at least another eight to ten years [p 79]. The memo also noted that a considerable sum of money had been spent by LUL on new fencing (presumably the Green Fence), and this is becoming a liability due to trespass and vandalism; “much of the new fencing will have to be reinstated”. The breaking down of the Green Fence had thus started by that date – and was possibly well advanced.

Some four years later, in July 1990, LRT stated to the Parish Council that they had also renewed fencing to prevent access to the site [p 119] – although it is not clear which fencing is being referred to.

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In 1993, LUL complained to the County Council that “every time LUL erect a new fence it is either knocked or cut down by local residents in order to gain access to the site” [pp 125-6]. The following year, Mr Bannister at LUL was saying in an affidavit that “I am informed and verily believe that over the years various attempts have been made to fence the land, but these fences have been broken down by vandals” [p 152]. And in July 1996, a further memo was noting that “local residents have come to regard the site as public open space, and as soon as fencing is repaired, break it down to regain access” [pp 245-6].

I should find that these documents indicate that a continuous war of attrition was taking place between LUL and the local residents, with LUL putting up or repairing fencing and the residents (or possibly unknown “vandals”) almost immediately taking it down again.

The Green Fence as it is today

The main section of the Green Fence, parallel to the Canal, is still there today, more or less intact. It is significant that many of the witnesses supporting the application claimed never to have seen it; many indeed said that it was not there now even though it is obviously there. It is true that there are some gaps in it; but these have clearly all been made by force, as in some cases the wire has been cut, and in others it has been neatly rolled back. I should find that it is highly unlikely that the damage all happened at once.

Mr (Douglas) Edwards asked all of his witnesses whether there had ever been a section of fencing at the point shown on Plan D as being the return section of the Green Fence going across to the canal. They all said that there had not. However, Mr Rowell pointed out that there remained to this day a corner post (with buttress support in two directions) where that return section was shown as meeting the main length of fencing parallel to the Canal. And there was a fence post lying on the ground (with its concrete footing), now in the buddleia, at about the point where the next post should have been, along with a length of chain link fencing. He noted that it had taken three attempts to put up the nearby sign in 2005, due to the nature of the made-up ground in that area. There was a 25 m gap; then a post, again in the buddleia, then a second post; then at the top of the embankment a roll of fencing; a post with buttresses forward and back at the top of the embankment; five posts down the embankment, with fencing; a post with buttresses forward and back at the bottom; and one further post with fencing; a total of 11 posts to the canal fence, of which 9 have secure fencing. All in all, there is still 5 metres of fencing at the north-west end of that section of Green Fence; and a section of 25–30m at the south-east end, with a gap of 25 m in the middle.

Mr Rowell suggested that, at some point, the middle section of the fence had been removed. TfL invited me to reach the same conclusion. There is no conceivable reason why the fence should have been erected entirely in accordance with the drawings produced at the time, but without that section. There is no evidence of either a gap or a gate having ever been suggested, far less implemented. Nor is there any reason for it – the purpose of the fence was to enclose land, and to prevent public access, so that tipping could continue or resume. The suggestion by Mr Edwards that there might have been a gap or a gate left at that point in order to provide an access to the site from the canal (the hatched area on the plan at p 17) is fanciful – particularly in view of the steep slope up to the open area.

The difficulty with putting up the sign in 2005 confirms what might be guessed, that it is difficult to get a good fixing in made-up ground. But the corollary of that is that it would be relatively

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easy to knock down a fence post, with its concrete footing. But it would not necessarily (or indeed probably) have been knocked down and removed all at once; once there was a way through, a path would have gradually appeared, so that the job of removing the remainder could proceed at leisure, over the next few years.

Suggested Findings

TfL submitted that I should find

that the Tip was actively in use as such until the early 1980s, probably until 1984, and then gradually restored, so that local people could not have used it for general recreation until the 1980s.

that the fence was indeed constructed as shown on the plan, in November 1983, including the return section to the Canal, to protect the Tip;

that the main section of the Fence remains largely intact, so that the various ways through it were created in more recent years;

that any entry through that section of fence in the early post-1984 period would have been “by force”, and thus not “as of right” within the meaning of the 1965 Act;

that over half the return section of the Fence remains intact;

that the central part of that section was still there in February 1984, and probably April 1984;

that there never was a gap or gate at that point;

that the central section was gradually removed; but that there was enough at July 1984 and for some while thereafter for entry at that point to the land within the Green Fence to be “by force”, and thus not “as of right” within the meaning of the 1965 Act;

that the Orange Fence along the Canal was basically in good condition;

that the only other way in to the land was via the entrance at Point G, where there would have been a gate in use – and locked – in July 1983, and thus still very much in evidence in July 1984, even if by then no longer lockable, so that entrance at that point too would have been by force, and thus not “as of right” within the meaning of the 1965 Act – particularly if the whole of the remainder of the Tip was fenced securely.

The travellers

TfL submitted that there is clear evidence of the use of part of the Contested Land within the Green Fence by travellers in 1990. According to the plan at p91, produced at the time in the context of impending proceedings in the High Court, they occupied a substantial area of land – including not just the caravans but the associated items. According to Mr Grant, they occupied a much smaller area – but that is based on recollection 17 years later, and the flimsiest of evidence. And that highlights again the unreliability of evidence – even if given with the best of intentions – produced years after the event. TfL invited me to prefer the contemporaneous evidence, and to exclude from any registered town or village green the area shown on p 91.

Exploratory works

Works carried out on the Land in 1993, to discover potential contamination, prevented public use (pp 152, 181, 182; Plan 17). They also indicated a deferral to the landowner on the part of the

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local people, similar to that which occurred in Laing Homes – which in turn suggests that the whole of the Tip, which was occupied and used on the same basis – should be excluded.

The Contested Land outside the Green Fence The evidence as to the history of this land once again comes principally from the documents produced by Mr Rowell. It appears that the whole of the Application Land now owned by TfL – or at any rate the whole of the Contested Land – was the subject of tipping licences. Hence the reference in 3rd April 1979 to “Croxley Green Tipping Site” [p 23].

The orange fenceThe earliest reference to the Orange Fence appears to be in the letter from LT to Rickmansworth UDC in February 1970, in which it is stated that

“It is proposed to move the fence back from its present position to the area upon which tipping is permitted, thus leaving the woods free for such persons as choose to wander in them.

Further, it is proposed to construct a path down the eastern edge of the tip to the canal gates” [P 30].

The second of these references must be to the path down to the canal between what is now TfL’s land and Mr Weston’s land – a path at that location was clearly in existence by 19 th May 1981 [pp 32-33]. That suggests that the fence referred to in the first paragraph might be the stretch of Orange Fence through the woods, parallel to the canal. What that memorandum does make clear is that the purpose of the fencing in this area is to mark a clear boundary to the area to be used by the public.

The memorandum of 3rd April 1979 also notes “recurring damage to the Executive’s fencing”. From the context, that would seem to be a reference to the Orange Fence in the woods above the Tip – although, again, that cannot be certain.

Notwithstanding that damage, the District Council stated in February 1981 that

“There is already a fence separating the upper (northern) part of the woodland from the lower section which immediately adjoins your tipping land and although this fence needs some repair in parts, it appears to give adequate security against trespass by walkers on to your tip area” [p 28].

The Green Fence was not yet in existence, so this must be a reference to the Orange Fence in the woods. And it makes it clear that that fence – although not perfect – provides “adequate security” against trespass. That is, it would not necessarily stop anyone penetrating the fence line, but anyone doing so would know that they were a trespasser.

Further vandalism is noted in the memorandum of 19th May 1981, this time to the fence owned by LT alongside the path to the lock [pp 32-33] – although it is noticeable that this does not suggest damage to other parts of the Orange Fence. However, that was the subject of a letter of

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29th June 1981, in which the LT Estate Manager confirmed that the Civil Engineer would be asked to replace the fencing at the top of the tipping site which runs roughly parallel to Frankland Road [p 35]. In the event, he was asked to repair, rather than replace, that fencing, and to estimate for renewing the fencing alongside the path down the hill to the Canal [p 36]. That suggests that the fence arguably only needed repair, rather than replacement, and was in reasonably sound condition.

There was then a meeting between LT and the two councils on 9th October 1981, which discussed amongst other things the broken boundary fence. The Council then itself provided an estimate (dated 14th November 1981) for the fencing repairs [sic] which it would undertake to the “damaged” boundary fence alongside the path; it is noticeable that that work only involved the replacement of one post [pp 38-39]. On 17th August 1982, LT accepted the proposal of the Council to repair the fence along the path [p 41], and on 18th September 1982 the Council agreed to carry out future repairs as necessary to that fence [p 42].

In the meanwhile, on 15th November 1981, repairs were carried out by LT to the Orange Fence, involving some minor patching and the replacement of approximately 30 m of chainlink fencing. However, within two days, the new fencing had been taken down and removed from the site [p 45]. This is the clearest possible indication of entry “by force”, but it is only one example of what appears to have been a continuing state of affairs.

Thus, by 16th November 1982, a year later, LT had concluded that, whether the land was sold or retained, it would have to be securely fenced “(and this is a continuing problem, since local people pull down the fences as soon as they are erected)” [p 49]. So by that stage LT was clearly continuing to attempt to exclude the public – albeit, it would seem, not very successfully. And by 29th April 1983, it admitted in an internal memo that

“Clearly the local residents feel strongly that they should have access to the wooded areas to the north of the tipping area, and the fence defining the boundary in the woods is constantly being broken down and is completely non-effective” [p 51].

However, it is noteworthy that this states that the fence is constantly being broken down – not that it has been broken down.

Similarly, at an internal LT meeting on 19th May 1983, it was agreed that this particular fence line had been difficult to maintain as it had been constantly broken down by members of the public who claimed it crossed a public right of way [p 55-56, para 4]

There would be no point in continuing to break down fences if they no longer had any remaining function at all. That suggests that, in mid-1983, access to the Contested Land through the woods and across the line of the Orange Fence was by force. Thus it was accepted in May 1983 that “with a new boundary fence it would be possible to allow public access to the blue-bell wood, with the local authority being responsible for the upkeep” [p 56]. In other words, once the new fence (in the event, the Green Fence) had been built, the public could be allowed access to the wood, and the Orange Fence abandoned – and the land outside the new fence sold to the Council. However, until that occurred, the Orange Fence would not be abandoned. And of course, as it turned out, that land never was sold off.

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In cross-examination Mr (Douglas) Edwards asked Mr Rowell about a pedestrian access from the canal towpath to what is now the Buddleia Walk as shown on historic plans. Mr Rowell was clear in his response that this access was not currently in existence, and was not in the position or direction of the accesses referred to by letters on the inquiry plan. Mr Rowell added that even if it had been created, it could no longer exist in view of the changes in levels created by the tipping activities prior to 1984.

TfL submitted that I should find that there is thus a clear history of fencing being put up and torn down, either by local people, or by vandals from elsewhere whose activities conveniently facilitated access by local people.

User of the contested land outside the green fenceTfL accepted that there could be little doubt that there has been continuous use throughout the relevant 20-year period of the Contested Land outside the Green Fence – that is, between the Green Fence and the Orange and Blue Fences. That use appears to have taken the form of:

walking up and down the woodland path,

using the open space for a variety of activities, and

using the woodlands between the open space and the Orange Fence to the north-west.

The first of these is walking along the woodland path, with or without dogs. This is a straightforward linear route, coming out at the western end either to Lavrock Lane at Points H and I (across the Lincat / IMC land); or through the missing panel in the Green Fence into the pathway up to the gate at Point G – although the photograph at p 270 suggests that the latter way out was only partly available in 1996, and presumably even less so earlier. It is noticeable that, even now, the main path bends round to the right, heading for H and I, rather than going straight on to the end. Latterly there have been some minor paths down the hill from this path, crossing the main stretch of the Green Fence; but these are even now not particularly well marked; and in the past must have been even less well used.

It is thus suggested that, like the Buddleia Walk, this pattern of use is indicative of, if anything, an emerging public right of way, not a town or village green. And the exits at the western end – particularly the one through the Green Fence – would have involved breaking down the relevant fence, and would thus have been by force.

The other two activities involve more general recreational use of the upper end of the Contested Land. Access is via the path from Frankland Road; or down the steps from the allotments, and through the woods; or along the path across Mr Weston’s land from Mill Lane; up the path from the Canal; or up the bank from the Canal onto the open space. These are the type of activities that might well constitute lawful sports and pastimes for the purposes of the Act; but all the access points sooner or later involve crossing the line of the Orange Fence, and that would have been “by force”, and thus the activities not “as of right”.

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Such activities – carried out in defiance of a clear intention and attempt by a landowner to prevent them – cannot justify the coming into existence of a town or village green.

User not as of rightThere was no evidence as to who carried out the destruction of the fences – it could in theory have been vandals from outside the area on each occasions. There seems to have been a general consensus that it would be perfectly in order to trespass through recently damaged fences, in pursuit of a supposed right to trespass onto TfL’s land. However, all those who did gain access to the land, within the line of the Blue and Orange Fences shown on Plan E, did so in the full knowledge of the fencing that had been erected and was being from time to time repaired by TfL, and which was constantly being broken down and removed. That is true to an even greater extent of those indulging in recreation within the line of the Green Fence. Such access was by force, “vi” – or at the very least a classic example of the “state of open warfare” referred to by Sullivan J in Cheltenham Builders.

For the above reasons, none of the TfL land within the line of the Orange Fence existing in 1984 should be registered as a town or village green.

11.2. The Second Objector’s closing submissions

Lincat objected most strongly to the inclusion of its land and submitted that there is no legal basis whatsoever for the inclusion of the IMC land within the application.

It is necessary to examine individually and separately the evidence as it relates to each owner’s land to see if a significant number of inhabitants in the locality have continuously indulged in lawful sport and pastimes as of right on the land. In the circumstances of this application it must follow that even if a significant number have so enjoyed the land of Owner A and/or Owner B but only a few have so accessed the land of Owner C then the application may only succeed in relation to that part of the application site owned by A and/or B but not in relation to Owner C’s land.

The onus of proof is firmly on the applicants to prove the case for registration on the balance of probabilities. The objectors need establish nothing. Lincat submits that, when examining the totality of the evidence produced by the applicants, there is no reliable evidence to justify Town Green status being registered against the IMC land.

One of the fundamental problems with the application is the imprecision regarding the boundaries of the application site. Since the date of the application there have been no less than seven different plans showing the extent of the land over which Town Green rights are claimed107. In the vicinity of Lincat’s IMC land the boundary has varied wildly. Furthermore by the time the inquiry closed the area of Lincat’s land within the application has been significantly reduced over that shown on any of the plans circulated with the Evidence Questionnaires108 or the 2005 or 2007 Statements109 or those plans accompanying the witness statements. It is submitted that this renders the evidence produced by the applicants in relation to the IMC land wholly unreliable. It also means that, were Town Green status to be accorded to the IMC land there is no readily identifiable boundary between that part of the IMC land over which local inhabitants

107 See schedule “Croxley Green- Village Green Map A amendments prepared by the applicants and presented to the inquiry on day 5.108 Applicants’ Bundle3 Section 1.109 Applicants’ Bundle 3 Section 2 and Bundle 2 Section 2 respectively.

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would then be exercising Town Green rights and that part of the IMC land where they would be, in law, trespassing110.

The unreliability of this evidence can be demonstrated in two ways. First, the boundary between points K and L is now “an imaginary straight line”. How then can anyone who was provided evidence, whether written or orally, be certain whether they had entered onto IMC land as of claimed right (because that part of the land may have been at the time the evidence was provided inside the application site) or had trespassed (because they were on part of the IMC land originally included in, but subsequently deleted from, the application)? There was and is no tangible or physical boundary which separates the two classes of IMC land. Second, at the time the Evidence Questionnaires or the 2005 or 2007 Statements or the New Personal Statements from Residents unable to speak at the Inquiry111 were completed and signed they all showed the application site as including a large area of IMC land that has subsequently been deleted from the application. It is impossible therefore to determine whether those completing the Questionnaires or Statements appreciated that only some but not all of the IMC land was included in the application? Did anyone who may have walked on the area of land at the northeastern end of the IMC land (the area of wooded land between the north eastern boundary fence and the curved area of hardstanding) appreciate that the applicants were no longer claiming TVG rights over it? If they had entered a part of the IMC land did they know or appreciate whether the part they entered onto fell inside or outside the application boundary? All the written evidence regarding the IMC land is wholly unreliable.

In any event there is no evidence to justify the inclusion of any of the IMC land within the application. The IMC land has been built up for many years. It has been an operating manufacturing plant since the Second World War. Its development predates the designation of the green belt. Manufacturing at the site has continued until early this year when IMC relocated to North Wales. Therefore the IMC factory and land has been a recognisable feature of the locality for 60 years. Unlike LUL there can be no question that Lincat/IMC has ever abandoned its land. Furthermore as Mr Saxon confirmed in cross- examination there is a recognisable boundary fence line around the entire IMC land. The fence may be broken in parts but the fence line is clearly recognisable. As a matter of fact visible on the site inspection there is a section of galvanised steel fencing around the main area of the IMC land along the Lavrock Lane boundary extending part of the way down the lane. Behind that there is an older wire fence. On a section of the fencing is a sign, still clearly visible, on which the words “Private” are clearly written. That fence continues down Lavrock Lane until it meets the locked gates in the first bell mouth entrance. The fence continues back down the bell mouth into Lavrock Lane and into the second bell mouth entrance and up to the second pair of locked gates. (Both are very sturdy “factory” gates). The fence continues back down the bell mouth and back into Lavrock Lane down to the path at what became known as point G. It is clear that in this section of fencing there are numerous gaps. At least some of the gaps appear to have resulted from the fence wire having been cut. There are some indications that attempts may have been made to repair the fence but when and by whom is unknown112. The IMC fence then continues, apparently unbroken, down from point G until it meets the upper path. Just inside the upper path can be seen the outer fence line of the IMC works which then continues in a north-easterly direction for some distance until it turns at a right angle in a north westerly direction before turning back on itself by the steps.

It is clear, therefore, that the IMC land has been in operational use for 60 years until earlier this year and that the extent of the IMC land has always been readily discernible.

110 There would be, at best, what the Applicants refer to as “the boundary follows an imaginary straight line”.111 Applicants’ Bundle 2 Section 1.112 Attention is also drawn to the reply to questions 34 and 34a by Mrs Lavington in her Evidence Questionnaire at Applicants’ Bundle 3 Section 1 page 626.

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Viewed against this background it is highly significant that not one resident completing either an Evidence Questionnaire or a statement in 2005 or 2007 ever mentions IMC or IMC land. In response to questions 26 and 27 on the Evidence Questionnaires some respondents mention land once owned by Gonville & Caius College, some to land owned by Three Rivers, some to the Old Orchard, many refer to London Underground/British Rail/LUL or Metronet yet absolutely no one referred to IMC. It is submitted that this clearly shows that the local inhabitants do not regard any part of the IMC land as having acquired TVG status due to their use of it. A similar situation appertains to the 2005 and 2007 statements. It can be safely concluded that, based on the substantial number of documents produced by the applicants that there is simply no evidence whatsoever that a significant number of inhabitants of the locality113 have indulged in lawful sports and pastimes as of right on IMC land.

This complete absence of any mention of IMC or its land in the Evidence Questionnaires or the 2005 or 2007 statements is made even the more surprising given the use that a few witnesses alleged was made of the dell/dip on the IMC land. Yet in this written evidence there is not one mention of the dell/dip or a rope swing or the bunker with or without the missing manhole covers. Surely such features, if well used, would have been mentioned somewhere? Similarly there is no mention whatsoever of the deep shaft on the IMC land or the asbestos and other rubbish on the land. It stretches credulity to imagine that, had a significant number of local inhabitants regularly entered onto the land, they would not have not have noticed these obvious features and mentioned them? The only conclusion that can be safely drawn is that only a very small number of local inhabitants have ever ventured onto the IMC land for the purpose of indulging in lawful sports and pastimes.

There is another curious feature that is at odd with the applicants’ case in relation to the IMC land. There are many references in the written evidence to the erection in 2005 by LUL of “Keep Out” signs. However there is no mention of IMC’s signs which were erected at approximately the same time (some of which remain and can be readily seen). Once again, the only conclusion that can be drawn from this is that the reason no one was bothered by these signs is because they believed that the signs related to land other than that over which they were claiming Town or Village Green rights. Had they thought that the signs related to a part of the application site then it would be reasonable to expect that there would be some mention of them in the written evidence relied on by the applicants.

The most telling part of the evidence was the oral testimony from the applicants’ witnesses. This needs to be examined individually ending with the applicants’ evidence. The supporting witnesses will be discussed in the order that they appeared at the inquiry.

Mrs Allen confirmed that the location where games were played and the walk that she had taken were all outside the IMC land. She did not, therefore, give any evidence to support the application in relation to the IMC land.

Mrs Dixon-Wilkinson’s evidence did not touch upon the IMC land. Her plan showed that she did not go anywhere near the IMC land and in her evidence in chief she made no reference to ever entering onto the IMC land. Her evidence, therefore, did not support the application in relation to the IMC land.

Mr Gordon did enter onto the IMC land but only as a short cut from access point H through the IMC land to the main paths in the main part of the application site. In other words, he used the IMC land as a cut-through and not a Town or Village Green. In any event, he confirmed that the main years of his use was during the period 1981 – 1991, when he was walking his dog. It is submitted that his evidence is of very limited relevance to the IMC land.

113 Lincat does not dispute that a locality has been properly identified by the applicants.166

Mr Mathews similarly confirmed that he gained access to the IMC land via access points G, H and I for walking. Once again it is submitted that his evidence is of very limited relevance to the IMC land as a Town or Village Green.

It was clear from Mrs Collins’s evidence that she has never been onto the IMC land. Her evidence, therefore, did not support the application in relation to the IMC land.

Mrs Leese’s evidence was unclear in relation to the IMC land. She could not remember specific features such as a pit or broken asbestos. It is submitted that no reliance can be placed on her evidence in relation to the IMC land.

It appears that Mr Philips may have been on the IMC land on occasions although access point G was his normal point of access onto the main application site, as he would use this as part of a circular route. It is submitted that his evidence is of very limited relevance to the IMC land.

Of the witnesses who gave evidence on Day 3, Mr Horseman, Mrs Batchelor, Mrs Fuller, Mr Mealor (who confirmed that he did not go onto the IMC land frequently), Mr Wakefield, Councillor Brading and Mrs Starr all gave evidence to the effect that either they had not been onto the IMC land at all or, in the case of Mr Mealor, very infrequently. Mrs Scammell, however, did confirm that she had been on the IMC land and that her children had played there. Similarly Mrs Emson confirmed that she went onto the IMC land (accessing it from point H to and from the main application site) when walking her dog but that this was confined to skirting round the dip and she did not go any further into the IMC land.

On day Four, Mrs Rowley confirmed that she had been onto the IMC land but from the horse’s field rather than via access points H or I. She had taken her children down to the pit/dell to play. However she also confirmed that the places indicated on page 163 of the Applicants’ Bundle were the ones she enjoyed the most and that she mainly entered the IMC land during the period for the early 1980s until 1990. Mrs Turnbull confirmed that she had been on the IMC land occasionally with her dog but that she never used the pit/dell and stayed on the path except when it was necessary to retrieve her dog. Similarly Mr Saxon confirmed that he went onto the IMC land but only as a cut through down onto the main paths on the main part of the application site.

Finally there was the evidence of the applicants. Not surprisingly they had both been on the IMC land. As can be expected of applicants their knowledge of the application site was extensive. Yet, despite this, there was clear confusion regarding the extent of the IMC land that was to be included in the application. Since the first map that accompanied the application there have been 6 variations. Some of these were no doubt due to the scale of the map used. But it does not explain all of the variations and it does not explain why a significant amount of the IMC land that was originally included in the application has now been removed from the application. It is submitted that in relation to the IMC land the evidence of Mr and Mrs Grant is vague and confused. Just what parts of the IMC land have they actually used? If a large part of the northeastern part of the IMC land has now been excluded from the application just how carefully did they compile the application and just how clear was their own knowledge of that land? If they had frequently accessed that part of the land it is arguable that the application and supporting evidence would (or should) have been more constant and consistent.

In conclusion, the Second Objector submitted that in relation to the IMC land the applicants have failed to make out the case for its inclusion within the application for the following reasons:

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There was a complete absence of any reference to usage of the IMC land in any of the Evidence Questionnaires or supporting Statements;

Of those witnesses giving evidence at the inquiry only nine had been on the IMC land and most of those only entered onto the IMC land simply to gain access to the main part of the application site. In other words they were using it as a footpath rather than for Town or Village Green purposes. Indeed out of all the evidence obtained by the applicants only Mrs Scammell, Mrs Rowley and the applicants had been onto the IMC land for what might be termed village green purposes. By any stretch of the imagination, neither nine witnesses who confirmed they had been on the land nor the mere four witnesses who claimed to have used the IMC land other than as a cut through constitutes a significant number of inhabitants of the locality;

It follows that the applicants have failed to establish on the balance of probabilities that any of the IMC land should be registered as a Town or Village Green.

Lincat therefore submitted that the Applicants had failed to discharge the burden of proof placed on them in relation to the IMC land and that none of the IMC land should be registered, as there is insufficient evidence to satisfy the legal requirements for registering that part of the application site.

11.3. The Third Objector’s closing submissions

The Third Objector submitted that their land had been included in the application in error and was not part of Long Valley Woods or the Buddleias.

The Third Objector submitted that a new fence had been erected by LUL in the early 1980s on the south west boundary of their land, and was torn down over a period of time, possibly by the owners of narrow boats, seeking access to the orchard to obtain wood for heating.

In the 1970s the fence on the boundary between the yard and the orchard was constantly being cut for access. Mr Weston was advised by his insurance broker against replacing the fence. He asked Mr Pitkin, the then owner of the orchard whether he would re-fence his land, but he declined. Mr Weston had to purchase shipping and other containers to line his boundary with an 8-foot vertical fence to ensure the security of the yard. A hammer or other heavy object was used to break the reinforced concrete posts and the fencing was cut with specialist cutting tools.

Fencing around the orchard remained complete until the early 1980s. The cost of replacing that fencing was prohibitive.

Of the 19 witnesses who gave oral evidence of entering the land at point L, not one identified the beech tree, which is badly burnt at its base. Only Mrs Wilkinson and Mrs Grant mentioned the hole in the ground. The other witnesses’ evidence was therefore unreliable.

Mr Saxon’s evidence should be rejected as unreliable. The suggestion that canal boat owners are taking their children to school through the application site is not correct. There are no permanent moorings beneath Croxley Moor Lock, and of the boats there at present, there is only one nursery-age child. Mr Saxon’s statement at the end of his first statement “at no point have we received permission from LUL to use the land as an area for public recreation” implies that he knew the land was privately owned. He refers in his 29th January 2007 to the owner of the orchard being Mr Pitkin, but had been involved in an incident when the parish council rangers had cut down trees in the orchard and Mr Weston had complained and had had tow subsequent meetings with Mr Weston, so must have known that Mr Weston was the owner. He mentions fencing in paragraph 10 of his statement, having said “No” in response to question 34 on the Evidence Questionnaire.

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Mr and Mrs Grant’s evidence was contradictory on the date on which they first visited the application land. Insofar as Mr Grant’s evidence relates to events before 198s, he has no personal knowledge of them, having only moved to Croxley in 1982. Their evidence should be rejected as unreliable.

The evidence of the other witnesses should be rejected as unreliable because they had not seen the boreholes being dug on the LU land. Such holes would have required large machines. The reason the witnesses had not seen them being dug is because they did not use the site as claimed.

I should find that there were gates at Lavrock Lane. Mrs Lavington mentions the gates.

Many of the witnesses’ evidence did not relate to the whole of the 20-year period.

A significant number should be at least over 60%. The number of evidence questionnaires submitted is not significant in the context of the number of households within the neighbourhood.

It is much more likely that local residents would use Croxley Hall Woods for the type of activities that they say they have enjoyed on the application land.

Had Metronet/London Underground not applied for planning permission for the new track depot no village green application would have been made

I should find that the orchard has no connection to Long Valley Woods and should never have been included in the application.

11.4. The Applicant’s closing submissions

The Applicants’ submissions were stated to be directed at the land as a whole but drawing the distinction where necessary between the land owned by Transport for London/London Underground Limited (“LUL land”), the land referred to at the inquiry as the “IMC Land” and the land owned by Mr Weston.

Test to be appliedThe Applicants agreed that the legal test put forward by TfL/LUL is the correct test. The burden of proof, which rests with the Applicants, falls to be discharged to the standard of the balance of probabilities.

Locality and significant numberThe Applicants rely on the locality of “South Croxley Ward”. They produce at A/Tab.11 a plan showing the addresses of evidence-givers. I should find that this element of the qualifying requirement has been met.

The Application SiteThe Applicants submitted that the starting point when considering a complaint of lack of clarity in the boundaries of the application land must be to recognise that the submission of applications for the registration of land as a green is intended to be advanced by members of the public. As Sullivan J. recognised in R (Alfred McAlpine) v Staffordshire County Council [2002] 1 PLR 1 (a) the public are not expected to be “expert cartographers” (para.79) and (b) the purpose of identifying land is so that the registration authority can give notice to the relevant owners and occupiers (para.80). This decision was approved by the Lightman J. (who in turn was approved by the Higher Courts on the procedural points) in Oxfordshire.

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During the course of the inquiry the Applicants clarified the position by producing the annotated plan at A/1/50C. There was (and is) no objection to the production of this plan nor to this plan being used by the Inspector and the Registration Authority as the basis for determining the application. No Objector has contended that it is prejudiced by the identification of the boundaries of the application site as shown on the plan. The Inspector and the RA are invited to use the plan as the basis for determining the application.

Some criticism was made of the fact that between points K to L the line of the land sought to be registered does not follow any defined feature, actual or artificial, present on the ground and therefore “is not readily identifiable”. This fact alone does not, it is submitted, give rise to a ground of objection for the following reasons:

there is no requirement in either the CRA 1965 or the regulations made thereunder for the land the subject of an application for registration of a green to be definable by reference to a feature on the ground;

indeed, in High Peak Borough Council v Derbyshire County Council Judge Pelling Q (sitting as a judge of Chancery Division) (unreported) (transcript 4 April 2007) held that the boundaries of land registered need not reflect any physical features – see paras.54-57. In that case the Inspector himself drew a line on an aerial photograph to enclose the area to be registered. The line drawn did not reflect any actual feature on the ground;

the boundaries are in any event capable of being “mapped” by reference to the features at either end of the line between points K and L on page 50C i.e. the edge of the IMC fence in the north and the remnant blue fence in the south.

Registration of PartThe Applicants request that I consider the application for registration of the application site as a whole but, in the event that I am persuaded that some, but not all, of the application site qualifies as a green, submit that I am entitled, applying the guidance given by the House of Lords in Oxfordshire County Council v Oxford City Council & Robinson [2006] 2 AC 674 per Lord Hoffmann at para.63 (p.701C)114, to recommend the registration of part. The Applicants request that in that event I should consider registration of parts and recommend accordingly.

The decision of Judge Pelling QC in the High Peak referred to above applies equally where part of the land which is the subject of an application is registered as a green: that part (like the whole) need not follow any actual or artificial boundary on the land.

The land held by Three Rivers District Council and the land held by TfL/LUL outside the orange fence line

Part of the land which is the subject of the application is owned by Three Rivers District Council (“TRDC”). This forms part of the woodland knows as Long Valley Woods. TRDC do not object to the application in so far as it affects their land or at all.There was no challenge to A’s evidence in respect of the TRDC’s land. There is no basis therefore for that land not to be registered as a green. It should so be registered (irrespective of the conclusions reached in respect of the remaining areas of land). The area owned by TRDC can be established by reference to the plan C produced at page 3 of divider 1, Vol.2 of Philip Rowell’s (“PR’s”) evidence.

TfL/LUL accepted both in opening submissions and in closing submissions that the area of land owned by them “to the northwest of the orange fence … probably has been freely used for lawful sports and pastimes by local people without its permission for over twenty years”115. TfL/LUL further make the point that “there is nothing on the ground to demarcate it in any way from the 114 Lord Hoffmann agrees and therefore adopts the reasoning and approach of the Court of Appeal on this issue at [2004] EWCA Civ 175 at paras.101-112.

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adjacent woodland owned by the District Council”. There was no evidence to contradict the Applicants’ claim or evidence in respect of this land and therefore there is no basis other than for the Inspector to recommend registration of this land (as well as the TRDC land). By reference to several sources, not least PR’s plan E, the area of TfL/LUL’s land outside the orange fence is capable of being defined with precision and identified on a map.

I should recommend therefore that the TRDC land and the TfL/LUL land outside the orange fence is registered as a green, at the very least.

Evaluation of Applicants’ witnessesThe Applicants and those residents who gave evidence in support of the application were patently honest and helpful witnesses. It is highly significant that it was not suggested by either TfL/LUL or IMC that any witness was lying. It is therefore now not open to either TfL/LUL nor IMC to assert that the evidence given by and for the Applicants was other than true and neither is it open to me now to form that view. The evidence of A’s witnesses therefore has to be accepted as true and accurate.

In this context, the submission made by TfL/LUL that those who appeared as witnesses for the Applicants gave evidence which was tainted by their objection to TfL/LUL’s historic development proposals and by their desire to see the land retained for recreational purposes is not one which it is either permissible for them to make having regard to their conduct at the inquiry nor is it fair. The latter point is a criticism which can of course be levelled against practically every person who gives evidence in support of any application to register land as a green.

I should be acute to the possibility of evidence having being fabricated to achieve an ulterior end. However, there is no evidential basis to consider that such a possibility exists here nor, importantly, was any witness called by the Applicants challenged by TfL/LUL to such effect. In those circumstances, TfL/LUL’s submission is misconceived, improper and unfair and should be discounted.

So far as evidence to contradict A’s evidence is concerned, it was highly unusual feature of the case advanced by TfL/LUL and IMC that between them they called no witness of fact as to the actual use or disposition of the land. IMC called no witnesses and has nothing by way of evidence to contradict A’s case in respect of the IMC land. TfL/LUL called Mr Rowell. PR accepted that he has no personal knowledge of the use or disposition of the application site before April 2004. He is not therefore a witness who has any material contribution to make from personal recollection of the application land or its use. His contribution to the inquiry extends no further than being a conduit for the production of documentary material. PR accepted that he had not (nor had anyone else) inquired within TfL/LUL as to whether there was any available witness of fact.

The written evidence produced by the Applicants (in the form of responses to HCC questionnaires and in the form of standard letters) in the conventional way may only attract lesser weight than the evidence given by witnesses which was open to be tested in cross-examination. However, that written evidence is entirely congruent with the evidence given by witnesses and therefore can be relied on as accurate and supportive of the overall case advanced by A.

Mr Weston plainly has recollection of the land dating back over several decades. He challenged some of A’s witnesses as to the veracity of their evidence. His challenges were rejected. However, Mr Weston’s own evidence to the inquiry did not disclose any contrary case. He did 115 The letter of 17 February 1970 at Rowell p.30 makes clears that the area of LUL land outside the orange fence was intended to be made available “thus leaving the wood free for such persons as choose to wander them”

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not suggest that his land was not used for lawful sports or pastimes, as A’s witnesses claim, nor that entry to his land during the qualifying period was by force. Mr Weston stated116 that the fencing was put up in 1960-61 (when he returned from National Service in the Middle East). He also stated that “just before the 1980s” (i.e. outside the qualifying period) the “fence117” had deteriorated. He attributed this to the occupants of the barges. Properly considered against the qualifying requirements, Mr Weston’s contribution is entirely supportive of A’s case; it certainly does not disclose any basis for contradiction. Seen in this context, Mr Weston’s challenge by way of cross-examination of some of A’s witnesses as to the accuracy of their evidence amounts to nothing and certainly cannot reasonably give rise to a proper basis to reject the accuracy of A’s witnesses.

The Third Objector’s submissions in closing explained why Mr Weston considers the evidence of the Applicants’ witnesses of fact (and the evidence of the Applicants themselves) to be inaccurate and, in large measure, untruthful. In response, the Applicants submit that the evidence in support of the application went substantially unchallenged at the public inquiry. The Applicants’ witnesses and the Applicants themselves were palpably honest witnesses. Mr Weston’s submissions do not amount to a proper basis now to challenge their evidence.

Evaluation of Mr Rowell’s evidencePR accepted that he is not qualified to interpret the documents he produces to any greater degree than any other participant at the inquiry118. He is not an “expert” witness in respect of those documents. His hypothesis should be considered in that context. PR admitted that he is no better qualified to draw conclusions or inferences from these documents than any other participant at the inquiry.

The case which TfL/LUL seek to advance in respect of their documents must be considered with caution for the following reasons:

as a matter of principle, absent the authors of the their contents, the documentary evidence is plainly hearsay. Many of the documents are unclear as to what land, feature or events they relate and are otherwise unclear as to their effect. It is inherently unsatisfactory and unreliable to be required to make interpretative assumptions as to the substance of a document before it can be relied upon. Although it is not suggested for the Applicants that the documents are inadmissible as evidence, the weight that such documents inherently can attract is limited especially where, as here, their substance and effect in many respects is unclear;

furthermore, the documents produced by PR have been the subject of a process of selection. PR, in January 2005, was presented with three document folders containing material. He extracted everything which he considered then to be relevant. He had no legal advice at the time and has little direct experience of TVG applications. He produced an internal report. This has not been disclosed and no explanation is given as to why this was the case. The documentary evidence PR produces to the inquiry comprises some, but not all, of the material produced with that report. PR has no doubt tried to be helpful. However, neither he nor anyone else for TfL/LUL has not gone back to look again at the document folders either before or during the inquiry, by which time issues had inevitably become more focussed than as at January 2005. PR himself accepted that there “may well be” undisclosed material which may be helpful to one or other party. It appears then to be accepted that the documents produced by PR do not necessarily tell the whole story. It is a matter of surprise and regret that the elementary step of re-investigating the TfL/LUL files was not undertaken in advance of or during the inquiry.

116 During his evidence on day 5.117 He seemed to be referring to the boundary fence with the orchard in this context.118 See para.24 above.

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After PR’s evidence in respect of the exercise carried out in selecting documents for production to the inquiry, A, through their solicitors, requested an opportunity to visit Wragge’s offices to inspect the “document folders”. This request was made informally before the adjournment of the inquiry (on day 4) and subsequently in correspondence. This request has been denied. The relevant correspondence is produced at divider 2 to the file accompanying these submissions. The fact that TfL/LUL are not prepared to allow the Applicants to inspect the relevant material further undermines the completeness of the picture which the documents are said by TfL/LUL to represent and calls into question the transparency of their approach. This stance is particularly surprising given that TfL/LUL are a public authority;

In any event, as PR made clear, even the files he looked at were incomplete (e.g. plan/drawing M52421 (PR p.58) is missing). Furthermore, documents also seem to have been removed after PR first looked at the files (see PR evidence in chief re: docs at PR Tab23 and 24119). This too undermines the reliability of the exercise on which LUL/TfL advance their case.

TfL/LUL seek to advance their objection on the basis of documentary material and conclusions drawn from those documents. They did not suggest by reference to those documents that any witness called by the Applicants (nor the Applicants themselves) gave unreliable evidence. The documents produced by TfL/LUL are, on the evidence, selective and incomplete. TfL/LUL have not sought to address this criticism by allowing the Applicants sight of all undisclosed material. In the circumstances, the Applicants submit that the reliability of the case advanced by LUL on the documents should be treated with considerable caution and cannot, logically, reasonably or sensibly, be favoured to the extent that that case is in conflict with the unchallenged evidence given by the Applicants and their witnesses.

User of the whole siteThe evidence given by and for the Applicants is extensive and self-corroborative. The whole of the application site has been used for a range of activities which are properly classified as lawful sports and pastimes. Activities including dog walking, nature observation, photography, painting, children’s play, jogging, informal games (especially on the open area near the canal) are but some of the activities undertaken on the land. It is not suggested by either TfL/LUL or by Lincat that these activities do not amount to qualifying requirements. They plainly do fall to be so classified.

The application site comprises a relatively substantial area of land and parts of the application site are inevitably inaccessible e.g. within the woodland, the trees and undergrowth area, as well as the areas where the buddleia has developed. Three points follow. First, the fact that part of the land the subject of a TVG application is inaccessible is not of itself a proper ground of objection. In Oxfordshire both Lightman J. at first instance (paras.92-95) and Lord Hoffmann in the House of Lords (para.67) held that, depending in the character of the land sought to be registered, it may be envisaged that parts would not be accessible. In Oxfordshire only 25% was “reasonably accessible”: the Inspector there recommended that notwithstanding this statistic, the land (in part) should be registered as a green. Here the land in substantial part comprises woodland. It is only to be expected that large parts of a wood would not be accessible; that is an essential characteristic of woodland. Therefore the fact that use may be limited to clearings and glades and to various paths and rides within the wood (comprising TRDC, TfL/LUL and IMC land) is not surprising nor is it a proper ground of objection. Likewise, in terms of the buddleia, which has grown up during the latter part of the qualifying period, parts of it are inaccessible. However, there are ways and glades in the area through which people pass. It is used for a variety of uses including for the observation of nature which is attracted to the buddleia. Therefore, the fact that parts of the application site are impenetrable due to the growth of buddleia is not of itself a ground of objection. Like in Oxfordshire, limited accessibility is an inherent characteristic of the 119 A, through its solicitors, asked for these documents in their complete form before the start of the inquiry.

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land in question, at least in the latter part of the qualifying period. Secondly, it is not necessary for evidence to be called to show “use of every square foot of a site” which is sought to be registered as a green: the registration authority must be “persuaded that for all practical purposes it could sensibly be said that the whole of the site had been so used for 20 years” – see Sullivan J. in R (Cheltenham Builders Ltd.) v South Gloucestershire DC [2004] JPL 975 at pg.985 para.29). Thirdly, in terms of assessing the use said to have been made of the land, it is important to consider the land, in terms of its use and the implications of that use, as a single entity. It is plain that, so far as local inhabitants were concerned, their use of the land is not informed or restricted by land ownership boundaries and the activities which they undertook extended over different parts of the land. The fact that parts of the land differed from each other in terms of the times of activities they accommodated or the intensity of such activities is beside the point. The question is whether the land as a whole was used for sports and pastimes. It is accepted that, in other respects, it may be necessary to consider parts of the land by reference to land ownership issues (e.g. use as of right). However, in respect of the issue of use made of the land, the starting point should be consideration of the use of the land as a whole.

Walking: what walking should be discounted?There is evidence of use of the application site for recreational walking. It is accepted by the Applicants that use of the land as a shortcut to the shops or to work in the former industrial complex to the south of the Canal is not a lawful sport or pastime. However, recreational walking is another matter. In Oxfordshire, Lightman J. approached the matter by reference to how the use would be perceived by a landowner and in particular whether he or she would appreciate that walkers were exercising and asserting a right to pass and repass (akin to a highway right) or a right to use the land for sports and pastimes (see paras.96 to 105). The unchallenged evidence is that the land was used for a range of sport and pastimes, as already submitted. This is not a case where recreational walking was the only activity undertaken. Indeed, the evidence is quite to the contrary. Recreational walking therefore has to be considered in its proper context, namely, as part of a range of other activities carried out. In those circumstances, a landowner cannot reasonably have concluded that local inhabitants using his land were asserting a right of way as opposed to a right to use the land for sports and pastimes. Indeed, from the documentary evidence which discloses how TfL/LUL and its statutory predecessors appreciated the use made of their land, this is precisely what that landowner did appreciate.

So far as LUL/TFL are concerned the documentary material produced is helpful to the extent that it records contemporaneously how the use made of the land was perceived by both officers within the organisation and by its consultants. What becomes abundantly clear is that neither TfL/LUL nor its professional consultants viewed use of the land by local inhabitants as use akin to assertion of highway rights but recognised the use of the land as being that associated with open space. The following references are relevant120:

PR p.141 – internal LUL file note dated 19 October 1993 – “local people consider site to be common land”;

PR p.245 – internal LUL memo of 26 July 1996 – “local residents have come to regard the site as public open space”;

PR p.230 – LUL memo dated 21 March 1996 – “few restrictions to public access”;

AB p.8 – LUL Environmental Statement (for which PR was responsible) – “high public use of the site”;

PR p.473 – EA letter 7 August 2002 – para.3 “… current use of the land is public open space”;

PR p.477 – STATS (LUL Consultants) letter of 13 August 2002 – identifies areas “easily accessible to the public”;

120 PR was taken to these references in cross-examination on day 5. 174

PR p.480 – STATS letter of 9 September 2002 – “The site is currently private property, although members of the general public use the site as public open space.”

Public use was recognised as taking place in fact and that use was appreciated as use not as a footpath but as usable amenity open space.

The IMC LandIt is suggested that the evidence is unclear as to the land used and the uses made of that land. This is incorrect and unfair. Those witnesses who used IMC land were clear as to its location and the use made of it. It was used for recreational walking (with and without dogs), for nature observation (see remains of the hide), for collecting nuts and for children’s play, especially around the depression in the land. The remnants of the rope swing attest to this latter activity. Those witnesses who used the IMC land were asked to describe how they entered the land and how it was used. This evidence, which was not challenged as to its accuracy or truthfulness, shows that the IMC land was used for sports and pastimes. It is simply nothing to the point that not all witnesses said they used IMC land; where the land sought to be registered comprises a large area that this is the case is by no means surprising.

Furthermore, as several witnesses for the Applicants attested, there is no difference in terms of character or quality to differentiate the IMC land from the remainder of the wooded areas included in the application site. TfL/LUL accepted expressly in closing that the use made of the TRDC land was such that it may qualify as a green. The same point seems to be made in respect of the TRDC land for Lincat121. However, there is no difference in character or quality between the IMC land and TDRC land (or indeed, as discussed below Mr Weston’s land) – they all comprise woodland. Nor is there any material difference in the use made of the TRDC land and IMC land. The point cannot logically or properly be made therefore that the TRDC land and the use made of it is such that it qualifies as a green whereas the IMC land does not.

In respect of the IMC land a criticism seems to be made that (a) the fact that the land was owned by IMC was not recognised by those completing questionnaires and (b) that the area sought for registration is not reduced from that shown in earlier plans. In respect of (a), the questionnaire did not invite acknowledgement of land ownership nor is that relevant. In respect of (b), the plans accompanying applications for registration of land as a green are intended to be drawn up by lay people122 – the plans are not intended to be prescriptive and the plans produced over time must be considered in that context123. It is plain by reference to the plan at AB p.50C that that area was used by inhabitants for a range of pastimes. It is this area which is sought to be registered.

In this context, again, it is important to appreciate that no contradictory evidence, whether in the form of a witness of fact or by way of document, is called to support Lincat’s objection. It was not suggested for Lincat that A’s witnesses were lying. The use of the IMC land for qualifying sports and pastimes is made out.

A further point is made by Lincat to the effect that there was no evidence of the use of all of the IMC land within the application site. It is not necessary to show actual use of all of an application site: per Sullivan J. in Cheltenham Builders.

121“ ...TRDC, as one of the four owners, has chosen not to object to its land being so registered. In the circumstances that are particular to its landholding that is not surprising …”122 See para.5 of these submissions, above.123 See Oxfordshire CC v Oxford City Council & Robinson [2004] 2 WLR 1291 per Lightman J. at para 83.

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It is submitted therefore that on the basis of unchallenged evidence use was made of the IMC land during the relevant qualifying period for lawful sports and pastimes such that, all other elements of the definition being met, it qualifies as a green.

Mr Weston’s LandSubstantively unchallenged evidence was given of the use of Mr Weston’s land for lawful sport and pastimes including for dog walking, for nature observation and by children as a place to meet and play. No contradictory evidence was given by or for Mr Weston to challenge this. It is accepted that the activity of merely crossing Mr Weston’s land to access the shops or for work is not a lawful sport or pastime. However, the fact that the land was used for this purpose by no means weakens the evidence of those who used the land for those other activities already referred to. On the balance of probabilities Mr Weston’s land too has been used for lawful sports and pastimes.

The TfL/LUL LandEvidence of tipping and levelling operationsTfL/LUL submit that “the evidence of the use of the tip for waste disposal – and consequential landscaping – continued until after 1984”. The Applicants submitthat that submission is inconsistent with the documentary evidence on which LUL/TfL otherwise relies, contrary to the evidence given by PR and contrary to the unchallenged evidence given by the Applicants and the witnesses who gave evidence of A.

From the documents it can be deduced that authorised tipping could only in practice have begun after 1953124. The method of tipping was set out in the undertaking given by the Commissions to Hertfordshire County Council on 8 June 1953 (PR p.4-7). This plainly presupposes that no material extent of tipping had by that stage occurred on the land to which the undertaking related. The former British Transport Commission purchased the land at Croxley on 3 May 1954 (PR p.8).

The tipping sequence cannot be established. TfL/LUL do not produce tipping records, in spite of the fact, as PR accepted, such records ought to have been submitted to the County Council, as waste regulation authority. No investigation of the HCC records was carried out. However, it is possible, from the undertaking given by the British Transport Commission to HCC (PR p4.7) and in particular the plan attached thereto that tipping was to be phased, with the area now comprising the flat open area to the east which is used for informal recreation to be completed early in the programme (Stage 2 on the plan at p.7). The undertaking required the tipping to take place sequentially (see cl.3 (PR p.4)) and the end of each stage a “horizontal top surface was to be left” (cl.4 (PR p.4)). There is no evidence as to the timing, duration or intensity of tipping operations. The tipping was to be phased such that the open area to the west of the TfL/LUL land was to be completed last and left horizontal as stage two of the programme (PR p.7). Local residents do not recall the land being used for tipping to any material extent. They recall the vestiges of tipping operations e.g. rail tracks and wagons. This evidence was unchallenged and the documentary evidence does not conflict with the evidence that in living memory no tipping took place to any intensity.

Of more importance, however, is the extent to which documents are capable of supporting a conclusion that tipping and levelling operations encroached into the qualifying period so as to interrupt use of the land during that period for sports and pastimes. The following documents are relevant:

124 We accept of course that a permission to tip was granted in 1938 (PR p.1). However, without ownership or possession of the application site there is no basis to conclude that this permission could have been acted upon in so far as the application site is concerned.

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PR p.234 – Memo 31 May 1996 – refers to tip being “last used 10/15 years ago”. This range of dates extends from 1981 to 1986. The precise date is not given nor is the extent of tipping when it was used;

PR 62 – Memo of 18 July 1984 para.1.0 (4th para. (unnumbered)) – “Various areas have now become surplus and have been levelled off, re-seeded with grass and fenced off from the area still in use (plan 2125). The vacant area of 6.52 acres of open re-seeded ground with the remaining area being poor quality amenity woodland”. This is plainly indicative of the area outside the green fence having been abandoned and restored by 18 July 1984 (i.e. before the start of the 20 year qualifying period);

in respect of tipping within the green fence126, PR p.81 (7, January 1986) states as follows: “Although no tipping has taken place since the landscaping work, the option to use the level site again for selective tipping purposes remains open, therefore I would not be prepared to dispose of the area of land forming the embankment facing the Grand Union Canal as this supports the tipping area”. PR confirmed in cross-examination that (a) the landscaping works referred to the planting of the sloping bank to the Canal (as referred to within the same document at p.80 (2nd para) which took place in 1983 and (b) that therefore, from this document, it follows that no tipping encroached into the qualifying period;

PR p.258127, where it is stated that “the use of the site for waste disposal was discontinued in the early 1980s” is (a) not intended to have been specific (b) is hearsay (it was produced by consultants to the Parish Council) and (c) in any event it consistent with the specific dates given in documents referred to in earlier parts of this paragraph.

So far as levelling operations are concerned, the following documents are relevant:

PR p.51 (para.2) (29 April 1983) – para.2 “our contractor is well advanced with the work of readjusting levels and should be complete by the end of next month” (i.e. May 1983). (see also para.5 (final levels to N/E (i.e. open area) and para.7(i));

PR p.53 (3 May 1983 following a site visit) numbered para.1 – HCC recording that “reshaping of the tip would be completed” in accordance with specified drawing128;

PR p.326 – 17 May 1983 “site is now being levelled”; PR p.62 – 18 July 1984 – para.1.0 (unnumbered para.3) levelling outside green fence

completed.

So far as tipping and levelling is concerned the documents show that:

by July 1984 tipping had ceased and those areas not retained for possible future tipping had been levelled in accordance with drawings shown to the County Council;

the area outside the green fence was not intended to be used at all in the future for tipping and had indeed been levelled; but

the area within the green fence was to be retained such that it could be used in the future if required; that is not to say that tipping was taking place in 1984 or ever thereafter – there is no document which suggests that that was the case. It appears that the land in the green fence was retained as a contingency or as a future option (see in particular PR p.79 in this context).

The documentary material does not therefore support a proposition that use of the land during the qualifying period was interrupted by any tipping or levelling operations.125 Which PR stated (in xx) was missing.126 The references to the “green fence” in these submissions must of course be considered in the context, as discussed later in these submissions, that A do not accept on the evidence that the green fence was an “enclosing fence” and it is submitted that it did not close the return section to the Canal.127 “Assessment of Environmental Issues” produced by Aspinwall & Co for Croxley Green Parish Council dated March 1996.128 Which has not been disclosed.

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TfL/LUL, in their submissions, at paras.25-26, are therefore correct in concluding that (a) land outside the green fence had been levelled before July 1984 and that (b) the land inside that fence was “retained for future tipping (para.25)”. However, (a) there is no documentary evidence that the land inside the green fence was used for tipping in 1984 and certainly during or after July 1984 or (b) has ever used for tipping thereafter. TfL/LUL’s submission at paragraph 26 of its submission is not supported even on a construction of their documents which is most favourable to them. The documents do not support a conclusion that tipping took place anywhere on the TfL/LUL land during the qualifying period.

Furthermore, PR accepted that the documents supported the conclusion that tipping had ceased by the commencement of the qualifying period and such a conclusion accords with the unchallenged evidence of the Applicants and their witnesses.

So far as the apparent criticism of A’s witnesses that they do not recall the tipping or levelling operations is concerned, we make the following points. First, there is no evidence of any kind produced by TfL/LUL as to the sequence or intensity of tipping. That no witness recalls tipping to any material extent was not, and on the documents cannot, be challenged. The documents simply do not disclose the intensity of tipping. In terms of levelling, the extent of earthworks is not given in the documents. The undertaking given by the British Transport Commission to HCC in 1953 (PR p.4) required the phases of tipping to be completed with horizontal surfaces. Therefore, significant levelling would not have been required if, (as it must be assumed), the undertaking was complied with. That the levelling is not recalled is likely therefore to be a result of the modest nature of such operations. There is no basis therefore to undermine the credibility of A’s evidence on this point.

Occupation by travellersIt is accepted that an illegal encroachment by travellers occurred in 1989-1990 as a matter of fact. It is, of course, correct that a material interruption to the use of land sought to be registered as a green during the qualifying period may result in that part of the land on which the interruption occurred becoming not capable of having become a green. Here, for the reasons set out above, in terms of use, it is important to have regard to the land as a whole; not all the land is accessible at any one time by reason of its character and nature; this of itself is not a ground of objection to registration as a green. The use of the land for sports and pastimes was not interrupted by the encroachment by travellers even though the encampment was avoided by some; the evidence given by A’s witnesses in this respect was not challenged by TfL/LUL. Therefore since use of the land for sports and pastimes was not interrupted by the encroachment by travellers, there is no basis therefore to conclude that the area occupied by the travellers should be excluded for the area otherwise eligible for registration.

If that submission is not accepted and I think it correct to exclude the area occupied by the travellers, the issue becomes one of extent. TfL/LUL rely on the plan at PR p.91. PR cannot verify the accuracy of this plan. It is expressly an “approximation”129. It was not an exhibit to Mr Masterson’s affidavit130. It includes part of the land sloping towards the Canal; this plainly could not be used for the siting of caravans and this curiosity itself undermines the reliability of the plan. It is not drawn to any particular scale and the outline of the approximate area seems to do no more than follow the convenient features shown on the base plan e.g. railway lines and embankment features; so far as the railway tracks and embanked area shown on the plan is concerned, Mr.B.Grant’s unchallenged evidence was that neither of those features were present on the land in 1989. In so far as any conclusion can be made as to the scale of the area enclosed, it seems far too large to be an area occupied by seven caravans – see Masterson Affidavit para.7 (PR p.95). The plan on which TfL/LUL rely seems therefore wholly unreliable. 129 See Memo at PR p.90.130 PR p.94.

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As against that, the plan produced by the Applicants and signed by the relevant witnesses was drawn up from personal recollection of the scale and location of the encampment and by reference to a scale deduced by other features on the plan (namely the size of rear gardens)131. The area shown is plainly more akin to an area which can be expected to be occupied by seven caravans. If, contrary to the Applicants’ primary case, the encroachment by travellers is held to be an interruption in use, the Applicants submit that I should exclude not more than that area shown in the plan produced for A132.

PermissionTfL/LUL suggest that use of part of the application site is by permission. In so doing they rely on the documents at PR Tab 16133. No other incidence of permission is relied on or referred to by any Objector. It is submitted that the documents in PR Tab16 do not support the submission made by Mr Mynors in reliance of them.

First, the context is important. LUL plainly knew by the date of Cllr Saxon’s letter of 3 February 1995 that the public were using their land for recreation. This much is plain from Cllr Saxon’s letter itself (PR p.165). If the land was not in such use (a) why would the Residents’ Association be aware of the state of the land and (b) why would they wish to tidy it up134? There is nothing in subsequent correspondence within PR Tab 16 to support the proposition that LUL were “permitting” that use to continue. LUL must have recognised it was taking place and was intended to continue but did nothing to permit or to prohibit that use. Secondly, what Cllr Saxon was requesting and what was granted was permission to tidy the land – to do work to the land. He was not requesting nor did he understand himself to be requesting permission to use the land for recreation (as Cllr Saxon himself confirmed in evidence). To remove material or do work to land cannot be considered a lawful sport or pastime. Therefore, the fact permission may have been sought or granted for that to take place does not affect whether or not the land was used for lawful sport and pastimes as of right.

It is submitted by TfL/LUL, by reference to the correspondence at PR Tab 16, that “…local residents sought and obtained permission to go onto the Tip in 1995.”. That may be a correct conclusion to draw from the documents. However, that, with respect, is to ask the wrong question. The question required by law to be considered is whether the land was used for lawful sports and pastimes with permission. The documents relied on by TfL/LUL support, and only support, a conclusion that permission was sought to tidy the land and for that purpose to do work upon the land. They do not support a conclusion that permission was sought or granted for sport and pastimes on the land. Indeed, the fact that LUL at the time did not raise the issue of use of the land for recreation, when it is plain that it was taking place, supports the conclusion that the use of the land for that purpose was “as of right”.

ForceIn terms of the approach to fencing and whether the evidence relating to fencing gives rise to a proper basis to conclude that use of the land enclosed by the fences was forcible, the Applicants submitted that a user who breaks down a fence to obtain entry does so by force. His or her use cannot be as of right. However, where fences are already broken and a user gains entry through any gaps in a fence which are already in existence, the use by that person is not infected with the same quality of force– his or her use remains as of right. This is particularly the case where a landowner knows a fence has been broken down and is ineffective and does not take steps to

131 See evidence of B.Grant and others.132 In this context, also, following the High Peak decision, the absence of physical boundaries to the either the TfL/LUL or A’s area of occupation is not a legal impediment to identifying land to be registered which excludes whichever of those two areas is preferred.133 PP.165-173.134 This is not a case where residents may wish to tidy up the land to improve any public or private view.

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repair that fence. In such case the landowner is not, by reason of the existence of the fence, in a position where he has put in place arrangements such that he could be satisfied that use is not as of right. It is submitted therefore that only those who actually use force to enter upon the relevant land can be said to use that land by force. Those who enter the land through a pre-existing opening in a fence which has not been remedied by a landowner is not entering and using the land by force. In any event, the statutory definition requires use in a qualifying way by a “significant number” of local inhabitants. It follows therefore that if one or two inhabitants entered by force, so long as a “significant number” used the land in a qualifying way the land can still be a green.

The Orange and Blue Fence shown on Plan ESections of both the orange fence and the blue fence remain visible on the land. The issues therefore are:

when were those fences erected? what was their condition during the 20-year qualifying period? and did they operate so as to prevent use as of right in respect of the land which they enclose?

The unchallenged evidence of residents was that the orange/blue fences did not obstruct access nor did any resident remove the fences. If this evidence is accepted then these sections of fence neither prevented access nor would use made of the land enclosed by these fences be forcible. No evidence has been called by TfL/LUL to establish how the fence was damaged, when or by whom. There is certainly no evidence to suggest it was damaged by residents.

Mr Weston’s evidence (day 5) is of assistance in that he claimed that the “fence” was damaged “before the 1980s” and he claimed that this was done by barge occupants. If this is accepted as correct, then the fences would have been damaged before the commencement of the qualifying period.

Second, the history of these lengths of fence can be established from the documentary material before the inquiry:

PR p.23 - 3 April 1979 – fence already in place but damaged; PR p.32 – 19 May 1981 – fence135 suffers vandalism and needed “renewal”; PR p.34 – 18 June 1981 – reference to “fence remains broken”136; PR p.35 – 29 June 1981 reference to “replacement” of fencing parallel to

Frankland Road and “renewal” of fencing between points A and B (see plan at PR p.33);

PR p.36 – 29 June 1981 – instruction to repair fence (which, consistent with letter at p.35, must mean section parallel to Frankland Road); PR accepted no evidence as to whether this was done as per instruction;

PR p.44 – 16 November 1981 (para.2) reference in letter from HCC to “broken boundary fence” observed following a meeting.

It is plain therefore that in the period before 15 November 1981 the orange fence was in a dilapidated condition and had been for some time. How this occurred is not explained. The documents certainly do not support the inference that any local resident was responsible for any damage.

Then there is the letter of 19 November 1981 (PR p.45) which refers to “repairs” on 15 November 1981. This comprised “minor patching” and “replacement of approximately 30 metres

135 Consistent with LUL’s case these must be references to the orange fence as the only other candidate, the green fence, was not in existence until later in the 1980s.136 PR says that this can be construed in different ways including as a reference to the position if the fence remains broken. It is submitted the document, particularly in its context is more naturally read as a statement of fact.

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of chainlink fence”. Where this was located is not established. PR suggested that it was along the canal frontage (near point F). However, the orange fence is plainly more than 30 metres in extent. Complete replacement did not occur. The letter continued to explain that by 17 November 1981 “a site inspection revealed that not only had the 30 m length of new wire been taken down but it had been removed from the area and could not be located by our staff”

The following conclusions follow:

by 17 November 1981 (i.e., before the commencement of the qualifying period) the integrity of the fence had been compromised and in any event it did not extend along the Canal frontage;

no explanation is given as to who was responsible for the damage. It certainly cannot be deduced from this letter that any local resident was responsible. Mr Weston of course attributes damage to fences to barge occupants.

The letter of 19 November 1981 continues as follows:

“The matter has been reported to the LT section of the British Transport Police and it is intended that their assistance will be requested to patrol the area when this section of fencing is again replaced. Replacement will not be carried out until this assistance is available.”

It follows from this record that immediate replacement of the damaged section of the orange fence was not intended (nor, for reasons set out below, did it ever occur) and it was only to have occurred when police assistance became available. It follows therefore that as at November 1981 (i.e. before the commencement of the qualifying period):

the integrity of the orange fence was compromised; those responsible for this was not recorded; immediate repair was not intended to be carried out.

From the commencement of 1982, the documentary evidence establishes, as PR accepted, that LUL began to consider its future at Croxley Green:

PR p.46 – 22 February 1982 – considering “abandoning” the tip; no indication of replacement/repair to the orange fence by this date;

PR p.47 – 18 October 1982 – consideration as to future of tip; PR p.48 - 4 November 1982; PR p.49 (16 November 1982) “site will have to be securely fenced” and that this is a

“continuing problem since local people pull down fences as soon as they are erected”. There is no indication however that the fence had been repaired between November 1981 and the date of this letter. Nor is the identity of the local residents who damaged the fence and for what purpose identified. This letter also show that the orange fence was not effective by November 1982 (i.e. before 20 year period begins);

PR p.50 – 28 April 1983 – possibility of erecting “new fence along line of foot of the woodland” was referred to; this must be the green fence. This statement was made in the context of future activities being “much reduced in scale”. Through later documents this becomes more focussed and it becomes clears that this reference relates to the future potential use of the land within the green fence rather than anything actually occurring;

PR p.51 – 29 April 1983 – orange fence “completely ineffective”. At (iii) (p.51) suggestion to “erect a new fence around the area which we can still use for the tipping of spent ballast” (i.e. green fence). (iv) “ surplus land including woodland and slopes etc.” proposed to be handed over to TRDC (p.52).

PR p.54 – 3 May 1983 – land outside new fence handed over the TRDC;

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PR p.55 – 19 May 1983 – orange fence difficult to maintain and proposal for new (i.e. green fence). This document does not indicate any active process of maintenance of the orange fence, as PR accepted. P.56 (same document) proposal to "allow” access to “blue bell wood” following agreement with local authority. PR accepted no agreement reached and therefore no evidence of any permission;

PR p.57 proposal for new “green fence” and that land outside is “surplus to requirement and which is now available for sale”.

From this documentary material it can be concluded that some repairs to the orange fence were carried out in November 1981 but shortly thereafter the fence was damaged again (PR p.45). The identity of those responsible for the damage was not identified. It was not intended to repair the fence immediately (PR p.45). Thereafter LUL began to consider its future at Croxley Green. As PR accepted there is no evidence of repairs to the orange/blue fence having been carried out after November 1981 (PR p.58). LUL after November 1981 actively considered and indeed decided to effectively abandon for operational purposes all land outside the subsequently erected green fence and considered handing it to the local authority as a recreational resource.

It follows therefore, consistent with A’s case that the orange/blue fence was dilapidated before the commencement of the 20-year qualifying period and was not repaired at any time during that period; LUL concentrated on the green fence which was to be kept for future tipping; they were prepared to abandon their land between the orange and blue fences and the green fences for public use. Access through the orange/blue fence was available. There is no evidence that any users of the land themselves damaged the fence or that their entry to land beyond the fence was forcible137. It is plain therefore that by the start of the qualifying period entry through the orange/blue fence and use of the land beyond was as of right by all or at least a “significant number”138 of local inhabitants. Use of the LUL land enclosed by the orange/blue fence (subject to that part within the green fence) was used as of right during the whole of the qualifying period. The documentary material is entirely consistent with A’s evidence.

On the accompanied site visit a small section of a different type of fencing near point B was seen. The date of this small section cannot be established. There has been no evidence on the point. It may well be part of the 1981 repairs (PR p.45). Nothing can be drawn from this observation one way or the other.

In respect of the proposal advanced during 1981 and 1982 that TRDC pay for fencing between points A and B on the plan at e.g. PR p.43139, as PR accepted, the documentary evidence relating to that proposal stops abruptly on 10 September 1982 (PR p.42). PR confirmed there is no document which indicates that agreement was ever formalised between LUL and TRDC or that the proposal was implemented. Mr Weston does not suggest that it was. Furthermore, the exchange of correspondence ended about the time LUL began to consider their future at Croxley – see e.g. PR p.47. That the proposal with TRDC was not advanced further while LUL’s future at Croxley was under consideration can be well understood.

The Green FenceThe documentary evidence suggests that at or around October 1983 a section of the green fence running parallel with Frankland Road and the Canal was constructed140.137 Mr Weston’s evidence shows that there is substantial crime in the area including breaking and entering and that in his view barge occupants are prone to cut fences. This offers a possible explanation of who was responsible for damage to the fence.138 Qualifying use must be by a “significant number” of local inhabitants therefore even if a local inhabitant cut the fence and gained access forcible, so long as a significant number used the land in a qualifying way the definition is met.139 Included in PR divider 5.140 The fact that some residents do not recall this fence is explicable by reason of the fact that (a) the return section was not constructed and (b) the section parallel to Frankland Road and the Canal is largely obscured.

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The issues are:

was the return section to the Canal constructed; and was the green fence maintained during the qualifying period.

In respect of the section of the green fence which returns to the canal, A’ s witnesses each gave evidence to the effect that that section of the green fence was not constructed so as to prevent access from the buddleia walk to the open space and vice versa. They were not challenged on this evidence by Mr Mynors. Their evidence should be accepted therefore, for the reasons given above.

TfL/LUL rely on PR. He has no knowledge personally but relies on inferences drawn from his documents and from evidence on the ground (as discussed above). So far as documents are concerned, TfL/LUL rely on two drawings – Drawing M52431 PROVISIONAL (PR p.57A) and drawing M52421 rev.1 (Feb. 1984) (PR p.61). The drawing referred to by the contractors (PR p.58) and which they implemented is missing. PR accepted that the version of the drawing which the contractors worked to (which the Applicants say is a vital) is missing.

It was suggested that the revision to the drawing at p.61 can be relied on as what in fact had been implemented. However, the revision post-dates the work – it is dated February 1984. The revision was produced with a memo of 30 April 1984 (PR p.59). Its context and purpose is unclear; PR was unable to explain what the “matter” was to which the memo was directed and which is referred to in para.1. It is not clear whether the revision was made following a site inspection or survey after the green fence was supposed to have been erected (as PR accepted in cross-examination). The substance of the memo of 30 April 1984 is concerned with the parameters of operational land and not with boundary markings and features. It is therefore of little weight in determining whether in fact during the previous October (1983) the return section of the green fence was erected.

PR has not gone back to inquire of Mabey Constructing Limited (whom Mr Mynors stated to be a company still in existence (although PR did not know whether this was the case)) as to what in fact they did. No inquiries were made within LUL as to who was the project manager and what he or she knew. This is a surprising omission.

The documentary evidence and PR’s researches therefore reveal little of relevance to the primary question of fact concerning the return section of the green fence and nothing sufficient to rebut the evidence of A’s witnesses.

The present positionPR gave evidence that along the return section there is a 30.5 metre length over which no fence posts are to be found141. The spacing of posts within the green fence is approximately 2.5 metres between posts. Therefore over the missing section of the return there would have been about 12 posts. There is no evidence of any posts having been in that space. PR could only point to a section of hardcore/concrete in the ground which he accepted was equivocal. Elsewhere, along other sections of fencing, old posts are plain to see either as standing posts or by reference to remnants of the post in the ground. The absence of any material evidence of posts along the return is consistent with no section of fence there having been erected142.

141 Of which over a 5.5m length there was a section of fence but no posts.142 Reference was made by PR when giving evidence to the effect that there was a post lying on the ground in the vicinity of the return section of fence. This was not seen on the accompanied site visit. In any event, it is entirely unclear where this came from as PR accepted. He said in examination in chief in respect of this post that “I don’t know where it was standing, no evidence of where it was standing”.

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Was the return section to the green fence ever erected?There are two possible explanations as to why LUL in 1983 would have left the return section of the green fence without enclosure: First, PR explained that the ground in the vicinity of the return section of the green fence was difficult to penetrate. He referred to the difficulties encountered recently by contractors responsible for the erection of notices. He said it took three attempts to get the hole into the ground. One explanation is that in 1983 Mabey Contracting Limited could not get the posts in. Secondly, in law, LUL retained an access to their land from Mill Lane and the Canal towpath at point B – see the 1953 conveyance at PR tab 3 and the plan at p.17. The same plan was in use until 1993 – see PR p.140. In that the green land was to be retained for future tipping, there was every reason why LUL would wish to retain an existing access; experience suggest that landowners (particularly in respect of commercial land) do not readily abandon accesses. Closing the retained land at the return section would in fact block that access. Therefore, retaining the return section as open is entirely explicable in this context. PR suggested that this proposition was unlikely as the site had been levelled and there was an incline at point B. However, future access to the retained land would be by tipper lorry which could of course negotiate that incline and in any event LUL had power to modify the landform in that location. PR’s dismissal of the point, coming as it did in re-examination, does not materially affect the force of the point.

Mr Weston produced, as an appendix to his submissions, particulars of sale by tender issued on behalf of London Underground Limited in respect of Croxley Green. These particulars seem to date from early 1996. Although no plan is attached to these particular, they appear to relate to the entirety of, or at least a large part of, London Underground Limited’s landholding (see paragraph 3 “Site Description”).

Within paragraph 3 of the particulars, it is stated as follows:“… There is also vehicular access via Mill Lane to the northeastern end of the site. Mill Lane is included within the sale subject to subsisting rights of way being preserved”.

The recognition of a subsisting vehicular right of way by LUL is entirely consistent with LUL retaining and intending to retain to access the tipping area and the rest of its land via Mill Lane. Such a right of way is shown on the 1953 conveyance (PR Tab 3 and plan at p.17). The fact that LUL in 1996 recognised the continued existence of the right to access their land by vehicle via Mill Lane is entirely consistent with the submission made by the Applicants at paragraph 115 of their closing submissions that the retention of the same right of access provides an explanation as to why a gap was left in the return section of the green fence in 1983. The particulars establish that LUL did not intend to abandon their right of access in 1996 or, therefore, before.

The recognition of a right of vehicular access via Mill Lane is not consistent with PR’s view that by reason of changes in level that access had effectively been abandoned by LUL by 1983.

In conclusion the evidence before the inquiry, when considered in its totality and tested on the balance of probabilities, supports a conclusion that the return section of the green fence was not constructed. It follows that access by local inhabitants to the land within that part of the green fence which was constructed in 1983 was unobstructed and therefore not forcible. Their use of the land within the section of the green fence which was erected was not other than as of right during the qualifying period.

Was the green fence maintained?Several documents produced by PR dated during the qualifying period refer to “maintenance” of fences at e.g. Long Valley Tip (p.119), Croxley Tip (p.122), Croxley Spoil Tip (p.1224). The location, nature and extent of this maintenance is not identified in these documents. Furthermore, PR quite properly stated both in examination in chief and re-examination that he was not able to draw any conclusion as to which section of fence was being referred to. It is not therefore

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possible to rely on these documents to support a proposition that the green fence was being actively maintained during the qualifying period. It is important, too, in this context to appreciate that the licensed tipping area extended considerably beyond the application site – see the 27 July 1993 tipping licence issued by HCC at PR p.129 and, in particular, the plan at p.140143. Therefore, Croxley Tip (however it is described) included a wider area than the application site and therefore where, in correspondence, reference is made to the Croxley Tip, etc, those references may well be references to that part of the tipping area beyond the boundaries of the application site. Indeed, the area to the west of the application site towards the railway which forms part of the licensed tip has always been an area to which the public were excluded. In the circumstances, and as PR accepts, it is dangerous to rely on the documentary material, such as it is, as evidence that the green fence was maintained during the qualifying period. It therefore follows that a “significant number” of inhabitants using openings in the established green fence (other than along the return section) during the qualifying period would not be doing so by force. It also thereby follows that for this additional reason use of the area enclosed in part by that section of the green fence which was erected (i.e., parallel to Frankland Road and the Canal) was not other than as of right.

Were there Gates at point G?There is a reference in the provisional drawing at p.57A to gates at point G. However, the document is silent on the form of those gates and in particular whether they were intended to restrict vehicles or pedestrians. The HCC record at PR p.326 refers to gates to restrict “vehicle access” (see entry for 5.9.83). It is not clear where the access described was located; the tip of course extends beyond the application site. The unchallenged evidence of many of A’s witnesses familiar with that point is that access was never restricted by a gate. They were not challenged on this. Therefore, the documentary material does not and cannot lead to the setting aside of this evidence. On the balance of probabilities no gates existed to prevent pedestrian access at point G.

TfL/LUL make reference to the letter from Mr Scammell at PR p.102. His reference to the existence of gates is that “they have been broken for some time now”. It is entirely unclear what “gates” Mr Scammell is referring to. Indeed, PR in evidence accepted this. However, the very rationale for the letter makes plain that he has enjoyed access to the land and wishes it to be cleaned up following the occupation by travellers. Therefore, even if he was referred to a gate at point G, it was not such as to prevent access by pedestrians.

Reference was made by PR in evidence to a gate near point G being still present within the hedge. He however qualified the answer by stating that it was “not long enough to extend across the path”. Even if this is correct in fact it does not impinge on the primary point as to whether the gate was ever used in the qualifying period to prevent pedestrian access.

The IMC FenceSo far as the fence along the boundary of the IMC land and Lavrock Lane is concerned, the evidence of A’s witnesses who entered the IMC land via points H and I did so through gaps in the fence. No witness called for the Applicants suggested that they had made the gaps or that they knew who had made them. No witness called for the Applicants stated that, during the time that they were familiar with the IMC land, the fence had been maintained or repaired. There was no challenge to this evidence nor did IMC produce any evidence, documentary or otherwise, to contradict what the Applicants’ witnesses stated.

On the accompanied site visit sections of fencing along the boundary of the IMC land and Lavrock Lane were seen which were of a different character to other elements of fencing. There is no evidence as to when this fencing were put into place and, absent such evidence, no conclusions can be drawn as to whether that was done during or before the qualifying period.

143 The 1977 tipping licence related to the same area – see PR p.20.185

Therefore, local inhabitants who entered the IMC land via points H and I were not doing so forcibly.

The same point goes for the boundary of the IMC land comprising the blue fence on Plan E. There is no evidence that this fence was ever maintained to any greater extent than the orange fence, of which it is in practice an extension. The evidence is that the gaps in that fence were longstanding and residents passed and re-passed through those gaps. Entry by local inhabitants to those parts of the application site via this boundary was not therefore forcible.

Fencing of Mr and Mrs Weston’s LandIt is not suggested by anyone that the Mill Lane boundary of Mr Weston’s land was fenced during the qualifying period. So far as the other boundary is concerned, Mr Weston’s evidence was that “just before the 1980s the fence deteriorated144”. He went on to attribute this to barge occupiers. He did not suggest any maintenance of the fencing. There is no basis therefore to contradict the evidence of A’s witnesses that access into and out of Mr Weston’s land was free and open during the qualifying period.

NoticesA’s witnesses stated that there was no notice erected during the qualifying period which permitted or prohibited entry onto or use of any part of the land. No objecting party produced any evidence that notices were erected. Although reference is made to the erection or renewal of notices before the commencement of the qualifying period (e.g. PR p.36), there is no evidence whatsoever to show that notices were erected during the qualifying period or before. PR accepted this. The use of the land by local inhabitants is not therefore affected by notices in this case.

For the avoidance of doubt, the presence of notices elsewhere in the Lincat landholding is entirely irrelevant to the position in respect of the application site where there are, and on the evidence never were during the qualifying period, any notices.

Other legal aspect of the “as of right” testIn respect of the requirement of “as of right” in its wider context, reliance is placed by TfL/LUL on authorities145 which suggest that use of the land by inhabitants has to be such that the landowner would be aware that users were asserting a right to use his land for sport and pastimes and that a landowner would appreciate the nature of the right being asserted.

The Applicants refer to the guidance given by Lord Hoffmann in Oxfordshire where he held that Sullivan J. was incorrect in Laing Homes that low-level agricultural operations by a landowner were inconsistent with an assertion of use as of right by local inhabitants. At para.57, Lord Hoffmann held as follows:

“… No doubt the use of land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so “as of right”. But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes if they were not.”

It follows therefore that where a landowner uses his land for his own purposes but this does not in fact interfere with the use made of land by local inhabitants, it is not correct to infer thereby that use by the local inhabitants was not as of right.

144 He seemed to be referred in the “orchard fence” shown in purple on plan E.145 They rely in particular on Laing Homes in this context.

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LUL/TfL refer to the invasive survey of parts of their land in 1993 (see PR p.175). This is relied on as evidence that local inhabitants deferred to the landowners actions and rely in that context on the Laing Homes decision (see Mr Mynors submissions at para.64). This submission is wrong in fact and in law.

So far as the facts are concerned, the evidence of A’s witnesses is that they do not recall these short-lived operations or, if they did recall them, the operations did not interfere with their use of the land. Furthermore, those responsible for the survey (a) avoided disturbing the open area of land (see PR p.181 (1st para on page) and (b) recorded user on the land while the operations were taking place (ibid.). There was therefore, in fact, no interruption giving rise to a conflict between local inhabitants and the actions of those instructed by the landowner.

In law, the approach in Laing Homes must now be considered in light of Lord Hoffmann’s guidance in Oxfordshire. If the invasive survey carried out by TfL/LUL was not in fact inconsistent with use by local inhabitants there is no reason in law why the activities should be regarded as inconsistent and therefore amount to evidence that use was not as of right. The surveys done in 1993 here are the equivalent in fact and law to the “low level agricultural activities” in Laing Homes which Lord Hoffmann held were not to be regarded as inconsistent with use as of right.

For the reasons set out above, it was submitted that the Applicants have fully discharged the burden of proof placed upon them and shown that the application site as a whole should be registered as a town green.

12. Conclusions of fact

I have reached the following conclusions of fact:

General observations as to evidenceIn evaluating the Applicants’ evidence I have borne in mind that the village green application has been made in response to an application for planning permission by TfL/LUL and considered whether this has coloured the witnesses’ evidence. I am aware that it may be difficult for witnesses who are familiar with the application land as it has been in recent times to recollect accurately what it might have been like at the beginning of the relevant period.

I have also borne in mind when evaluating the Evidence Questionnaires of those witnesses for the Applicants who did not give oral evidence to the Inquiry the fact those witnesses’ evidence was, as a result of the questions asked, imprecise as to which areas of this large site they used. I have taken into account the features of that document which may mean that the evidence collected in this form is less reliable than, for instance, an individually drafted witness statement.

I have borne in mind when evaluating the witness evidence of those who produced a response to the standard form letter (2005 and 2007), the limited nature of those responses.

I have borne in mind the fact that the exact boundaries of the land to which the application relates were not finally settled until the last day of the Inquiry. In particular, when considering the written evidence of witnesses who did not give evidence to the Inquiry, I have been aware of the possible effect of the use of different plans on the accuracy of that evidence. This affects the land within the Second Objector’s ownership in particular. I am satisfied, however, that any witness who was reasonably familiar with the whole of the application site and in particular with the IMC land, would have understood by any of the plans that the Applicants’ intention was to include all the woodland outside what was described at the Inquiry as the IMC inner fence line.

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The written evidence of some witnesses specifies fishing as an activity carried out on the application land. There is no water on the application land. In my view, there are two possible explanations for this: (1) the reference is to using the land for access to the canal for fishing (2) the witness may not have understood the boundary of the application land on its southeastern boundary and may have thought that the canal towpath was included. Where the evidence of a witness refers to fishing, I have treated that evidence with caution.

I do not accept the Lead Objector’s submission that the usefulness of the Applicants’ witnesses is limited by reason of the fact that many of them do not refer to fencing. In my judgment, so long as the fencing did not block the way of the Applicants’ witnesses, fencing may honestly not have been noticed. In reaching this conclusion, I was impressed by the fact that many of the witnesses, who otherwise appeared to be honest and to be trying to be as helpful and accurate in their recollections as they could, had difficulty in picturing any or any substantial amounts of fencing on the application site. I deal in particular with the question of how visible the green fence is below.

In the absence of any witness of fact who can speak to their contents, I approached the documents produced by Mr Rowell with a degree of caution. However, they are in my view very valuable in providing a contemporaneous (if incomplete) record as to the position in relation to TfL/LUL’s land. Formal disclosure obligations such as apply in court proceedings do not apply in the context of village green applications. I am satisfied however that Mr Rowell, in good faith, carried out an exercise roughly equivalent to disclosure, and that all relevant documents which he was able to find, whether or not they assisted TfL/LUL’s position, were before the Inquiry. I have therefore placed considerable weight on the information contained in those documents.

Considering the application land as a wholeThe application land is a substantial area of land: it approaches 1 kilometre in length at its longest point, and is about 200 metres wide at its widest point. Some of the land is, by its nature, inaccessible. Most of the woodland is accessible to the hardy walker, although some areas are clearly much more used than others. Much of the area within the green fence on which Buddleia has grown is inaccessible because of the dense growth of the Buddleia. There is a long path running through the Buddleia, parallel to the canal, with a number of small clearings along it and paths off to either side. I am satisfied that in the earlier part of the period the Buddleia was much less dense, and that in the latter part of the period, use of those paths and clearings amounts to such use of the whole of that area for all practical purposes, given the character of the land.

Much of the evidence for the Applicants did not specify which areas had been used for any particular activity. The boundaries between the areas of land in different ownership are not reflected on the ground by substantial visible changes in character of the land146. However, there is still a significant amount of fencing visible on the land on those boundaries, and this, if nothing else, makes it inappropriate in my view to consider the evidence as relating to the whole of the application land, without examining the evidence in relation to each individual owner’s land separately and with care.

Uncontested areas

In my judgment there is clear evidence that the land owned by TRDC has been freely and extensively used by local people for lawful sports and pastimes without permission and without force for over twenty years.

146 The trees in Mr and Mrs Weston’s land are fruit trees, but the average recreational user would not in my view necessarily distinguish them from the nearby trees on TfL/LUL’s land.

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That part of the Application Land owned by TfL/LUL which lies to the north-west of the Orange Fence has been also been freely and extensively used by local people for lawful sports and pastimes without permission and without force for over twenty years.

TfL/LUL land

Use of the site for tippingI accept Mr Rowell’s evidence as to the history of consents and licences for tipping at the site. His plans numbers 1-4 show the areas over which tipping was permitted at various dates.

LU came under pressure from Hertfordshire County Council to carry out levelling and landscaping works to the tip site in 1981 (LO/2/44). The levelling works were carried out in 1983 and had been completed by 18th July 1984 (LO/2/62). Levelling works were carried out both inside and outside the green fence line: the levelling works agreed with the County Council were to be in accordance with drawing M52300147, a copy of which was produced as an appendix to the 1997 Report by STATS (LO/2/310). The cross-sections on that drawing show that re-grading works were to be carried out across the whole of the area which had been used for tipping. A chestnut palling fence was erected at the top of the slopes towards the canal in the summer of 1983, to indicate the area which was to remain available for tipping (LO/2/55 and LO/2/326).

A number of the Applicants’ witnesses (including Mr Mealor, Mrs Emson and Mrs Rowley) continued to use the tip site while the levelling works were progressing.

It does not appear that any tipping was taking place in 1983: the memo of 29th April 1983 refers to the present arrangements for disposal of general scrap material and rubble “proving satisfactory and these will continue” (LO/2/51). The memo of 28th April 1983 (LO/2/50) reports on the progress of the contract to stabilise the embankment at the far end and alongside the canal, and states “The railway connection to the tip will be re-laid when the contract works are completed.”.

No tipping took place between the completion of the landscaping works and 7th January 1986 (LO/2/81). There is no evidence of any tipping taking place after that date, although the option of being able to tip remained open for some time and a single track was re-laid before 1985 (Mr Brading). The rails were stolen in 1994.

However, the documents do not make clear when before 1983 tipping stopped. The evidence of the Applicants’ witnesses that tipping ceased in the 1970s is consistent with the documents and in particular with the letter from Hertfordshire County Council dated 16th November 1981, complaining about the lack of progress in relation to proposals for regarding and landscaping following meetings in 1978. Mr Mealor gave evidence that there was some further tipping during the levelling works. I find on the balance of probabilities that tipping ceased during the 1970s, but that some further material was tipped on the site during the levelling works.

In my judgment use of the land was not interrupted during the relevant period by any tipping or levelling operations which had been completed before the commencement of the relevant period.

The orange fence

I am satisfied that by 29th June 1981 that section of the orange fence which runs between points A-B (alongside the path down the hill to the canal) was in need of extensive repair. I consider that the reference at LO/2/28 to the fence providing adequate security against trespass by walkers, must have been intended mean that the fence if mended (as was contemplated) would 147 LO/2/53

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have provided adequate security. The estimate dated 14th November 1981 shows that one post needed replacing, and 25 metres of chain link needed replacing. There is no evidence that that the agreement between LT and TRDC that TRDC would carry out repairs to the fence line between A-B was ever implemented: the correspondence between the Council and LT ceases with a letter of 10th September 1982. I conclude that the orange fence was not secure along that line by 1981 and was not repaired.

There is reference to repairs being carried out by LT to the Orange Fence on 15th November 1981. Those repairs involved some minor patching and the replacement of approximately 30 m of chainlink fencing. It does not seem from the letters of 11 th December 1981 and 17th August 1982 that this work was to the line A-B. I conclude that it must have been to another part of the orange fence line. Mr Rowell suggested that the relevant section of fencing have been near point F. In any event, that new fencing was taken down and removed from the site within two days of its erection, and, it seems from the available documentation, was not replaced. In my judgment there must have been a second place in which the fence line was not secure, and, on the balance of probabilities, that second section was along the canal frontage. This is consistent with Mr Wakefield’s evidence that he was able to walk from point G to point F at all times between 1970 and 1978, when visiting his parents. It is also consistent with Mr Brading’s evidence that a circular walk entering the site at point B and exiting at F was always possible during the time he knew the site (from 1985). On the balance of probabilities, I think that there was a substantial gap in the orange fencing at point F from at least 1970 and that that gap was never effectively repaired.

There is mention in the memorandum of 16th November 1982 (LO/2/49) of the difficulties in maintaining a secure fence: “this is a continuing problem, since local people pull down the fences as soon as they are erected”. On 28th April 1983 the Civil Engineer indicated that he would be recommending a new fence line around a reduced area (LO/2/50). In the internal memo date 29th April 1983, it was noted that

“Clearly the local residents feel strongly that they should have access to the wooded areas to the north of the tipping area, and the fence defining the boundary in the woods is constantly being broken down and is completely non-effective” (LO/2/51).

I am satisfied on the basis of the documents that, at the latest, by April 1983, the orange fence was no longer secure. In my judgment it is unlikely that any repairs were in fact carried out to the orange fence line after the November 1981 incident. The documentary evidence is consistent with the evidence of the Applicants’ witnesses that access was available via the open grassy area to the canal lock while the tip was still operational. A number of the Applicants’ witnesses gave evidence about the tracks on the tip site in the 1970s and early 1980s. The witnesses would not have seen them unless they had been on the tip site, as they said. I accept the Applicants’ witnesses’ evidence that the condition of the orange fence was not such as prevent access to any part of the site during the relevant period.

In my judgment the gaps present at the time of the Inquiry in the orange fence on its boundary with the canal, other than the gap at F, were not present at the beginning of the relevant period and have been created since then.

I am satisfied that there were signs on the orange fencing which were still legible in 1973 and which, although in need of renewal, may have been legible (at least by those who knew what they were intended to say) in 1979 (LO/2/23), but there is no evidence that these signs were renewed and in my judgment it is unlikely that they were legible at the start of the relevant

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period. In my view this explains the apparent confusion of many of the Applicants’ witnesses as to the purpose of the fencing.

I am satisfied that the whole of the area within the orange fence but outside the green fence has been used extensively by local inhabitants for general recreation for the whole of the relevant period. The local inhabitants may have gone through gaps in the fence created forcibly by others, but there is no evidence that the local residents themselves created the gaps.

The green fence

I am satisfied that Mabey Construction Co Limited was instructed to erect a fence along the whole of the green fence line as shown on Mr Rowell’s plan D, but not including the sections which are also coloured orange, including the return section. However, I am not convinced that drawing M52421 Revision A (LO/2/61) provides evidence that Mabey Construction carried out their instruction in accordance with the drawing.

In my judgment it is likely, as suggested by Mr Rowell, that the site was surveyed for the purpose of preparing drawing M52421. There are substantial differences between drawing M52421 PROVISIONAL and drawing M52421A which can only be explained by a survey having taken place between the dates of those drawings. However, it is not clear that that survey was carried out at or about the same time as Revision A to the drawing was made (February 1984). It is likely in my judgment that the survey was carried out at the time that the missing M52421 (not PROVISIONAL) was drawn. As that drawing is missing, the best that can be said is that the survey took place between August 1983 and February 1984. In my judgment it is unlikely that M52421A shows an existing fence on the green fence line and more likely than not that the line marked “New chain link boundary fence” shows a proposed fence line, first drawn on M52421, which drawing was prepared for the purpose of instructing Mabey Construction.

There is evidence, in the form of the Hertfordshire County Council visit sheet records, that fence posts were on site on 5th November 1983 and that fencing work had been completed by January 1984.

I do not consider that the plan at LO/2/123, on which is marked “approximate line of existing fence” provides good evidence that the green fence had been erected in accordance with the instruction or that the fence was still standing in the position shown. This plan does not appear to have resulted from a site inspection and it seems likely to me that it derives from M52421.

To weigh against the likelihood that Mabey carried out the green fencing work in accordance with their instruction, including completing the return toward the canal, I have the unanimous evidence of the witnesses who gave oral evidence to the Inquiry that they had never seen a return section to the fence.

There is also the evidence on the site at the time of the Inquiry: although the main section of the fence, parallel to the canal is present, and in large measure intact, there is a 25 metre gap in the middle of the return section. From the northern corner going towards the canal there is a corner post with buttress support in two directions, a fence post lying on the ground (with its concrete footing) in the buddleia at about the point where the next post should have been and a length of about 5 metres of chain link fencing. Then there is a 25 m gap, with no signs of any fence posts or footings in the ground. At the end of the gap there is a post, again in the buddleia, then a second post; then at the top of the embankment a roll of fencing; a post with buttresses forward and back at the top of the embankment; five posts down the embankment, with fencing; a post with buttresses forward and back at the bottom; and one further post with fencing (a total of 11 posts to the canal fence, of which 9 have secure fencing). In other places on the site where posts

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are down or missing, there is still physical evidence of their former existence, either in the form of broken posts on the ground, or in the form of remnants of the footings in the ground.

Mr Rowell said that he had been told that it had taken three attempts to put up the nearby sign in 2005, due to the nature of the made-up ground in that area.

If a gap or gate had been deliberately left, as suggested by the Applicants might be the case, one would expect to see end posts either side of that gap and there are none, and no sign that there ever were any. I reject that suggestion as unlikely.

By 13th November 1985 the green fence had been damaged by vandals. The Hertfordshire County Council visit sheets show damage to the site by vandals on 17th April 1985: many of the trees and shrubs that were planted after landscaping had been pulled out of the ground and left to die. There is no reference there to damage to fencing. In my judgment it is clear from this document that the green fence was not effectively preventing access to the part of the site which it was intended to enclose by 13th November 1985 at the latest.

The internal memo dated 9 January 1986 refers to “trespass and vandalism” and states that “much of the new fencing will have to be reinstated”.

Although the letter dated 3rd July 1990 (LO/2/119) refers to renewal of fencing, it is not clear to what fence it refers. The letter to which it is a response (LO/2/118) refers to the site being “in many respects still wide open to vandals”. I infer from this, that whatever work had been done, access to the tip site remained available.In my judgment, in the light all the evidence, the documentation does not bear the interpretation which the Lead Objector seeks to place on it. I do not consider that there was a continuous war of attrition at this time with fences being re-erected and knocked down again. Taking into account the tone of the correspondence and its purpose, I think it likely that the green fence was breached in various places very soon (and probably almost immediately) after its erection and not repaired. I accept the Applicants’ witnesses’ evidence that there was never a return line to the green fence which prevented access to the tip area. It is possible in my judgment that the return line was never completed because of the difficulties in erecting fence posts on made-up ground. If the return line was completed, in my judgment it is overwhelmingly likely that the 25 metre section of the green fence which is now missing was removed (which would have been easier than removing a fence erected on natural ground) almost immediately as soon as it was erected.

The green fence line was not at the time of the Inquiry easily visible either from the woodland path or from the path through the Buddleias. I find it entirely credible that witnesses using the application land may not have seen the green fence line other than the return section (if it existed) and the fencing either side of the track up towards point G. In this regard I found the evidence of Mrs Emson that she had only realised the green fence was there when she came across it on a clean-up two or three years before the Inquiry particularly compelling. Where the Applicants’ witnesses did not recollect having seen those sections of the green fence line which run parallel to the canal, I did not consider that that affected their overall credibility.

Although the Buddleias area was not as attractive as it is now at the beginning of the period, there was clear evidence of user by local inhabitants for informal recreation both before and after the levelling works. This use continued to the date of the application.

The Gate

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On the balance of probabilities, I consider it likely that there was a gate securing the tip site which was used and locked until at least September 1983 (LO/2/326) and which prevented vehicular access to the tip. However, even when the gate was used and locked, pedestrian access to the tip site was still available: see LO/2/326 entry for 5th September 1983. A gate was featured in the site location plan at LO/2/61 at point G. The presence of the gate on the drawing does tend to suggest that there was a gate there and that the gate was still present when the site was surveyed for the purpose of preparing drawing M52421 between August 1983 and February 1984. However, in the light of the Applicants’ witnesses’ evidence that they do not recollect a gate at point G, I am not convinced that the site location plan accurately reflected the position on the ground. The purpose of the survey was to measure accurately the land which LT at that time proposed to sell. The land up towards point G was not included within that area and was not included in the land which was surveyed in detail. It may be that the site location plan was taken from some earlier plan. It certainly would not have been prepared with the same degree of care as would have been used for the operative part of the drawing. I consider on the balance of probabilities that the gate referred to in the Hertfordshire County Council records was not at point G.

Further, wherever the gate was, it had fallen into disrepair by December 1989 so that it no longer prevented vehicular access to the site (Mr Scammell’s letter LO/2/102). There is no evidence as to when exactly the gate ceased to be operational. It is clear from Mr Scammell’s letter that he has enjoyed access to the land and wishes it to be cleaned up and secured following the occupation by travellers so that he can continue to use it. I accept the Applicants’ submission that the gate to which he referred and which he wanted replaced cannot have operated to prevent access to the site by pedestrians. This conclusion is in line with the evidence above that the gate referred to in the County Council’s records did not prevent pedestrian access.

Other factual matters affecting whether use was as of right

I am satisfied that part of the land within the green fence line was occupied by travellers in 1989-1990. I prefer the evidence of the Applicants’ witnesses to the evidence contained in the affidavit of G Bannister in support of LT’s application for possession as to the area of land occupied by the travellers.

Although some of the witnesses suspended their use of the site during the travellers’ occupation, others did not. Others continued to use the site, but avoided the travellers’ encampment. I find as a matter of fact that use of the application site as a whole continued during the travellers’ occupation.

I am satisfied that trial pits were dug in 40 different locations on the land within the green fence line between 2nd-4th February 1993. However, I consider that this was a “low-level” operation and did not impede the local inhabitants’ use of the land.

I am satisfied that permission was given by LT for members of the Croxley Green Residents Association to clean up the land and re-seed and re-plant in 1995. However, this permission did not extent to using the land for recreational purposes.

To what extent is the walking to be disregarded as of a character such as would give rise to a right of way, rather than of a TVG character?

Although the woodland path now has a clear defined route and exit towards point G, so that there is a clear circular route through the site, as pointed out by the Lead Objector the photograph at LO/2/270 suggests that that exit was only partly available in 1996, and presumably even less so earlier. Although some of the evidence was evidence of walking along the Buddleia Walk and along the woodland path, in my judgment the vast majority of the evidence of walking given by

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the witnesses who gave oral evidence was evidence of use for recreational walking, rather than an assertion of a right to pass and repass. It is very difficult to determine with any certainty the character of the walking enjoyed by the respondents to the evidence questionnaires and standard form letters, but many of those witnesses recorded activities other than walking, and in the context of the evidence from those witnesses who gave oral evidence (and taking into account the possibility that those witnesses or some of them may have been selected in part at least because the range of their uses was particularly wide), I am prepared to conclude that some of the walking at least of many of those who gave written evidence only was village green type recreational walking. I consider that a landowner would have appreciated that many of the individuals walking along the woodland walk or the Buddleia walk were asserting a right to use the land for sports and pastimes rather than a right to pass and repass. This conclusion is strengthened by reference to the documents produced by TfL/LUL which show (although this is not strictly the test) that in fact the landowner viewed the user by the public as use of the site as public open space.

The IMC land

There are two fences around the IMC site, referred to at the Inquiry as the inner fence line and the outer fence line. The inner fence line encloses the whole of the built up area of the land and some additional land. Where the boundary of the IMC land meets the boundary of the TfL/LUL land, the outer fence line is shown as a blue line on Mr Rowell’s Plan E. The area between the inner fence line and the outer fence line is woodland. There was little evidence as to the dates of erection of either fence. From a visual inspection, the inner fence line appears to be of much more recent construction. Mr Wakefield said that he thought it had been erected approximately 10 years before the date of the Inquiry and I consider that it is likely that that is correct. The inner fence line is virtually intact. The outer fence line has breaches, but is recognisable. There is a large gap in the outer fence line at its southwestern end. On the frontage to Lavrock Lane there are numerous gaps. There are some indications that attempts may have been made to repair the fence with plastic coated fencing but there was no evidence as to when and by whom this work was carried out.

As set out above, despite the imprecision as to the exact boundaries of the application land and the various plans used, I am satisfied that any witness or potential witness would have understood from the various plans that the Applicants intended to include the IMC land up to the inner boundary fence. In fact, part of the land between the inner fence line and the outer fence line has been excluded from the application land. I am satisfied that at the time of the inquiry many individuals were using points I and H as exit points: the evidence on the ground suggested as much. However, I must consider whether there has been relevant user for the 20 year period ending with the date of application.

None of the witnesses who gave written evidence in the form of an Evidence Questionnaire or response to the standard letter mentioned the IMC land specifically, or activities on that land in particular, even though there were features on that land which might have been worthy of mention: for instance the hide and the rope swing. When asked about ownership, none of the respondents referred to IMC. None of the respondents mentioned the signs erected on the IMC land, although some mentioned the signs erected by TfL/LUL in 2005.

I do not accept the Applicants’ submission that there is no difference in character or quality between the IMC land and the TRDC land: parts of the IMC land (other than the area around the dell) are much less accessible and attractive. There is industrial waste on the IMC land. Parts of it are hazardous underfoot. I reject the suggestion that the IMC land should be treated as a part of the application land which may have been less used, but which should be included as a part of the whole, without reference to whether that land has itself been sufficiently used.

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There was no evidence that the boundary of the IMC land comprising the blue fence on Plan E was maintained. I accept the evidence on behalf of the Applicants that the gaps in that fence were longstanding and residents passed and re-passed through those gaps. I accept the Applicants’ submission that as there was no evidence as to when the repairs evident on the accompanied site visit to sections of fencing along the boundary of the IMC land and Lavrock Lane were carried out, and, absent such evidence, no conclusions can be drawn as to whether that was done during or before the qualifying period. I conclude that the user of the IMC land was not therefore forcible.

In my judgment the IMC land was clearly not as extensively used as the rest of the application land at the time of the Inquiry. There was some evidence that the dell area in particular had been used by the local residents for recreation. There was also some use of the adjacent woodland areas for bird spotting. I do not consider that the evidence of the witnesses of cutting through the IMC land to gain access to the remainder of the site falls to be disregarded as user which might be regarded by a landowner as assertion of a highway-type right rather than of a village green-type right: there was no evidence of a particular route or routes being used consistently and the walking was, in my view, of a recreational character. In the context of the area of the IMC land now included in the application land, in my judgment, the use of these areas could sensibly be described as use of the whole. However, there were very few witnesses who gave any evidence of user of the IMC land specifically and some of those witnesses' evidence did not relate to the whole of the relevant period. In my judgment, there was insufficient evidence of user of this part of the land for the whole of the relevant period.

Mr and Mrs Weston’s land “the orchard”

None of the witnesses who gave written evidence in the form of an Evidence Questionnaire or response to the standard letter mentioned the orchard specifically, or activities on that land in particular, even though there were features on that land which might have been worthy of mention. When asked about ownership, none of the respondents referred to Mr and Mrs Weston, or the director of their predecessor in title, Mr Pitkin. None of the respondents mentioned the signs erected on Mr Weston’s land, although some mentioned the signs erected by TfL/LUL in 2005.

It is clear in my judgment that the boundary between the orchard and Mill Lane, and the boundary between the orchard and the towpath, save for the section at the corner where there is a brick wall, have not been secure for the whole of the relevant period.The fencing between the orchard and TfL/LUL’s land was, on Mr Weston’s own evidence, insecure by, at the latest, the early 1980s. I accept the Applicants’ witnesses’ evidence that it was possible to obtain access through Mr Weston’s land by 1969.

It was accepted by the Applicants that the evidence of witnesses who used the orchard as a shortcut to the shops or to work falls to be discounted and I have excluded it from consideration. However I am satisfied that there was evidence that Mr and Mrs Weston’s land had been used for dog walking, for nature observation and by children and teenagers as a place to meet and play during the whole of the relevant period.

13. The Law

Which definition applies?

The Commons Act 2006 received Royal Assent on 19th July 2006. Section 15 of the Act was brought into force by the Commons Act (Commencement No. 2, Transitional Provisions and Savings) (England) Order 2007148. By paragraph 4(4) of the Order, where an application is 148 SI 456/2007

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made before 6th April 2007 to a registration authority, pursuant to section 13(b) of the Commons Registration Act 1965, for the amendment of the register of town or village greens as a result of any land having become a town or village green and the registration authority has not determined the application before 6th April 2007, the registration authority shall continue to deal with the application on and after 6th April 2007 as if section 13(b) had not been repealed. The applicable definition is therefore that contained in the Commons Registration Act 1965.

The judge at first instance in the Oxfordshire case149 had held that, if land had become a green before 30th January 2001 under the definition contained in the Commons Registration Act 1965 as unamended by the Countryside and Rights of Way Act 2000 (albeit unregistered as such), it remained a green for the purposes of registration after 30th January 2001. However, the Court of Appeal150 and now the House of Lords151 have held that, in the case of any application to register a new green after 30th January 2001, only the definition contained in the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000 applies.

This application therefore falls to be determined under the provisions of the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000.

It is convenient to divide the law into substantive law and procedure.

Substantive law

The Commons Registration Act 1965 provided for each registration authority to maintain a register of town or village greens within its registration area. There was a period expiring on 31st July 1970 for the registration of greens. By s. 1(2)(a) of the 1965 Act, no land which was capable of being registered as a green by the end of the original registration period “shall be deemed to be…a town or village green unless it is so registered”. Section 13 of the Act provides for the amendment of that register where any land becomes a town or village green after the end of the original registration period.

The expression “town or village green” is defined by s 22(1) of the Act. The definition has three limbs:

statutory greens (i.e. greens created by statute), customary greens (i.e. greens based on immemorial use) and prescriptive greens (i.e. greens based on 20 years’ use).

It is the third limb of the definition, i.e. prescriptive greens, which is relevant in this case. The current definition of a prescriptive green is contained in section 22 of the Commons Registration Act 1965 as amended by section 98 of the Countryside and Rights of Way Act 2000:

“…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.”

No regulations have been made to implement paragraph (b).

The Legal Issues149 Oxfordshire County Council v Oxford City Council & Robinson [2004] Ch. 253; [2004] EWHC 12 (Ch).150 [2005] EWCA Civ 175.151 [2006] UKHL 25.

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The main legal issues that have been decided by the courts are as follows:

What is a town or village green?

A town or village green is land which is subject to the right of local inhabitants to enjoy general recreational activities on it. Activities are not limited to those which have been historically enjoyed152.

What is the effect of registration?

The effect of registration can be summarised as follows:

The fact that land is registered as a green is conclusive evidence that it was a green as at the date of registration153.

The fact that land is not registered as a green is conclusive evidence that it is not a green

The House of Lords held in the Oxfordshire case that the fact that land is a registered green (a) gives local people recreational rights over the green and (b) subjects the land to the protective provisions of section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876.

What is the meaning of the CRA 65 definition as amended by CROW 2000?

The meaning of the definition contained in the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000 has been extensively considered by the courts.

Land…

…on which for not less than 20 years…

Subject to any regulations to the contrary (and there are none at present) the 20 year period must be the 20 years immediately before the section 13 application. It is not relevant that the land was subject to 20 years’ recreational user before 31st July 1970 because any land not registered as a green by that date lost its status as such and can only reacquire that status by a further 20 years’ user154.

…a significant number…

“Significant” does not mean considerable or substantial. What matters is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individuals as trespassers155.

…of the inhabitants of any locality……

152 Oxfordshire [2006] UKHL 25, paras 3-16, 37-39, 115 & 124-128153 Commons Registration Act 1965 s. 10154 Oxfordshire case para 12155 R (McAlpine) v Staffordshire CC [2002] EWHC 76 (Admin) at para. 77

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A “locality” cannot be created by drawing a line on a map156. A “locality” must be some division of the county known to the law, such as a borough, parish or manor157. An ecclesiastical parish can be a “locality”158 but it is doubtful whether an electoral ward can be a “locality”159. The users must be predominantly the inhabitants, although the land need not be used exclusively by the inhabitants.160

...or of any neighbourhood within a locality…

A “neighbourhood” need not be a recognised administrative unit. A housing estate can be a neighbourhood161. However a neighbourhood cannot be any area drawn on a map: it must have some degree of cohesiveness162. A neighbourhood need not lie wholly within a single locality163.

…have indulged in lawful sports and pastimes…

The words “lawful sports and pastimes” form a composite expression which includes informal recreation such as walking, with or without dogs, and children’s play. Those activities which would today be regarded as sports or pastimes are included, and in modern times, dog walking and playing with children tend to be the kind of informal recreation which may be the main function of a village green164. Walking of such a character as would give rise to a presumption of dedication as a public right of way is not a lawful sport or pastime165. I do not consider, contrary to the Lead Objector’s submission on this point, that a clean-up operation, even one undertaken by neighbours in their spare time and in a community spirit, is a lawful sport or pastime.

…as of right…

Use of land “as of right” means use without force, stealth or permission (“nec vi nec clam nec precario”) and does not turn on the subjective beliefs of users166. User “as of right” must be use as a trespasser and not use pursuant to a legal right167. An application should not be refused merely because the witnesses do not depose to a belief that the right attaches to them as inhabitants of the village168.

“Force” does not just mean physical force. User is by force in law if it involves climbing or breaking down fences or gates, if it involves ignoring notices prohibiting entry, or if it is under protest169.

“Permission” can be express, e.g. by erecting notices which in terms grant temporary permission to local people to use the land. Permission can be implied, but permission cannot be implied from inaction or acts of encouragement by the landowner170. Toleration is not inconsistent with

156 R (Cheltenham Builders Ltd) v South Glos, DC [2004] 1 EGLR 85 at paras 41-48157 Ministry of Defence v Wiltshire CC [1995] 4 All ER 931 at p 937b-e, R (Cheltenham Builders Ltd) v South Glos. DC at paras 72-84 and see R (Laing Homes Ltd) v Buckinghamshire CC [2003] 3 EGLR 69 at para. 133158 R (Laing Homes) Ltd v Buckinghamshire CC 159 R (Laing Homes) Ltd v Buckinghamshire CC 160 R v Oxfordshire CC ex p Sunningwell PC [2000] 1 AC 335 at p.358161 R (McAlpine) v Staffordshire CC162 R (Cheltenham Builders Ltd) v Sth Glos. CC at para 85163 Oxfordshire para. 27 disapproving R (Cheltenham Builders Ltd) v Sth. Glos. CC at para. 88164 R v Oxfordshire CC ex p. Sunningwell PC at pp 356F-357E165 Oxfordshire CC v Oxford CC [2004] Ch 253 at paras 96-105 166 R v Oxfordshire CC ex p Sunningwell PC 167 R (Beresford) v Sunderland CC paras 3, 9 & 30168 R v Oxfordshire CC ex p Sunningwell PC169 Newnham v Willison (1987) 56 P&CR 8 170 R (Beresford) v Sunderland City Council [2004] 1 AC 889

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user as of right.171 I do not consider, contrary to the submission of the Lead Objector, that permission given for a particular type of activity (in this case for a clean-up and replanting operation) renders all other use of the application land permissive. Permission was given for local residents to clean up the land in 1995. No permission was given for use of the land for recreation. I do not therefore consider It might be thought that, in the light of the Sunningwell case172, a conclusion that recreational user was not by force, stealth or permission would be determinative of the question whether such user has been “as of right”. However, the decision in R (Laing Homes Ltd) v Buckinghamshire CC173 shows that this is not the case. Mr Justice Sullivan dealt with the point at length in the following passage in his judgment:

“51. I begin with ground (2)174 because the Inspector recognised that it was of critical importance:

"14.46 Thus in the end the resolution of the present application stands or falls, in my judgment, on this point. The view which I have formed is that the annual cutting of grass and its collection as hay on each of the three application fields for well over half of the key 20 year period is not incompatible with recognising the establishment of village green rights, which is otherwise clearly warranted here. The same goes for the very low level of use by grazing animals (minimal in Fields 1 and 3, slightly more in Field 2) which I have concluded might have been encountered, at some times, during parts of the first two or three years of the 20 year period.14.47 If I am wrong on this point, and these things are incompatible with the establishment of a village green under the 1965 Act, then I make it plain that my overall conclusion and recommendation would have to be changed completely. However in my judgment the "low level" agricultural activities which Mr Pennington undertook on the subject fields from August 1980 onwards were compatible with the establishment of village green rights."

52. The Inspector's conclusions as to the nature and extent of Mr Pennington's "low level agricultural activities" are not in dispute. Having concluded that 1979 was the last year when cattle were kept on the farm, including Fields 1 and 3, to any significant extent, and that "any presence of cattle in Fields 1 and 3 from and including 1980 onwards would have been minimal"(14.36) the Inspector said in paragraphs 14.37 and 14.38:

"14.37 An annual hay crop would generally be taken from those of the fields which had not had cattle on them in the grass-growing season, until the early 1990s. Thus from summer 1980 (and possibly previously, from Mr Pennington's own evidence) a summer hay crop would usually be taken from Fields 1 and 3, and it can reasonably be assumed that for most of those years, until Mr Pennington gave up, a hay crop would be taken from Field 2 as well.14.38 The methods used to gather a crop of hay from a grass field were explained in some detail by Mr Pennington, as were the preparatory steps of harrowing/rolling/ fertilising which are carried out in the spring. These matters were not in any real dispute."

53. Mr Pennington's explanation of the various steps is summarised in paragraphs 8.60-8.68 of the Inspector's Report. Harrowing the three fields could be done in a day. After harrowing, rolling the fields with a three-ton roller would take about two days. Fertiliser

171 R v. Oxfordshire CC ex p Sunningwell at p.358F172 [2000] 1 AC 335173 [2003] 3 EGLR 69174 (2) The Inspector erred in concluding that the use of the fields for an annual hay cut for well over half of the 20-year period was not incompatible with the establishment of village green rights.

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would be applied using a "spinner", a job that was easily done in a day. This preparatory work would be done sequentially over a period of four days usually (in the cattle years) before the cattle arrived, but occasionally after they had come. When the grass was ready, it would be cut and crimped by a flail mower/conditioner. This job would take two days if all three fields were mowed. Children could not play safely in a field whilst a flail mower was being used, and people were sometimes asked to leave the fields because of the danger. The hay would then be spread out to dry by a "hay bob", this process being repeated over two or more days depending on the weather. The bobbed hay would be placed into "wind rows" and then baled. In the early days, before balers improved, baling Field 3 (the largest field) would take two days. The bales would be collected into blocks, Field 3 would take one day, Fields 1 and 2 slightly less; they would then be loaded onto lorries and removed. Loading from Field 3 would take two days and from Fields 1 and 2 a little less. A very approximate figure of 2,400-2,500 bales (seven or eight lorry loads) might be taken from the fields altogether.

54. In paragraph 14.40 the Inspector said:

"14.40 I have registered the point that none of the Applicant's witnesses claimed to have the right to stop the haymakers from carrying out their activities. They would "steer clear" of Mr Pennington's equipment while it was in use, to whatever extent was appropriate to the apparent danger; they would not deliberately interfere with the cut hay laid out to dry before collection. Likewise, though this was less discussed in the evidence, they would "steer clear" of any cattle they happened to see in the fields (the evidence however suggested that encounters with cattle were minimal)."

55. In paragraph 14.41 he posed the key question:

"14.41 Are haymaking, and possible occasional encounters with a small number of grazing animals (particularly in Field 2) in the early years, incompatible with village green status, and in particular with establishing village green rights?"

56. At the outset of his "Conclusions on the Principal Issues – Fact and Law" the Inspector said that the case was "far from straightforward". In paragraph 14.2 he identified one area of particular concern:

"14.2 One area of particular concern to me, but on which I received comparatively little assistance from the case and authorities cited to me by the parties, is the extent to which the exercise, and "generation by prescription" of village green rights for sports and pastimes can be compatible with the continued carrying out of some level of 'agricultural' activity on the land concerned, in the shape of hay cutting and/or grazing. All parties were agreed, and it seems obvious, that village green rights are incompatible with arable use of land. Common sense suggests that they are unlikely to be generated on enclosed land which is intensively used for pasturing animals. However Widner Farm is not one of those easy cases."

57. Having said that he was "not assisted by the 1965 Act at all" the Inspector set out his reasons for answering the key question in the negative:

"14.41 …Common sense suggests that someone has to keep the grass down on any village green which consists of the normal grassy area which one typically expects. It would be a rare village green where the grass could be kept short enough on a permanent basis simply by the actions of human feet. No doubt with many established village greens it will be the local inhabitants themselves,

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perhaps through their Parish Council, who keep the grass cut. However, when a village green is being established through usage it seems to me almost inevitable that it will be the landowner, or his tenant or licensee, who does such cutting of the grass as does take place, whether by mechanical means or by some level of grazing which is compatible with the village green uses.14.42 The fact that people on the fields in practice have to get out of the way of the equipment being used to cut the grass and collect the hay does not seem to me to argue strongly in any particularly direction; people routinely have to get out of the way of the sort of mowing equipment which is used to keep the grass down on playing fields and other recreation areas, including established town or village greens. The same principle would seem to apply to the fact that most people would tend to avoid close contact with any grazing beasts they happened to see on a "village green" area.14.43 Nevertheless I do not find this an easy question. I am assisted however by the fact that in a number of the leading cases on village greens it seems to have been assumed without question that there in no inherent incompatibility between grazing at least, and village green rights. Most notably, in the Sunningwell case itself, in the House of Lords: [2000] AC 335, at p.358, Lord Hoffmann expressly quotes from the report of the Inspector, Mr Vivian Chapman, who had held the inquiry in that case:

'Third, the land has been used throughout for rough grazing so that informal public recreation on the land has not conflicted with its agricultural use and has been tolerated by the tenant or grazier.'

It seems to me inconceivable that Lord Hoffmann or the House of Lords (or indeed Mr Chapman) should be taken as having missed some obvious point that village green use is automatically incompatible with the land being grazed by the animals of the tenant or grazier. It was also noted by the Court of Appeal in New Windsor v. Mellor [1975] Ch. 380, at p.390 that the area concerned there ('Bachelors' Acre') had at one point in its history been let as a pasture, while still being subject to rights for 'recreations and amusement'.14.44 My attention was also drawn to Gadsen on the law of Commons, where at section 13.07 under the sub-heading 'Greens and rights of common' there is some discussion of how village green rights can be compatible with rights of common (which presumably would include grazing), and with the taking of hay. I do not find it easy to relate the passage clearly to the present case, but it certainly does not displace the view I have formed that there is nothing inherently incompatible between village green use and either a moderate level of grazing or the cutting of the grass for hay.14.45 I was also asked to consider Section 12 of the Inclosure Act 1857, which among other things prohibits the leading or driving of any cattle or animal on a town or village green 'without lawful authority'. It seems to me that the answer to this must be that the owner of the land concerned, or his tenant or licensee, does have the lawful authority to place his cattle on the green, at least in any manner which is not incompatible with village green rights. The converse would be that village green rights can be established in circumstances where there happens to be some lawful, and compatible, grazing, or indeed hay-cutting, on the land."

58. I do not find the first and second of these reasons persuasive. Mowing an established village green to facilitate its use for lawful sports and pastimes would not be in breach of section 12 of the 1857 Act, and being "with a view to the better enjoyment of such town or village green" would not be deemed to be a public nuisance by section 29 of the 1876 Act. It is not to be equated with the agricultural use of a field for the purpose of taking a hay crop. Land which is used to grow grass which is then cut and used for silage and hay falls within the definition of land "cultivated … with a view to a harvest" in Council

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Regulation (EEC) 1765/92: Wren v. DEFRA, Times Law Reports, 4th December 2002. It might be one of the least intensive forms of cultivation, but it is still the growing of a crop with a view to harvesting it.

59. Preparatory steps, harrowing, rolling, fertilising, are taken with a view to encouraging the crop to grow, notwithstanding the fact that long grass may discourage many lawful sports and pastimes until it is cut (see e.g. para.7.71). Gathering a hay crop, with the activities of mowing, bobbing, wind rowing, baling, stacking, loading and removal, will interrupt the use or enjoyment of a field "as a place for exercise and recreation". Not merely do people have to keep out of the way of the machinery when it is in use, they may not disturb the mown hay whilst it is drying, when it has been aligned in wind rows, and when it has been baled. Getting out of the way of machinery which is being operated so as to facilitate the use of land for lawful sports and pastimes (mowing/rolling a playing field) is wholly consistent with the assertion of a right to use the land as a village green. Getting out of the way of machinery which is being operated for an agricultural purpose, to facilitate the taking of a hay crop from the land which will inhibit its use for lawful sports and pastimes, whilst the grass is growing, whilst it is dried and aligned for baling after cutting, when it has been baled, and whilst the bales are collected is not consistent with the assertion of such a right.

60. I agree with the Inspector that it is inconceivable that the House of Lords would have missed an obvious point: that village green use is "automatically incompatible with the land being grazed by the animals of a tenant or grazier". In the Sunningwell case there was little discussion of the extent of the grazing; the Inspector merely recorded his conclusion that the "rough grazing", which he had described as being by "a handful of horses", had not conflicted with the use of the glebe for informal public recreation. That is not surprising, since neither the extent of the grazing use, nor its effect on the recreational use of the glebe were raised as issues by the objector before the Inspector, or in the House of Lords. The use of Bachelors' Acre as pasture, referred to by Lord Denning in the New Windsor case (p.388) appears to have preceded the 1857 Act (which prohibited without lawful authority leading or driving cattle on village greens), and in any event was, after 1817, always expressly subject to the Bachelors' right to use the land "for all lawful recreations and amusements". (p.390)

61. The passage in Gadsen referred to by the Inspector effectively acknowledges that there may be a conflict between recreational use and rights of common and seeks to reconcile the conflicting interests as follows:

"On principle it must be that the recreational use in such circumstances is subservient to the rights of the owner of the land and the commoners … In the event of conflicting priorities, the original property rights of owners and commoners should prevail. Thus, for example, if the land is traditionally cut for hay, the existence of the recreational use will not allow inhabitants to enter and spoil the hay. On the other hand it also seems, as a matter of principle, that the owners of the land, or rights over the land, may not exercise their rights in such a way as to wilfully inhibit or prevent the rights of recreation."

62. The only authority cited in support of this eminently sensible approach is Fitch v. Fitch (1797) 2 Esp. 543. In that case the inhabitants of a parish had a customary right to play lawful games and pastimes at all times of the year in the Plaintiff's close. The close was used for growing grass. After the grass was mown the Defendants had "trampled down the grass, thrown the hay about, and mixed gravel through it, so as to render it of no value". In response to the Defendants' contention that they were justified in removing any obstruction to the free exercise of their right, Heath J. said:

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"The custom appears to be established. The inhabitants have a right to take their amusement in a lawful way. It is supposed, that because they have such a right, the plaintiff should not allow the grass to grow. There is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers."

63. This supports the proposition that the use of land for growing a hay crop was not incompatible with the existence of a customary right to indulge in lawful sports and pastimes on the land: see also Fitch v. Rawling (1795) 2 H.Bl 394. Prior to the enactment of the nineteenth-century legislation the two rights could coexist; each right was conditional upon it not being exercised in such a way as to deliberately obstruct the exercise of the other.

64. Since the enactment of section 12 of the 1857 Act it has not been possible to establish such conditional rights. Rights of common can no longer be created by prescription over a village green: if the grazing is with the owner's permission it will not be "as of right", and if it is "without lawful authority" it will be a criminal offence and thus will not give rise to a prescriptive right: see Massey v. Boulden (2003) 2 All ER 87, per Simon Brown LJ at paragraph [9].

65. Moreover, section 12 makes any act "to the interruption of the use or enjoyment [of a village green] as a place for exercise and recreation …" a criminal offence. Whatever may be the position in relation to those customary rights which had been established by 1857, where haymaking and recreational use were able to coexist, no such rights can have been established after the enactment of section 12. If a village green is established, any other use involving acts which would interrupt its use for enjoyment and recreation are effectively prohibited. It is difficult to see how the various steps that are necessary to gather a hay crop (as opposed to mowing grass to keep it short and useable for recreational purposes) could be said not to amount to such an interruption.

66. Section 29 of the 1876 Act, to which the Inspector did not refer, makes any effective agricultural use of a village green even more difficult. The erection of fencing ("inclosure"), or a shelter or water trough ("any erection") to facilitate the use of the land for grazing would be prohibited, as would ploughing and re-seeding ("disturbance or interference … with the soil"). The occupation of the soil for the purpose of taking a grass crop, involving the steps described by Mr Pennington (above), would not be "with a view to the better enjoyment of [the] village green", and would thus be deemed to be a public nuisance.

67. Mr George submitted that the words "without lawful authority" in section 12 were a recognition that pre-existing commoners' rights of grazing could continue, and were not an acknowledgement of the landowner's right to graze cattle on a village green. I agree with the Inspector (14.45) that section 12 permits the landowner (or his tenant or licensee) "to place his cattle on the green at least in any manner which is not incompatible with the village green rights". I further agree that "the converse would be that [even after 1857] village green rights can be established in circumstances where there happens to be some lawful, and compatible, grazing …". Given the restrictions imposed by sections 12 and 29 (above) such grazing would have to be very low key indeed (as was the case in the Sunningwell) in order to be lawful and compatible with the establishment of village green rights.

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68. For the reasons set out above I do not agree with the Inspector's conclusion that village green rights can be established where land is being used for the growing, and cutting, drying, baling etc. of a hay crop. The Inspector refers at the end of paragraph 14.45 to "hay cutting". The occupation of land for the purpose of "hay cutting" is not to be equated with grass cutting. The former is no different in principle to the harvesting of any other crop. Insofar as the latter is carried out "with a view to the better enjoyment of [the] village green" as such, it will not be a public nuisance under section 29, nor will it be a criminal offence under section 12. When enacting the definition of "town or village green" in section 22(1) of the Act, Parliament must be assumed to have been well aware of the restrictions that would be placed upon newly created village greens by the nineteenth-century legislation. Against that background, it would be surprising if Parliament had intended that a level of recreational use which was compatible with the use of the land for agricultural activities (such as taking a hay crop) should suffice for the purposes of section 22(1), since upon registration as a village green (if not after 20 years use) some, if not all, of those lawful agricultural activities would become unlawful by virtue of sections 12 and 29. Moreover, the prospect of improving the land agriculturally, by fencing, or by ploughing or re-seeding, would be lost.

69. On behalf of the Council Mr Morgan submitted that the question of whether a particular use by a landowner is incompatible with the establishment of a village green right is a matter of fact and degree. The issue is whether the use was such as to interfere sufficiently with the use for lawful sports and pastimes to indicate that the use was not enjoyed as of right. This appears to have been the Inspector's approach in Chapter 14 of his Report. At the beginning of that chapter he concluded that Mr Pennington visited Widmer Farm very much less frequently than three times a week (the figure claimed by Mr Pennington), and after cattle ceased to be on the fields he visited them "very infrequently … except when specific activities such as harrowing/rolling/fertilising or hay-making, were being undertaken" (14.4-14.15).

70. He then analysed the extent of the use of the fields for lawful sports and pastimes and concluded that there was "abundant evidence of continuous use by local people of the whole surface of these fields for at least the 20-year period required … The overall picture is one of substantial levels of use for recreational activities" (14.25). In paragraph 14.23 he left:

"until later the question foreshadowed earlier, of what the legal consequences are when the evidence suggests both a village green user and some modest level of 'agricultural' type activity coexisting on the land for a significant part of the prescription period."

71. He dealt with that question in paragraphs 14.29-14.47. The principal conclusions are set out above. In paragraph 14.39 he identified:

"The real question, and the key question for me in terms of advising the County Council, is what effect this level of 'agricultural' activity in the fields has on the proposition that the village green type uses, which I have already found were being carried on extensively and openly from at least 1979 and probably earlier, truly were 'as of right' and sufficiently continuous."

72. Thus the Inspector was considering the effect of the "agricultural" activity upon the "village green type uses". Mr Morgan submitted that on the facts found by the Inspector,

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"the evidence was that the agricultural activities would have had very little effect on the lawful sports and pastimes being carried out on the application site".

73. I readily accept that the question is one of fact and degree in each case. Such questions are to be determined by the Council as Registration Authority, and the Court will not substitute its own judgment if the Council has, in adopting the approach set out in the Inspector's Report, correctly directed itself in law. In deciding whether the use for lawful sports and pastimes was being enjoyed "as of right" for the purposes of section 22(1), I do not consider that it was appropriate to look at the question from the standpoint: "did the agricultural use interfere sufficiently with the use of the land for lawful sports and pastimes?" The extent to which the use of the land for recreational purposes has been interrupted during the 20-year period is certainly a relevant factor. In the only village green case in which the extent of the recreational use was in issue, Ministry of Defence v. Wiltshire County Council [1995] 4 All ER 931, Harman J. at p.935d, referred to a decision of Buckley J. in a commons case, White v. Taylor (No.2) (1969) 1 Ch 160 at 192:

"To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time … But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed."

74. Harman J. therefore concluded that for the purposes of section 22(1)

"one has to have here a user of the land of such a character and degree of frequency as to indicate an assertion of a right by a claimant".

75. In Sunningwell, Lord Hoffmann said:

"I agree with Carwath J. in Reg. V. Suffolk County Council Ex parte Steed (1995) 70 P. & C.R. 487, 503, when he said that dog walking and playing with children were, in modern life, the kind of informal recreation which may be the main function of a village green. It may be, of course, that the user is so trivial and sporadic as not to carry the outward appearance of user as of right" (p.357D).

76. Although there are references in Lord Hoffmann's speech to "the quality of enjoyment" (p.351F) and "the quality of user" (p.352F), their Lordships were not concerned with the extent of the recreational use of the glebe in that case, but with the meaning of the words "as of right" in section 22(1), and specifically with the question whether those words meant that the right had to have been exercised in the belief that it was a right enjoyed by the inhabitants of Sunningwell. The witnesses for the parish council had not said that they thought that the right was confined to the inhabitants of the village. This was held to be fatal to the application (p.348H-349C). The House of Lords decided that registration should not have been refused on this ground (p.356E).

77. At the beginning of his review of the historical background, Lord Hoffmann contrasted the approach to prescription under Roman Law, which was not concerned with the acts or state of mind of the former owner; and that under English Law, which approached the question from the other end, by treating lapse of time as barring the former owner's remedy, or giving rise to a presumption that he had done some act which conferred a lawful title (p.349D-H).

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78. Under English Law the focus is not upon how matters would have appeared to the person seeking to acquire the right by long usage, but upon "how the matter would have appeared to the owner of the land" (p.352H-353A).

79. Referring to the requirement that long user had to be nec vi, nec clam and nec precario, Lord Hoffmann explained that:

"The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known the user and in the third, because he had consented to the user, but for a limited period."

80. He cited Mann v. Brodie (1885) 10 App.Cas. 378, and Bright v. Walker (1834) 1 C.M. & R. 211:

"In Mann v. Brodie Lord Blackburn put the rationale as follows, at p.386: 'where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.'"

and

"the user by the public must have been, as Parke B. said in relation to the private rights of way in Bright v. Walker 1 C.M.& R. 211, 219, 'openly and in the manner that a person rightfully entitled would have used it.' "

81. In Steed the Court of Appeal had followed dicta in three earlier cases, including Hue v. Whiteley (1929) 1 Ch 440, a decision of Tomlin J. Lord Hoffmann (at p.354F) doubted whether

"Tomlin J. meant to say more than Lord Blackburn had said in Mann v. Brodie, 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is irrelevant."

82. Thus, the proper approach is not to examine the extent to which those using the land for recreational purposes were interrupted by the landowner's agricultural activities, but to ask whether those using the fields for recreational purposes were interrupting Mr Pennington's agricultural use of the land in such a manner, or to such an extent, that Laings should have been aware that the recreational users believed that they were exercising a public right. If the starting point is, "how would the matter have appeared to Laings?" it would not be reasonable to expect Laings to resist the recreational use of their

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fields so long as such use did not interfere with their licensee, Mr Pennington's use of them, for taking an annual hay crop.

83. The Inspector noted that "none of the applicant's witnesses claimed to have the right to stop the haymakers from carrying out their activities. They would "steer clear of Mr Pennington's equipment while it was in use … they would not deliberately interfere with the cut hay laid out to dry before collection" (14.40, see also the evidence of GAG's witnesses recorded at 7.5, 7.8, 7.17, 7.20, 7.32, 7.38, 7.56, 7.60 "the farmer carrying out activities such as mowing or harrowing in the fields would plainly have had priority over anyone involved in recreational activities", and 7.74).

84. I appreciate that Mr Pennington was not physically present on the fields for very many days in the year. That is not uncommon now that agriculture has become more mechanised. A landowner may choose to use his land for only a few days a year for a variety of non-agricultural purposes: e.g. as an overflow car park, a reserve playing field, or an occasional camping or caravan site. If the local inhabitants also use such land for lawful sports and pastimes, there may be very little interruption of their recreational use if the issue is looked at from their point of view. From the landowner's point of view, so long as the local inhabitants' recreational activities do not interfere with the way in which he has chosen to use his land – provided they always make way for his car park, campers or caravans, or teams playing on the reserve field, there will be no suggestion to him that they are exercising or asserting a public right to use his land for lawful sports and pastimes.

85. If it was possible for the local inhabitants to establish the existence of a village green after 20-years use in such circumstances (because there had been virtually no interruption of their recreational activities), the landowner would then be prohibited by the nineteenth-century legislation, sections 12 and 29, from continuing to use his land, on an occasional basis, for any purpose which would interrupt or interfere with the local inhabitants' recreational use. I do not believe that Parliament could have intended that such a user for sports and pastimes would be "as of right" for the purposes of section 22. It would not be "as of right", not because of interruption or discontinuity, which might be very slight in terms of numbers of days per year, but because the local inhabitants would have appeared to the landowner to be deferring to his right to use his land (even if he chose to do so for only a few days in the year) for his own purposes.

86. Like the Inspector, I have not found this an easy question. Section 12 acknowledges that animals may be grazed on a village green. Rough grazing is not necessarily incompatible with the use of the land for recreational purposes: see Sunningwell. If the statutory framework within which section 22(1) was enacted had made provision for low-level agricultural activities to coexist with village green type uses, rather than effectively preventing them once such a use has become established, it would have been easier to adopt the Inspector's approach, but it did not. I do not consider that using the three fields for recreation in such a manner as not to interfere with Mr Pennington's taking of an annual hay crop for over half of the 20-year period, should have suggested to Laings that those using the fields believed that they were exercising a public right, which it would have been reasonable to expect Laings to resist.

87. I have dealt with ground (2) at some length, because if I am correct in concluding that this ground succeeds, that is sufficient to dispose of this application in the Claimant's favour, as the Inspector said: "the present application stands or falls …on this point". In my view, for the reasons set out above, the Inspector and the Council should have concluded that GAG's application fell on this ground.”

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The Laing Homes case was considered and applied by HH Judge Howarth (sitting as a High Court Judge) in Humphries & anor. v Rochdale MBC & ors. (18th June 2004) unreported. He held that recreational user is not “as of right” if the landowner has during the relevant period used the land for any purpose which would be prohibited by IA 1857 s. 12 of CA 1876 s. 29. He held that s. 12 would be breached by (a) taking a hay crop, (b) spreading a chemical fertiliser or (c) deliberately grazing cattle or horses on the land.

Lord Hoffmann considered both these decisions in the Trap Grounds case175:

“There is virtually no authority on the effect of the Victorian legislation. The 1857 Act seems to have been aimed at nuisances (bringing on animals or dumping rubbish) and the 1876 Act at encroachments by fencing off or building on the green. But I do not think that either Act was intended to prevent the owner from using the land consistently with the rights of the inhabitants under the principle discussed in Fitch v Fitch (1798) 2 Esp 543. This was accepted by Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P & CR 573, 588. In that case the land was used for "low-level agricultural activities" such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes. No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so "as of right". But, with respect to the judge, I do not agree that the low-level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not. Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application. I have a similar difficulty with paragraph 141 of the judgment of Judge Howarth in Humphreys v Rochdale Metropolitan Borough Council (unreported), 18 June 2004, in which he decided that acts of grazing and fertilising by the owner which, in his opinion, would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition.”

The other law lords expressed no view on this point. The correct analysis therefore appears to be:

1. The starting proposition is that at common law a customary right of recreation over land could co-exist with the right of the landowner to use the land for agricultural activities. 2. Each right was conditional upon its not being exercised in such a way as deliberately to obstruct the exercise of the other176. 3. However, this principle was altered by the enactment of s. 12 of the Inclosure Act 1857 and s 29 of the Commons Act 1876. 4. Thereafter, it was unlawful for the landowner to use his land in a way which interrupted its use as a place for exercise and recreation. 5. Parliament did not intend that the effect of the 1965 Act should be that local inhabitants could, by enjoying recreation on land in a manner which deferred to the landowner’s agricultural use of the land, acquire rights over that land which prevented the landowner from using it for those agricultural activities. 6. Recreational user which defers to agricultural user is not “as of right” because it does not have the appearance to the landowner of the assertion of a right.7. The test is not whether the landowner’s conduct would be in breach of the Victorian statutes but whether the landowner’s own use would prevent the landowner from regarding recreational user by local people from being “as of right” i.e. whether the landowner’s use was so “low-level” that it could coexist with use of the land for lawful

175 para 57176 Fitch v Fitch (1797) 2 Esp. 543

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sports and pastimes, so that he would not consider that by making use of it he was preventing the local inhabitants from using it as of right, or whether the land owner would perceive that his use of the land was inconsistent with its use by the local inhabitants for lawful sports and pastimes. 8. The question whether the activities of the land owner were in practice inconsistent with use for sports and pastimes is one of fact and degree to be determined by the registration authority.

…and continue to do so.

The most important point decided by the House of Lords in the Oxfordshire case is that the relevant user need only continue down to the date of the application: user need not continue to the date of registration. This reverses the Court of Appeal decision which had the effect that, after an application is made to register a new green, but before the green is actually registered, the landowner can take steps, e.g. by fencing the land or erecting notices on the land, to prevent user “as of right” from continuing. This appeared to give every landowner a cast-iron method of defeating any application to register a new green.

Procedure

Procedure on applications to register new greens is governed by The Commons Registration (New Land) Regulations 1969. These regulations have proved quite inadequate to resolve many disputed applications and registration authorities have had to resort to procedures not contemplated by the Regulations to deal with such applications.

Who can apply?

Anyone can apply to register land as a new green, whether or not he is a local person or has used the land for recreation.

Application

Application is made by submitting to the registration authority a completed application form in Form 30.

Accompanying documents

Although the application form has to be verified by a statutory declaration by the applicant or his solicitor, there is no requirement that the application should be accompanied by any other evidence to substantiate the application. Instead, reg. 4 provides for the application to be accompanied by any relevant documents relating to the matter which the applicant may have in his possession or control or of which he has the right to production. In most cases, there are few, if any, of such documents as the application turns simply on a claim that the application land has been used for recreation by local people for more than 20 years.

Evidence

The applicant is only required to produce evidence to support the application if the registration authority reasonably requires him to produce it under reg. 3(7)(d)(ii).

Preliminary consideration

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After the application is submitted, the registration authority gives it preliminary consideration under reg. 5(7). The registration authority can reject the application at this stage, but not without giving the applicant an opportunity to put his application in order. This seems to be directed to cases:

Where Form 30 has not been duly completed, or Where the application is bound to fail on its face, e.g. because it alleges less than 20 years

use or where the supporting documents disprove the validity of the application

Publicity

If the application is not rejected on preliminary consideration, the registration authority proceeds under reg. 5(4) to publicise the application:

By notifying the landowner and other people interested in the application land By publishing notices in the local area, and By erecting notices on the land if it is open, unenclosed and unoccupied.

Objectors

Anyone can object to an application to register a new green, whether or not he or she has any interest in the application land.

Objection Statement

Any objector has to lodge a signed statement in objection. This should contain a statement of the facts relied upon in support of the objection. There is a time limit on service of objection statements. The time limit is stated in the publicity notices issued by the registration authority. However, the registration authority has a discretion to admit late objection statements.

Determination of application

The most striking feature of the regulations is that they provide no procedure for an oral hearing to resolve disputed evidence. The Commons Commissioners have no jurisdiction to deal with disputed applications to register new greens: R (Whitmey) v Commons Commissioners177 The regulations seem to assume that the registration authority can determine disputed applications to register new greens on paper. A practice has grown up, repeatedly approved by the courts, most recently by the House of Lords in the Oxfordshire case, whereby the registration authority appoints an independent legally qualified inspector to conduct a non statutory public inquiry into the application and to report whether it should be accepted or not.

Procedural issues

A number of important procedural issues have been decided by the courts:

Burden and Standard of Proof. The onus of proof lies on the applicant for registration of a new green, it is no trivial matter for a landowner to have land registered as a green, and all the elements required to establish a new green must be “properly and strictly proved”178. However, in my view, this does not mean that the standard of proof is other than the usual flexible civil standard of proof on the balance of probabilities.

Defects in Form 30. The House of Lords has held in the Oxfordshire case that an application is not to be defeated by drafting defects in the application form, e.g. where the wrong date has been inserted in Part 4, provided that there is no procedural unfairness to

177 [2005] 1 QB 282.178 R v Suffolk CC ex p Steed (1996) 75 P&CR 102 at p 111 per Pill LJ approved by Lord Bingham in R (Beresford) v Sunderland at para. 2

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the objectors. The issue for the registration authority is whether or not the application land has become a new green

Part registration. The House of Lords also held in the Oxfordshire case that the registration authority can register part only of the application land if it is satisfied that part but not all of the application land has become a new green

Withdrawal of application. Also in the Oxfordshire case, the Court of Appeal held that the applicant has no absolute right to withdraw his application unless the registration authority considers it reasonable to allow withdrawal. Despite the applicant’s wish to withdraw, the registration authority may consider that it is in the public interest to determine the status of the land. The House of Lords did not dissent from this view

There is no power to award costs.

14. Applying the Law to the Facts

The Applicant’s case is that every part of the application land should be registered as village green. If I am of the opinion that the application must fail in relation to the whole of the land, following the decision of the House of Lords in the Oxfordshire case, I must consider whether part only of the application land should be registered.

Land… In my view, the application land has been sufficiently clearly defined to constitute “land”. I have considered the submissions of the Second Objector as to the lack of clarity as to the exact boundaries of the application land, and the changes in the boundary between the different plans advanced by the Applicants, however I consider that there is force in the Applicants’ submission of applications for the registration of land as a green is intended to be advanced by members of the public who are not expected to be “expert cartographers”. I consider that the plans produced by the Applicant were adequate for the purpose of identifying the application land so that the registration authority was able to give notice to the relevant owners and occupiers. The final annotated plan at A/1/50C for determining the application.

…on which for not less than 20 years…The House of Lords determined in the Oxfordshire case that the relevant 20 year period is the period ending with the date of the application for registration. In this case the relevant period is therefore 19th July 1984-18th July 2004.

…a significant number of the inhabitants of any locality or of any neighbourhood within a locality… The Parish Ward of Croxley Green South is a locality. The user evidence supports the applicant’s case that the application land, with the exception of the IMC land, has been used for recreation by a significant number of the inhabitants of the Parish Ward of Croxley Green South.

…have indulged in lawful sports and pastimes… In my view there is clear evidence that the local inhabitants have used all parts of the application land, with the exception of the IMC land, for a variety of lawful sports and pastimes.

…as of right… Permission was given for Members of the Croxley Green Residents Association to clean up the land and re-seed and re-plant in 1995. No permission was given for use of the land for recreation. I do not consider that the permission given in 1995 interrupted any user as of right for lawful sports and pastimes. Even if I am wrong in this conclusion, the permission given was specifically to the members of Croxley Green Residents Association and not to the inhabitants of the Parish Ward of Croxley Green South. There was no evidence that any of the witnesses other than Mr Saxon were members of the Residents Association. Viewed objectively, it is quite clear in my judgment that the use that has been made of the application land by the local inhabitants has been user “as of right”.

…and continue to do so. The relevant user continued up to the date of the application. 211

15. Conclusion and Recommendation

I conclude that the application succeeds in part, and that the Registration Authority should accept the application in part and should register the application land as outlined on A/1/50C, other than the IMC land, as a town or village green.

It is necessary for the registration authority to give the applicant written notice of its reasons for rejecting the application in part179. I recommend that the reasons are stated to be “the reasons set out in the Inspector’s Report dated 09 May 2023”.

Lana Wood9 May 2023Lincoln’s Inn

179 The Commons Registration (New Land) Regs. 1969 reg 8 (1)212