Legal proceedings continue over the application to register sea wall and green in Mill Lane Walton as a town or village green.
A Walton-on-the-Naze man has won the go-ahead to mount a court fight to have land he says has been used by the public for more than 70 years protected as a village green.
Judge Anthony Thornton QC granted Richard Naylor, of Saville Street, permission to seek judicial review of Essex County Council’s decision in February 2013 to refuse to register an area of land known as ‘Mill Lane Green and adjoining sea wall’, at Mill Lane, as a village green, thereby protecting it from development. The judge found he has a “highly arguable” case.
The decision gives a green light for a full hearing of his claim, in which he hopes to win an order forcing the council to reconsider.
If he ultimately succeeds in having the site registered, it will thwart its owner, Silverbrook Estates Ltd’s plans for the site.
Silverbrook submitted a planning application to Tendring District Council in September 2011, and, the following month, it instructed the district council to stop mowing the grass there and to remove the dog-waste bin it had installed.
Then, following the county council’s decision, it erected a locked, gated fence enclosing the whole site and put up signs stating it was private property.
However, Naylor says the land has been open and used by local inhabitants for over 70 years and possibly much longer for dog-walking and other recreational activities.
At no point until October 2011, he claims, has any owner objected to public use of the site for recreation and sport.
As a result, he claims it passes the test for 20 years use “as of right” to qualify it as a village green.
But, on the recommendation of a planning inspector, the council took the view that the use was not “as of right” and had not been uninterrupted for 20 years to the date when Elizabeth Humphreys first submitted an application to have it registered, in April 2011.
The former owner of the land, Ted Carter, bought it in 1945 and it was sold to Silverbrook by his executors in 2009, following his death in 2004.
Ruling that Naylor had sufficient “standing” to bring the proceedings, even though his home falls outside of the neighbourhood to which the land forms part, the judge said: “What is clear is that Naylor, even if he was not entitled in strict law to use Mill Lane Green if registered, nonetheless had a reasonable expectation that he would be able to use it and he therefore had a personal interest in the Essex County Council refusal decision particularly as he lives very close to the defined neighbourhood and within the wider locality of the application site as determined by the inspector, he used it for lawful sporting and recreational use before the site was fenced off by the current owner of the land and will resume his use of it if it is registered as a town or village green under the Commons Act in the future.”
“I conclude and determine that Mr Naylor has sufficient standing to bring this claim. He has good and sufficient standing and interest in the subject-matter of the proceedings, is not a ‘mere busybody’, is representing the public interest in maintaining them and is maintaining a claim which is highly arguable.”
He said that various facts “point strongly to the conclusion that the site has been used as a town and village green and that that use started sometime in the 1950s”, adding: “It is therefore highly arguable that the inspector and Essex County Council’s decision to refuse to register Mill Lane Green was unreasonable.”
Naylor will now have to persuade a judge at a full hearing to quash the decision and order the County Council to reconsider.
As he is bringing the claim in the public interest, Judge Thornton made a protective costs order that will limit his liability to pay the County Council’s costs to £3,000 in the event that he is ultimately unsuccessful.
Presumably there is no connection with this report in local gazette
Richard Naylor, of Saville Street, Walton, arrived at his home on Sunday to find that the windows of his van had been smashed in an overnight attack.