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SCRUBBS WOOD

Our reasons for the decision:

1 Review Decision

1.1 On 24 November 2014 and on 17 February 2015 I conducted an oral review hearing into the listing of land known as Scrubbs Wood, Ragged Hall Lane, St Albans as an Asset of Community Value. The land was listed by St Albans City and District Council under a notice dated 9 April 2014. By a letter dated 9 November 2014 Jan Molyneux of Molyneux Planning acting for the owner of the land, CP Holdings Limited (‘CP Holdings’), requested a review of the Council’s decision pursuant to Schedule 2, paragraph 1(1) of the Assets of Community Value (England) Regulations 2012. Ms Molyneux requested an oral hearing. Subsequent to the Hearing I invited written submissions from the parties concerning a Decision dated 16 April 2015 by the First-Tier Tribunal (Case reference CR/2014/0018) regarding an Asset of Community Value Appeal Hearing into the listing of Bedmond Lane Field, St Albans as an Asset of Community Value. I received their responses in May 2015.

2 The EvidenceThe Hearing opened on 24 November 2014 and was then adjourned.

2.1 At the Hearing I received oral and written representations from Ms Jan Molyneux on behalf of CP Holdings, Ms Debbi White, Property and Asset Manager, St Albans City and District Council (the ‘Council’) and from Parish Councillor John Bell on behalf of St Stephen Parish Council (who nominated the land for listing). He called Mr White, a local resident, as a witness.

2.2 I also heard oral evidence from Mr Robin Winward, Group Property Manager, CP Holdings. He produced a written statement and a number of attachments including a plan of the woodland purchased by CP Holdings, details of the company’s woodland management operations, details re signage and a statement and report from Tilhill Forestry.

2.3 I also have before me various photographs of Scrubbs Wood taken by Ms Debbi White and by Ms Lyn Henny, Asset Management Surveyor. Further photographs were produced by CP Holdings Limited. I have before me an agenda dated 24 November 2014 comprising 236 pages (the ‘Main Agenda’) which contained extracts from the Localism Act 2011 and Assets of Community Value (England) Regulations 2012; details of the nomination for listing submitted by St Stephen Parish Council dated 19 July 2013; a site inspection report, undated but subsequently established to have been carried out on the 7 March 2014; a decision notice dated 9 April 2014 signed by Ms Debbi White giving the reasons why the land was listed; CP Holdings’ request for a review and accompanying evidence in support; a statement by Ms Debbi White dated 7 November 2014 and accompanying photographs and evidence submitted on behalf of the nominating group, St Stephen Parish Council. The agenda also included a plan from

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Hertfordshire County Council and a copy of a Tree Preservation Order relating to Scrubbs Wood made by St Albans City and District Council dated 30 July 2010. I also have before me a supplemental agenda dated 27 January 2015 (the ‘Supplemental Agenda’) which included photographs submitted by the land owner, CP Holdings, and their comments on the written evidence submitted by St Stephen Parish Council during or after the adjourned hearing of 24 November 2014. The agenda also included evidence submitted by St Stephen Parish Council which included extracts from leaflets published by the Chiswell Green Residents’ Association, entitled ‘CHISCHAT’, between 1993 and 2007 and witness statements by Mr and Mrs O’Brien, Mr and Mrs White, Mr and Mrs Gibbard and Mr and Mrs Day and an email from Cllr John Bell. A witness statement from Miss Mandy Floyd was produced at the adjourned hearing on 24 November 2014. A further copy of this witness statement was circulated at the hearing on 17 February 2015.

2.4 After the hearing on 17 February I was separately provided with copies of First-Tier Tribunal decisions numbers CR/2013/0010 concerning an appeal by Firoka (Oxford United Stadium) Limited and CR/2014/0005 concerning an appeal by Worthy Developments Limited. I was also given copies of dictionary definitions of the word ‘ancillary’. In addition, a copy extract of the minutes of St Stephen Parish Council held on 20 November 2014 and a plan showing the position of St Julians Wood and Black Green Wood was submitted on behalf of CP Holdings.

2.5 I was accompanied at the hearing by Cllr Julian Daly, Council Leader and Portfolio Holder for Planning and Conservation. I am delegated by the Council, in consultation with Cllr Daly, to consider and determine requests for reviews of Council decisions to list land as an asset of community value.

2.6 Notes of the hearing on 17 February 2015 and 24 November 2014 are attached at Appendix 4 and Appendix 5 to my decision. The notes summarise the submissions and evidence given at the hearing. I also attach a copy of my case management notes setting out directives given by me on 24 November 2014 – Please see Appendix 1. The Hearing was held in public.

2.7 Scrubbs Wood has been entered into the list of assets of community value maintained by the Council. The reasons given for the decision to list are as follows:“The area is woodland with no restriction to public access. There is a wayfinder sign post but it does not appear a definitive right of way. There are desire lines running through the wood evidencing use by walkers“.The land was entered on to the list on 28 March 2014. The decision notice and location plan are contained at pages 123-125 of the agenda for the first day of the hearing on 24 November 2014.

2.8 Section 88 (1) of the Localism Act 2011 provides that a building or other land in a local authority’s area meets the criteria for listing if in the opinion of the authority (a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and

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(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.

2.9 Section 89 (1) provides that land in local authorities area which is of community value may be included by a local authority in its list of assets of community value only(a) in response to a community nomination or(b) where permitted by regulations made by the appropriate authority.Section 89 (2) provides that a community nomination means a nomination which (a) nominates land in the local authority’s area for inclusion in the local authority’s list of assets of community value and(b) (iii) is made by a person that is a voluntary or community body with a local connection.

2.10 The Assets of Community Value (England) Regulations 2012 provide a definition of a local connection for the purposes of Section 89 (2) (b)(iii). These regulations provide that a Parish Council has a local connection with land in another Parish Council’s area if any part of the boundary of the first Council’s area is also part of the boundary of the other Council’s area. Regulation 5 of the 2012 Regulations provides that a Parish Council is included in the definition of a voluntary or community body. Scrubbs Wood is situated within the boundary of St Michael’s Parish Council. However, St Michael Parish Council and St Stephen Parish Council share a common boundary. At the first day of the hearing on 24 November 2014 I was satisfied that the nomination submitted by St Stephen Parish Council was valid because St Stephen Parish Council met the definition of a voluntary or community body with a local connection, even though Scrubbs Wood is situated outside of their Parish boundary.

2.11 The review hearing was listed for hearing on 24 November 2014. However, at the hearing a request was received by Ms Molyneux for an adjournment because of late evidence submitted by St Stephen Parish Council. I decided to admit the late evidence. I agreed to Ms Molyneux’s request and adjourned the hearing. I also gave directions regarding the submission of witness statements by the nominating group and also gave the owners an opportunity to respond to their evidence. Accordingly, the hearing was adjourned and then resumed on 17 February 2015.

3 The Council’s original decision maker’s evidence

3.1 Ms Debbi White, the Council’s Property and Asset Manager, who made the decision to list the land, stated that she had inspected the site which could be accessed from the adjourning public highway, Ragged Hall Lane. Ms White stated that at the time of her inspection she found that there were no barriers preventing pedestrian access into the site. Ms White said that there were no signs advising that the land is private land and no warning signs against trespass. Ms White noted that there was a wayfarer sign indicating that the wood is used for public access. Photographs of this sign were produced by Ms White. Ms White

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also stated that there were desire lines within the wood which suggested that it was well used for walking. In her view, this was consistent with the information provided by the Parish Council that the public are using the land. She said that her decision to list the asset was based on the community value of the land to that part of the community that use the woodland for leisure activities in particular walking. Ms White referred to the nomination by St Stephen Parish Council and suggested that the use by the public had gone on for some time and would continue in the future. Ms White was questioned by Ms Molyneux on behalf of the owner CP Holdings. Ms Molyneux’s questions and the answers given by Ms White are recorded in the hearing notes. Ms Molyneux queried the date of the site inspection as recorded on page 122 of the main agenda. It was established that the inspection was carried out on 7 March 2014. She asked Ms White to confirm that the way marker sign did not indicate that there was as public right of way. Ms Molyneux also asked Ms White whether she saw high level signs on the land marked ‘private woodland – no right of access’. Ms White stated that she had not seen the signs at the time of her inspection. Ms Molyneux suggested to Ms White that the woodland had reasonable protection from the woodland TPO. However, Ms White considered that the designation was irrelevant to her decision. Ms Molyneux asked Ms White about the current use. Ms White replied that the use was walking and leisure walking. Ms Molyneux also suggested to Ms White that the public’s use of the land was trespass. Ms White responded that there was nothing to say that people could not walk on the land.

3.2 Ms Molyneux asked Ms White whether she considered use by the community was a trespass since there was no right of way. Ms White replied that she could not say whether this was the case since there was evidence from the Parish Council to suggest that the use had been on-going and the land owner had taken no steps to prevent this. Ms Molyneux asked Ms White whether the plan submitted by St Stephen Parish Council met the Council’s minimum criteria. Ms White confirmed that this was not the case. I asked Ms Adamson, Regulatory Solicitor, whether the plan was valid for the purpose of the application. Ms Adamson explained that the original guidance issued by the Council did not give a minimum standard for plans. Subsequently, guidance has been issued. However, applications received before these guidelines were accepted. Ms Adamson also confirmed that the plan on page 125 of the agenda was the plan on which the decision was based. After the hearing I asked Ms Adamson to check when the guidelines were issued. Ms Adamson informed me that the nomination for Scrubbs Wood was received by the Policy and Partnership department of the Council before 26 July 2013. At that time the nomination form asked for a plan to be submitted “if possible”. Following discussions between Ms Adamson and Jane Pearce, an officer in the Policy and Partnership department, the guidance notes and nomination form were amended to provide for a better quality of plan. These requirements were changed in November 2013 and were in place by the time the site inspection of Scrubbs Wood took place on 7 March 2014. Ms Adamson informed me that this was why the inspection sheet (shown on page 122 of the

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agenda) stated “plan does not meet minimum criteria”. Ms Adamson informed me that the Council did not reject any nominations received in July 2013 because even where a plan was of a poor quality, the requirements did not specify that a plan must be submitted.

4 The owner, CP Holdings’, evidence

4.1 Ms Molyneux submitted that to qualify for listing as an Asset of Community Value, Section 88 of the Localism Act 2011 requires an actual current use of the land which is not ancillary. In the case of Scrubbs Wood Ms Molyneux stated that its use for walking was ancillary to its use for the growing of trees. Therefore, its listing as an Asset of Community Value was inappropriate. Ms Molyneux noted that Scrubbs Wood was protected by a TPO and that the owner had no intention to change that use and intended to retain ownership. Ms Molyneux noted that the application was made by an adjacent Parish Council with a population of approximately 11,000 people and that only a small fraction of the population had made representations. Ms Molyneux contended that the plan submitted by St Stephen Parish Council was not appropriate and suggested that St Albans Council had sought applications for listing. Ms Molyneux referred to her statement set out at pages 127-138 of the agenda. She drew attention to her conclusions on page 138. Ms Molyneux submitted that Scrubbs Wood did not fulfil the requirements of a site for listing as an Asset of Community Value for the following reasons:(i) There is no public access to Scrubbs Wood or intention to allow public

access(ii) There is community use of the woodland (iii) There are notices on the woodland stating that it is private(iv) There is no intention to change the use of Scrubbs Wood from that of

private, commercial woodland(v) There is no intention to sell the woodland (vi) Scrubbs Wood is remote from St Stephen Parish, consequently the

woodland does not have a visual or physical impact on the amenities of the community

(vii) There are no linking pedestrian rights of way to Scrubbs Wood from St Stephens. Pedestrian access would therefore have to be via the narrow road which does not have a footpath

(viii) It is unlikely that the St Stephens community would seek to purchase the woodland in the unlikely event that it became available

4.2 Ms Molyneux called Mr Robin Winward, Group Property Manager for CP Holdings, to give evidence. He stated that he had been employed by CP Holdings since March 1990. He is responsible for a portfolio of woodland owned by CP Holdings at the former Gorhambury Estate. The area of woodland owned by the company included Scrubbs Wood, adjoining Ragged Hall Lane. The wood was purchased from the Forestry Commission in the early 1980s. The woodland was purchased as a commercial activity and has always been managed by independent

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professionally qualified companies, mainly Tilhill Properties. Throughout their ownership CP Holdings had found the security of the woodland difficult to achieve. Mr Winward said that Scrubbs Wood was protected by a TPO. The owner did not want residents to damage the woodland cover with trespass. There was also a risk of injury. The management company had to remove diseased trees and it was not appropriate for members of the public to trespass on land owned by a third party. Mr Winward said that the land in the ownership of the company was shown on the plan on page 142 of the agenda. A large amount of the company’s land in the area adjoined road verges. Signs need to be put up. He said that the first signs were erected in 1984 when the woodlands were purchased. However, the signs regularly disappeared or were vandalised. Mr Winward drew attention to the sign notices shown on page 175 of the agenda. These were erected in 2009. He had also drawn attention to the photographs of signs shown at page 5 of the Supplemental Agenda. This showed two signs on a tree. The first sign read “PRIVATE WOODLAND NO RIGHT OF ACCESS”. The remains of a second sign can be seen immediately beneath the first sign.

4.3 Mr Winward said that early in 2015 he had been advised to replace the signs and place them high to avoid vandalism. Several signs had recently disappeared. Ms Molyneux asked Mr Winward whether he had ever put up signs giving people permission to walk in the wood. Mr Winward replied that he had not. He also stated that the company had no intention to change their ownership or management of Scrubbs Wood.

4.4 Questions were put to CP Holdings by both the Council and the nominating group. The questions and answers are recorded in the notes. Ms White asked Mr Winward about the reference in the report dated June 2006 by Tilhill Forestry Limited to tree safety works where trees, within falling distance of a footpath, public rights of way, highway or woodland boundary, were identified as potentially dangerous to members of the public. Mr Winward explained that CP Holdings owned substantial land in the area. He said that there were no public footpaths in Scrubbs Wood. There were, however, public footpaths adjoining other woods such as Park Wood. Ms White referred to the comment in Tilhill’s Annual Report 2013/14 at page 158 of the agenda which referred to restructuring the woodland and improving provision for open spaces. Mr Winward explained that open spaces were important to maintain natural light to allow the woodland to grow and that these works were not done in the interests of public access. Ms White asked Mr Winward whether there are people in the community who benefit from using the wood. Mr Winward replied that only employees of CP Holdings may use the wood.

4.5 Cllr Bell, on behalf of St Stephen Parish Council, noted that the plan on page 142 of the agenda showed the close proximity of Scrubbs Wood to Chiswell Green. He asked whether it was not unreasonable to assume that members of the public from Chiswell Green might use the wood. Ms Molyneux replies that there were other woodlands in the area for residents to use. Cllr Bell referred to the notices which prohibited vehicles and bicycles but do not mention people and therefore

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questioned whether it was reasonable to assume that people could enter the wood. Mr Winward replied that trespass occurred when people went on to land without the permission of the landowner. Cllr Bell queried what damage had occurred in the woodlands. Mr Winward replied that was irrelevant but noted that by people walking in the wood it will affect the flora and fauna and the growth in new trees.

4.6 I asked about the way finder sign on the post shown in the photographs provided by Ms White (see pages 208 and 209 of the agenda). I asked whether CP Holdings had erected this sign. Mr Winward stated that CP Holdings had not erected the sign and Ms Molyneux added that these signs were available to purchase on the internet. I asked whether the owner was aware of the sign present and if so why no steps had been taken to remove it. Mr Winward stated that the sign had been noted and that previously a similar sign had been removed. Ms Molyneux stated that when signs were taken down they reappeared later and that at no point had the owner put up signs to show permitted access through the wood. I referred to Tilhill’s Forestry Survey Report dated 11 February 2014 (at page 196 of the agenda) which stated that during the course of the survey it was noted that unofficial paths were being used by the general public. The report stated that compartments 1, 9 and 10 had noticeable footfall evidence. It stated that compartment 9 had a permissive footpath sign indicating the general public are invited to walk thus creating a specific duty of care issue. Compartment 9 is a reference to Scrubbs Wood. Ms Molyneux stated that Tilhill’s report simply meant that where footpaths are allowed a duty of care exists. I then sought clarification from Ms Molyneux whether CP Holdings position was that usage of the wood was trespassory. Ms Molyneux confirmed that was their position.

5 Evidence on behalf of the nominating group, St Stephen Parish Council

5.1 Representations were then made by Parish Councillor John Bell on behalf of St Stephen Parish Council. He explained that Scrubbs Woods had been put forward by the Parish Council as a possible Asset of Community Value because it had been used by the local community for many years. He said that the wood is not fenced, that local people appreciate the wildlife and flowers and use the wood responsibly. Cllr Bell said that whilst CP Holdings do not intend to sell the wood this cannot be guaranteed. He said that local Residents’ Associations have organised walks in the wood and referred to the Chiswell Green Residents’ Association Newsletter at pages 12-15 of the Supplemental Agenda. He also said that litter picks had been organised.

5.2 Cllr Bell called Mr Jim White of Orchard Cottage, Ragged Hall Lane, to give evidence. A statement from Mr and Mrs White is at page 17 of the supplemental agenda. Mr White stated that he lived approximately 400 yards from Scrubbs Wood and had walked his dogs in the wood at least twice a day for the past 39 years. He said that many residents use the wood and that the wood was accessible from Ragged Hall Lane. He said that although Ragged Hall Lane was

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narrow this was part of its appeal. Mr White said that he had not seen the warning sign mentioned by CP Holdings. Mr White said that local residents did not believe they were doing anything wrong. Cllr Bell also referred to witness statements in support of the listing prepared by Mr and Mrs O’Brien of Amber Cottage, 63 Ragged Hall Lane; Miss Mandy Floyd of 34 Ragged Hall Lane and Mr and Mrs Gibbard of 29 Ragged Hall Lane. In his email dated 19 November 2014 (at page 22 of the Supplemental Agenda) Mr Bell stated that Scrubbs Wood had been used recreationally by local residents for over 30 years. He described usage such as walking, jogging, bird watching, photography, studying the natural history in the woodlands as bluebells in the Spring time are a big attraction or just walking the dog.

5.3 Questions were put to Cllr Bell on behalf of CP Holdings and the Council. The questions and answers are recorded in the meeting notes.

5.4 Ms Molyneux asked Cllr Bell to confirm that no rights of access exist to Scrubbs Wood. Cllr Bell confirmed that this was the case but said that it was only when signs were erected that the community became aware that the land was owned by CP Holdings. After the signs first appeared in 2009, Cllr Bell was approached by a local resident asking whether the community might still use the wood. Cllr Bell said that he telephoned CP Holdings’ office and was informed that the signs had been erected because the company were concerned about their liability. Ms Molyneux asked Cllr Bell as to whether he had ever seen any signs from CP Holdings confirming right of access and Cllr Bell replied that he had not.

5.5 Ms Molyneux referred to the fact that the wood was located outside the St Stephen Parish boundary and asked Cllr Bell why the Parish Council wished to own land outside its area. Cllr Bell replied that the Parish wished to protect the land as a local amenity. Ms Molyneux produced a map of the local area which identified other woods inside St Stephen Parish Council boundary. Cllr Daly stated that the map produced was inaccurate as it showed St Julians Wood in the wrong position.

5.6 Ms Molyneux referred to Miss Mandy Floyd’s statement dated 21 November 2014. Ms Molyneux noted that in her statement Miss Floyd referred to signs welcoming walkers. Ms Molyneux asked Cllr Bell whether he was aware of these signs. Cllr Bell replied that it may be a reference to the wayfarer sign which seems to imply a public right of access.

5.7 Ms Molyneux noted that the Parish Council’s application was made following notification from St Albans Council about the existence of the Asset of Community Value procedure. Ms Molyneux asked Cllr Bell whether the letters he submitted made up the totality of the Parish Council’s evidence. Cllr Bell replied that the letters were from a few of the residents whom he had managed to contact but said he could have gathered more support.

5.8 Ms Molyneux produced a copy of the minutes of the meeting of St Stephen Parish Council on 20 November 2014. Ms Molyneux drew attention to the fact that Item 4 ‘the issue of assets of community value’ had been raised with members being asked if they could offer support. Ms Molyneux asked Cllr Bell whether his

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evidence was a result of this request. Cllr Bell replied that this was not the case but rather the people were asked if they could produce evidence. Ms Molyneux asked Mr Bell whether he was a member of the Chiswell Green Residents’ Association. Cllr Bell confirmed that he is a member. In answer to a question from Ms Molyneux Cllr Bell said that the membership comprised three-quarters of the total residents. Ms Molyneux noted that most of the members were not giving evidence.

5.9 Ms Molyneux noted that most of Mr O’Brien’s evidence referred to the wood’s flora and fauna. Ms Molyneux asked Mr Bell whether these would thrive better without disturbance. Cllr Bell replied that people kept to the footpaths and that the bluebells were not affected. Ms Molyneux suggested that Mr Winward had confirmed that bluebells were found in Park Wood. Cllr Bell replied that they were also found in Scrubbs Wood.

5.10 Ms Molyneux queried whether Mr and Mrs Gibbard understood the procedure for listing assets for community value. Cllr Bell replied that he believed they did. Referring to the ‘CHISCHAT’ newsletter Ms Molyneux questioned whether the woodland shown in the photograph was Scrubbs Wood. Cllr Bell replied it was of Long Wood. Ms Molyneux asked whether the walk referred to in the newsletter went through Scrubbs Wood and Cllr Bell confirmed that it did.

5.11 Ms Molyneux asked whether the litter pick took place in the woodlands or the lanes. Cllr Bell confirmed that it took place in both locations.

5.12 Ms White asked Mr White whether he had any contact with the wood’s previous owner. Mr White replied that he understood that the wood was run by the Forestry Commission. Ms White asked whether the Community considered that they had a right of access from the previous owner. Mr White confirmed this stating that he had never seen fencing go up although he had seen signage from time to time. Ms White pointed out that local people had said that they were grateful to CP Holdings for granting them access to the wood. She asked Mr White what may have given this impression. Mr White replied that he had spoken to Mr Winward on many occasions and that he had never suggested that local people should not have access to the wood. Mr White claimed that CP Holdings were aware that people were going in and out of the woods. Cllr Bell added that when CP Holdings purchased the wood signs had been erected. At the request of local residents he had contacted an employee of CP Holdings who informed him that the signs had been erected because of the company’s concerns over their liability. Ms White asked Cllr Bell whether he interpreted this as CP Holdings giving permission to the community to continue using the wood. Cllr Bell confirmed that this was his understanding, but added that CP Holdings had not said that there was a right.

5.13 Cllr Daly asked Cllr Bell whether he recognised the permission signs shown in the photograph. He asked whether Cllr Bell knew who was placing the signs there. Cllr Bell replied it was a waymark sign which had been placed on a traditional post. He said he did not know who had put the sign up. Cllr Daly noted that the Localism Act refers to an actual current use that is not ancillary. He asked

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whether St Stephen Parish Council considered that the access to the wood was ancillary. Cllr Bell replied that he understood that he could submit an application for listing irrespective of buildings or land if these were used by the local community.

5.14 I asked Cllr Bell whether he knew the name of the CP Holdings employee he had contacted. Cllr Bell replied that the employee’s name was Barry Mitchell. I asked whether there had been any correspondence following his telephone call. Cllr Bell replied there had not been. I asked whether this was the only conversation that he had had with CP Holdings regarding this issue and Cllr Bell replied that it was.

5.15 Cllr Daly commented that CP Holdings appeared to have implied that St Albans Council had been urging nominations of land as assets of community value. Cllr Daly stated that this was not the case and the Council had merely advised the Parishes of the procedure. He also noted that the map of Scrubbs Wood provided by the Council was produced as part of the Council’s internal processes and could help to protect the landowner’s interests. Ms Molyneux replied that she was not questioning the Council’s impartiality, but pointed out that had nominations not been sought the use of the woods would have continued without concern. Ms Molyneux said that from the landowner’s perspective it was considered that there was an impetus from the Council to support listing applications. Cllr Daly pointed out that not all nominations had been accepted by the Council. Ms Molyneux was happy in the way in which the hearing had been conducted.

6 Closing Submissions

6.1 Ms White said that when she had inspected the wood it appeared to be well used and there were no notices warning against its use. It seemed to her to fit the criteria as an asset of community value. Cllr Bell submitted that the wood is used regularly by local people. If the land came up for sale the Parish Council would wish to make a bid.

6.2 Ms Molyneux submitted that on the evidence heard the balance of probability suggested that signs had been erected in the wood and that there was no sign showing a right to use the woodland. Ms Molyneux submitted that the land did not meet the criteria to be listed as an Asset of Community Value as its use by the local community was ancillary to the main use as a managed woodland. She further submitted that listing was not an appropriate vehicle for protecting the land. Further, the wood was protected by a TPO. Ms Molyneux suggested that St Stephen Parish Council was not the appropriate Parish Council to make the application. Ms Molyneux also pointed that that fewer than a dozen representations mad been made from the local community which demonstrated the small amount of community interest. Ms Molyneux requested that the Scrubbs Wood hearing be adjourned as there may be additional matters she may wish to raise following the hearing of the Park Wood application. I agreed to her request.

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6.3 I then formally closed both hearings at 15.22hrs. No further matters were raised by the parties.

7 My decision

7.1 I am reviewing the decision of Ms Debbi White dated 9 April 2014 to list Scrubbs Wood as an Asset of Community Value pursuant to Section 88 (1) of the Act, though I add that I have not confined myself to a ‘judicial review’ form of assessment. Instead, I have approached this matter with an open mind and reconsidered the merits myself based on all the available evidence and submissions. In particular, I have carefully considered the evidence and submissions presented to me by Ms White as the original decision taker, by Cllr Bell on behalf of St Stephen Parish Council and by Ms Molyneux on behalf of the landowner, CP Holdings Limited. I set out below a summary of the evidence given at the Hearing as to the use of the land.

7.1.1 Page 117- 121 and pages 213 - 217 (Main Agenda). St Stephen Parish Council say that Scrubbs Wood is used by local residents and visitors. The Parish Council say that local residents appreciate the wildlife and the flowers and that Local Residents’ Associations have organised walks in the wood.

7.1.2 Pages 12-24 (Supplemental Agenda). Further evidence was submitted on behalf of the Parish Council by way of leaflets, witness statements from local residents and a response to the landowner evidence at pages 12-24 of the Supplemental Agenda for the Hearing on 17 February 2015.

7.1.3 Evidence was given by Debbi White, Property and Asset Manager, who noted that there were no barriers preventing pedestrian access, no warning signs against trespass and the presence of desire lines in the wood which suggests that it was well used for walking.

7.1.4 Oral evidence given by Mr Jim White of Orchard Cottage, Ragged Hall Lane stating that he has walked his dogs in the wood at least twice a day for the past 39 years.

7.1.5 Written witness statements by Mr and Mrs O’Brien of Amber Cottage, 63 Ragged Hall Lane, Miss Mandy Floyd of 34 Ragged Hall Lane and Mr and Mrs Gibbard of 29 Ragged Hall Lane who referred to use by the local community. Mr O’Brien in his letter dated 3 December 2014 states he is a keen birdwatcher and that red kites, buzzards and tawny owls regularly nest and roost in the woods. He states that he and his wife derive great pleasure from walking through the woods at all times of the year. He says that during the bluebell season large numbers of people come from the local area to enjoy a natural spectacle. Mr and Mrs Gibbard in an undated letter state that they have often used Scrubbs Wood for general walks and dog walking. They state that Scrubbs Wood is a habitat for wildlife, including Monkjack deer. Mr Hugh Day of 20 Cuckmans Drive, in a letter dated 24 November 2014, states that he has used the woods for recreational walking and exercising his dogs for over 30 years. Parish Councillor John Bell states in an email dated 19 November 2014 that Scrubbs Woods has been used recreationally by local residents in his knowledge for over 30 years, He says that this would include,

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walking, jogging, bird watching, photography, studying the natural history as bluebells in the springtime are a big attraction, or just walking the dog. Miss Mandy Floyd in a letter dated 21 November 2014 says that she has walked in the woods for 32 years. She states that they are privately owned but there have been signs up at various times welcoming walkers. Miss Mandy Floyd also says that the woods are well-kept and particularly beautiful when the bluebells are out and support a huge variety of birds, flowers, animals and fungi. Please see witness statements at pages 16-21a of the Supplemental Agenda.

7.1.6 Ms White produced various photographs of Scrubbs Wood which included a photograph of a green and white waymarker sign positioned on a wooden post. The photographs also showed a path running from Ragged Hall Lane into Scrubbs Wood. The photograph shows that the waymarker sign is visible from Ragged Hall Lane.

7.1.7 Ms Molyneux, on behalf of the owner, submitted that the use of the woods for walking was ancillary to its use for the growing of trees. Ms Molyneux produced photographs which showed signs stating “Private Woodland No Right of Access” which had been positioned on trees in the wood – see photographs at pages 3-7 of the Supplemental Agenda.

7.1.8 Pages 133 – 138 of the Main Agenda – Statement on behalf of the owner, CP Holding Limited sets out eight reasons why they consider Scrubbs Wood should not be listed as an Asset of Community Value. It is stated that there is no public access to Scrubbs Wood or intention to allow public access, that there is no community use of the woodland and that there are notices on the woodland stating that it is private. Pages 132-204 of the Main Agenda. Written statement by Robin Winward, Group Property Manager for CP Holdings, which sets out the background to the company’s ownership of Scrubbs Wood. He states that the woodland was purchased as a commercial activity and has always been managed by independent professionally qualified companies, mainly Tilhill Forestry. He points out that Scrubbs Wood is protected by a Tree Preservation Order No 1506 dated 3 February 2010. A copy of the TPO is at pages 221-235 of the Main Agenda. It covers all of Scrubbs Wood. In answer to a question from me, Mr Winward stated that CP Holdings had not erected the waymarker sign, but had noted its presence in the wood.

7.1.9 Ms Molyneux in oral evidence questioned whether the correct plan had been used by the applicants in support of their application. She maintained that the usage by the public was trespassory which was not a use which qualified under the Localism Act 2011.

7.1.10 In oral evidence Cllr Bell stated that CP Holdings were aware that people were going into and out of the woods. He said that signs had been erected when CP Holdings purchased the wood. Cllr Bell said that he had contacted an employee (Mr Barry Mitchell) of CP Holdings who informed him that the signs had been erected because of the company’s concerns over their liability. In response Ms Molyneux stated that she had been working at CP Holdings since 1989 and did not

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know of a Mr Mitchell. She stated that his authority to act on behalf of CP Holdings is not clear.

7.1.11 After the hearing on 17 February 2015 I invited written submissions from the parties concerning a decision by the First-Tier Tier Tribunal (Case reference CR/20140018) regarding an appeal by Banner Homes Limited against a decision by St Albans City and District Council to list Bedmond Lane Field, St Albans as an Asset of Community Value. A copy of the Tribunal Decision dated 16 April 2015 is attached at Appendix 2. Written representations by Debbi White, John Bell and Molyneux Planning are attached at Appendix 3 to this Decision.

7.1.12 In his written Decision Judge Peter Lane rejected a submission by Douglas Edwards QC for the landowner Banner Homes Limited that the phrases “actual current use” and “actual use” in Section 88 of the Localism Act 2011 Act must mean actual legal use and that any activity which might be trespassory does not qualify as a use under Section 88 of the Localism Act 2011. Judge Peter Lane rejected Mr Edwards’ submissions. He said at paragraph 32 of the Decision that “the town and village green legislation is, in my view, a clear example of Parliament legislating to confer community rights on those who have, over time, engaged in socially valuable activities (“lawful sports and past times”) in a ‘trespassory’ manner, which did not involve force or deception”. In paragraph 35 the Judge said “the fact that I decline to interpret Section 88 so as, in effect, to insert the word “lawful” after “actual” does not give carte blanche to use that section in ways that will violate the in bonam partem principle. The inherent requirement that the use of the land in question must further social wellbeing or social interest will, in practice, preclude many unlawful activities, for the simple reason that unlawful activities are, by their nature, unlikely to satisfy the tests of furthering social wellbeing/interests. Thus, for example, premises used for “raves”, at which illegal substances are consumed, violence is prevalent and noise nuisance frequent would not fall within Section 88.”

7.1.13 In her written submission dated 20 May 2015 Ms Molyneux stated that the detail of the Banner Homes Decision were not available to be considered at the Hearing into the Scrubbs Wood and Park Wood. In addition, the landowner was unable to cross examine the Council’s representative with regard to the specific details of the Banner Homes’ case. Ms Molyneux contends that whilst comments on behalf of the Council relating to the Banner Homes Decision might be considered to “set the scene” the Council has re-opened the appeal. Hearing evidence, without the benefit of public examination, without the agreement of the landowner and contrary to the terms of the Hearing as set out by Mr Lovelady. Ms Molyneux states that although the introduction of the Banner Homes case is considered to be an abuse of process she wishes to provide an explanation as to why the decision is not relevant to the cases under review. Ms Molyneux states that there are significant differences between the Bedmond Lane Field site which was the subject land in the Banner Homes case and that of Park Wood and Scrubbs Wood. The key differences are:

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Bedmond Lane Field is crossed by two public footpaths and there has been significant trespass across the field over many years without signs noting the private ownership of the land alongside the public footpaths.

The landowners made a number of attempts to allow and/or control the use of the land by the public and at some time offered a lease on the land to the local community.

The land was used for 40 years by the local community. There is substantial evidence of a local resident using the land for a long

term study of the wildlife of Bedmond Lane Field. There has been a refused Planning Application for the keeping of horses on

the land, evidencing an interest in a change of use of the land by the landowner.

The land has only recently been fenced off by the public along the line of the footpath and prior to its fencing off Banner Homes never did anything to stop the trespass.

By contrast, there are significant differences in both the level of trespass and the efforts undertaken by the landowner between Bedmond Lane Field and Scrubbs Wood and Park Wood. At no time have CP Holdings granted or offered a lease over either

woodland to any party. Neither have they granted “easements by prescription, in respect of any

persons who have carried out any activities”. The landowner has frequently erected signs at the entrance to the woodland

to state that it is private and there is no right of access. Photographs of old and new signs were considered at the hearing.

Neither Scrubbs Wood nor Park Wood have any public rights of way running through them and there is no case for the establishment of any public rights of way.

Unlike in the case of Banner Homes, CP Holdings have made no changes to the way in which they manage the land in recent years. They have continued to replace signs stating that the land is private and not open to the public.

In the case of Scrubbs Wood and Park Wood, the only evidence that the local community were able to point to with regard to wildlife habitat is the existence of bluebell in the woodland. There is thus far less evidence of use by the local community in either wood than in Bedmond Lane Field.

There has been no attempt by the landowner to alter the land as a private wood in the case of Scrubbs Wood and Park Wood as a commercial forestry.

The woodland is either commercial or private forestry and is not available for games nor is there evidence of long term usage or public benefit.

There is no intention to change the use of the woodland and no recent applications have been made for an alternative use.

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In conclusion, Ms Molyneux states that CP Holdings consider that the Banner Homes case should not have a bearing on the case relating to Park Wood and Scrubbs Wood especially as it is outside the date and terms for decision stated by Mr Lovelady.

Ms White made the following representations regarding the Banner Homes decision. She states that it is appropriate to apply the Banner Homes judgment in respect of trespassory use in respect of Scrubbs Wood and Park Wood because

The community has used the woods for decades, even before the current owner purchased it.

The community’s use has been in furtherance of the social wellbeing/interests of the community.

The use has been peaceable. The landowner has not suggested that the public has caused damage to

the wood. The use has not involved force or deception. It has been with the full

knowledge of the landowner.

In response to Ms Debbi White’s representations Ms Molyneux states: The claim that the land has been used with the full knowledge of the

landowner ignores the signs erected and replaced on the site stating that the premises are private.

There is no evidence to support Ms White’s statement that the use of the land has always been peaceable. The owner has instructed its staff working in the woodland that they should always work with at least two persons and never alone. When staff have informed trespassers that the land is private this has been received with mixed reactions and staff have not always felt safe as a result. There has been regular damage caused by the removal and destruction of signs noting that the woodland is private with no public access. The landowner does not agree that the use of the woodland is peaceable.

Ms Debbi White should not be given the opportunity to submit additional evidence after and outside the hearing where there is not an opportunity for cross-examination.

Parish Councillor Bell has submitted further evidence regarding usage by local residents in an email dated 10 May 2015. Ms Molyneux contends that the additional evidence contained in his email should not be taken into account in the Hearing decision.

7.2 I have considered and given weight to the letters referred to above by local residents. They support a conclusion of there having been relevant types of use within the meaning of Section 88 (see further below).

7.3 Section 88 of the Localism Act 2011 provides two grounds for listing a property as an Asset of Community Value. Section 88 (1) is about actual current use and

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Section 88 (2) is about recent past use. Under Section 88 (1) land in a Local Authority’s area is land of community value if in the opinion of the Authority – (a) An actual current use of a building or other land that is not an ancillary use

furthers the social wellbeing or social interests of the local community, and (b) It is realistic to think that there can continue to be non-ancillary use of the

building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.

Section 88 (2) concerns an actual use of a building or other land that was not ancillary in the recent past. In the case of Scrubbs Wood the use under review is a current use and therefore I have to consider whether the test in Section 88 (1) has been met in this case.

7.4 During the hearing there was challenge by the owner that the plan submitted by St Stephen Parish Council with their application dated 19 July 2013 was not acceptable. Ms Adamson, Regulatory Solicitor, informed me during the hearing that at the time when the nomination was submitted by St Stephen Parish Council the form asked for a plan to be submitted “if possible”. Accordingly, I am satisfied that the plan of Scrubbs Wood submitted by St Stephen Parish Council with their application is acceptable. In any event the boundaries of the application site are clearly defined by a red line in the plan accompanying the decision notice on page 125 on the Main Agenda. I conclude that the nomination is valid.

7.5 In her decision to list Scrubbs Wood dated 9 April 2014 Ms Debbi White stated that her reasons for including the land in the list were as follows: “The area is woodland with no restriction to public access. There is a wayfinder sign post but it does not appear to be a definitive right of way. There are desire lines running through the wood evidencing use by walkers”.

7.6 The test for listing land as an Asset of Community Value is set out in Section 88 (1) of the Localism Act 2011(See paragraph 7.3 above). Having considered the evidence, the issues which I have to determine are as follows:(a) Whether there is an actual current use of Scrubbs Wood that is not ancillary.(b) Whether that use furthers the social wellbeing or social interests of the local

community.(c) Whether the use put forward by the applicant, St Stephen Parish Council, is a

trespassory use and if so what are the implications for any trespassory use on meeting the test in Section 88.

(d) If there is an actual current use of Scrubbs Wood that is not ancillary, which furthers the social wellbeing or social interests of the local community, is it realistic to think that such use can continue [See the test in Section 88 (1)(b)].

7.7 Issue A – is there an actual current use of Scrubbs Wood that is not ancillary? Evidence of use put forward on behalf of the applicant, St Stephen Parish Council, is that local residents regularly use the wood for recreational use including walking their dogs, bird watching, appreciating the fauna and flora such as bluebells and Monkjack deer.

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7.8 Ms Debbi White on behalf of the Council refers to the presence of desire lines in the wood which suggests that it is well-used for walking. (See paragraphs 7.1.1 and 7.1.6 above).

7.9 On behalf of the owner, CP Holdings, evidence was given that Scrubbs Wood is a private woodland which is actively managed on the owners behalf by Tilhill Forestry. CP Holdings contend that as the use of Scrubbs Wood is as private woodland any use by local residents is an ancillary use and therefore does not qualify under Section 88 (1) of the Act. Scrubbs Wood is subject to a Tree Preservation Order which was confirmed by the Council on 30 July 2010. A copy of this Order can be found at pages 221-235 of the Main Agenda. It is clear from the terms of the Order that the trees in Scrubbs Wood are protected from felling save for the exemptions listed in paragraph 5 of the Order.

7.10 The Department for Communities and Local Government issued guidance dated October 2012 on the Assets of Community Value Scheme. The Guidance is entitled “Community Right to Bid: Non-statutory Advice Note for Local Authorities”.1 At page 26 of the Guidance there is a Glossary of Definitions. Land of Community Value is described as “building or other land whose main (i.e. “non-ancillary”) use furthers the social wellbeing or social interests of the local community, or has recently done so, and is likely to do so in the future. See Section 88 of the Act.”

7.11 The term ancillary is defined by Oxford dictionaries as “something which functions in a supplementary or supporting role”.

7.12 At the Asset of Community Value Hearing into CP Holdings’ Appeal against the listing decision of the nearby Park Wood, reference was made to recent First-Tier Tribunal decisions where the question of whether a use was ancillary was considered. In the case of Worthy Developments Limited v Forest of Dean District Council and the Save our Sun Committee (Tribunal reference CR/2014/0005) Judge Warren considered the meaning of the term ancillary use under Section 88 (2)(a) of the Localism Act 2011. The past use considered in that case was a former use of the Rising Sun pub at Woodcroft, outside Chepstow. The pub served the local community as a pub. It was also used as a meeting place by the Women’s Institute and the Parent Teachers’ Association. Judge Warren found that the actual use of the Rising Sun as a Public House had furthered the social wellbeing and interests of the local community. He rejected a submission that the community use must necessarily be for a substantial amount of the recent past. He stated that no doubt trivial or very temporary use would be disregarded as “ancillary” to a main use but that there was no warrant for reading the words “substantial amount” into the statute.

7.13 In the case of Firoka (Oxford United Stadium) Limited and Firoka (Oxford) Limited v Oxford City Council (Tribunal reference CR/2013/0010). Judge Warren considered a submission by Firoka that in considering applications to list a building or land under Section 88 (1) of the Localism Act 2011, the Act should be applied in respect of any planning unit only in respect of the primary use of that unit. The Judge

1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14880/Community_Right_to_Bid_-_Non-statutory_advice_note_for_local_authorities.pdf

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rejected that submission and said that the Act was not restricted “to primary uses”. The case concerned the Kassam Stadium which since 2001 had been the home ground of Oxford United FC. Part of the Stadium was fitted out for conferences and hospitality which were hired out by the owner. The Stadium was also used by the London Welsh Rugby Club. Oxford United FC used the Stadium for 25 match days a year. The Judge held that use of the Stadium by Oxford United FC was not an ancillary use.

7.14 I recognise that neither the dictionary definitions nor the First-Tier Tribunal decisions summarised above are binding on me or determinative of the issue. I need to apply the statutory wording to the particular facts before me. Nonetheless, I consider the above guidance to be persuasive and of assistance to my decision.

7.15 Section 88 requires an applicant to establish that an actual current use of the land is not an ancillary use. In my view one use of Scrubbs Wood by CP Holdings is as a private forestry. However, I consider that the use by local residents is a separate non-ancillary use of Scrubbs Wood. It is the case that the Glossary in the DCLG Guidance refers to a main use. However, the Act does not require a use to be a main or primary use in order to qualify for listing under the Act. This accords with the approach followed by Judge Warren in the First-Tier Tribunal decision concerning Firoka (Oxford United Stadium) Limited. It also accords with his decision in the case of Worthy Developments Limited where he commented that a trivial or very temporary use will be disregarded as ancillary to a main use.

7.16 I find that the use of Scrubbs Wood by local residents for recreational walks, dog walking, bird watching and appreciating the fauna and flora is not trivial or temporary. It is not minor or negligible, and it is not merely supportive of some other use. Rather, in my view it is a separate use of the woods which is not ancillary to its use as private woodland. I therefore consider that this use is a qualifying use under Section 88(1).

7.17 Issue B – Does that use further the social wellbeing or social interests of the local community? On this issue, I take into account in particular the following evidence.

7.18 Evidence was given that the local community regularly use Scrubbs Wood for a variety of activities including recreational walking, dog walking, bird watching, appreciating the fauna and flora such as the bluebells in the Spring. In their evidence local residents emphasised the social benefit they derive from such use. For example, Mr and Mrs O’Brien, in their letter dated 3 December 2014, referred to often seeing whole families out together enjoying the great outdoors and learning a bit about nature and benefitting from the fresh air and exercise. Mr and Mrs White, in their letter dated 1 December 2014, described many families and photographers using the woods particularly when the bluebells were in flower. They also state that the woods are used on a regular basis by bird watchers. Mr Hugh Day’s letter dated 24 November 2014 describes using the woods for recreational walking and exercising his dogs. Miss Mandy Floyd describes walking in the woods for 32 years along with many other dog walkers. She says that the woods are particularly beautiful when the bluebells are out.

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7.19 CP Holdings dispute that this use furthers the social wellbeing or social interests of the local community. They say that Scrubbs Wood is remote from St Stephens Parish and does not have a visual or physical impact on amenities of the community. They say that the wood has to be accessed via Ragged Hall Lane which is a narrow road without a footpath. They say that there is no community use of the woodland. Molyneux Planning submitted comments on the written evidence received by St Albans District Council during and after the first hearing on 24 November 2014. These comments can be found at pages 8-11 of the Supplemental Agenda. They comment that each of the activities were undertaken by a very small section of the community and it cannot be said that the land fulfils the social wellbeing or social interests of the local community.

7.20 Section 88 (6) of the Act describes social interests as including (a) cultural interests, (b) recreational interests and (c) sporting interests. Location plans were produced by both CP Holdings and St Stephen Parish Council at the Hearing. These plans demonstrate in my view that the residential area of Chiswell Green is situated approximately half a mile away from Scrubbs Wood. The wood can be accessed via the public highway, Ragged Hall Lane. I acknowledge that there is no pavement along the section of Ragged Hall Lane leading to the woods. However, this does not seem to deter local residents from using Scrubbs Wood for recreational purposes.

7.21 Whilst the evidence of use is submitted by only a few local residents, their letters refer to a frequent use by the local community. I am satisfied on the balance of probabilities that the number of people using the land in this way is sufficient for this use to be considered use by the local community.

7.22 I am also satisfied that this use as described above furthers the social wellbeing or interests of its users. I am therefore satisfied that the use put forward by St Stephen Parish Council does meet the test in Section 88 (1) as serving the social wellbeing or social interests of the local community.

7.23 Issue C – what is the relevance of the allegedly trespassory use? Ms Molyneux for CP Holdings maintains that the residents’ use of Scrubbs Wood is unauthorised. She states that there are notices on the woodland stating that it is private. In her written submission at pages 8-11 of the Supplemental Agenda Ms Molyneux states that the use by local residents has been undertaken without the consent of the landowner and that all the activities described by Parish Councillor John Bell on behalf of the applicant amount to trespass onto private land in the full knowledge that it is such and thus without the ability to acquire any rights to such access.

7.24 Ms Molyneux points out that Cllr Bell acknowledged in his email dated 19 November to Judith Adamson (see page 22 of the Supplemental Agenda) that there is no formal agreement to gain access to Scrubbs Wood. In the same email Cllr Bell states that when notices appeared in the wood stating that they are private and there was no right of way he contacted CP Holdings after concerned residents approached him and was informed that the notices had to be put up for legal purposes in case a member of the public injured themselves in the woods and could then take legal action on the company. However, Cllr Bell in his email says

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that he was informed at the time that access to the public was not going to be stopped, much to the relief of local residents who frequently use the woods.

7.25 In response to this statement Ms Molyneux states that there is no clarity as to when he became aware of the landowner and whether, once aware, when any attempt was made to seek consent for access to the land.

7.26 In response to the photographic evidence of the waymark sign in Scrubbs Wood, Ms Molyneux states it is not an official sign, that the sign is readily available on the internet and is frequently used by landowners to designate permissory paths. Ms Molyneux states that in this instance the landowner (CP Holdings Limited) has not erected the sign and in addition has erected signs stating that the land was private. She points out that evidence of purchase and display of these signs is included in the evidence of Mr Robin Winward.

7.27 At the Hearing on 17 February 2015 evidence was given by Cllr Bell on behalf of the Parish Council that following concerns raised by local residents he contacted CP Holdings and spoke to an employee of CP Holdings, Mr Barry Mitchell, who had confirmed that the signs had been erected because of the company’s concerns about their public liability. It was Cllr Bell’s understanding from a conversation with Mr Mitchell that the company gave permission to local residents to continue to use the woods. I note, however, that Ms Molyneux disputes that there can have been a Mr Mitchell who provided such an indication on behalf of CP Holdings. I also recognise that I have no additional evidence about that communication. I therefore give limited weight to this particular point from the evidence.

7.28 A local resident, Mr White who gave evidence at the Hearing stated that he had spoken to Mr Winward of CP Holdings on many occasions and that he had never suggested that local residents should not have access to the wood and that CP Holdings were aware that people were going in and out of the woods.

7.29 Further, in his letter dated 1 December 2014 Mr White says “we are lucky that the owners of these woods have allowed us access”.

7.30 I also note from their survey report dated 11 February 2014 that Tilhill Forestry stated that the permissive footpath sign (in Scrubbs Wood) indicated that the general public are invited to walk.

7.31 I am satisfied from the evidence I heard that CP Holdings were aware of local residents’ use of Scrubbs Wood and did not prevent that use. It appears to me that their use as described in the evidence is peaceable.

7.32 Further, whilst CP Holdings gave evidence that the waymarker sign was not erected by them they have clearly allowed it to remain on a prominent post near the entrance to Scrubbs Wood. Indeed their management company, Tilhill Forestry, regard the sign as evidence that the general public are invited to walk in the wood. The sign can be seen from Ragged Hall Lane and is located at the entrance to a path into the woods. This is further evidence that the landowner was content to admit local residents to use the wood. I accept that there are signs on some of the trees indicating that it is a private woodland with no right of access. However, it may well be that the signs were erected to protect the company’s legal position. I do not need to reach a definitive view on that particular point, because it is clear to

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me that, whatever the status of signage and of legal rights, the actual use as described above has at least been tolerated by CP Holdings for some time.

7.33 Although CP Holdings maintained in their submissions to me that the use by local residents amounts to trespass onto private land, they do not appear to have particularised this allegation. The evidence before me suggests that CP Holdings were aware of such use and have not attempted to prevent it. In my view even if the use is strictly unlawful it does not disqualify the land from being listed as an Asset of Community Value. I am satisfied that on the evidence before me that such use has not caused any harm. There was a suggestion by CP Holdings that by using the woods residents might affect the fauna and flora. However, this appears to me to be speculative. I have seen no evidence to support a conclusion that community use has caused or is likely in future to cause any harm to the land, its flora or fauna. I also note that Cllr Bell in his evidence stated that people keep to the footpaths and the bluebells were not affected.

7.34 I consider that I may take into account the representations made by CP Holdings, Cllr Bell and Ms White concerning the Tribunal Decision in the case of Banner Homes v St Albans City and District Council. I have taken into account the submissions from CP Holdings that it is unfair for the Banner Homes to be considered in this case. I disagree. I am satisfied that all parties have had ample opportunity to make any submissions they wished to on that decision. In any event, I do not consider that these further representations add anything significant to the evidence already submitted at the Hearing on 17 February.

7.35 At paragraph 35 of the Banner Homes Decision Judge Peter Lane declined to interpret Section 88 so as, in effect, to insert the word “lawful” after “actual”. He said that the inherent requirement that the use of the land in question must further social wellbeing or social interests will, in practice, preclude many unlawful activities, for the simple reason that unlawful activities are, by their nature, unlikely to satisfy the tests of furthering social wellbeing/interests. He concluded that a particular technically unlawful use of land is not per se outside the ambit of the section. Again, I recognise that First-Tier Tribunal decisions are not binding as legal authorities, but I agree with Judge Lane’s analysis and find it relevant and persuasive in this case. That is not to say that I reach the same outcome on the facts of this case simply because of the outcome of Banner Homes. Rather, I have applied the relevant reasoning to the facts of this case.

7.36 I am satisfied that from the evidence of local residents that the use of Scrubbs Wood made by the local community was entirely peaceful in nature. I conclude that there has been sufficient purely lawful use to satisfy the conditions under Section 88 and that any technically unlawful conduct does not disqualify Scrubbs Wood from being an Asset of Community Value.

7.37 Issue D - Is it realistic to think that there can continue to be non-ancillary use of Scrubbs Wood which will further (whether or not in the same way) the social wellbeing or social interests of the local community?

7.38 I am satisfied that the current use by local residents for walking, dog walking, bird watching, appreciating the fauna and flora including the bluebells is a non-ancillary

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use which furthers the social wellbeing or social interests to the local community. It would appear from the evidence given on behalf of CP Holdings that they intend to continue to manage the woodland as they have done previously. They stated in their evidence that there is no intention to change the use of Scrubbs Wood from that of a private woodland. They say they have no intention to sell the woodland.

7.39 It accordingly appears to me that, if there is the requisite current use (see above), then there is also the realistic prospect of the requisite future use for these purposes. On the evidence before me it is realistic to think that the current use by local residents can continue. I therefore consider that the test in Section 88 (1) (b) is satisfied.

7.40 For the reasons outlined above it is my decision the Scrubbs Wood should continue to be included in the Authority’s list of Assets of Community Value. CP Holdings may appeal this listing review decision to the First-Tier Tribunal.

M LoveladyHead of Legal, Democratic and Regulatory Services

3rd August 2015

APPEAL OF DECISION: The Owner can Appeal the Review Decision to the First-Tier Tribunal (General Regulatory Tribunal)