Village green decision on hold

Kent County Council has decided to defer any decision about the Downs, pending the outcome of another court case.

There is another village green application (near Whitby) that is known as the Barkas case - all these cases are named after the applicant, rather than the piece of land involved. As so often happens, this case pivots on the fine distinction between the use being "by right" or "as of right", i.e. whether the users of the land have actually been given the right to use it, or whether they are are acting as if they had the right to use it.

The important additional feature in this case is that the land in question is owned by the local Council (as is the the Downs), who argue that use is "by right" (as do our Council). The Barkas case has been through public inquiry, and has been appealed against, and has worked its way up the hierarchy of courts, all the way to the Supreme Court. The Supreme Court heard the case at the beginning of April and will pronounce its decision in June or July.

In the light of this potentially landmark decision, KCC have sensibly decided to defer any decision on the Downs, and the village green application for Kingsmead Field in Canterbury.

Just a quick note to let you know that as a result of the decision at the Kingsmead meeting, we have decided to also put this case on hold until the Supreme Court's decision in the Barkas case has been published. It does not make sense to refer this to Committee now when no doubt the same points will be made regarding deferment.

I will be in touch again once the Barkas case has been decided (unless our position changes for any reason in the meantime).

So, we wait, fingers crossed. Here's the summary of the case from the Supreme Court website:

Case summary

Issue

Whether members of the public using a recreation ground, which has been provided for that purpose by a local authority in the exercise of its statutory powers, do so "by right" or "as of right".

Facts

The Appellant applied to register a playing field in Whitby as a town/village green on under s.15(2) of the Commons Act 2006 as a significant number of local inhabitants had indulged as of right in lawful sports/pastimes on the land for at least 20 years. The land was acquired in 1951 as a site for the erection of council houses. S.80(1) of the Housing Act 1936 (consolidated in s.12(1) of the Housing Act 1985) gave local authorities the power to provide and maintain recreational grounds with the consent of the Minister.

The Appellant's application was rejected by the Respondent local authority based on the Inspector's conclusion (followed by the High Court and Court of Appeal) that, although the use of the land met all the requirements in s.15(2), the use for recreational purposes was "by right" and not "as of right". Reliance was placed on obiter in R(Beresford) v Sunderland CC [2004], where the House of Lords expressed reservations about treating recreational users as trespassers acting as of right not only where there was an express statutory trust for the recreational land, but where "the land had been appropriated for the purposes of public recreation". While the local authority was under no obligation to make the land recreational, the enabling enactment expressly gave it power, with ministerial consent, to provide a recreation ground in connection with housing, and was therefore land "appropriated for the purpose of public recreation". It was also very difficult to regard members of public harmlessly using such land as trespassers.

The Appellant submits that the Court of Appeal misconstrued Beresford, and that there is no express statutory wording (as in other similar statutes) to confer a right to prevent the use being as of right. The recreational use of the land under the Housing Acts is entirely a matter of discretion.

Parties

Appellant name: Christine Barkas
Respondent name: North Yorkshire County Council

Council wastes £50k fighting village green

A campaigner embroiled in a bitter battle with council bosses over the future of a beauty spot has accused them of "spending money like water".

Phil Rose, of the Friends of The Downs in Herne Bay, spoke out after discovering officials have spent about £50,000 fighting his application to register the land as a village green - and that figure could rise.

Meanwhile, the council is proposing to close Herne Bay Whitstable and Canterbury's Heritage Museum for winter in order to save £65,000.

Mr Rose, of Beacon Hill, said:

"There has been no consultation with the museums' friends' groups, nor with residents asking whether this is what they want. On the other hand, the council is happy to spend money like water when it comes to fighting the public wish to register the Downs as a village green.

Let's put that £50,000 in context. It's more than the council will save by not having Christmas lights. It's more than the council will make in decades by charging local people to keep a boat on the beach. It would keep the Herne Bay Museum open full-time, instead of part-time, for another two to three years."

Using the Freedom of Information Act, Mr Rose discovered the legal fees and officer time involved fighting the village green application had reached around £50,000. He also found that there was no upper limit to the expense that could be incurred. with a council lawyer telling him:

"When a decision has been made to contest a case such as this, then it will cost what it will cost."

Mr Rose said:

"After a lot of asking, the council has finally admitted that it has no record of asking members whether it should spend £50,000 on this - they just ran an 'open purse' policy. The council said it had to fight the application, as village green status would prevent coast defence work on the Downs. But Kent County Council's barrister said that this was a 'perverse' argument and that registration of the Downs as a village green would not interfere with any necessary coast defence work.

Meanwhile, just a few miles away, the council is having chats with Whitstable residents about making Prospect Field (also a coastal slope) a village green. Worst of all, Canterbury is happy to spend public money fighting what Herne Bay wants - £50,000 so far to deny us our village green."

Council spokesman Celia Glynn-Williams said the two issues should not be linked, adding:

"The council is now having to take some very tough decisions concerning its finances for the long term and the decision to move to seasonal openings for three of our museums was taken for sound commercial reasons and will generate annual savings in the future for the council of £65,000. The cost of the fighting the village green application for the Downs is a one-off cost that has largely already been spent."

She said officials still opposed the village green application because the land had sufficient protection under the Queen Elizabeth II Fields in Trust.

HB Times 22nd Aug 2013 

Village Green - anniversary news

On 1st September 2009 I handed in my application to register the Downs as a village green. For more than four years Canterbury City Council has fought the application tooth and nail, against the wishes of the public, and spending over £50,000 in the process.

The Regulation Committee at Kent County Council (who decide whether or not to register land as a village green) met at the beginning of September. We were expecting VGA614 (our application) to be considered or resolved at this meeting, but it wasn't.

As you'll see in Section 5 of the first document below, there were 5 cases to be heard "in the next few weeks", but ours isn't one of them. And as you'll see in the second document, KCC are "awaiting legal advice" on our application.

KCC are in a rather tricky position. They decided, quite rightly, that this case was too complex for them to handle alone, and so employed a barrister to act as Inspector at a Public Inquiry. She recommended that about 85% of the Downs should be registered.

Canterbury City Council protested that her report was legally flawed, so KCC called in another barrister. (They couldn't re-use the first barrister, as would normally happen, because she had since been made a judge and was therefore out of bounds.) The second barrister recommended that about 5% of the land be registered.

So KCC are faced with a knotty problem, having two conflicting recommendations from their own independent legal experts. Whichever way they decide, they lay themselves open to the possibility of judicial review because either side can claim one of the independent recommendations is correct and should not have been ignored. Tricky. 

KCC Reg Comm 2013-09-03 Update From the Commons Registration Team by HerneBayMatters

KCC Reg Comm 2013-09-03 Item 09 Appendix A by HerneBayMatters

Village Green update

Many moons ago, we had the public inquiry. Some months later, we got the Inspector's report - she recommended that about 85% of the Downs should be registered as a village green.

We responded to her report saying that the 15% she had excluded was actually eligible for registration, due to subtle legal technicalities.

Canterbury City Council responded to her report by commissioning two barristers to write a report saying that none of the Downs should be registered (no surprise there!), and saying that the Inspector was mistaken on several points of law.

Kent County Council, who have to make the final decision, felt that they were still out of their depth on this one, and needed further legal advice. In the normal course of events, it would be original Inspector that they would turn to, but she has since become a judge and is unavailable.

So KCC had to call in yet another barrister to review the submissions from ourselves and CCC. The report from this latest barrister suggests that only about 5% of the Downs should be registered.

We believe that the reasoning behind this latest report is fundamentally flawed. We believe the whole of the Downs should be registered as a village green, and we will carry on fighting. Of course.

Open Spaces Society

OPEN SPACES SOCIETY

NEWS RELEASE

OPEN SPACES SOCIETY DELIGHTED THAT HERNE BAY DOWNS ARE SET TO BECOME A VILLAGE GREEN

The Open Spaces Society is delighted that the Downs at Herne Bay in Kent are set to be registered as a village green. An inspector, appointed by Kent County Council, has recommended to the council that the land be registered.

The application was made by Phil Rose of the Friends of the Downs in September 2009.  Because the landowner, Canterbury City Council, objected, there was a public inquiry starting in November 2011.

The inspector, Miss Lana Wood, concluded that 43 acres of beautiful coastal downland met the criteria for a green, ie that they had been enjoyed by local people for informal recreation, for 20 years, without being stopped or asking permission.  The total application area was 50 acres but she concluded that seven acres had been fenced off for engineering works and therefore were excluded from public use during part of the 20-year period.

Canterbury City Council claimed that the land was held under the Public Health Act 1875 and therefore had, in effect, been used with the council’s permission and therefore did not qualify as a green.  The inspector concluded that the council had not proved that it held the land under that Act during the relevant period (1989-2009).  Mr Rose produced evidence from 64 people, 36 of whom gave evidence at the inquiry, who had used the land freely.

The city council has until 4 January to raise any objections to the decision, after which Kent County Council will consider the inspector’s recommendation.

Says Phil Rose: ‘This is great news for Herne Bay.  The Downs is the largest open space in town.  For many years residents and visitors have used it for recreation, from flying kites to playing bagpipes!

‘Nearly 1,200 people completed detailed questionnaires in support of this application.  We’ve spent hundreds of pounds and thousands of hours publicising the application, leafleting, collecting questionnaires and witness statements, answering the city council’s objections, researching the historical and legal background of the Downs, producing our statements to support our case and working through the eight-day public inquiry.’

Adds Kate Ashbrook, general secretary of the Open Spaces Society which supported and assisted the Friends of the Downs with their case: ‘This is a wonderful result for the Friends and shows that hard work and persistence pays off.  We just hope that Kent County Council now registers the Downs as a green, to protect this wonderful open space for all to enjoy.’