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

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

Good cop, bad cop.

A rather odd sensation that I don't think I'll ever get the hang of is banging my head against one part of the Council, whilst having a sensible conversation with another part. Hey ho.

CCC chants the mantra that registration (of the Downs as a village green) would prevent maintenance, presumably in the hope that an oft-repeated lie will somehow become true. In their objection to Kent County Council (the village green registration authority), they invoke a 135 year old, late Victorian Act of parliament to support their claim that it is actually impossible for the Downs to become a village green. Balderdash, as the late Victorians would have said.

Meanwhile, the Outdoor Leisure department has recognised The Downs is a "strategic open space", being the only large open space in town apart from the Memorial Gardens. They are also keen to work with local "grassroots" groups, not least because such groups have access to sources of funding that are closed to the Council.

This has lead to an awakening of the idea of active co-operation:

Thank you for taking the time to chat through some joint working opportunities to enhance the Downs as we are keen to work with community groups. As you are aware the primary function of the Downs is coastal protection that may, from time to time, have to take precedence. However, we have already set aside some funding for some environmental enhancement for this strategically important piece of open space.

The aim of joint working would be to develop a management plan based upon survey work, community and partnership input and this could include issues such as: amend habitat - depending on the results of wildlife surveys, improved access, promotion / awareness, training for community volunteers or guided walks and much more no doubt. We see key partners such as yourselves, Kent Wildlife Trust, Herne Bay in Bloom, Natural England and many others will emerge.

The contrast between their stubbornness over registration and their enthusiasm for "joint working opportunities" is stark. Registration would cost them potential revenues from developers, whereas working with community groups can magic money out of thin air. Is that really all there is to it?

Council 'is not right on Downs'

The Council says that village green status would block maintenance work on The Downs - this is nonsense.

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Preservation body pans decision

Campaigners have hit back at council plans to block protection for a town beauty spot. Our exclusive story last week revealed that officials were considering an application to register the Downs, at Beacon Hill, as a village green to protect it from development. But Canterbury City Council bosses are planning to oppose the scheme, lodged by the Save Our Downs campaign, because they maintain it would block vital maintenance work. Campaign co-ordinator Phil Rose said he had information to the contrary. He said:

"The council first raised this concern with us in December 2009. The campaign team immediately spoke to the Open Spaces Society who are experts on the subject. We spoke to Kent County Council’s village greens registration team. We spoke to the legal advisors at the Secretary of State’s department. We did some legal research with the Planning Inspectorate. They all agreed that there is no problem. The upshot of all our research is that the council's fears are groundless. Legally if the maintenance work is 'with a view to the better enjoyment' of the village green, then the council can do that work without seeking permission."

Mr Rose, of Beacon Hill, said maintenance work to protect the area would be included as work for the "better enjoyment" of the area. He added:

"My house is on the edge of the Downs - I have no interest in stopping the council from doing any maintenance work. There’s even a legal option for the council to give itself advance permission for specific works like drainage, raising, levelling or preventing accidents. This should be enough to put everyone’s mind at rest."

He is encouraging people to contact Canterbury City Council chief executive Colin Carmichael to urge him to back the application.

HB Times 15th Apr 2010

1,100 sign up to save The Downs

Village green designation demanded for beauty spot

CAMPAIGNERS are preparing to do battle over the future of a Herne Bay beauty spot. More than 1,100 people are backing an application to give formal protection to The Downs by registering it as a village green, meaning no development would be allowed. The campaign was sparked by an application to build 40 beach huts near the Kings Hall.

Kent County Council bosses are now considering the request, and the accompanying 1,181 statements of support, but Canterbury City Council officials said they would oppose the request, because it would stop essential maintenance work in the area. Part of the area has already lost its designation as public open space, to allow the beach huts to be built.

Steve Lockwood, of the Save Our Downs Campaign, said:

"The whole campaign team has been amazed by the strength of feeling local people have about The Downs and how fired up they are to protect it. Village green status will protect this land forever so that everyone in the town can carry on using all of it just as we do today – freely and free of charge. It wouldn't cost the council a penny to make The Downs a village green. It would be such a shame if the council chose to ignore local opinion and refused to give The Downs the protection that Herne Bay people want it to have."

Supporters believe their application could be the largest ever considered by councillors because of the number of accompanying statements, and more than 95 per cent of people backing the bid are from Herne Bay. Campaign coordinator Phil Rose said:

"The Downs is a much-loved and well-used part of Herne Bay life, and has been for decades. The people who sent us statements have been using The Downs for a total of 27,750 years! The longest period of use that someone told us about is 86 years, and even the average is 24 years. This land has been close to the town's heart for generations."

He urged people to contact Canterbury City Council chief executive Colin Carmichael to urge him to support the application. But Cllr Peter Vickery-Jones, a member of Canterbury City Council's ruling executive committee, said the decision would not be that simple. He said:

"Village green status would mean we could not carry out essential maintenance of the area without asking the Secretary of State for permission. It's a technicality but it's important. The Downs was never under threat but the campaigners have a bee in their bonnet and they are entitled to do this. We all want Herne Bay to thrive but I believe that has to be based on tourism and the only way to do that is to attract more people to the town by making it interesting. The beach huts would have helped to do that."

HB Times 2010-04-08