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Friday
Jun182010

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?

Sunday
Jun062010

More maintenance nonsense

Wholly wrong!

More tosh from the Council, I'm sorry to say. A local councillor is reported as saying that village green status would delay emergency repair work on The Downs. This is STILL nonsense, merely a cover story that is getting flimsier by the day. The sharper-eyed amongst you will notice that the picture clearly shows a ladder running down to the bottom of the hole. Obviously this is not an accidental, natural hole - as Council spokesman Rob Davies says it's "part of the slope drainage system". Mr Davies also points out that "the responsibility to repair these lies with the City Council".

The Council neglected its responsibility to inspect and maintain this part of the drainage system. The manhole cover became overgrown, disintegrated and fell down the hole - the remains appear to be at the bottom of the ladder in the picture. The soil that once covered the manhole wore thin, and hey presto - suddenly there's a deep and dangerous hole in the ground.

This hazard is entirely due to the Council's neglect. Read on.


Foot-long crater opens up to reveal drop of 10 feet


A dog almost fell 10ft into water after a mysterious hole appeared on the Downs at Herne Bay. Authorities were alerted after the foot-long crater believed to be an old manhole was discovered less than a metre from a public footpath on Saturday morning.

Surrounded by loose earth, the pitch dark hole was mistaken for a rabbit hole by an eager Jack Russell. But only the quick-thinking actions of its owner, who grabbed the pooch as he went to dive into the hole, saved a potential tragedy. Bay councillor Vince McMahan, called by the owner and first on the scene with foreshore ramp attendant Doug Arponen, says a small child could have drowned:

“My two-year-old grandson Connor would have stood no chance if he'd fallen down there. It wouldn’t matter how quick the fire services arrived. I wouldn't be able to get down there myself and would be helpless. It`s really quite frightening. Small kids love to walk along the ledge of the footpath, and this hole was probably just a foot away. If someone had slipped and fell down the hole it would have been a disaster”

Mr Arponen and Cllr McMahan alerted the city council and waited by the hole for three hours until Serco arrived at 12.30pm. Workers covered the hole with a sheet of wood and returned later to fence the area off. Mr Arponen said:

“There's no way it could have been left as it was. You could tell it had probably been like it for some time as well, because the edge wasn't neat and the grass had grown. When I saw it I thought it was best to stick around. After all, the number one priority is public safety"

Cllr McMahan says the discovery of the hole adds weight to the argument against granting the Downs Village Green Status:

“If the status was awarded we would have to ask the Secretary of State to carry out emergency maintenance work like this. That takes time and money and could well have been too late in this instance.”

City council spokesman Rob Davies said:

“They are part of slope drainage system. We were alerted to this problem on Saturday and on-call staff attended to inspect the site. The hole was covered over and fencing was put up around it, as well as a second manhole cover further along the Downs, to make them safe. The responsibility to repair these lies with the city council, because they are part of the slope drainage system. An order for this work to be carried out has already been placed and we will inspect other covers on the East Cliff in case of further problems."

HB Gazette 3rd Jun 2010

Wednesday
Apr212010

The point is: CCC already maintains village greens...

As you may know, one of our councillors recently resurrected the claim that village green status would somehow complicate, impede or prevent maintenance work being carried out on The Downs. I had already sent a letter to the Council's Legal department (in January 2010) that explained why this was not the case, but this message seems not to have filtered through to all the councillors. So I sent them all a copy of the letter that I had sent to Legal, just to make sure that they're up to date.

Cllr Vickery-Jones then sent all the councillors a message saying: "We are awaiting advice from our own legal department, it would be prudent not to form a view based on hearsay evidence before that advice is forthcoming." Here I share with you, dear reader, my next salvo:

I have no wish to weary you with this email exchange, and hope that the following simple fact will finally resolve the question of maintenance of village greens:

Canterbury City Council already carries out maintenance work on village greens.

For example, at Whitstable:

  • Within the last couple of years, CCC completely took over the western half of the village green between Island Wall and West Beach (VG 115) for a period of months, using it for timber storage and erecting a row of portacabins as offices for the workers.
  • Similarly on the village green at Seasalter/West Beach (VG 126), the Council erected sea defences and brought in large quantities of shingle. CCC received no objections from the “inhabitants of the locality” to this work, because it was clearly in their interest, as would be any maintenance works on The Downs at Herne Bay.

The legal position requires no clarification. This is not hearsay, it is fact: village green status is no obstacle to the Council carrying out maintenance work.

Is that conclusive? Will it suffice? Stay tuned...

Thursday
Apr152010

Council 'is not right on Downs'

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


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

Monday
Apr122010

Maintaining a Village Green

In response to Cllr Vickery-Jones' comments in the press recently, here's what we sent to Mark Ellender (Head of CCC Legal & Democratic Services) on 10th January 2010. It explains how Village Green status would not prevent the Council from carrying out maintenance work on The Downs. At all.  


Thank you for your email of 18th December 2009. I am pleased that CCC has finally sent informed staff to the site to have a look at the land in question. I do not propose to rehearse here all the issues about where specifically the site is located – we can do that another time and I will happily send you all the relevant documentation – but given your comments about drainage, it is clear that we are describing the same site. In this note I want to pursue the issue that is of primary importance to a very significant number of local residents, tax payers and voters – registering The Downs as a village green.

I am delighted that CCC has no objection in principle to the idea of registering The Downs as a village green. You say that you must resist the registration of The Downs as a village green simply because you need to carry out engineering works “without requiring consent from the Secretary of State every time”. The campaign team accepts absolutely that CCC needs to carry out maintenance work to the system of drains that stabilise the land. We accept too that, in the case of a landslip, CCC would need to be able to undertake repair and stabilising work swiftly. However, your assumption that CCC would only be able to undertake this work by obtaining permission from the Secretary of State is wrong. I think your colleagues may have misinformed you.

Since receiving your email I have had three conversations with Defra (two over the phone and one by email) as well as a conversation with the village green expert at the Open Spaces Society and one with the village green registration team at KCC. I am delighted to tell you that the situation is not as you think it is. I think your colleagues may be confusing the steps necessary for work on a village green with those necessary for work on common land. The two are quite different.

The Open Spaces Society was categorical in its advice that the kind of work envisaged (possible fencing off of part of the village green while stabilising the land and protecting it) would not leave the council open to any risk of prosecution, nor would the council need to involve the Secretary of State before taking action. Defra is also clear that no special permission is needed for any work on a village green as long as that work contravenes neither Section 12 of the Inclosure Act 1857 nor Section 29 of the Commons Act 1876.

The Planning Inspectorate also says in its guidance sheet 2b that “…there is generally no requirement under the legislation relating to commons and greens to obtain consent to carry out works on a green which are not in contravention [of] sections 12 and 29.”

So, as long as the work does not contravene these two acts, no permission is needed to undertake it. I will say more about each of these two acts below.

The Law

As I have mentioned above, registered town and village greens are protected by the following two statutes:

  • Section 12 of the Inclosure Act 1857
  • Section 29 of the Commons Act 1876.

Section 12 of the Inclosure Act 1857 says:

“If any person wilfully cause any injury or damage to any fence of any such town or village green or land, or wilfully and without lawful authority lead or drive any cattle or animal thereon, or wilfully lay any manure, soil, ashes, or rubbish, or other matter or thing thereon, or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use or enjoyment thereof as a place for exercise and recreation, such person shall for every such offence, upon a summary conviction thereof before two justices, upon the information of any churchwarden or overseer of the parish in which such town or village green or land is situate, or of the person in whom the soil of such town or village green or land may be vested, forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 on the standard scale];…”

Section 29 of the Commons Act 1876 says:

“An encroachment on or inclosure of a town or village green, also any erection thereon or disturbance or interference with or occupation of the soil thereof which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground, shall be deemed to be a public nuisance, and if any person does any act in respect of which he is liable to pay damages or a penalty under section twelve of the Inclosure Act 1857, he may be summarily convicted thereof upon the information of any inhabitant of the parish in which such town or village green or recreation ground is situate, as well as upon the information of such persons as in the said section mentioned.”

Practical implications of these two statutes for CCC

If the intended work on a village green contravenes neither section 12 of the Inclosure Act 1857 nor section 29 of the Commons Act 1876 then there is no need for CCC to obtain any special permission before undertaking the work.  That is to say that no permission would be needed simply because the land is a town or village green. Of course, all the normal rules regarding planning permission would still apply, but we are talking in the case of The Downs about maintenance and repair work rather than any new build, so I will leave that to one side.

Contrary to the advice that you have been given, there is no process for getting approval for works from Defra in the case of village greens. As Defra pointed out to me, “Neither the Secretary of State, Defra, nor any other body is able to give consent for illegal works to be undertaken on a town or village green.” So, either the intended works are legal, or they are illegal and Defra may not give permission for them. Defra’s view (and I quote) is that:

“Arguably works to improve drainage or to ensure the stability of the land could be considered to be for the better enjoyment of the green and therefore might not contravene either of these Acts….in Defra’s view, when considering whether or not any given development or action contravenes either or both of the above mentioned statutes a court is likely to be concerned with whether material harm has been caused to a green and whether there has been interference with the public’s recreational enjoyment. Other issues that might be relevant include the proportion of a green affected by the development or activity and the duration of the interference.* Whether or not either the 1857 Act or the 1876 Act have been contravened will ultimately be dependent upon the precise nature of the works which have been undertaken on the green.”

[* For clarity, Defra is distinguishing between temporary works, however long, to achieve a legal aim and permanent fencing off of the land to deny access.]

I shall examine below what risk, if any, each of these two strands of statutory protection for village greens present to CCC if the council were to undertake the kind of maintenance or repair work that we are discussing here.

Assessing the risk presented by the 1857 Inclosure Act

It is a criminal offence to undertake on a village green any works which contravene the 1857 Act.  Looking at Section 12 above, it is clear that CCC will not be damaging fences (there are none), nor driving animals onto the green, nor injuring the green. The only possible way in which CCC might be interpreted as contravening the 1857 statute is the “interruption of the use or enjoyment [of the green] as a place for exercise and recreation…”

The Act is specific about who can register a complaint against someone who interrupts the use of a village green. The relevant categories today are the parish council (there is none, but in its place would be the district council which is CCC) or the owner (CCC).  So, only CCC could take a case against CCC to court. It is clear from this that the risk represented by the 1857 Act is entirely manageable by CCC.

Even if CCC did take CCC to the magistrate’s court for interrupting the use of part of the village green and win, CCC would be liable to a fine not exceeding level 1 on the standard scale. Today that represents £200.

Assessing the risk presented by the 1876  Commons Act

Works undertaken on a village green in breach of the 1876 Act will be deemed to be a public nuisance unless they are undertaken “with a view to the better enjoyment of such town or village green or recreation ground”. In undertaking maintenance work that protects The Downs and ensures its future existence, CCC would clearly be undertaking work “with a view to the better enjoyment” of the village green. In the case of a landslip where CCC would need to stabilise the land and make it safe, that work is demonstrably “with a view to the better enjoyment” of the village green as, were the work not to be done, part of the village green would be unusable. No consent is needed from Defra or anybody else for works of this kind as they do not contravene the statute. If the work that CCC wishes to undertake is maintenance work or work that ensures the long term stability – and therefore usability – of the land, there is no risk to CCC in undertaking it nor is there any need to seek approval to do so.

Managing Town and Village Greens in Local Authority Ownership

Defra’s guidance is that greens in local authority ownership are generally managed by the authority under the Open Spaces Act 1906 or by a scheme of regulation under the Commons Act 1899. Only if the village green were subject to a scheme of management under the Commons Act 1899 would section 38 of the Commons Act 2006 apply. Section 38 is the section that talks about the prohibition on works without consent and is, I suspect, the section that is worrying you and/or your colleagues. For the avoidance of doubt, I repeat that Section 38 of the 2006 Act does not apply to a village green that is not under such a scheme of management. My authorities here are Defra, the Open Spaces Society and The Planning Inspectorate. You may like to read for yourself “Common Land Guidance Sheet 2b” which spells this out clearly.

CCC could opt to have The Downs as a village green managed under a scheme of management under the Commons Act 1899. If the council were to do this, it could give itself permission in advance to undertake certain specified kinds of work without having to apply for permission from the Secretary of State.

The current model scheme of management gives examples of the kind of work for which local authorities can give themselves permission in advance by listing their village green in this way. They include:

  • Protecting and improving the land – e.g. drainage, raising, levelling or other work
  • Preventing accidents – e.g. fencing any quarry, pit, pond, stream or other like place
  • Preserving the turf, shrubs, trees, plants and grass.

This would seem to cover everything that CCC would need to do in terms of maintaining and improving the drainage system; keeping the land stable; and reacting in the case of a landslip to make the green safe.

Conclusion

CCC has two options here. It can either take the view (as those experts to whom I have spoken have done) that there is no risk to CCC by doing the kind of maintenance and stability work that we are discussing. Either – in the case of the 1857 Act – only CCC could take CCC to court or – in the case of the 1876 Act – the work would be demonstrably for the enhancement of the green and so would not in any way contravene that Act.

Alternatively, CCC can take the view that there is a risk, however tiny, represented by one of these Acts. It can then register The Downs as a village green to be managed under a scheme of management under the Commons Act 1899. This would give CCC explicit advance permission to undertake all the necessary works – drainage; fencing; raising; levelling – without having to apply to anyone for permission to do so.

Either way, your concerns, or those of your colleagues, are groundless. The practical obstacles you describe about having to seek Secretary of State approval every time CCC needs to carry out the kind of work envisaged simply do not exist. This concern has been dealt with by seeking advice direct from Defra, the Open Spaces Society and KCC, as well as from other expert sources such as The Planning Inspectorate who make guidance information for landowners freely available on the internet. Given that, and given that CCC officers and councillors have said on a number of occasions that CCC has absolutely no objection in principle to voluntarily registering The Downs as a village green, I do hope we can now make speedy progress towards doing just that. After all, CCC is there to represent the local people, not to pursue its own private agenda in the face of local opposition, and local people vigorously support the village green application.