Village Green Defeat

Efforts to protect the gardens of Woodlands, a Grade II* listed building, from development in perpetuity for future generations have failed.  A committee consisting of just two councillors (the Deputy Leader of the Council and the Chief Whip) turned down the application by local residents to register the Gardens as a Town or Village Green, claiming that users of the gardens did so not as of right but by the implied permission of the Council. 

Judges in the key decision on implied permission –the Beresford case - had stated that ‘implied permission’. required that  all of four criteria had to be met.  There had to be (a) some form of communication (b) by some action during daylight hours (c) that was intended by the landowner to be understood,  and (d) was understood by users, to signify permission to use the land.  The QC acting for the Council confirmed that not one of these criteria had been met.  There had been no communication (such as a notice), no action during the hours of daylight, no intention by the landowner to grant permission and no understanding by users of the land that locking the gates late at night (which was done expressly for security reasons in response to  the request of local residents) was intended to signify that they no longer indulged in lawful sports and pastimes as of right.  Even if there had been such implied permission, the law says the Council must disregard it.   In reaching their decision on the disputed facts of the case, both councillors decided to ignore the law.

The legal advice the Council  has received was that because one of the objectors was the Council itself, it was acting as ‘judge and jury in its own cause’. So very great care was needed to ensure the decision-making process was above reproach and as independent as the statute allows.  Later this year, it will become mandatory in cases such as this where there is a conflict of interest because a council has a financial stake in the outcome, for any application to be passed to the Planning Inspectorate for decision.  But at the moment Greenwich Council (unlike for example, Kent) is not obliged to do this, though most Councils already arrange for such cases to be heard by an independent person, in accordance with the advice of the Government, the Courts and best practice.  The Council’s own QC advised the councillors that it would be proper for them to refer the decision to an independent decision-maker. But the two councillors decided to determine the disputed facts themselves.

Greenwich Property has already sold off part of the Gardens and used the proceeds to finance Council developments in Woolwich, even though the site is classified as an area of local open space deficiency where open spaces are required by the Council’s own policies and the London Plan to be protected.  The Council has fought strenuously not to lose the right to sell off the rest of the gardens for development, getting no less than five different legal opinions for arguments to reject the application.  It threatened to take the case to the House of Lords and  even to the European Court of Human Rights to seek compensation if it lost the right to sell or develop the land. 

The land is henceforth deemed to be used by implied permission which the Council can withdraw without notice if it needs extra money and wishes to sell more of the gardens.  This  means the Greenwich Steiner School could find it will have taken a 150 year lease on an expensive building with nowhere for its pupils to play.  The new  flats already built in the gardens (against the recommendation of English Heritage and the Council’s own Conservation officer) will be less attractive homes.  Loss of access to the gardens would also make it more difficult to attract weddings or play-groups to the local Community Centre, Mycenae House (which shares the grounds) with damaging financial consequences at a time when the Council is trying to persuade it to commit to a 25 year lease and financial responsibility for repairs and maintenance.

Attending the Village Green Hearing

Don’t bother to try to find any information about the Village Green Hearing by the General Purposes Committee on the Council’s website.  The meeting is not shown on the list of forthcoming meetings.  No agenda is shown on the website, and there are no minutes, decisions  or agendas from previous meetings shown either.  

The name of the committee officer, the person who has to be notified if you wish to speak, is therefore not shown.  So the information at http://bit.ly/12qQX  on how to attend and speak at meetings is of no help whatsoever.

Nevertheless, the meeting is open to the press and public.  It starts at 18.15 on Wednesday 11th February and will be held at the Town Hall, Wellington Street, Woolwich, SE18 6PW.   If you want further information about the meeting or to ask to speak at the meeting, the person to contact is Merle Medford, the Committee Officer.  She can be contacted on:_

Telephone:   020 8921 5134

Minicom: 020 8921 6268

Fax: 020 8921 5864

e-mail: merle.Medford@greenwich.gov.uk

If you have not done so in advance, you can still ask to speak at the meeting, provided this is done before the meeting starts.

Future of Mycenae Gardens – Update

To protect any more of Mycenae Gardens from being sold by the Council, an application has been made by members of the local community to register the gardens as a town or village green. The application will be decided on Wed Feb 11th at 18.15 at the Woolwich Town Hall by a Committee of the Council.  This means that the Council is acting 'as judge in its own case'.  Members of the public can attend and (if arranged in advance) speak at the meeting.

 The Council has described the gardens, as  ‘a well used and much treasured oasis used by local people and Mycenae House users alike.  They are ideal for wedding parties, picnics, informal children’s games etc.”  They have been used in this way since the Council bought them in the 1960s. The gardens therefore seem to meet all the statutory criteria for registration as a Town or Village Green under a law introduced in 2007, e.g. that a significant number of local residents have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.  The only point that the Council disputes is whether they did so ‘as of right’, that is without being given permission to do so by means of some form of communication, such as public notice. 

The Council concedes that it has no evidence of any such communication or that people have not use it ‘as of right’.  It made no attempt to refute the applicant’s evidence.  Moreover the law says that once the 20 period has been achieved, any such grant of permission must be disregarded.  But the Council seems likely to reject the application. If the land were registered, the Council would no longer be able to sell off any more for development.  It has threatened to go to the European Court of Human Rights  to seek compensation if it loses the ability to sell off the gardens to raise revenue.

 The QC instructed by the Council advised them that “Basic fairness requires that where a matter depends in whole or in part on a determination of fact on which there is no appeal, the decision–maker must be as independent as the statute allows”  

The regulations that came into force in 2008 go further than that.  Regulation 27(2) provides that a Town or Village green application must be referred to the Planning Inspectorate for determination where a Council as registration authority has an interest in the outcome of the application and there is unlikely to be confidence in the authority’s ability impartially to determine the application. 

 The Council has already sold off some of the land to finance Council developments elsewhere. It could no longer do this if the land were registered as a village green.  So the Council proposes to decide the application itself rather than refer it to an independent body like the Planning Inspectorate, a relatively cost-free alternative routinely used for disputed planning applications.  The Council has already sought 5 – largely irrelevant – legal opinions at considerable cost.  A formal complaint by the applicant about the conflict of interest has been rejected by the Council’s Chief Executive.

 A major beneficiary of registration as a village green would be the Greenwich Steiner School.  The school reportedly is committed to a 150 year lease for the buildings; but if the application were refused, its use of the land for sports and pastimes would be by permission which could be withdrawn at any time if a future Council decided to sell off the land for development.  It is difficult to see how the school could be viable without the area the pupils have used as a playground for a decade or more.  

Concern has been raised about the future of  new flats on the site. Whatever view is taken of the flats (which are now virtually complete and were built in the grounds of a Grade II* listed building contrary to the explicit recommendation of the Council's conservation officer and English Heritage), the courts have ruled that land does not become a town or  green until it is actually registered and the 19th Century statutes protecting greens are unlikely  to apply to works or encroachments that were made prior to registration.  The prime objective of the application is, therefore, to prevent any further development of the land. This seems in the interest of all users, including the school.

 

Further information from Lawrence Smith (8858 1006) – LFTSmith@orange.net