Thursday, February 12, 2009

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.

12 comments:

Anonymous said...

A third councilor supported the idea or referring the matter to a public inquiry. The defeat was therefore passed by 2 votes to 1 though it would have remained to be seen whether or not a public inquiry would have found in the applicants favour.

Anonymous said...

Just an idea, Why don't Westcombe Society and the Steiner school join forces and start raising a war chest and a strategy to aquire Mycenae House and its grounds form the council when they decide to dispose off the site. This would then give the Westcombe Society a legacy and community centre with a Steiner school at its heart, this partnership could project the cherished green space and heritage of the site.

Any thoughts ?

Anonymous said...

It's an idea, Anon, but I seriously doubt that the school could raise that sort of money in the present climate, having just spent a very large sum of money on obtaining and refurbishing Woodlands.

Vanbrugh said...
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Vanbrugh said...

It is not true that 3 councillors voted. Only 2 voting members were present. the third was a non-voting "nominated member" (see http://bit.ly/y06Il). On the facts of the case, which were not seriously disputed, it would be difficult for an independent enquiry to reject the application. The fact that the Council was prepared to flout the regulations to ensure it won suggests that the Council shared that view. It was not prepared to risk losing the development rights it would lose.

Vanbrugh said...

Unfortunately, both the Steiner School community and the Westcombe Society are sharply divided on the merits of permanent protection of the site from development. A better use of a war chest would be to seek judicial review of the decision. But the Council has threatened to take the matter to the House of Lords and the European Court of Human rights for compensation if it loses what it sees as its right to use the land for property development. Insurance against the costs of judicial review might cost as much as £5,000.

Anonymous said...

Surely a committee of two councillors was not a quorum?

Anonymous said...

I find some of the above comments misleading. Surely the Council must now, since they admitted they were in remiss, put up a notice by 90 Mycenae Road that Mycenae Gardens are open to the public in hours of daylight? Apart from the relatively small amount of land around the school and the flats, the public can go everywhere else. Indeed, the walled off and closed further down the hill could be opened up for general use. There is room for all.

Vanbrugh said...

No. the full strength of the committee is three and the quorum is two

Vanbrugh said...

The Council claims it had established 'implied permission' so no notice is required. If the Council aims to sell the land for development it has no interest in making use any easier

Anonymous said...

At the hearing the QC acting for the Borough admitted that the council had been in default for not putting up a notice at the entrance to Mycenae Gardens, since the grounds are prescribed as available to the public. I would expect the council now to do this.

It is not very inviting at present to walk right round Mycnae House. The old gateway off Mycenae Road that was bricked up could be reopened, though this would entail somebody being paid to lock it at night. The council surely doesn't want the bother.

Vanbrugh said...

Since the main entrance is not locked at night, there would be no point in locking any gate that was reopened