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.
