SCRUBBS WOOD
Our reasons for the decision:
1 Review Decision
1.1 On 24 November 2014 and on 17 February 2015 I conducted an oral review hearing into the listing of land known as Scrubbs Wood, Ragged Hall Lane, St Albans as an Asset of Community Value. The land was listed by St Albans City and District Council under a notice dated 9 April 2014. By a letter dated 9 November 2014 Jan Molyneux of Molyneux Planning acting for the owner of the land, CP Holdings Limited (‘CP Holdings’), requested a review of the Council’s decision pursuant to Schedule 2, paragraph 1(1) of the Assets of Community Value (England) Regulations 2012. Ms Molyneux requested an oral hearing. Subsequent to the Hearing I invited written submissions from the parties concerning a Decision dated 16 April 2015 by the First-Tier Tribunal (Case reference CR/2014/0018) regarding an Asset of Community Value Appeal Hearing into the listing of Bedmond Lane Field, St Albans as an Asset of Community Value. I received their responses in May 2015.
2 The Evidence
The Hearing opened on 24 November 2014 and was then adjourned.
2.1 At the Hearing I received oral and written representations from Ms Jan Molyneux on behalf of CP Holdings, Ms Debbi White, Property and Asset Manager, St Albans City and District Council (the ‘Council’) and from Parish Councillor John Bell on behalf of St Stephen Parish Council (who nominated the land for listing). He called Mr White, a local resident, as a witness.
2.2 I also heard oral evidence from Mr Robin Winward, Group Property Manager, CP Holdings. He produced a written statement and a number of attachments including a plan of the woodland purchased by CP Holdings, details of the company’s woodland management operations, details re signage and a statement and report from Tilhill Forestry.
2.3 I also have before me various photographs of Scrubbs Wood taken by Ms Debbi White and by Ms Lyn Henny, Asset Management Surveyor. Further photographs were produced by CP Holdings Limited. I have before me an agenda dated 24 November 2014 comprising 236 pages (the ‘Main Agenda’) which contained extracts from the Localism Act 2011 and Assets of Community Value (England) Regulations 2012; details of the nomination for listing submitted by St Stephen Parish Council dated 19 July 2013; a site inspection report, undated but subsequently established to have been carried out on the 7 March 2014; a decision notice dated 9 April 2014 signed by Ms Debbi White giving the reasons why the land was listed; CP Holdings’ request for a review and accompanying evidence in support; a statement by Ms Debbi White dated 7November 2014 and accompanying photographs and evidence submitted on behalf of the nominating group, St Stephen Parish Council. The agenda also included a plan from Hertfordshire County Council and a copy of a Tree Preservation Order relating to Scrubbs Wood made by St Albans City and District Council dated 30 July 2010. I also have before me a supplemental agenda dated 27 January 2015 (the ‘Supplemental Agenda’) which included photographs submitted by the land owner, CP Holdings, and their comments on the written evidence submitted by St Stephen Parish Council during or after the adjourned hearing of 24 November 2014. The agenda also included evidence submitted by St Stephen Parish Council which included extracts from leaflets published by the Chiswell Green Residents’ Association, entitled ‘CHISCHAT’, between 1993 and 2007 and witness statements by Mr and Mrs O’Brien, Mr and Mrs White, Mr and Mrs Gibbard and Mr and Mrs Day and an email from Cllr John Bell. A witness statement from Miss Mandy Floyd was produced at the adjourned hearing on 24 November 2014. A further copy of this witness statement was circulated at the hearing on 17 February 2015.
2.4 After the hearing on 17 February I was separately provided with copies of First-Tier Tribunal decisions numbers CR/2013/0010 concerning an appeal by Firoka (Oxford United Stadium) Limited and CR/2014/0005 concerning an appeal by Worthy Developments Limited. I was also given copies of dictionary definitions of the word ‘ancillary’. In addition, a copy extract of the minutes of St Stephen Parish Council held on 20 November 2014 and a plan showing the position of St Julians Wood and Black Green Wood was submitted on behalf of CP Holdings.
2.5 I was accompanied at the hearing by Cllr Julian Daly, Council Leader and Portfolio Holder for Planning and Conservation. I am delegated by the Council, in consultation with Cllr Daly, to consider and determine requests for reviews of Council decisions to list land as an asset of community value.
2.6 Notes of the hearing on 17 February 2015 and 24 November 2014 are attached at Appendix 4 and Appendix 5 to my decision. The notes summarise the submissions and evidence given at the hearing. I also attach a copy of my case management notes setting out directives given by me on 24 November 2014 – Please see Appendix 1. The Hearing was held in public.
2.7 Scrubbs Wood has been entered into the list of assets of community value maintained by the Council. The reasons given for the decision to list are as follows:
“The area is woodland with no restriction to public access. There is a wayfinder sign post but it does not appear a definitive right of way. There are desire lines running through the wood evidencing use by walkers“.
The land was entered on to the list on 28 March 2014. The decision notice and location plan are contained at pages 123-125 of the agenda for the first day of the hearing on 24 November 2014.
2.8 Section 88 (1) of the Localism Act 2011 provides that a building or other land in a local authority’s area meets the criteria for listing if in the opinion of the authority (a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and
(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.
2.9 Section 89 (1) provides that land in local authorities area which is of community value may be included by a local authority in its list of assets of community value only
(a) in response to a community nomination or
(b) where permitted by regulations made by the appropriate authority.
Section 89 (2) provides that a community nomination means a nomination which (a) nominates land in the local authority’s area for inclusion in the local authority’s list of assets of community value and
(b) (iii) is made by a person that is a voluntary or community body with a local connection.
2.10 The Assets of Community Value (England) Regulations 2012 provide a definition of a local connection for the purposes of Section 89 (2) (b)(iii). These regulations provide that a Parish Council has a local connection with land in another Parish Council’s area if any part of the boundary of the first Council’s area is also part of the boundary of the other Council’s area. Regulation 5 of the 2012 Regulations provides that a Parish Council is included in the definition of a voluntary or community body. Scrubbs Wood is situated within the boundary of St Michael’s Parish Council. However, St Michael Parish Council and St Stephen Parish Council share a common boundary. At the first day of the hearing on 24 November 2014 I was satisfied that the nomination submitted by St Stephen Parish Council was valid because St Stephen Parish Council met the definition of a voluntary or community body with a local connection, even though Scrubbs Wood is situated outside of their Parish boundary.
2.11 The review hearing was listed for hearing on 24 November 2014. However, at the hearing a request was received by Ms Molyneux for an adjournment because of late evidence submitted by St Stephen Parish Council. I decided to admit the late evidence. I agreed to Ms Molyneux’s request and adjourned the hearing. I also gave directions regarding the submission of witness statements by the nominating group and also gave the owners an opportunity to respond to their evidence. Accordingly, the hearing was adjourned and then resumed on 17 February 2015.
3 The Council’s original decision maker’s evidence
3.1 Ms Debbi White, the Council’s Property and Asset Manager, who made the decision to list the land, stated that she had inspected the site which could be accessed from the adjourning public highway, Ragged Hall Lane. Ms White stated that at the time of her inspection she found that there were no barriers preventing pedestrian access into the site. Ms White said that there were no signs advising that the land is private land and no warning signs against trespass. Ms White noted that there was a wayfarer sign indicating that the wood is used for public access. Photographs of this sign were produced by Ms White. Ms White also stated that there were desire lines within the wood which suggested that it was well used for walking. In her view, this was consistent with the information provided by the Parish Council that the public are using the land. She said that her decision to list the asset was based on the community value of the land to that part of the community that use the woodland for leisure activities in particular walking. Ms White referred to the nomination by St Stephen Parish Council and suggested that the use by the public had gone on for some time and would continue in the future. Ms White was questioned by Ms Molyneux on behalf of the owner CP Holdings. Ms Molyneux’s questions and the answers given by Ms White are recorded in the hearing notes. Ms Molyneux queried the date of the site inspection as recorded on page 122 of the main agenda. It was established that the inspection was carried out on 7 March 2014. She asked Ms White to confirm that the way marker sign did not indicate that there was as public right of way. Ms Molyneux also asked Ms White whether she saw high level signs on the land marked ‘private woodland – no right of access’. Ms White stated that she had not seen the signs at the time of her inspection. Ms Molyneux suggested to Ms White that the woodland had reasonable protection from the woodland TPO. However, Ms White considered that the designation was irrelevant to her decision. Ms Molyneux asked Ms White about the current use. Ms White replied that the use was walking and leisure walking. Ms Molyneux also suggested to Ms White that the public’s use of the land was trespass. Ms White responded that there was nothing to say that people could not walk on the land.
3.2 Ms Molyneux asked Ms White whether she considered use by the community was a trespass since there was no right of way. Ms White replied that she could not say whether this was the case since there was evidence from the Parish Council to suggest that the use had been on-going and the land owner had taken no steps to prevent this. Ms Molyneux asked Ms White whether the plan submitted by StStephen Parish Council met the Council’s minimum criteria. Ms White confirmed that this was not the case. I asked Ms Adamson, Regulatory Solicitor, whether the plan was valid for the purpose of the application. Ms Adamson explained that the original guidance issued by the Council did not give a minimum standard for plans. Subsequently, guidance has been issued. However, applications received before these guidelines were accepted. Ms Adamson also confirmed that the plan on page 125 of the agenda was the plan on which the decision was based. After the hearing I asked Ms Adamson to check when the guidelines were issued. Ms Adamson informed me that the nomination for Scrubbs Wood was received by the Policy and Partnership department of the Council before 26 July 2013. At that time the nomination form asked for a plan to be submitted “if possible”. Following discussions between Ms Adamson and Jane Pearce, an officer in the Policy and Partnership department, the guidance notes and nomination form were amended to provide for a better quality of plan. These requirements were changed in November 2013 and were in place by the time the site inspection of Scrubbs Wood took place on 7 March 2014. Ms Adamson informed me that this was why the inspection sheet (shown on page 122 of the agenda) stated “plan does not meet minimum criteria”. Ms Adamson informed me that the Council did not reject any nominations received in July 2013 because even where a plan was of a poor quality, the requirements did not specify that a plan must be submitted.
4 The owner, CP Holdings’, evidence
4.1 Ms Molyneux submitted that to qualify for listing as an Asset of Community Value, Section 88 of the Localism Act 2011 requires an actual current use of the land which is not ancillary. In the case of Scrubbs Wood Ms Molyneux stated that its use for walking was ancillary to its use for the growing of trees. Therefore, its listing as an Asset of Community Value was inappropriate. Ms Molyneux noted that Scrubbs Wood was protected by a TPO and that the owner had no intention to change that use and intended to retain ownership. Ms Molyneux noted that the application was made by an adjacent Parish Council with a population of approximately 11,000 people and that only a small fraction of the population had made representations. Ms Molyneux contended that the plan submitted by St Stephen Parish Council was not appropriate and suggested that St Albans Council had sought applications for listing. Ms Molyneux referred to her statement set out at pages 127-138 of the agenda. She drew attention to her conclusions on page 138. Ms Molyneux submitted that Scrubbs Wood did not fulfil the requirements of a site for listing as an Asset of Community Value for the following reasons: