COUNCIL 18 JULY 2011 FOR INFORMATION
BOROUGH OF POOLE AGENDA ITEM 18
ENVIRONMENT OVERVIEW & SCRUTINY COMMITTEE
14th JULY 2011
REPORT OF THE HEADS OF LEISURE,LEGAL & DEMOCRATIC, PLANNING & REGENERATION AND ASSET MANAGEMENT & PROPERTYSERVICES
TOWN OR VILLAGE GREEN – MOTION TO COUNCIL
PART OF THE PUBLISHED FORWARD PLAN NO
STATUS – STRATEGIC
1 / Purpose1.1 / To consider the Motion presented to Council on 21st June 2011:
“Given the change in political balance of the Council since local elections on May 5th, and the unlikelihood that a majority of Poole Borough Councillors are in favour of the Council continuing to object to Town Green Applications, Council resolves to instruct its Legal and Leisure Officers to withdraw their Objection to the Baiter and Whitecliff Town Green Application.”
Councillors Eades, Mrs Slade, Mrs Clements, Mrs Le Poidevin, Ms Chris Wilson, Meachin, Godfrey, Brooke, Howell and Mrs Parkinson
2 / Decision Required
2.1 / Members are recommended to:
2.1.1 / Consider the Motion and officer advice in order to make recommendations to the next Council Meeting.
3 / Information
3.1 / Under Section 15 of the Commons Act 2006 an application can be made to the Commons Registration Authority - in this case the Borough of Poole – to register land as a Town or Village Green (TVG).
3.2 / The phrase Town or Village Green denotes an area of land which is subject to the right of local inhabitants to use the land for sport or pastimes at all seasonal times of year. Once registration has taken place, the landowner's use of the land must take into account and not interfere with the right of the inhabitants to indulge in all or any sport and pastimes.
3.3 / In addition, the Land will become subject to the Inclosure Act of 1857 and the Commons Act 1876 which both contain provisions to protect the use of such land and make certain activities, such as causing damage or impeding the use of a Green, criminal offences. This can have an impact on the owner/occupier’s insurance. As well as on the right to utilise the land for their own purposes or to develop the land.The wide-ranging effect that such registration can have on a parcel of land has led to comments being made in court as to the need for care in determining applications. It also goes some way towards explaining the number of cases which are coming to court in recent years.
4 / Summary of Officer Advice
4.1 / The Council is strongly committed to protecting public open space for public enjoyment now and in the future.
4.2 / We acknowledge and welcome the strong feeling from local residents about the value and importance of open space and their passion for protecting it. We consider that there is a difference between publicly owned land that is held specifically for recreational and leisure purposes (public open space) and other land that may be publicly or privately owned and has come to be used informally for recreation.
4.3 / Public Open spaces meet a wide range of different community needs including those of, local residents,walkers, dog walkers, sports people, sports groups, families etc.
4.4 / The facts are that:
(a) public open space in Poole is already well protected and
(b) TVGs are unnecessary and would restrict themanagement of public open space for the benefit of residents and visitors.
4.5 / The decision of the Independent Inspector at the Hearing for Branksome Rec confirmed that TVG was not appropriate for public open space and that our Objection was valid, appropriate and necessary. The status of the Land comprised in the Baiter and Whitecliff TVG Application is analogous to the Branksome Rec.
5 / Public Open Space In Poole Is Very Well Protected
5.1 / Before the Council can sell or offer a long lease of land, which is held by the Council as public open space the requirements for consultation set down in Section 123 of the Local Government Act 1972 must be complied with. This requires that the proposed transaction is advertised in the local newspaper and all objections to be taken into account before the matter proceeds.
5.2 / There is no evidence of any inappropriate development of any open space in Poole in the last 20 years at least. There is no evidence of any risk of inappropriate development in the future.
5.3 / The Borough of Poole’s open spaces are strongly protected from inappropriate development by planning and recreation policies, strategies and regulations. The open space strategy is there to protect open spaces but also to provide recreational facilities to meet the needs of the population. The provision of sports pitches is a consequence of the strategy that identifies the sporting needs of the local community. On this basis a successful TVG application mayreduce the availability of sporting opportunity and prevent the Council from meeting an identified need. The Council would then have to look for alternative pitch provision.
5.4 / Priorities
It is true to say that the Council has multiple priorities for the use of Council owned land in general including the need for affordable housing and the need to maximise financial return on assets. However in the case of existing public open space the clear over-riding priority is to provide public open space for the enjoyment of local people and visitors. Local people across the Borough and Councillors across the political parties are staunch protectors of Poole’s open space sites, facilities and services.
5.5 / Policies
The Council’s Open Space Strategy 2004 recognises the contribution to other key Council Priorities including people’s quality of life, well-being, physical health and mental health. The Council has recently reinforced and refreshed this work in Setting Green Infrastructure Standards for Poole 2011. Council officers from both Leisure and Planning have been active contributors to the SE Dorset Green Infrastructure Strategy. The emerging Green Infrastructure Agenda recognises the importance of public open space for delivering multifunctionality – this Agenda strengthens the importance of public open space.
5.6 / Improvements
The Council has invested through its Budgets and through developer contributions significant resources in improving open spaces, play areas and sports facilities right across the Borough. Our Supplementary Planning Guidance (SPG) and Policies for collecting and spending developer contributions has been the envy of many other local authorities.
5.7 / New additional open space
Whilst there are no examples of this Council selling off or developing on open space, there are examples where the Council is actively pursuing acquiring additional open space including the normal trickle of land adopted as part of planning developments. This will bring increased costs but is nevertheless considered vital by the Council.
6 / Detrimental Impact of TVG Registration
6.1 / Registration of an area as a town or village green confers a right on the general public to use land for sports and pastimes. Case law [1] confirms that this “does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants”.
6.2 / Currently the Council organises active recreation on many open spaces such as football and cricket. Sports use can entail the exclusion of the general public users of the site from pitch areas during matches and some pitch preparation works. On a TVG site this could be deemed as causing a public nuisance - a criminal offence. If a TVG is approved then these activitiescould be under threat, directly reducing the Council’s services to the community. This reduction of service would also affect income earned by the Council.
6.3 / Currently the Council organises community events in accordance with the Council’s Adopted Community Event Policy (e.g. Circus, Fun Days). These events can involve excluding general public users from fenced or enclosed areas. On a TVG site this could be deemed as causing a public nuisance - a criminal offence. If the TVG is approved then these activities could be under threat, directly reducing the Council’s services to the community. This removal of service would also reduce income earned by the Council.
6.4 / Currently the Council enforces Byelaws on sites e.g. preventing golf practice as a potential hazard to other users. On a TVG site this could be deemed as causing a public nuisance - a criminal offence. If the TVG is approved then these Byelaws may have to be discontinued, directly reducing the Council’s ability to protect users from harm or nuisance.
6.5 / Improvements to sites have been carried out in recent years (e.g. new footpaths, playground improvements andsports facilities) and are planned for the future (e.g. outdoor fitness equipment). Local people could object to such improvements – at best adding additional delays and very detailed consultation, at worst completely preventing improvements that are desirable and may be well supported by many local people and wider users of the Site.
6.6 / The Council has a duty to protect its assets. Although open spaces are strongly protected by Planning and Leisure policy, strategy and regulations, there can be occasions where the Council may properly decide to allow some improvement such as sports pavilions or catering facilities. If a site is registered as TVG all such options are removed permanently, significantly reducing the Council’s ability to improve services and facilities and decide on the management of its land assets in the future.
6.7 / The Legal Advice is that the Council could choose to continue the activities above and may be supported in this by many members of the community. However, it would only take one person to object and the Council would need to take legal advice which might lead to a decision not to defend the challenge, forcing the Council to cease such activities. Because of this it may be considered appropriate to cease certain of the activities upon registration.
7 / Planning Implications
7.1 / The Poole Core Strategy was adopted in 2009 and it provides the overarching vision and policy direction for Poole for the next 15 years. Within it is reference to the importance of our existing public open space to residents, now and in the future. It is Policy PCS26 (v) that recognises the importance of retaining and creating high quality public open spaces.
7.2 / Linked to this are the Site Specific Allocations and Development Management Policies Development Plan Document that is nearing completion, currently at what is called Pre-Submission Stage. Policy DM10 highlights the presumption against the loss of public open space, and to quote part of the Policy:-
Public Open Space and Urban Greenspace
Proposals for development that would result in the loss of public open space or urban greenspace, as shown on the Proposals Map, will not normally be permitted except:-
i)On Public Open Space:-
- Where replacement open space of an equivalent or greater are and value is provided in the same locality; or
- There is an overriding requirement for the development for essential community purposes.
- Greenspace of an equivalent or greater area is provided in the same locality; or
- Its use is complementary to the function of the greenspace.
8 / Legal Implications and implication for the Licensing Committee’s Function
8.1 / General legal implications are discussed throughout the Report. The Motion to Council deals with whether the Council should maintain an objection to the current application regarding Baiter and Whitecliff. Council has the right to instruct its Officers to undertake any action that is lawful and reasonable, after due consideration of Officer advice. At this stage however the Application for a TVG has been made, advertised, and other objections beside those relating to the Council, have been received. As such therefore the Application will run its course and will fall to be determined by the Licensing Committee.
8.2 / Beyond general policy considerations, Full Council does not direct the work of the Licensing Committee. The Committee will have to deal with the matter in the way that it sees fit. Even if Council directs Officers to withdraw the Objection to the Application (which they may lawfully do if they wish) Officers will still be under a duty to advise the Licensing Committee on the Application and whether the Criteria for Registration as set out in the Act is met. This would also apply if the matter were to be considered at a Public Inquiry.
8.3 / In the event that the Motion was to be passed by Full Council, Officer’s advice would be limited to factual and legal assistance and advice rather than a fully advocated “objection”.
9 / Risk Management Implications
9.1 / This Report is highlighting the risks to the Council of allowing public open space to be registered as a TVG – see section 6 for details.
10 / Equalities Implications
10.1 / The best way to protect open spaces for access by all is to resist TVG Status.
11 / Environmental Impact
11.1 / None identified.
12 / Financial Implications
12.1 / Some event and sporting income my be lost if sites become TVGs.
13 / Conclusion
13.1 / Borough of Poole has a strong and enduring commitment to providing, protecting and improving public open space.
13.2 / This TVG Legislation is not intended for this type of site, it is inappropriate and unnecessary.
13.3 / Should public open space in Poole be designated as a TVG the Council may suffer forced reduction in service delivery, reduced income and long lasting severe limitations to its ability to manage its assets.
13.4 / It is therefore considered to be in the Council’s best interests to object to such applications and it may be considered negligent of Officers to fail to take this seriously.
CLIVE SMITH - HEAD OF LEISURE SERVICES
TIM MARTIN - HEAD OF LEGAL & DEMOCRATIC SERVICES
STEPHEN THORNE - HEAD OF PLANNING & REGENERATION SERVICES
ALAN JONES - HEAD OF ASSET MANAGEMENT & PROPERTY SERVICES
Report Version 3: 5/07/2011 Page 1
[1] Oxfordshire Country Council v Oxford City Council HL2006 2AC 674