TOWN GREEN APPLICATION – HEARING 19.2.2013

When Westover residents Tricia Walsh and Trevor Monaghan, supported by over 50 witness statements from local people, submitted an application to Somerset County Council for the Brewery Field to be registered as a Town Green in July 2011, they were making a stand against Sedgemoor and it’s plans to devastate their community with a massive Supermarket. The Town Green application was based on the legitimate claim that a significant number of local inhabitants had indulged in lawful sports and pastimes as of right on the land for at least 20 years.

For Sedgemoor District and Somerset County Councils – who stood to lose millions should this mean that their development plans for Northgate were jeopardised, they had to take this challenge seriously and threw everything they had at them.

Sedgemoor Objects

Somerset CC publicised the application in the local press and invited comments and objections. Only one objection was lodged by the deadline -this was by Sedgemoor DC itself. The Council claimed the Brewery Field did not meet the required criteria to be registered as a Town Green, principally because the Council claimed it was held for leisure purposes under the Open Spaces Act and that the public therefore had the right to use it anyway because this was the purpose for which it was held by the Council.

For almost two years this application sat in the background awaiting it’s turn amongst the other similar applications …to be dealt with by Somerset County Council.

Somerset changes the rules

In October 2012, completely out of the blue, Somerset CC took a report to its Regulation Committee recommending that a priority system be introduced allowing applications for registration as a town green to be prioritised in exceptional circumstances. Up until then, they had always been processed in date order of receipt. Apparently the County only has sufficient funds to allow one Non-Statutory Public Inquiry to be held each year. Hence it could take many years for the current backlog of some 7 or 8 cases to be dealt with.

At the end of November 2012, the Applicants were told by the County Council that it had been decided to prioritise the Brewery Field town green application and that this meant it had gone to the top of the list for a Non-Statutory Public Inquiry from being second to bottom out of 8.

On further enquiry it emerged that the decision to prioritise the Brewery Field town green application had been taken just days after Tesco’s planning application for a Tesco Extra Store at the Northgate Site, which includes the Brewery Field, had been registered by Sedgemoor on 1st November. It also became clear that the County Council had prioritised the town green application using a criterion which had not been approved by its Regulation Committee. When the applicants pointed this out, the County Council claimed that although this criterion had not been included in a revised proposal approved by the Regulation Committee it still applied because it was included in the original report.

The Applicants therefore lodged a formal complaint about this matter.

Tesco granted planning permission

On February 12th 2013 Sedgemoor District Councils Development Committee gave Tesco planning permission for it’s store and within a week the Town Green application Inquiry was now to be held – it’s rejection would give Tesco the final green light to proceed with it’s development.

Whilst the Applicants of course support holding a Non Statutory Public Inquiry (NSPI) which is what they’ve been working towards, they pointed out that it would be unfair on them and on other town green applicants to hold such a NSPI in advance of the outcome of their formal complaint. However, the County Council refused to cancel the NSPI scheduled for 19 February. In consequence, the Applicants gave notice that neither they nor any of those who lodged witness statements would attend any NSPI held in advance of the outcome of their formal complaint.

Westover Councillors and other Residents who had planned to give evidence agreed to support this position and therefore refused to take part in the NSPI.

Nevertheless the hearing went ahead. Westover Councillor Brian Smedley turned up as an observer to make a full report of the proceedings which are reported below.

Pantomime season

The Inquiry lasted from 10 to 5 with a hour break 1-2 and was held at the Pantomime hall off Wembdon Road (in Westover ward)
Presiding was Paul Wilmshurst, looking very young -probably because he was. Sedgemoor’s case was presented by top Barrister William Webster, both, in fact, from the same Chambers until less than a month ago and having jointly written 4 publications and presenting seminars on managing such applications as Town Green registrations, addressing mainly Local Authorities. So clearly eminently qualified.

SDC went in with a sledgehammer and had 6 officers present to give statements – Lynne Meadows (Legal/planning), Harley Cook (parks and open spaces), Tim Mander (property), Lianne Clark (Health) James Presdee (Clean Surroundings-standing in for Karen Barnes) and Nick Tait (planning). Melanie Wellman (the ‘instructing solicitor’) sat beside Webster. On this occasion Melanie spoke not a word and merely acted like a gopher for him throughout. Doug Bamsey sat speechless on the front bench for the duration presumably dreaming of a future job stacking shelves at his dream supermarket. County had sent along Laurence Smith as at the end of the day the Inspectors recomendation would go to them via their Regulations Committee (who could even at that stage choose to reject his findings).

Absence of the Applicants

The event started with the Inspector noting the absence of the Applicants and deciding to go ahead nevertheless. He said he would treat it as a request for an adjournment. He then rejected any request for an adjournment.

He said he would proceed thus 1. Applicant 2. Objectors 3 applicants evidence and witnesses 4. Objectors evidence and witnesses 5. Cross examinations 6. Members of the public who wanted to speak 7. Applicants final say. He then immediately amended this as the applicants weren’t there and said members of the public could speak first those for and then against. Then the Objectors could present their witnesses.

From the floor Labour Councillor Pat Morley called out that this amounted to a ‘kangaroo court’. She was asked to be quiet.

Wilmshurst then explained his decision to proceed despite the applicants not being present. He said he had seen all the correspondence , the last of which was 15 Feb and they had not raised issues about lack of time to prepare or personal circumstances and so would assume that their complaint was that ‘to prioritise is unfair’ which he rejected. He noted that the decision to prioritise was made at SCC on 8 Nov 2012 and had been subject to in-house review. He asked if Webster accepted the application to adjourn. Obviously he said he didn’t therefore Wilmshurst concluded that there was no procedural unfairness and the applicants had simply ‘chosen not to turn up’. He would therefore give the public present a chance to make the case in lieu of the applicants and they could speak first.

The Public has it’s say

Members of the public – largely Bob Cudlip, interjected constantly and Mr C was singled out by the inspector to be more silent and less rude. Webster was then challenged by members of the Public for hiding behind a large box – which in fact it took a direction from Wilmshurst to get him to move so people could see him.

Members of the Public who turned up unaware or unsupportive of the Applicants decisions not to attend the hearing, then took up their right to address the meeting. Jeff Harding (a Brewery Field area resident) spoke first and mentioned the original field should be considered to be larger as it included part of the current car park but which had been extended. He said this area had always been an open field and that it had been bought in the 60’s by Bridgwater Borough Council (BBC) but that SDC held the title deeds since the 70s. Webster had no questions.

Bob Cudlipp, next up, said he’d played cricket on Brewery field in the 70s and said that billions could be saved in health care costs if we protected our open spaces. He further requested a site visit. Wilmshurst told him he would personally make a site visit but members of the public couldn’t attend, only reps of the applicant and the objectors. Webster had no questions.

Sue Bartlett of Mount Street said she’d come as an observer and said she felt SDC were just the custodians of the Field and asked ‘why take this green land?’. Webster had no questions.

Pat Morley, a Labour councillor for Fairfax but now living in Westover, said she’d lived in Bridgwater since 1980 and had enjoyed Brewery Field all that time and it was never bounded or fenced. She had attended events there including festivals and cricket. She also said she felt it unfair that the hearing hadn’t been adjourned. Wilmshurst asked her a series of questions about the events she had attended – dates, had she paid charges. She couldn’t remember dates but said she had never paid. She recalled an event when the Friends of British Ulster had burnt a British flag there-and then couldn’t work out why they had done this. (Cllr Smedley reminded her that this was in fact an Irish tricolour and was in November 1986).

John Goddard who lived at Quayside,spoke in favour of the application. He had already signed an evidence statement and presented photos of marquees and football being played on the Brewery Field. However, he couldn’t confirm the 2009 date on the photos he presented when Webster cross examined him on them.

Alec Western said he didn’t represent any group or party and was there to weigh up the issues. He felt Brewery Field was one of the focal areas in Bridgwater. In particular he was there because he was concerned about the lack of transparency in SDC dealings over Northgate generally and pointed to his own case of censorship by SDC department. Wilmshurst asked for copies of the censored and uncensored versions which Mr Western said he would provide. He then engaged in a personal attack on Websters perceived attempts to conceal himself behind a box which the barrister contested. (Although his body language was now showing signs of not wishing to be there-legs were shaking wildly under the table). Mr Western also questioned Websters suitability for the role as when asked by Paul Wilmshurst for a colour copy of page 186 of the documents held he claimed he had presented a false reply stating that the poor copy held by Paul Wilmshurst was “The best of what is available” and proceeded to dismiss the request. Ms Wellman then provided a colour copy for Paul Wilmshurst from her own file copy. Mr Western went on to say the press had run a campaign which seemed to support the council view that Brewery field was an eyesore. He further said the current hall had no disabled access. He added that open space was to be treasured and not diminished. Webster suddenly went onto the attack as if he was on Judge Judy and had just got to the bottom of a heinous crime, and asked him if he had met the applicants Tricia Walsh and Trevor Monaghan. Mr Western said he didn’t know if he did as he met lots of people and they knew him as he was very visible (Mr Western has a very big beard) . Wilmshurst asked him his view. Mr Western said he personally felt the site shouldn’t be built on. Webster asked him if he would now phone up the applicants to get them to turn up. Mr Western said he didn’t know their phone number. Webster -in that ‘lawyers winning flourish’ offered to give him the phone numbers. Mr Western said it was nothing to do with him. Webster, hestitating slightly, said ‘what about helping us to phone them?’. Mr Western said he would help Mr Webster if he paid him. Webster asked how much. Mr Western suggested £1,000 a day which he added ‘might be what Mr Webster would ask himself’.

John Cockle (a resident of Anson way) then spoke against the application. He was a resident and walked his dog on the field . He was not opposed to Tesco, he thought the Brewery Field was just a public toilet and the kids have everything they need at Victoria Park anyway. Webster had no questions.

Blue Owl chirps up

David Preece, a man on a mission (sadly, not to Mars) had turned up to continue his Crusade in support of Tescos, Sedgemoor and Conservatism, and put his own case against. He said he had only ever been to Brewery Field 6 times in his life and described it as an ‘anti-social field’ .He added ‘I was a councillor for 8 years but then the conservatives lost but I enjoyed doing that for the good of the town’. (we couldn’t have put that better ourselves…). He continued that he’d heard a lot from the ward councillors but where were they today!!

Cllr Brian Smedley then made a statement of explanation. ‘Ward councillors are not attending today. This is because we support the decision by the applicants not to turn up until their serious complaint has been addressed. However, were they to be present I would be delighted to attend and speak in support of the town green application, until then I agree with the earlier statement that this just looks like a kangaroo court’.

Webster asked if he would answer questions but Cllr Smedley said no, he was just an observer.

Wilmshurst then went to great lengths repeating his earlier reasons for proceeding and ignoring the applicants complaints and assured the meeting that the procedure was correct and the hearing was fair.

There was then a lunch break.

The hearing reconvened at 14:10. Less people were now in the audience.

Sedgemoor troops file in

Lynne Meadows (SDC legal) confirmed that Bridgwater Borough Council (BBC) had obtained Brewery Field from Oct 1966 to March 1974 and it was transferred to SDC in April 1974.

Harley Cook (SDC Parks and Open spaces) said he had been a gardener for BBC and worked for SDC for most of the rest of his working life. He confirmed it’s use as a football pitch until the 1980’s- but this had changed after complaints from Anson Way in 1984 to the Leisure & Recreation ctte-which basically ran Brewery Field and others at the time until the committee structure was changed in 2003 to the current Portfolio/Cabinet . He said Brewery Field had always been managed by SDC as a public open space. He said there were plans for a skate park there but these were pulled due to subsequent plans for development of Northgate. He said he was satisfied that the 10.7% loss of the field was appropriate.

Tim Mander (SDC Property Management) 27 years at SDC. He listed quite a lot of events on the Field over the years including two Waterways festivals, Carnival club hires, cricket, football, kids play schemes, family fun days, picnics, plus even some SDC ‘corporate games’. He said the Field had been reduced when the Splash had been built. He listed many signposts on the field from SDC prohibiting golf balls etc.

Lianne Clark (SDC Health promotions) repeated Mr Mander’s points about kids play schemes and corporate games.

James Presdee (Clean Surroundings) was a late substitute for Karen Barnes (hirings & bookings) who was absent for personal reasons. He read her statement and then answered questions himself. He confirmed that before Clean Surroundings the hirings were run by Sedgemoor Services (the aptly named ‘contracting’ arm of SDC). He described a schedule of regular maintenance.

The Legal arguments start

At this point the day was drawing to a close and a snoozing Nick Tait was still waiting to be heard. Wilmshurst chose this point to sum up where they were before hearing Mr Tait. He was basically intending to close the proceedings today and ask Webster for his closing remarks in writing. This of course wasn’t popular with Webster who protested about lack of time but said he could ‘see how this way would be beneficial for the applicants in their absence’.

Anyone without a degree in Law might at this point wish to turn on the Jeremy Kyle show, however, for those who think they can understand it, there follows 8 listed points which Wilmshurst said he would like Webster to address for him to consider in his recommendation.

1. What is the statutory history of Sect 125 Local Gov’t Act 1933 (p.54). He was concerned about anything that might have been an aic successor in terms of holding powers or was this just the 1972 LG Act.
2. What is the importance of the bye laws put in place over this land and why should he come to a different conclusion to Leslie Bloom case in Mudford Rd, Yeovil -which was apparently some ‘applied appropriation’ argument.
3. In the case of Malpas and Barkas which went to the court of appeal, what would amount to an appropriation is sufficient to defeat ‘user as of right’. He pointed out that the judge had accepted ‘Mr George’s’ submission. WW said that Malpas was not good law and a judge could have come to another conclusion
4. He wanted to look at the Mann v SCC case in respect of charging and/or physical exclusion and in relation to implied permission.
5. He also wanted to look at it the Mann case only applied maybe in relation to trespass.
6. In the current case he was interested in clarifying any interim holding powers.
7. He wanted clarification of the Mann case and some ratio of if this applied without alteration of land in public ownership.
8. In terms of public ownership he wanted to know what was to be made of the maintenance of the land by the LA and if this was further evidence of implied permission. He wondered how he could ‘marry together’ Beresford and Mann in the context of land that is publically owned.

A lengthy and technical discussion ensued between Wilmshurst and Webster on what was good and bad law. Webster said his basic starting point was that the Brewery Field was appropriated to the L&R ctte in 1974 ? but conceded the problem of basing this on ‘lost or mislaid’ documents.

Wilmshurst said that due to the complexities of the case he would give 14 days for a written submission. For him the 2 crucial cases were Mann (a Somerset case) and Barkas (subject to appeal to Supreme court). He said that his provisional view was to address the instruction for SCC ref 15:2 and he felt that planning issues were not relevant.

SDC Barrister asks for ‘special weight’ for planning issues

Webster attempted to move the case into the realms of planning by saying that “What was at stake was the growth, jobs and regeneration dependent on this decision” and to which the inspector “should give special weight”. Wilmshurst asked if that was relevant to 15:2. Webster conceded that it wasn’t and so decided to call his final witness Nick Tait – presumably so that he could get firmly back on the planning issues which he had just been told were not relevant.

Nick Tait (SDC planning policy) spoke at length about the value to SDC budgets and economic strategy for the Tesco Development to go ahead and how it would be denied a serious capital receipt if the town green status were to be granted. He listed the historic process .

• 2011 19 Jan SDC executive recommended that the site be sold to Tesco
• 2011 28 Jan SDC Full Council approve this disposal
• 2011 8-15 March proposals advertised for possible objections
• 2011 30 March the decision was reviewed and confirmed
• 2011 9 June Corporate Director Doug Bamsey approved the disposal of Brewery Field.
• 2011 28 June Bamsey’s decision was called in by Corporate Scrutiny and this confirmed decision
• 2011 14 Sep – SDC Executive approved change of use of Brewery Field from open space to planning use
• 2011 5 Oct a Development Agreement was signed with Tesco
• 2012 25 Sept Tescos Planning application was received
• 2013 12 Feb The SDC Development Control committee approved planning permission

Mr Wilmshurst concluded by saying he was very concerned at the importance of Malpas. And with this he closed the meeting until 14 days hence.