This item has been called-in at the request of the Ward Representative on the grounds that it is a controversial matter and it is important that the proposal to take the matter forward is carefully considered - further scrutiny of the options would hopefully confirm that this proposal from Council officers is the best solution for the problem and that the authority would be acting with the wider interests of the local community at the forefront of its considerations.
The following documents are attached for information:
Copy of the Executive Decision Notice as published and called-in
Copy of the report
Minutes:
The Chairman asked the Vice-Chairman to introduce this matter as he had ‘called in’ the decision. A note outlining the reasons for the call-in had been tabled. The Vice-Chairman advised that Councillor Armes had been dealing with the issue as Ward Member and he asked her to speak on behalf of residents.
Mrs Armes explained that the problem had commenced in 2010 and she had become involved following her election as one of the Ward Members for Saxon Ward in 2011.
As no Commission Members had visited the site she passed round photographs to give a sense of the area of dispute. This formed part of a piece of wooded land belonging to Breckland Council on which ‘Mr R’ had been parking his cars. At times access to two footpaths had been blocked.
Mrs Armes asked why enforcement action had not been taken at an early stage. She considered that the Authority had not been sufficiently strong in preventing misuse of its land. If that land was now sold at auction she believed it would set a dangerous precedent. There was little amenity space in the area and the woodland was much used by residents. If the land was sold she thought other residents might apply to purchase parts of the land to extend their gardens.
She reiterated that it would be wrong to auction the land and to continue to allow its use for parking. She suggested a site visit.
The Vice-Chairman said that it was clear that there were a number of issues in the area which were complicated by neighbour disputes. There were two principle issues:
had the misuse of the land been addressed robustly enough; and
was an auction the fair way to deal with disputed land?
He had called the matter in because he thought it would set a precedent and because he knew that residents did not feel that it had been enforced properly and that the sale was just to resolve the dispute. On the contrary, he thought that the sale would escalate the problem and be a tacit endorsement of the misuse if sold to the person flouting the law. It was also unfair as there was no regard to the ability to pay.
If it was the Council’s approach to dealing with members of the public who abused Council land not to protect that land, what was to stop abuse of further areas of land? Would future enforcement action be compromised? He thought it was important to debate the Council’s responsibility for protecting public land.
The Chairman noted that the Council did not get involved in neighbour disputes and that it was the issue of selling the land that was to be debated.
The Executive Member for Assets & Strategic Development sought to put the matter into context. He said that the Council owned over 5000 pieces of land in Breckland. The unfortunate Land Management Officer had the onerous job of controlling those 5000 pieces of land.
The Active Land Management exercise had identified a lot of encroachment which had not always been known about before. The piece of land under discussion was designated open space. It could not be sold for any other purpose, so any applications for extensions to gardens would not receive planning permission for change of use.
The Land Management Officer gave some background information. The encroachment was on a small part of a relatively large area of land. When a complaint had been received the internal encroachment procedure had been initiated and external legal advice had been sought.
The recommendation by officers to Members had been to dispose of the small piece of encroached land as it had no strategic importance to the Council and was protected as open space. It had minimal value and its sale would relieve the Council of management and maintenance responsibilities. Under the Active Land Management scheme the Council was seeking to dispose of land identified as having no strategic value.
The Asset & Property Manager confirmed that the enforcement option had been considered but would have been a very costly route both in management time and cost resources. It was a small piece of land with nominal market value, designated as open space and with no strategic value but high management cost. He urged the Commission to consider carefully that if it was retained and enforcement action taken that would come at a price. The pragmatic and business like solution was to dispose of the liability giving equal opportunities to bidders to purchase it.
The Executive Member for Assets & Strategic Development noted that in paragraph 1.3 of the report it referred to an easement by prescription which meant that even if enforcement action was taken Mr R might retain the right to park on the land.
Mr Bambridge sought confirmation that if the land was sold public access to footpaths could not be blocked and the land could not be fenced. It was confirmed that without planning permission for change of use fencing could not be erected.
Mr Carter thought that the land did have a value and that selling it would just shift the responsibility and cost.
Councillor Bowes asked if it would set a precedent if the land was sold and asked if other pieces of land had been sold by auction. The Executive Member for Assets & Strategic Development said that some land was being sold as people made applications. Other land had been transferred to Parish Councils at nil consideration. Some people had attempted to register land with the Land Registry because they had fenced it. It was a very difficult job for the Land Management Officer.
The Chairman was concerned that even if the land was sold, the Council might be required to take enforcement action if Mr R continued to park on it as it would be a breach of planning law. The Executive Member disagreed, saying Mr R would not require planning permission to park his cars if he had a prescriptive right. He went on to say that he made a lot of delegated decisions and he considered each one carefully. He had thought that selling the land was the best option in this case.
The Vice-Chairman sympathised about the number of pieces of land and the problems associated with them. However, in this case the residents had approached the Council for support in protecting the land and had not received it. The lack of action had increased the cost.
He was saddened by the language used; saying the land had no strategic value when it was obviously valuable to the residents. The Council had a duty to protect Public Open Space. The prescriptive right had not been determined. The real issue was that there had been encroachment onto Council land and nothing had been done about it.
Mr Bambridge was concerned that the purchaser of the land could apply to move the Rights of Way but it was confirmed that the footpaths did not actually cross the land.
Mrs Jolly noted that although the land to be sold was very small it formed part of a much larger area which might have future strategic value as a ransom strip.
Mrs Matthews wondered why the problem had only come to light now if the parking had been taking place for 20 years.
The Chairman thought that the nub of the issue was that the recommendation was based on there being a ‘likely’ prescriptive easement. He did not think a decision should be taken without unequivocal evidence. It was clear that the land did have importance to the people in that part of Thetford. If there was no prescriptive right and the land was sold and the owner stopped public use it would be a problem for the Council.
Mr Kybird agreed and said that the factory site to the rear had potential as a redevelopment site which enhanced the land’s strategic value in terms of providing additional access to that site possibly by a cycle way in future.
Mr R Richmond completely agreed. Mr Joel asked what alternatives were available.
The Scrutiny Officer advised that the Commission could recommend that the decision maker reconsidered their decision or refer the matter to Council.
The Land Management Officer advised that the correct process had been followed regarding enforcement and legal advice had been sought. She could only give advice on the information she had been sent. That information was limited and had been supplied by the complainant. The amount of years that the land had been used as a car park was not known. The Solicitors acting for Mr R said that they believed he had a prescribed right. They had not provided any evidence.
The Chairman asked the two Ward Members what evidence they had and Mrs Armes advised that Mr R had lived in the house for 13 years but she could not say how long he had used the land.
Mr Rogers proposed that the matter be deferred and Mr R asked to produce evidence. Mr Kybird said that Mr R would have to prove that he had encroached on every piece of the land.
The Executive Member explained that the Council had no legal right to ask Mr R to prove his prescriptive right.
Members debated the possibility of taking enforcement action or of putting in posts to restrict access to the land. It was pointed out that they were likely to lead to costs for the Council. Another suggestion was to offer the land to the Town Council, but the Land Management Officer advised that the Town Council were unwilling to assume responsibility for land with any encumbrances.
The Vice-Chairman seconded Mr Roger’s proposal to defer the application and the Executive Member was happy with that and hoped that the necessary information would be forthcoming.
RESOLVED to defer the decision and delay the sale until the matter could be reconsidered with more evidence on the period of time that the land had been used by Mr R at the next meeting of the Commission.
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