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IN THE MATTER OF AN APPLICATION BY MR MARTIN REDSTON
TO REGISTER LAND AT:
WILLESDEN GREEN LIBRARY CENTRE,
WILLESDEN GREEN
AS A TOWN OR VILLAGE GREEN
INSPECTOR’S REPORT
Paul Brown QC
Fiona Ledden
Director of Legal and Procurement
London Borough of Brent
Town Hall Annexe
Forty Lane
Wembley HA9 9HD
Ref: Horatio Chance
INTRODUCTION
1.
This Report relates to an application (“the Application”) to register land (“the Site”)
outside the Willesden Green Library Centre (“WGLC”) as a Town or Village Green
(“TVG”) under s.15(2) of the Commons Act 2006.
2.
The Application was made by Mr Martin Redston on 20 April 2012, and was
objected to by the London Borough of Brent in its capacity as landowner (“the
Council”) and Linden Homes Limited/Galliford Try (“Linden”). Linden’s interest
in the Application arises because Galliford Try is the Council’s development
partner in proposals to redevelop the WGLC and associated land. Linden Homes is
part of the Galliford Try Group. I shall refer to the Council and Linden collectively
as “the Objectors”.
3.
Ultimate responsibility for deciding whether the land should be registered rests with
the London Borough of Brent, as Registration Authority. On 28 November 2012 I
received instructions from the Registration Authority to act as the independent
inspector at a non-statutory public inquiry into the Application, and to prepare a
report setting out my findings and recommendations.
4.
At the time of my instruction, it was envisaged that the Inquiry would commence
on 17 December 2012, and on 29 November 2012 I issued directions for the
preparation and exchange of evidence according to that timetable. However, on 6
December 2012 I received a request from Mr Redston for a postponement of the
Inquiry on the grounds that he had received insufficient notice of the Inquiry and
needed more time to prepare his case properly, and to arrange for the attendance of
witnesses in support of the Application. In a written ruling dated 11 December
2012 I agreed to that request, set aside my previous directions and ordered that the
date originally scheduled for the start of the Inquiry should instead be used to
conduct a Pre-Inquiry Meeting at which a new timetable for the exchange of
evidence and submissions could be considered.
2
5.
Following the Pre-Inquiry Meeting I issued fresh directions for the preparation and
exchange of evidence and legal submissions prior to commencement of the Inquiry
on Monday 11 February 2013.
6.
Pursuant to the revised directions, I received the following documents:
(1)
From the Registration Authority, a Core Bundle containing the Application
(together with supporting documentation); the objections to the Application,
and Mr Redston’s reply to those objections (“the Core Bundle”);
(2)
From Mr Redston:
a. A folder containing a written statement from Mr Redston together with
Appendices A and B (comprising a list of the relevant case-law; and plans
identifying the Application Site, the relevant locality and the
“neighbourhood within a locality” which were at that stage relied upon)
(“the Red Folder”);
b. A folder containing, as Appendix C to his own statement, the written
statements relied upon by in support of the Application (“the Blue
Folder”).
Some of these written statements also formed the basis of
evidence presented by Mr Redston’s oral witnesses;
c. A folder containing, as Appendix D to Mr Redston’s statement, plans of
the proposed development of the WGLC site together with comments
from members of the public which had been received by Brent (as local
planning authority) (“the Purple Folder”);
d. A folder containing evidence in rebuttal of the statements produced by the
Council and Linden (“the Black Folder”).
(3)
From the Council:
a.
a folder containing the statements of witnesses for the Council
(“the Council’s Evidence”);
3
b.
a further folder containing copies of documents referred to by
those witnesses (“the Council’s Appendices”);
(4)
From Linden, a witness statement from Mr James Entwhistle, together with a
separately bound set of Appendices (“Linden Volume 1” and “Linden
Volume 2” respectively);
7.
(5)
Statements of the legal propositions to be relied upon from all three parties;
(6)
A Statement of Common Ground signed by Mr Redston and the Council.
The Inquiry was held at the Willesden Green Library Centre over 4 days between
11 February 2013 and 14 February. The first three days were taken up with hearing
evidence, the fourth with the closing submissions of the parties.
8.
Given the proximity of the Site to the Inquiry venue it was agreed by all parties that
there was no need for me to conduct an accompanied site visit. I visited and
viewed the Site every day on my way into and out of the Inquiry, and at lunch
times.
Outside Inquiry time but over the four days of the Inquiry I walked
extensively around the neighbourhood which had been identified by Mr Redston as
the relevant “neighbourhood within a locality” for the purposes of s. 15(2).
9.
This Report is divided into 13 parts, as follows:
(1)
Introduction;
(2)
The Legislative Framework;
(3)
The Application;
4
(4)
The Application Land;
(5)
The Evidence in Support of the Application;
(6)
The Evidence on behalf of the Objectors;
(7)
Additional material
(8)
Relevant Law;
(9)
The Case for Linden;
(10) The Case for the Council;
(11) The Case for the Applicant;
(12) Findings;
(13) Conclusion and Recommendation.
5
THE LEGISLATIVE FRAMEWORK
10.
In so far as it is relevant to this application, Section 15 of the Commons Act 2006
provides that:
“(1)
Any person may apply to the commons registration authority to register land to which
this Part applies as a town or village green in a case where subsection (2), (3) or (4)
applies.
(2)
This subsection applies where –
(a)
a significant number of the inhabitants of any locality, or of any neighbourhood
within a locality, have indulged as of right in lawful sports or pastimes on the
land for a period of at least 20 years; and
(b)
they continue to do so at the time of the application.”
6
THE APPLICATION
11.
The Application was made on 20 April 2012. I draw attention to the following
points about it:
(1)
It was made under section 15(2) of the Commons Act 2006;
(2)
It described the “area of land in respect of which the application for
registration is made” as the:
“Front courtyard of Willesden Green Library Centre”
(3)
The “location” was given as:
“Land at front of 1983 library and to rear of 1894 library buildings. Bounded by
Brondesbury Park and Grange Road, NW2”.
(4)
The “locality or neighbourhood within a locality” in respect of which the
application was made was described as:
“Willesden Green Ward, Willesden High Road London NW2, London Borough of Brent.
Situated at Library in High Road.”
(5)
The “justification for the application” was given as follows:
“The paved area has been used by the general public ‘as of right’ since at least 1986. The
courtyard was created as a result of constructing a new library building towards the rear
of the site. The original 1894 library was partly demolished and a substantial section was
retained within the conservation area along Willesden High Road.
Since its creation it has been used by thousands of members of the public as a right of
way and thoroughfare between Grange Road, Brondesbury Park, the Library and the
Bookshop. Typical pastimes and leisure pursuits include:
7
Walking, meeting, public art, French market, farmers market and the like. A festival for
St Patrick’s Day is also held every year.”
12.
Mr Redston has since refined or amended certain aspects of the Application. In
particular:
(1)
He has corrected the description of the application area from “the front
courtyard of WGLC” to “the Town Square” or “the Public Square”.1 His
written evidence explains that his original description was a general statement
“because the open space had never been given an official name”, and that he
“did not mean to imply that it was simply a courtyard that people walked
across to get to the Library Centre”;
(2)
He asked to amend the “neighbourhood within a locality” in the following
respects:
a. Whereas the application form relied upon the Willesden Green Ward, his
original written evidence provided a map (called “Map A”)2 which
showed an area bounded by Mulgrave Road, Kendal Road and Anson
Road to the north; Lydford Road to the east; Sidmouth Road, Donnington
Road and Pound Lane to the south; and Colin Road and Dudden Hill Lane
to the west.3
b. In his Rebuttal, Mr Redston provided a revised version of Map A in which
the eastern boundary did not run along Lydford Road, but was moved
slightly to the east so that it cut across roads such as Dartmouth,
Teignmouth and St Gabriels Road somewhere between Lydford Road and
Dawlish Road.4 I shall refer to the revised version as “Map A”.
1
Redston para 3.1, Red Folder p. 2
Red Folder p. 13
3
Redston para 3.2, Red Folder p. 2
4
Black Folder p. 189
2
8
Comparison with a plan showing the electoral wards for the area5 shows that,
in contrast to the original application, both these revised “neighbourhoods”
exclude approximately half6 of the Willesden Green Ward, but include parts
of the wards for Dudden Hill, Mapesbury and Brondesbury Park. While the
Objectors made submissions about whether the area shown on Map A could
be a “neighbourhood” for the purpose of s. 15(2), no objection was taken to
the amendment and I allowed Mr Redston to make it.
(3)
Finally, Mr Redston made it clear that his original reference to the use of the
site as a “right of way and thoroughfare” was not intended to suggest that use
as a right of way amounted to a “lawful sport or pastime”.7 Rather, he
contended that it had been used as a right of way as well as a TVG.
13.
No-one objected to any of these amendments or refinements, and the evidence and
argument at the Inquiry was presented on that basis.
5
Linden Vol 2 p. 2
In geographical terms at least. I note that the ward includes the significant area of Roundwood Park, and I
have no figures for the proportion of the population of the ward which is caught by the revised boundary. It
does not seem to me that anything turns on this.
7
Redston para 3.3, Red Folder p. 3
6
9
THE SITE
14.
As noted above, the Site is the area of land which lies between the WGLC building
and the rear of the Victorian building (“the 1894 library”) which sits on the corner
of Brondesbury Park and the High Road. The Site is bounded on the west side by
Brondesbury Park, and on the east by Grange Road. A precise map can be found in
Mr Redston’s evidence (“Map C”).8 The Site does not include either the pavement
on the WGLC side of Brondesbury Park or the pedestrianized area of Grange Road.
In essence, this means that the eastern boundary of the site is the extrapolation of
the outer edge of the WGLC building towards the High Road, as far as the back
wall of the 1894 library. I have taken this to be the outer edge of the area shown on
Map C as “paved edging” between the central area of the Site and Grange Road.
Mr Redston has estimated the boundaries to be roughly 27 metres in length and 30
metres in width.
15.
To the rear of the 1894 library, the front of the WGLC and in the area between the
front entrance to the WGLC and Grange Road there are raised beds which have
been planted.
The retaining walls are constructed of brick.
As originally
constructed, the tops of these walls were finished with a course of flat coping
stones. In most places, this remains. However, in the immediate vicinity of the
entrance to the WGLC a further course of bricks with a pointed top has been added.
It was generally understood by everyone at the Inquiry that this work had been
carried out to discourage people from sitting on the walls in these areas (although
precisely which group of people was less clear9).
16.
The land between the WGLC and the back of the 1894 library slopes down towards
the High Road. This is also true of Grange Road, but the slope on Grange Road is
less pronounced.
8
9
Red Folder p. 15.
see discussion at [495] below.
10
17.
Access to the Site is freely gained from both Brondesbury Park and Grange Road.
It is common ground that access is possible 24 hours a day, 365 days a year. There
are no signs anywhere to indicate that this is privately owned land or that access to
it is restricted or is allowed by permission of the landowner.
The only two
potentially restrictive notices are a sign on the flank wall of the 1894 library (onto
Grange Road) telling people not to feed the pigeons, and two signs (one facing
Grange Road and one facing Brondesbury Park) which notify the existence of a
“Drinking Control Area”.10 The latter do not themselves prohibit the consumption
of alcohol within the area, but state that “A Police Officer can require you not to
consume alcohol in this area”.
10
See photograph at Annex A
11
EVIDENCE IN SUPPORT OF THE APPLICATION
18.
Evidence in support of the application was provided to me in four main forms:
(1)
The material which accompanied the original application;
(2)
Witnesses called by Mr Redston to give oral evidence;
(3)
Written Statements appended to Mr Redston’s own evidence;
(4)
Oral and written evidence from other parties who supported the application
but were not formally called by Mr Redston.
19.
The following is a summary of the main relevant points which emerged from the
written material and the oral evidence of the witnesses who gave evidence in
person.
The Material Submitted with the Application
20.
The documentation submitted together with the Application included the following:
(1)
Photographs of street markets and what appeared to be an “art installation” on
the Site;
(2)
Copies of a form, signed by 36 people (on 8 different pages), the pro-forma
parts of which stated that the signatories were “established users of the
current open space” who understood that it had been “open to the public for at
12
least twenty years for lawful recreational activities pastimes and other
community activities.” Of the signatories: 11
a. 16 said they had known the Site for 20 or more years; 1 for 18 years; 7 for
between 10 and 15 years and 2 for 6 years or less.
b. 21 had attended one or more markets; 9 had been to arts events/look at
public art/to see art installation; 5 had been to the St Patrick’s Day Parade;
5 had used it as a public seating area; 4 had been to one or more festivals;
4 had used the Site for socialising or to meet friends; 2 had used it for
petitioning; 1 had used it for debates; 1 for walking; 1 for “kids play”; 1
for football; 1 said it was good for mothers with small children; 1 had
attended the Wassail/ apple tree planting ceremony.
21.
In an e-mail dated 28 August 2012, responding to the objections to his Application,
Mr Redston also referred to the fact that Wassailing has occurred in 2010, 2011 and
2012.12
Witnesses called by Mr Redston13
a. Miss Elizabeth Proud, 3 St Gabriel’s Road NW2 4DS14
22.
Miss Proud has been a resident of Willesden Green for 42 years. She lives at the
eastern end of St Gabriel’s Road, near Walm Lane. St Gabriel’s Road is in the
Mapesbury ward, but the Site is not. Mrs Proud described herself both as a resident
of Willesden Green and as living in Mapesbury. She explained this by reference to
11
The numbers given may not be exactly correct, since the handwriting on the forms is not always easy to
read and some signatories have simply said “as above”. In broad terms, however, the figures given an
indication of the range of activities carried out and the relative number of people who have participated.
12
Para 8.1 at Core Bundle p. 32
In the order in which they were called
14
Statement No. 44, Blue Folder page 82
13
13
the designation of the Mapesbury Conservation Area, rather than the ward. Before
designation, she would have described herself as living in Willesden Green, but the
designation of the Conservation Area had given Mapesbury a greater sense of
identity. There was a Mapesbury Residents’ Association which had members from
roads such as Dartmouth, Teignmouth and Chatsworth Roads, but membership also
extended down to Blenheim Gardens, Chandos Road and Riffel Road. However,
for postal purposes she gives her address as Willesden Green because the postman
would not know where Mapesbury was.
23.
When asked what she regarded as the boundary of Willesden Green on St Gabriel’s
Road, Miss Proud said that she thought it went beyond the actual signage and
extended as far as the A5. St Gabriel’s was a line of houses running west to east,
all of which were broadly the same.
24.
Before 1983, Miss Proud used the old Willesden library. During the construction
of the new Willesden library, she went to Cricklewood instead, but moved back
once the new library was in use, largely because of the bookshop.
25.
Her own use and experience of the Site could be divided into 3 main periods.
When the new library was opened, she was working for BBC Radio Drama as a
freelance writer. Whenever she was writing at home she would get up at around 5
am, work for 3 hours, have breakfast and then work for another hour. After this she
would need a break. She would then come to the Site. The walk would take her
15-20 minutes and she would usually be out for “at least an hour”. Allowing for
the fact that she might do some shopping on the way home or go to the library to
drop off or pick up a book, she would spend about 15 minutes at the application
site, unless she found someone to talk to. When she was writing at home, she
would do this every day, if the weather was fine. When she was working in the
studio, she might not come for a whole week. Although she might use these trips to
visit the library or the bookshop, they were not the focal point of her outing.
14
26.
Once at the application site, she would not do anything important, but simply liked
to “switch off” and do “trivial things” like “mooch about”. Sometimes she would
visit the bookshop, sometimes she would sit and watch people, or read the paper
while sitting on a wall. When asked which wall she would sit on, Miss Proud said
it depended who else was there. Most recently she had sat on the wall between the
library entrance and Grange Road. Some of the other walls had pointed brickwork
on top which was not very comfortable, although she might perch on those as well.
The pointed brickwork had not always been there. In 2003 she was registered as
disabled and since then she has not sat on the lower walls.
27.
Miss Proud referred to a 1994 dictionary which defined recreation (amongst other
things) as an “interval of free time between school lessons or work”, and felt that
this described the way in which she used the application site in this period.
28.
The second period began in 1992, when her mother became seriously ill with
gastric cancer. They bought the house in St Gabriel’s Road together and she
became her mother’s carer. Her mother was a library user and in the period 19921999 Miss Proud would come with her mother to the library. She would often wait
outside the library while her mother returned or took out books. When the weather
was not good they would come by bus or car, but on these occasions they would
visit the application site but not spend time there.
29.
Miss Proud indicated that she had seen children playing hopscotch on the site once
in the 1990s. She did not know where they were from but suspected they were from
the Linacre School, because the children from there came to the library after school
to wait for their buses in a safe place.
30.
The third period began after 1999, when Miss Proud’s mother died. After this time,
there was a gap in Miss Proud’s visits to the application site, and she would come
only “intermittently”. In the period 1999-2001 she estimated that this might be
15
once every three months. After 2001, it might have been once a month. Since
2012 it had been quite frequent.
31.
Miss Proud had participated in the consultations on the redevelopment of the
library site in February and April 2012.15 At that stage, she had made no mention
of her concerns about the loss of open space. The consultations lasted about half an
hour and at that stage, she was “talking about the building”, and believed that if it
was necessary to lose “the square” in order to achieve a “fantastic new building”, it
would be worth it. One had to make compromises, and if it was going to mean
there would be a better library, the space in front of it was not significant. In the
fullness of time, however, she decided the proposed redevelopment was not worth
the loss.
32.
In a Note submitted after she had given evidence, Miss Proud said that those who
attended the consultation meetings in February 2012 were “categorically told” that
the open space and the 1894 library “were not subjects for discussion”. Neither the
Council nor Linden objected to me receiving this Note in evidence, but observed
that its contents were not accepted, and that they had not been able to crossexamine Miss Proud on it.
b. Miss Miki Berenyi, 36 Normanby Road NW10 1BU16
33.
Miss Berenyi moved to Normanby Road from Mostyn Gardens, Kensal Rise in
August 2005. She thinks of Normanby Road as part of the same estate as Mulgrave
Road, Cornmow Drive and Lancaster Road, which she described as “the Dollis Hill
Estate”. On the other side of Hamilton Road the houses “looked different” –
although part of Dollis Hill they were not the Dollis Hill Estate. Most of her
shopping was done in Willesden.
15
16
The notes of these meetings can be found at pp. 170 and 163 of the Council’s Appendices, respectively
Statement No. 12 , Blue Folder p.32
16
34.
Miss Berenyi was one of the signatories to the forms appended with the original
application material. At that stage, she had simply said that she used the Site for
French Markets and art installations. Her written statement (which was written in
her own words) and her oral evidence provided significantly greater detail.
35.
Miss Berenyi’s first child was born in 2001.
In September 2004 she started
maternity leave with her second child. Because her maternity leave coincided with
being made redundant, she was able to take an extended maternity leave until
around January 2007, when she started fulltime freelance work and her younger
child started at nursery school.
36.
When on maternity leave with her second child, she would often visit the
application site while out on a shopping trip. In comparison with the narrow and
cluttered pavements, the area outside the library was “like an oasis”; a place where
she could let her daughter run around, walk on the walls and jump from paving
stone to paving stone. Miss Berenyi would routinely combine this with a trip to
the library, the bookshop, the butcher’s, greengrocer and fishmonger, before
returning to the site for another run around. While there, Miss Berenyi would often
chat with other mums. It was a handy place to stop, stand and chat while the
children played with toy cars or read books.
37.
Since going back to work in 2007, Miss Berenyi has not visited the site during
working hours. She did however visit while the bookshop was still open, and still
does come to Willesden for particular events, such as collecting petitions or the
markets. On average, this was probably once every couple of months, although in
some months she might come a couple of times.
38.
Miss Berenyi took part in the consultation on the proposals for the library site in
February 2012 and April 2012.17 She accepted that it did not appear from the notes
17
The note of the meeting can be found at pp. 167 of the Council’s Appendices
17
of the meeting that she had mentioned the loss of open space, but said that she was
surprised by this because it was “always a bugbear” of hers; but it was possible she
had mentioned it on a different occasion. She had been to a consultation with other
families with children where there had been lots of discussion about whether the
proposed open space at the back would be adequate. However, the notes of that
meeting had not been as detailed and she did not think they identified her
comments by her initials.
39.
Following her evidence and cross-examination, Miss Berenyi forwarded a copy of
e-mails and a synopsis of the consultation which she had sent to other local
residents at the time, which refers to a concern she had raised about the proposal to
locate new open space at the rear of the development. She also enclosed a copy of
a letter dated 18 April 2012 she had written to Sarah Teather MP which made the
same point and stated:
“It has always had a cosy ‘village’ feel around the library and I cannot believe that the council
want to destroy this ‘market square’ area.”
c. Miss Nicolette McKenzie, 19 Riffel Road, NW2 4PB18
40.
Miss McKenzie has lived in Willesden Green since the early 1980s. She and her
mother moved to Dartmouth Road in 1983, before the new library was finished, but
bought another house in Blenheim gardens in 1985. She moved to Riffel Road
seven years ago. She described Dartmouth Road as being “in Mapesbury”.
41.
She and her mother joined the library in 1984, and were delighted when the new
library opened. They “pottered around the planted beds”, and “perched on the
walls” before going in to the library, bookshop or café.
18
Statement No. 39 , Blue Folder p. 73
18
42.
When Miss McKenzie’s mother became more frail and needed a wheelchair, they
would visit the library once a week in summer to change books, potter and have a
coffee. Miss McKenzie would wheel her mother from the car park, through the
library and settle her outside the bookshop (not in Grange Road) while she went in
and got books for them both. Her mother liked to sit there and watch what was
going on. Miss McKenzie would bring books and cards out of the bookshop so her
mother could choose presents. She would perch on a bit of wall and occasionally
even brought in a folding chair. They would spend 20 minutes to half an hour
there. She and her mother “regarded it as a valued space, available to the public in
perpetuity.”
43.
In winter, visits would depend on the weather, so they did not come as often, and
would only stay for 5 or 10 minutes. However, her mother was a “hardy soul” who
still preferred to sit outside in the cold weather where she could look at the High
Road and the old library, rather than being left in the covered area within the library
building.
44.
There were also other activities, such as the harvest festival, and the space was used
for meetings and gatherings such as protests.
45.
Mrs McKenzie’s mother died in 2003. Since then, Miss McKenzie’s use of the
application site has changed, although she still uses it a lot. She values it as a place
to arrange to meet friends from abroad who come to visit her: she goes shopping
and agrees to meet there, knowing they will be able to find it. She remembers a
“pretty Christmas tree” outside the library. When she has friends over, visits could
be as often as 2 or 3 times per week. Friends would visit between 4 and 6 times a
year, but in the 1990s this happened less frequently, only two or three times a year.
19
46.
Miss McKenzie’s visits tended to be towards the middle of the day, when children
were in school. Consequently, children were “not often there” when she and her
mother went, and she had only seen children on a few occasions.
47.
Miss McKenzie went to a 1:1 consultation meeting about the redevelopment of the
site in February 2012.19 She did not mention the open space, but says this was
because it never occurred to her that the proposals she was asked to comment on
would be anything like the finished plan. Rather, she believed they were simply a
starting point for discussion. The loss of open space had registered on her radar in
about May 2012, after the Application had been made. Before then her main
priority had been other concerns such as the loss of the 1894 library building.
48.
In a Note submitted after she had given evidence, Miss McKenzie said that it was
made very clear at the consultation in February 2012 that the 1894 library and the
land around it were “not up for discussion”. They were told that the developers
who had tendered had insisted that any scheme which included retention of the
space and building was not viable, and accordingly that the matter of the library
square/open space was “on no account to be discussed, mentioned or questioned”.
Neither the Council nor Linden objected to me receiving this Note in evidence, but
noted that its contents were not accepted, and that they had not been able to crossexamine Miss McKenzie on it.
d. Mr Dennis Farrell, O’Farrells Butchers, 80 High Road NW10 2PR20
49.
Mr Farrell is the proprietor of O’Farrell’s Butchers, which has premises on 80 High
Road, Willesden, directly opposite the end of Grange Road. He has worked at the
shop for 27 years, and has been the proprietor for the last 15 years.
19
20
The Council’s note of the meeting is at p. 170 of the Council’s Appendices
Statement No. 22 , Blue Folder p. 49
20
50.
Mr Farrell is originally from Willesden, where he used to live on George Road, but
he moved to Neasden when he was 18 and met his wife. They moved to Watford
20 years ago, and were there for 9 years before moving to Hemel Hepmstead,
where he now lives.
51.
In his written statement he states that he, his staff and customers use the Site on a
daily basis. They sit and have their lunch there, and it “is an area used by the
community for many different reasons”.
52.
In his oral evidence, Mr Farrell explained that Gigi’s cafe (which was in the library
building) had previously been his lunch area – it was a “good place to go for lunch,
interview staff, get out of the shop”. However, when Gigi’s closed (which he
thought was about 5 years ago) that “forced [him] into using the area outside”. He
explained that he does not use it daily, except when the weather is fine. He works 6
days a week from 7am until 6pm, and it is a “pleasurable thing” to be able to get
out of the shop for half an hour for a “bit of privacy”. He uses the Site for lunch,
business meetings or to grab a coffee, and sits outside on a wall. The Site is a “nice
area to look at” and is really important to him.
53.
Mr Farrell has five staff, and they all go to the Site for lunch, although this happens
more in the summer. His staff take an hour for lunch, Mr Farrell himself might
take anything from 20 minutes to an hour and a quarter. In cross-examination he
explained that he did not like sitting in cafes, and would rather sit outside for
business meetings or to sort out a staff issue. He would stand, or sit on a wall,
“anywhere I can congregate and see what is going on in my shop”. He had seen
others sitting out on the Site as well.
54.
In cross-examination, Mr Farrell said he went to the library, but not a lot. If
coming in to his shop on a Sunday he would bring his wife and children. His son
would skate around on the site for 20 minutes or so while waiting for him.
21
e. Mr Fenn, 16 Grange Road NW10 2QU21
55.
Mr Fenn has lived at 16 Grange Road for more than 40 years.22 His mother lives
with him, as did his father while he was alive. Mr Fenn is a freelance photographer
who works flexible hours, although on the whole he tries not to work at weekends.
56.
Mr Fenn’s written statement (which was completed on a standard form issued by
Mr Redston) ticked the boxes indicating that he had seen members of the
community attending and enjoying community markets and festivals, meeting
friends, drinking coffee, tea or cold drinks (including alcohol), playing tag or
similar activities, kicking a ball informally, making mobile phone calls or using
portable computers, getting fresh air or eating lunch at lunchtimes, walking for
exercise, sitting or standing watching pedestrians and vehicles pass by, generally
relaxing or exercising, reading books and listening to music. The form indicated
that he himself had taken part in all of these. When it was suggested to him in
cross-examination that this meant that he had played tag there, he said that he had
“played around with mates down there” and had interpreted that part of the form
that way. Mr Fenn had not ticked the box for “toddlers learning to walk” and
agreed that he had never seen this.
57.
In his oral evidence, Mr Fenn said that he and his father had lived together at 16
Grange Road until his father’s death about six years ago. In summer, on a couple
of Sundays a month, he and his father would walk down to get the newspaper, and
sit on the wall outside the library. His father was in his early 70s at the time. They
did not sit in Gigi’s, because the whole point was to sit out the front where people
would stop and chat. From the Site, they could see the community and his father
would get to talk to people and engage with them. It was a “great place to see
neighbours”.
21
22
Statement No. 23, Blue Folder p. 50
His written statement says for 43 years, in oral evidence he said 46, but nothing turns on this.
22
58.
Mr Fenn no longer does this because his father is dead, and there are “spikes” on
the wall.
59.
Mr Fenn used to go to Gigis when it was open. He went there on most summer
evenings – it was his local pub. There used to be jazz nights there, and when the
place overflowed, people would stand out in the square. It was a nice place to have
a smoke.
60.
In cross-examination, Mr Fenn agreed that his house was about as close to the
proposed new development as it was possible to be, and that he was concerned
about the proposals. His mother had attended a consultation on the proposals in
February 2012, the Council’s notes of which23 had recorded her view that “the
current centre was run down and attracted anti-social behaviour” and that she was
“glad it was going”. Mr Fenn said her main objection had been to the plans to
demolish the 1894 library. He accepted that she had not mentioned the public
square. Notwithstanding his mother’s comments, Mr Fenn did not himself feel
there was any anti-social behaviour, and certainly nothing he had complained
about. He was unaware of the fact that the Council had obtained an order for an
Alcohol Exclusion Zone.
61.
More recently, Mr Fenn has not used the Site as much. He ascribed this to the fact
that WGLC had been run down and was “not what it was”. Interestingly (given his
observations when asked about anti-social behaviour), when making this statement
he referred to the fact that there were “alcoholics there”. He agreed that his main
use of the Site had been when he and his father had gone there on Sundays and
when Gigi’s was open, although he might stand there on a summer’s day or sit and
read a magazine.
23
Council Appendices p. 179
23
62.
In oral evidence, Mr Fenn said that he could see the Site from his window.
Depending on the time of day, there were “kids playing pretty much every day”,
and it was hard to find a point in the day when there was not someone there, sitting
or chatting.
63.
When asked about the indication on his written statement that he had seen people
kicking a ball informally, Mr Fenn said this happened on “most evenings after 5
through to about 9”. Although he did not know their names, he recognised the
players as local children. They were “pretty resilient” and played in all weather.
They played in Grange Road and “the bit next to it”. When asked to identify what
he meant by this, he pointed to the entrance way in front of the WGLC. Children
played there even though they would get in the way. The best place was the
pedestrianized area of Grange Road, and the children did play there, but it “all
becomes one”. When it was suggested to him that the slope on the area in front of
the library would cause the ball to run into the road, Mr Fenn said the children ran
after the ball, and there was a building (by which I understood him to mean the
1894 library) in the way. The children did not play over by the Brondesbury Park
side of the Site.
64.
Mr Fenn agreed that, until 3 or 4 years ago, he would probably not have had a name
for the Site – but said he would have called it “the library square” if arranging to
meet people.
65.
In closing, the Objectors asked me to assess for myself exactly where Mr Fenn’s
house was in relation to the Site. When I first heard his evidence (and in particular
his statement that he could see the Site from his window) I had assumed that No. 16
must be directly opposite. However, that is not the case: No. 16 is in fact further
up Grange Road and faces the flank wall of the WGLC building. I accept that Mr
Fenn may have a view of part of the pedestrianised area of Grange Road from his
24
window, but if he can see anything of the Site itself, it can only be a limited and
oblique view.
f. Mr Steve Adams, 48 Exeter Road NW2 4SB24
66.
Mr Adams has lived on Exeter Road, within walking distance of the Site, for about
25 years. Before that, he lived in Kilburn. His house was the last house on Exeter
Road before Walm Lane. Although he agreed that Mapesbury might be one word
for this area, he calls it Willesden. There is no real difference between his property
and those in St Gabriel’s Road or Teignmouth Road.
67.
Mr Adams has run a bookshop on the Kilburn High Road since 1980, and ran the
bookshop in the WGLC for 23 years, from the time the WGLC opened. The
Willesden Green bookshop was on the front corner of the building, and so looked
out directly onto the Site and Grange Road. As Mr Adams put it “I had a daily
view of what happened”. The bookshop closed in August 2012.
68.
In his written statement (provided in the form of a letter to Mr Redston) Mr Adams
said that the Site had been “well used by the public as a civic space or town square”
in an area which, in his oral evidence, he said was “desperately short of civic
space”. Over the years, he had seen markets, public demonstrations, festivals, carol
singing and other church events, art installations, surveys, speeches, and
canvassing. The space was used by people working in the surrounding area to
come and sit on the walls to eat sandwiches when the weather was fine, and as a
play area for children from the nearby flats. Mr Adams and his colleagues would
also sometimes sit out on the walls to eat their lunch, and a colleague’s son would
regularly play in the area whilst waiting for the bookshop to close.
69.
In oral evidence, Mr Adams said he regarded the Site as a “civic space which had
little resemblance to a village green but had some of the elements of a village
24
Statement No. 2 , Blue Folder p. 20
25
green.” In particular, because it was the point where 5 roads met, it was the place
where people congregated. He had seen one particular set of parents teaching very
small children to roller skate, using the slope, and there had been a phase when
children skateboarded on the Site, using the walls to jump over. There had been a
period when they had problems with a busker who was not very good but played
there every day. He had seen demonstrations on the Site and there were days when
someone would set up a table to hand out leaflets, or Christian evangelical groups
would set up loudspeakers and sing. People would use the space daily to sit on the
walls.
70.
Mr Adams had also witnessed children playing football outside the bookshop. This
dated from the time when the flats on the corner of Cornwall Gardens and Grange
Road had been built, about 10 years ago. There was a particular group of children
that met and played there every day. They played with a ball that was midway
between a tennis ball and a full-sized football. They would sometimes be joined by
older children who took delight in hammering the ball against the bookshop
window. Mr Adams would remonstrate with them, but knew they had nowhere else
to go. He asked them not to play football there quite often.
71.
When asked exactly where they played, Mr Adams said they tended to play “down
the side of the shop” (i.e. on Grange Road) but that this would spill over onto the
Site. They did not choose to play outside the shop, because of the slope, and would
mainly start their games in Grange Road, but the game would develop and in their
excitement it would sometimes progress across the forecourt. There did not appear
to be goals, and there were no strict rules. Mr Adams tried to persuade them to play
up and down Grange Road, but they preferred playing cross-ways.
72.
Mr Adams said that he did occasionally ask security staff to take action. Although
he had been told that staff could not interfere with the drinkers, it was different
26
when the ball was being kicked against the window, because that affected the
building.
73.
While the football had only really begun when the new flats had been built, the Site
had always been used by children for play activity (for example with skateboards)
or just to “hang out”. The children concerned were both those from nearby schools
waiting for a bus home and “local kids” wanting to get together with friends. The
skateboarders liked taking advantage of the slope and the walls to jump over.
74.
When I asked Mr Adams about the roller skating, he said that the parents teaching
the child to roller skate had been an isolated incident. More generally, there had
been a time when rollerskating was in fashion.
75.
Asked about his witness statement, Mr Adams said that the bookshop had wanted
people in the area in front of the library. It was good to see people buying books,
and then going to sit on a wall to read them.
He couldn’t say where people on the
Site came from, but the bookshops’ own customers came from the area shown on
Map A, Gladstone Park and from places further afield, such as Neasden and
Wembley.
76.
Both in his written statement and his oral evidence Mr Adams referred to problems
with street drinkers congregating outside the WGLC (usually outside the bookshop
window when the weather was not good). They would normally be there from
early in the morning, but tended to “melt away” half way through the day. This had
started within the first few years of the WGLC building being there and was
“definitely a constant flavour of working here”. However, there would be periods
when it was more of a problem than others. While the drinkers were nearly always
there, there could be weeks when their behaviour was impeccable. He said he was
told by security staff that they could not help because the Site “was not within their
responsibilities”, and that he should call on the police if he needed help with any
27
incident outside the building. The designation as a No Alcohol Zone (which both
Mr Adams had lobbied for, and which he clearly understood to cover the area in
front of the library) had had no effect whatsoever.
g. Mr Phil Grant, 69 Crundale Avenue NW9 9PJ25
77.
Mr Grant is a retired civil servant and an amateur local historian. His evidence
related primarily to the latter interest. He has never lived in the Willesden Green
area, and has only been a regular visitor to the WGLC since 2007, when he helped
as a volunteer steward at an exhibition in the museum. Although he occasionally
brought his daughters to the library in the 1990s, he came by car and “did not know
the space in front at that time”. WGLC was not his local library, and it was because
of other facilities such as the museum that he had come. More recently Mr Grant
has been particularly involved in efforts to prevent the demolition of the 1894
library, and has researched the local history as part of that endeavour.
78.
Between 1975 and 1977 Mr Grant worked as an Assistant Housing Manager for
Brent Housing Association, with particular responsibility for properties in the
Willesden Green and Cricklewood areas.
He was one of 3 assistant housing
managers, and the properties had been divided between the three of them in a way
which produced a similar workload. As such, he accepted that the boundaries were
useful for employment purposes, and did not necessarily reflect what was on the
ground. However, from information given to him by colleagues, he understood that
the properties which he managed which were along the length of Chapter Road and
in the streets between there and Willesden High Road were all in Willesden Green,
together with those in the Walm Lane and Melrose Avenue block of streets
(including Blenheim, Grosvenor and Stanley Gardens). The eastern boundary of
his area ran along Lydford and Sidmouth Roads, with the southern edge running
from there across to Pound Lane. Properties in Chichele Road, Heber Road and Ivy
Road were in Cricklewood. The Cricklewood area stretched beyond the Brent
25
Statement No. 66 , Blue Folder pp. 113-124.
28
boundary to include properties in Claremont Road and neighbouring streets in the
London Borough of Barnet.
79.
Mr Grant produced a carefully researched statement explaining the historical
development of Willesden Green. This part of his evidence demonstrated that the
extensive area of Green which had existed in 1744 was significantly eroded by
development which followed in the wake of the 1815 Willesden Enclosure Act.
Although still predominantly a rural area in 1866, the extension of the Metropolitan
Line saw the rapid urbanisation of the area, including the construction of the 1894
library. The Site was then under what was the back of the 1894 library building.
80.
It was against this backdrop that the Willesden Green District Plan had been
published in 1980. Part 2 of the WGDP recognised the lack of open spaces and
play spaces, and local facilities for recreation and social pursuits. Paragraph 3.7.12
referred to Brent’s intention to
“improve and expand the Library facilities in Willesden Green and to include a range of associated
community facilities”
and to the
“need in the area for remises for cultural, civic and social functions” which could be
“appropriately combined with improved library facilities”.
81.
Mr Grant drew attention to the commitment at para 3.7.16 that:
“Where land has been acquired by Brent Council, first consideration will be given to the provision
of open space/community use.”
82.
In cross-examination, Mr Grant was referred to the Proposals Map which
accompanied the WGDP. This showed the area of the 1894 building, the Site, the
29
WGLC together with land behind it coloured pink, which indicated that it was
designated for “Public Services”. Mr Grant agreed that the Proposals Map had a
specific designation for Open Space, which was represented in green. The Site was
not designated as Open Space.
83.
Mr Grant next referred to a booklet, published in 1983, entitled “Willesden Green
Library”, 26 and in particular to the following:
(1)
Page 4 refers to the Willesden Green District Plan, making the connection
between that document and the proposals for the WGLC clear. Page 4 also
refers to the consultation which had taken place with the local community
over the facilities to be included;
(2)
Page 6 notes the particular priorities which had been identified as a result of
that consultation. These included “Open Space/Gardens”;
(3)
Page 7 is a plan which shows the site as it then was. The 1894 library has an
arrow pointing to it with the entry:
“The Council intend to preserve the little building on the corner with its
turret and decoration – the wings behind are later additions, and these will
be removed to provide some much-needed open space.”
26
The precise status of this document is not entirely clear. It was published by Brent’s “Development
Department”, but since (a I was informed by the Council) this Department held responsibility for both
planning functions and capital projects ,this says little about whether it was published as a policy document
or simply as an explanatory brochure. The plans which are shown towards the back of the booklet indicate
a building which is remarkably similar to the existing building, and the level of detail goes beyond that
which I would expect from a normal design brief or Supplementary Planning Guidance. It therefore seems
most likely that the booklet was produced at or about the time of the 1983 application for permission for the
new library centre. However, there is nothing to indicate that it was ever part of the formal application.
The booklet itself states that its purpose was to provide information about “the new Willesden Centre”, to
outline the objectives of the development and to explain why the development was proposed. Although I
cannot be certain, it seems most likely that it was produced by the Council simply as a means of explaining
and publicising the proposals.
30
(4)
Pages 8-10 describe “What the Building Provides”. At page 10, the list of
features includes:
“Open Space
The scheme has allowed for a substantial open area to be provided on the Willesden High
Road frontage and a generous landscaped area at the rear of the building with the scheme
designed to link the two with an internal busy covered street. Generally priority has been
given in the design to create a feeling of space and landscaping – to put back the ‘Green’
in Willesden.”
While Mr Grant did not go as far as to say that this shows an intention to
reinstate the village green which existed up until 1815, he suggested that it
was clearly the intention that the new open space would “embody the spirit of
the original Willesden Green”.
(5)
Page 13 shows a plan of the proposed development. The open space between
the proposed WGLC and the 1894 library (i.e. the Site) is shown as a “Public
Square”.
84.
With regard to the identification of the “neighbourhood”, Mr Grant explained how,
when Gladstone Park was opened, permission had been obtained to tunnel through
the railway embankment to provide access from Willesden Green to the park (along
what is now known as Park Avenue). He referred to the development of the land
between Gladstone Park and the railway for housing, in what was originally the
Dudding (or Dudden) Hill Estate. He explained that although these streets were
now known as the Dollis Hill Estate, this was connected with the mis-naming of the
Dollis Hill Station, which was not in fact in Dollis Hill and should have been called
the Dudden Hill Station.27 Mr Grant pointed out that when the Dollis Hill Estate
was built, 3 lines of access to the “main shopping street” on the High Road were
27
Also identifiable because the streets were named in alphabetical order: Aberdeen, Burnley,
Collingworth, Dewsbury, Ellesmere, Fleetwood, Geary, Helena, Kendal and Lancaster Roads, together
with Mulgrave and Normanby Roads.
31
provided, at Dollis Hill Station, the footpath at the end of Collingworth Road and at
Park Avenue.
He contrasted this with the construction of Lennox and Sonja
Gardens. Whereas the Dollis Hill Estate was part of the expansion of Willesden,
Lennox and Sonja Gardens were part of the expansion of Neasden, coming down
the hill to meet the Dollis Hill Estate.
85.
Mr Grant referred to a modern plan28 showing the catchment area for the Gladstone
Primary School which showed that the catchment included both the Dollis Hill
Estate (other than Normanby Road and Mulgrave Road) and the area of Willesden
Green to the south of the railway line. This was not to suggest that the catchment
area was the neighbourhood, but to make the point that the railway line was not
necessarily a barrier which prevented north and south being part of the same
neighbourhood.
86.
In cross-examination, he accepted that the boundary of the Willesden Green area
which he had described from his time working for Brent Housing Association was
different to the boundary of the neighbourhood as defined by Mr Redston for the
purposes of the TVG application. There was no justification from a historical point
of view for the way in which Mr Redston’s line (as amended) cut across St
Gabriel’s and Dartmouth Roads, but he could not speak for the view of the people
who lived in those houses.
87.
Although his knowledge of activities on the Site only related to the period after
2007, Mr Grant provided details of his observations. He recollected seeing small
groups of men sitting and conversing on the low walls outside the WGLC,
sometimes drinking from cans. He remembered small groups of parents standing
and talking outside the library while their children played around “running along or
jumping on to and off the low walls in front of the shrubbery.” Mr Grant was
unable to say where these people came from, other than to say that the children he
28
Exhibit Y, Black Folder p. 213
32
observed were from local schools. Since they and their parents were on foot, it was
likely that they were inhabitants of Willesden Green.
88.
In 2009, the Brent Archive was relocated to WGLC from Cricklewood. Since then,
Mr Grant has been a regular visitor the WGLC, coming on average 30 times a year.
He typically arrives at around 1.30pm and leaves around 4.30. In coming and
going, he has regularly seen groups of people standing or sitting, in conversation on
the Site, as well as individuals sitting on a wall reading a book or eating, or young
people listening to their i-pods. He has recognised a few of these as local people he
had seen at meetings of the Willesden Local History Society, but could not say for
certain where most of them came from.
89.
In March and April 2012 Mr Grant had conversations with groups of between 12
and 20 people on two or three occasions, to discuss the proposals to demolish the
library. Most of these people lived in Willesden Green, within walking distance of
the WGLC.
90.
Mr Grant took part in the consultation exercise in February and April 2012. At this
time, he did not know Mr Redston and he readily acknowledged that his sole29
concern was to prevent demolition of the 1894 library. He therefore did not raise
any concerns about the open space in front of WGLC. In this regard, he accepted
that no restriction had been placed on the matters he could raise at the 1:1 meetings.
He did say that, at the start of the first session it had been made clear to him that the
possibility of keeping the 1894 library had been considered but rejected. However,
this had not prevented him from arguing that it should be retained. He would have
“got behind” a scheme that kept the 1894 library even if that had meant losing the
open space. At a personal level, he was no longer objecting to the redevelopment
because the proposals now kept the old library. However, although he was not
29
Grant Rebuttal Statement para 7.2 (Black Folder p. 182)
33
objecting, he still felt it appropriate to draw to Brent’s attention those respects in
which he believed the proposal was contrary to national guidance.
h. Mr Martin Redston, 22 Kenneth Crescent, NW2 4PN30
91.
Mr Redston has lived in Willesden Green since 1977. Between 1977 and 2006 Mr
Redston lived at 23 Alverstone Road, NW2 5JS. In 2006 he moved to 2 Kenneth
Crescent.
He has therefore lived within 7 minutes walk of the WGLC (and
therefore the Site) since it was built.
92.
His written statement drew attention to the physical features of the Site, and in
particular the fact that it was open to the public at all times without notices or
prohibitions displayed. Referring to the fact that the Site was previously part of the
old library, he notes that the land has “been in the public domain, and available for
public use, since the original purchase nearly 120 years ago.” He reiterated the
points made by Mr Grant about the way the 1983 booklet had shown the Site as a
“Public Square” which was intended “to provide some much needed open space”.
In creating the Site, he felt that Brent had “recognised the importance of local
identity and sense of place”; and in establishing the Conservation Area they had
“considered the public square to contribute to the Conservation Area rhythm along
the High Road.”
93.
In 2008, Brent had commissioned a Report by Urban Practitioners,31 which was
“chock full” of glowing references to the public space in front of the library, and
how it was essential to the heart of the neighbourhood.32
The report33 described
the “Public realm in front of the library as a potential Town Square … addressing
30
Statement in Red Folder pp. 1-11. NB the summary I provide of Mr Redston’s statement in this section
is limited to what might properly be regarded as his evidence, i.e. what he himself has seen or can say about
the various elements of the s. 15 test. Parts of the statement are more properly regarded as submissions are
summarised in “The Case for the Applicant”, below.
31
Council Appendices pp. 5-91
32
Opening Statement pp. 5-6
33
Council Appendices p. 49, internal pagination p. 41
34
the lack of public space.”
This Report led to funding being obtained for
improvements to the public realm, and in 2010 Brent had repaved and upgraded the
Site. This “provide[d] evidence of the use of the square and its worth to the
community”.34
94.
Mr Redston explained that the Site was important in giving vitality to the High
Road and providing a “destination adjacent to shops to assist in boosting local
economy.” Situated at the junction of two major roads the Site was a “small area of
calm in an urban setting where there are no other clearly defined public spaces.”
One of the last pieces of open space in Willesden Green, it was a sunny but
sheltered place where shoppers and shop workers could rest, pause and reflect, as
well as a safe place for parents to let their children play without straying onto main
roads.
95.
In cross-examination, Mr Redston accepted that there was nothing physical which
differentiated the Site from the surrounding pavement on Brondesbury Park or the
pedestrianised area of Grange Road, but said that this was the same with many
other squares. From the point of view of the user, it would all be seen as one area,
but there were the grey paving stones which marked the edges of Grange Road and
the pavement on Brondesbury Park.
96.
In terms of his own experience of the Site, Mr Redston accepted that he had not
thought of the site as a Public Square until he had seen the research (the 1983
booklet) which identified it as such. He had just known it as a square. However,
he has been on the Site at all different times of the day and night. He has sat there
“because he had time to kill”. He said that he had seen “kids kicking a ball about”
(but not in any organised game); that over the years he had attended many events
(including the St Patrick’s Day Parade, French Market and World Flavours
Markets, and at least one political meeting); and that he had sat or stood on the Site
34
Rebuttal para 7.4, Black Folder p. 170
35
“reading pages from newly borrowed books”. He was present at a small gathering
for the Queen’s Jubilee holiday in 2012. He has never been asked to show or apply
for a licence, and there were no notices making it clear that his use of the Site as
“by right” rather than “as of right”.
97.
The fact that the markets have required a street trading licence was irrelevant,
because it applied only to the setting up of market stalls by street traders rather than
the perusal of or purchase of items by members of the public.35 In any event, Mr
Redston queried whether a street trading licence was in fact necessary, since the
Site was not a “street” and not all of it was within 7m of a road or footway. It
would therefore be possible to trade in the centre of the Site without a licence.36
Although the French Market also occupied Grange Road, he thought that some of
the smaller markets took place entirely within the Site. The St Patrick’s Day
Parade went “right through the building and the car park”, and the Wassail travelled
across Willesden, climaxing outside the library.
98.
Mr Redston also queried whether the Alcohol Exclusion Zone covered the site,
since the only two signs which notified its existence faced away from the Site, onto
Brondesbury Park and Grange Road. In any event, the Zone did not prohibit
drinking; it merely enabled the Police to ask people to refrain from drinking. Mr
Redston himself had drunk alcohol on the Site when attending the Queen’s Jubilee
Celebrations in 2012, the Wassail and St Patrick’s Day Parade (and possibly at the
markets).37 Even when the police ask the street drinkers to move on, they come
back after an hour. Drinking on the Site is not unlawful, and only becomes a
problem if the drinkers are perceived as a nuisance, in which case the police could
ask them to leave. Mr Redston felt that drinking was a pastime, even for the streetdrinkers.
35
Statement para 23, Red Folder p. 8
Rebuttal paras 3.2-3.3.6, Black Folder p. 165-6
37
Oral evidence; Rebuttal Statement para 5.11, Black Folder p. 168
36
36
99.
Although the Council’s witnesses sought to portray the Site as little more than a
footpath, used as a thoroughfare for people visiting the library centre, Mr Redston
observed that it was not listed as a Public Right of Way on Brent’s PRoW
Improvement Plan or the online list of rights of way. 38
100. In cross-examination, Mr Redston was asked about the fact that, when filling out
the original application, the first thing he had said about the Site was that it had
been used “by thousands of members of the public as a right of way and
thoroughfare between Grange Road, Brondesbury Park, the library and the
bookshop”. He disagreed that this meant that the other activities which he had gone
on to list were a secondary consideration. Use as a thoroughfare and for other
activities were not mutually exclusive. Mr Redston also disagreed that there was
any difference as to the quantity of people using the site for these other activities.
He had seen thousands of people using the Site in the ways mentioned on the list on
the application form.
101. Mr Redston was also asked about the other activities which he had listed on the
application form. He agreed that the St Patrick’s Day Parades had not begun until
1997, and that the various markets had started in 2008, but said that these activities
were simply a reflection of the people who had been present in the Kings Hall when
he had collected the evidence for the application. They were not a definitive list of
activities which had taken place on the Site. Since making the application he had
learned just how much use of the Site there had been.
102. Asked about the way in which the written statements in the Blue Folder had been
obtained, Mr Redston explained that, following original notification of the Inquiry
(when it was thought that the Inquiry would start on 17 December 20120) he had
been collecting evidence in support of his case, but not in any particular form. As a
result, witnesses had provided notes or letters in whatever form seemed appropriate
38
Rebuttal paras 6.4-6.7, Black Folder p. 169-170
37
to them, often as letters or e-mails. Mr Redston explained that when these started
to come in, it became clear to him that while some people were better than others at
providing relevant information, many of the contributors did not really understand
the process, or what was required of them. A lot of people were not specific
enough about their own knowledge or experience of activities on the Site, and
many were concerned about the library and the bookshop.
Consequently, he
frequently had to go back to people to ask them to focus on what they could say
about sports and pastimes on the Site over the past 20 years.
103. Following the Pre-Inquiry Meeting, Mr Redston realised that something more
specific was required, and wanted to help people with possible ideas. Through
research on the internet he found a number of possible forms which were suggested
for use in TVG cases. Some of these he rejected on the basis that they were too
long (one ran to 10 pages). Instead, he settled on a form from a website called
Planning Sanity, which he adapted for use in this case (“the Redston Form”).
104. Mr Redston distributed this pro-forma as a pdf file. The majority of people who
used it simply printed it out and completed it in writing. However, one of Mr
Redston’s witnesses, Mr Kwiecien, had adapted and retyped the entire document .
A number of the adaptations which featured on Mr Kwiecien’s form were also
present on some of the other forms. Mr Redston explained that he believed this
was because Mr Kwiecien had forwarded his adaptation of the Redston Form to
other potential supporters, who had used that (“the Kwiecien Form”) as the basis of
their own statements.
105. Asked about the content of the written statements in the Blue Folder, Mr Redston
readily accepted that some of the statements could not be correct. For example,
Mrs McLean’s form stated that she had helped her 5 children to learn to walk, ride
a bicycle and skateboard there. However, since two of her children were aged 33
(and would therefore have been 10 years old before the Site even existed) they
38
could not possibly have learnt to walk there. Mr Redston said he had told Mrs
McLean that he thought this was “ridiculous”, and that her statement was
“inaccurate”. He had pointed this out to her, but she had not changed it. Although
most people had ticked the activities which they had witnessed, because the form
“looked a bit legal” people may have been wary of crossing things out.
106. Mr Redston’s written statement explained the basis on which the neighbourhood
had been defined. In particular, he said it had been “defined by discussion with
other members of the community”, leading to a “general consensus of opinion” that
the area shown on Map A was served by the High Road for shopping, post office,
banks, police station, main supermarket, leisure and health facilities, cricket club,
sports centre and places of worship. He had also discussed it over the phone with a
solicitor who was versed in the subject, but he had not had a lot of advice. The
WGLC was “almost central in this neighbourhood”. The neighbourhood as he had
defined it was very similar in extent to that shown in the 2009 Report by Urban
Practitioners.39
107. Although Mr Redston’s written statement indicated that the area had been defined
in discussion with other members of the community, in cross-examination he
confirmed that (with the possible exception of Mr Grant) he had not consulted with
any of his witnesses about the extent of the neighbourhood.
108. When I asked him a little more about this, he said that the neighbourhood boundary
had been defined by reference to where he had got most evidence of use. However,
the fact that people used the Site suggested that they regarded it as being within
their neighbourhood. This was not like something out of the Archers, but an urban
area. It was artificial to say that the neighbourhood stopped at the boundary of the
electoral wards. A lot of people in Mapesbury considered the Site as their place to
go to. With that in mind, his decision to move the eastern boundary eastwards from
39
Council Appendices p. 23, internal pagination p. 15
39
Lydford Road was not unreasonable. A significant number of people who lived in
the first houses to the right of Lydford Road considered the Site to be part of their
neighbourhood.
The area he had identified was an amorphous mix of
neighbourhoods. Mr Redston had had representations from people who lived to the
south of the boundary he had shown who wished they could have been included.
109. In cross-examination, Mr Redston agreed that the neighbourhood which he had
defined included a large Sainsbury’s store, which had a “quite wide” catchment
area. He could not say whether this was wider than his neighbourhood. He
referred to a plan showing other supermarkets in the wider area, and identified the
difficulties of driving to or parking at the stores in Kilburn and Cricklewood. He
thought that Sainsbury’s customers might “come from all over” because it was the
only store people could drive to and park at.
110. Mr Redston explained that the London Borough of Brent had a population (in 2011)
of 311,215 people, and that this had been growing by around 3.2% p.a. since 1999.
It was therefore imperative that open spaces are preserved.
111. Mr Redston took part in the 1:1 consultation meetings in February 2012. He said
that the meeting was “extremely controlled” and it was clear that “there was to be
no discussion about the scheme as a whole, merely the chance to discuss final
layout of the public spaces.” They were told at the first meeting that the car park
would go and the new cultural centre would be built on the corner of the WGLC
site. He was told that his views on the use and space planning of the building were
not an issue for discussion. However, that did not mean he did not try. He believed
that “many people” (himself included) had taken the opportunity to protest about
the library being moved forward over the public space. The Council’s notes of the
1:1 meetings had never been distributed to participants for comment or correction
and were not a verbatim record of what was said. He had no idea whether they
were a true record, although he was “fairly certain” that the record of his own
meeting was pretty accurate, because that meeting had been very structured.
40
112. In cross-examination, Mr Redston accepted that, at the 1:1 meeting in February
2012 he had produced a sketch of an alternative development which would have
retained the 1894 library. 40 Although there was some debate at the Inquiry as to
exactly what the sketch showed, it is clear that it would have involved building over
a substantial part of the Site.41 Mr Redston denied that putting it forward meant
that it was a scheme which he preferred. It was a sketch which had been produced
for him by a local cartoonist (Mr Abbo) on the morning of the 1:1 meeting because
he had realised that something had to be done to save the 1894 library.
113. After the 1:1 meetings, Mr Redston attended a number of the group meetings prior
to the first application in July 2012. These “got quiet fiery” because objectors were
complaining vociferously but felt that their voices were not being hear about the
size, shape and positioning of the proposed new building. The words “public
space” “came up time and again and were ruled out of order”.
114. Mr Redston’s written statement referred to the more recent proposals to redevelop
the WGLC, and enclosed a list of objections, a number of which refer to the loss of
open or public space.
Written Statements
115. The Blue Folder contains 66 written statements in support of the Application. As
explained in the summary of Mr Redston’s evidence above, a number of these
statements were provided in the form of letters or e-mails; while others were
provided on either the Redston or Kwiecien Forms. A few contributors have taken
either the Redston or the Kwiecien Form and further adapted it for their own use.
40
Council Appendices p. 282, submitted on Day 1 of the Inquiry.
Indeed, as far as I can tell it would have involved building over a substantial part of Grange Road.
Bearing in mind the proximity of properties on the eastern side of Grange Road, it is far from clear to me
that it would have been feasible to construct this building at all.
41
41
116. Mr Redston’s use of a standardised form, and Mr Kwiecien’s adaptation of it,
resulted in various submissions being made as to the weight I should attach to the
written statements. I return to these arguments in my Findings below. In order to
put the arguments in context, however, it is helpful to indicate the overall
proportions of the different formats in which the written statements were provided.
117. In arriving at the figures in Table A below42 I have taken as my guide a number of
adaptations made by Mr Kwiecien to the Redston Form which can be found on
other statements, namely:
(1)
The addition to the list of activities witnessed of “public meetings” and
“assembly of school groups”, neither of which appears on the Redston
Form.43
(2)
The reference, as a particular example of a “public meeting” which has been
observed, to a meeting attended by Cllr Mohammed Butt. 44
(3)
The addition and emboldening, in the response to paragraph 4, of the words
“and significantly”, followed in Mr Kwiecien’s case by a reference to
helping all his 3 children to learn to walk, ride a bicycle and roller skate”.
The emboldened words “and significantly” appear on several other forms,
almost invariably followed by a reference to teaching children to learn to
walk, ride a bicycle and/or rollerskate.45
42
which differ slightly from Mr Redston’s estimates, in Closing, that 29 people had used his template and
only 5 had used Mr Kwiecien’s.
43
Bailey Smith, Blue Folder p. 27; Carter, Blue Folder p. 39; Chambers, Blue Folder p. 41; Colas, Blue
Folder p. 43; Lazarus, Blue Folder p. 65; McLean, Blue Folder p. 66; Robertson, Blue Folder p. 85;
Robertson, Blue Folder p. 66; Salpadoru, Blue Folder p. 92; Swade, Blue Folder p. 98.
44
Colas, Blue Folder p. 43; Lazarus, Blue Folder p. 65; Mclean, Blue Folder p. 66; Salpadoru, Blue Folder
p. 92; Swade, Blue Folder p. 98.
45
Bailey-Smith, Blue Folder p. 27; Lazarus, Blue Folder p. 66; McLean, Blue Folder p. 71; Swade, Blue
Folder p. 98. Mrs Carter (Bluebook p.39) had a further variation on this, replacing “and significantly” with
“of particular delight”.
42
(4)
The addition of a paragraph headed “The ‘Departed’” in which Mr Kwiecien
gave examples of residents in the period 1983-2002 who were now deceased
or had moved to other areas, and who were therefore not able to testify to the
use of the Site. One other form uses this same format.46
118. On this basis, and from my own examination of the written statements, the numbers
of people using the different formats appear to be broadly47 as follows:
Table A: Form of Written Statement
FORM USED
Own words in
e-mail or
Letter
Redston Form
Kwiecien
Form
Own Variant
of Redston or
Kwiecien
Form
NUMBER
27
24
11
4
36%
17%
6%
USING
PROPORTION 41%
119. Table B below shows the length of time for which the various signatories have
known the site. Not surprisingly, not everyone has lived in the area or known the
46
Bailey-Smith, Blue Folder p. 27; Lovelace-Carter, Blue GFolder p. 29; Chambers, Blue Folder p. 41;
Colas, Blue Folder p. 43; Lazarus, Blue Folder p. 65; McLean, Blue Folder p. 71; Robertson, Blue Folder
p. 85; Robertson , Blue Folder p. 86, Salpadoru, Blue Folder p. 92, Swade, Blue Folder p. 98, Watkins,
Blue Folder p. 108
47
The precise point at which a Kwiecien Form has been so changed that it should be regarded as an “own
variant” is one on which there is room for debate. It would therefore be wrong to place too much weight on
the precise numbers in this Table. However, I believe the overall proportions are broadly correct.
43
Site for the requisite 20 year period. However, almost two thirds of the statements
were provided by people who have known the area for at least that long.
Table B: Periods of time for which authors of written statements have known the
Site
Not Stated
0-5 yrs
5-10 yrs
10-15yrs
15-20yrs
20+ yrs
5
2
6
7
5
41
LENGTH OF
TIME
NUMBER OF
PEOPLE
120. Table C summarises the activities which are said to have taken place on the Site,
and the number of people who have (a) witnessed and (b) taken part in those
activities.48 For ease of reference, they are listed in order, from most to least
frequently seen or participated in.49 I have also included the comparable numbers
from the original application material.50
48
13 of the 66 written statements in the Blue Folder were provided by people who also gave oral evidence.
Table C does not disaggregate their evidence.
49
The majority of the activities listed are taken from the Redston Form, but in a number of the statements
people have described activities in their own words. There is consequently a degree of overlap between
some of the categories, and I have necessarily had to make certain judgments about putting particular
activities into an existing category, or creating an entirely new category. The Table should not be read as
being precisely correct in every respect, but as an indication of the range of activities which have taken
place, and their relative frequency.
50
Note, however, that these numbers cannot simply be added together, since many people who signed to
original application forms also completed written statements
44
Table C: Activities which have taken place on the Site
ACTIVITY
NUMBER WHO
HAVE SEEN THIS
ACTIVITY
TAKING PLACE
43
NUMBER WHO
HAVE
PARTICIPATED
IN THIS
ACTIVITY
44
NUMBER OF
REFERENCES IN
THE
APPLICATION
MATERIAL
21
Markets and festivals
Meeting friends/people
40
48
4
Reading or listening to
music
37
30
Drinking tea, coffee,
cold drinks or alcohol
38
25
Getting fresh air or
eating lunch at
lunchtimes
37
13
Sitting or standing
watching pedestrians
and vehicles pass by
35
8
Making mobile phone
calls or using portable
computers
32
16
Toddlers learning to
walk
Children playing/playing
tag or similar
29
8
1
27
8
1
Football/children
kicking a football
informally
24
3
1
General relaxation and
exercise
Walking for exercise
22
15
22
6
Children learning to ride
a bike or roller skate
13
6
Public meetings and
gatherings such as St
Patrick’s Day parade
12
4
5
1
5
45
Assembly of school
groups for library visits
or transit
Wassail (including tree
planting ceremony)
10
4
8
8
Sitting on walls51
3
15
Art installations
3
2
9
Petitioning
2
4
2
Carols
1
8
Demonstrations/Rallies
1
3
Surveys
1
Speeches/canvassing/
debates
Courting couples
1
Watching
performances/poetry
recitals
3
1
1
1
3
Photography
2
Christmas Tree
2
Sketching
1
Exercising dog
1
51
NB there is an overlap between this category and “Sitting and reading”, “Drinking coffee” and “Standing
or Sitting”. It is clear from these other items that the number of people who have sat on walls is higher than
those who have simply listed it as an item in its own right
46
Other witnesses who supported the Application
a. Mrs Cathy Mercer, 31 Normanby Road NW10 1BU52
121. Mrs Mercer has been a resident of the area for 19 years, having moved to
Normanby Road from Lewisham in 1994. She described this as “moving to Dollis
Hill”, and was clear that she lived “in Dollis Hill”. She regarded the underpass at
the railway line as the boundary between Dollis Hill and Willesden Green. Streets
such as Lennox Gardens and Sonia Gardens were “more her neck of the woods”.
She had her “own library” in Neasden, but used the Willesden library because it
was much better. If asked what her local library was, her answer would be slightly
complicated but would in essence be “Neasden, but the Willesden library is better”.
Neasden was also uphill to get to.
122. Mrs Mercer’s written evidence was provided on the Redston Form, where she had
ticked the boxes to indicated that she had seen people attending and enjoying
community markets and festivals, meeting friends, having a drink, playing tag or
similar activities, making mobile phone calls or using portable computers, getting
fresh air or eating lunch at lunchtimes, sitting or standing watching pedestrians or
vehicles pass by, generally relaxing or exercising, reading books and listening to
music.
123. Mrs Mercer’s statement also indicated that she had seen people “kicking a ball
informally”, but in oral evidence she indicated that she had only seen this two or
three times, not regularly. When asked about “playing tag or similar activities” she
explained that she often saw children running around and regarded “playing tag” as
a “catch-all phrase for that”. After school, children were often “messing around”.
She did not know where the children were from, but they were school age children
who would play “wherever they happen to have space” (including coming out of
the library, but not on the pavement of Brondesbury Park, which was too narrow).
52
Statement No. 40, Blue Folder pp. 74-75.
47
124. Mrs Mercer had also seen toddlers learning to walk. She herself had attended
markets such as the Christmas market and French market, got ready for the St
Patrick’s day parade, met friends, talked on her phone, relaxed, read a book and
drunk coffee. At no time had she, or any person she knew of, been challenged or
prevented from using the site, nor had she ever been given permission to use it.
125. In oral evidence, Mrs Mercer described the application site as a “pleasant spot” but
said that she had never thought of it as anything other than “the bit in front of the
library.” She often used it. Although this was not only when she was visiting the
library, her visits were “in combination” with other trips such as shopping at
Sainsbury’s or going to the doctors or the stationers. She used the space quite a lot
for resting when laden with shopping, and as a way of breaking the journey home.
She would read the paper, send text messages and do Sudoku there. She had also
sung carols there before Christmas and used it for “cutting through”. Up until 2009
she had been a smoker, and it was “nice to stop in a non-public space” where she
would not disturb people.
126. Depending on weather and the time of year, she would sit on the walls on the edge
of the flowerbeds, but she “tend[s] to be a pacer” who would “pace around”. The
particular wall she sat upon would depend on the sun.
127. In the period up to 2000, she was working as a school teacher, and from 2000 to
2009 she was working for a charity. As a result, until 2009 she would use the site
more at weekends and during school holidays. . Since 2009 she had been “sort of
self-employed” and worked from home, and tended to visit the site during the
week, usually at lunchtime or 3 or 4 o’clock in the afternoon. Generally, she would
stop at the site once a week on her way back from Sainsbury’s, make a phone call,
do some texting, have a coffee or catch up with friends.
48
128. Although Mrs Mercer could go to Neasden for shopping, she tended not to unless
she was shopping for particular vegetarian food or going to Iceland. She bought
her fruit and veg and newspapers in Dollis Hill, where she also used the chemist.
For larger groceries she would go to the Sainsbury’s in Willesden. Her dentist was
in Park Avenue North and her optician in Edgware.
b. Mr Bruno Kwiecien, 26b Grange Road NW10 2QU
129. Although Mr Kwiecien’s written statement (completed on the Kwiecien template)
formed part of Mr Redston’s evidence, Mr Kwiecien gave evidence independently,
in support of the application.
130. Mr Kwiecien had moved to the area in 1963 (when he was 6) and 26b Grange Road
had always been his permanent address. Between 1974 and 1982, he had been in
the merchant navy, and he had lived in Italy for one and a half years in about 1979.
In the period 1987-1997 he lived and worked (self-employed) in Spain, but coowned the flat in Grange Road with his parents. Although not living there, he
would bring his children to visit his parents every year for two weeks at Christmas
and Easter, and a month in the summer.
131. Mr Kwiecien described Willesden as a “transient area” where the number of buyto-let properties meant that there was less of a community interested in retaining
what it had. It was “cohesive” but this was a “transient cohesiveneness”. He
thought that many nationalities still did not know that the WGLC was scheduled for
demolition.
132. In his written statement Mr Kwiecien indicated that he had seen people attending
and enjoying community markets and festivals, meeting friends, drinking tea coffee
or cold drinks, playing tag or similar activities, making mobile phone calls or using
portable computers, getting fresh air or eating lunch at lunchtimes, walking or
exercise and general relaxation, sitting or standing watching pedestrians or vehicles
49
pass by, generally relaxing or exercising, reading books and listening to music. He
had seen toddlers learning to walk, and children kicking a ball informally and
learning to ride a bike and roller skate there. There had been public meetings and
gatherings such as the St Patrick’s day parade and an event (possibly a “Safe
Streets” meeting) attended by Cllr Butt. He explained that he had taken this list of
activities from the Redston Form but “adjusted one or two things”, for example by
adding the reference to public meetings and gatherings.
133. Mr Kwiecien’s written statement indicated that he had participated in attending
markets and festivals, meeting friends, eating and drinking, making mobile phone
calls, reading and helping all his 3 children to learn to walk, ride a bicycle and
roller skate on the Site. In oral evidence, he said that, because he lived just up the
road from the Site, he used the Site as a place to meet other families or people with
pushchairs before getting on the bus to go somewhere else. The Site was “the
gateway to three bus stops” and a starting point for lots of families to meet, rather
than crowding around the bus-stop. In oral evidence, he said that school groups
also used it as a resting point to make sure that everyone got across the road safely.
134. When Mr Kwiecien’s father died in 1991, the wake was held at Gigi’s, and had
spilled out onto the Site. Until Gigi’s “became child unfriendly” (and then closed)
he met other families there.
135. In cross-examination, Mr Kwiecien acknowledged that his eldest children (now
aged 22 and 24) had been living with him in Spain when at the age when they
learned to walk, and when he taught them to ride a bike and rollerskate.
Nonetheless, they had definitely done these things on the Site during their visits to
see his parents between 1991 and 1995. As he put it “you don’t learn to rollerskate
in a day; it is a progressive thing”. Learning to rollerskate and ride a bicycle
happened equally in Willesden and in Spain “as the time was appropriate for their
learning”. When asked exactly where this had happened, he said it was both in the
50
car park in the early mornings and at the front of the library when his children had
more confidence. The slope at the front was good for them when they had acquired
a bit of confidence.
136. When I asked him where the bicycles they had used came from he explained that
his children had bikes in Spain, but that a friend of theirs had lent them bikes when
they were visiting his parents. His children would bring their roller skates with
them from Spain when they came to visit, as they travelled by car.
137. Mr Kwiecien had attended a meeting on 28 February 201253 as part of the
consultation exercise, but regarded this as a “total sham”. He referred to his
objection to the provision of “unaffordable houses” which he described as “the
reason why we are here”. He agreed that he had not referred to the loss of open
space, but said that they had been “bombarded with so much nonsense”. Open
space had not been raised because too much information had been thrown at them.
In any event, it was clear that this was public land which was going to become
private.
c. Mrs Sarah Calef, 134 Dollis Hill Lane NW2 6HY54
138. Like Mr Kwiecien, Mrs Calef had provided Mr Redston with a written statement
(in the form of a letter) in support of the Application, but presented oral evidence as
an independent witness.
139. Her written statement explained that she has lived in the area for over 45 years, and
that during the past 20 years she has used the Site “several times a year, some years
more than others”. She used it most in the period 1990-1998 when she worked part
time (2 to 3 days a week) at Eaton Hood Solicitors, 111 High Road Willesden. The
Site is only 3-4 minutes away and she would go there to eat her packed lunch or a
53
54
See the Council’s notes at p. 188 of the Council’s appendices
Statement No. 13 , Blue Folder pp. 34-38
51
takeaway or fruit from the shops on the High Road. She would sit on the low wall,
eat her lunch and read the newspaper or magazine. She noticed other people doing
similarly.
140. Mrs Calef also used many of the shops and businesses on Willesden High Road,
and would go to the Site after shopping to sit on the wall and have a rest and a
snack before going to visit a disabled friend in Churchill Road. Two or three times
a month she would take her friend shopping, and they would stop at the Site and sit
on the wall for a rest and a chat to the “regulars” who were there (which I
understood to be a reference to some of the street-drinkers). This happened over a
20 year period until 2 years ago when her friend had a bad fall which has left her
bed-ridden.
141. During the past 12 years Mrs Calef has also taken her 2 grandchildren to the Site,
where she would sit on the wall and read books to them. The grandchildren liked
blowing up balloons and running around with them, and would do drawing there.
Mrs Calef estimates that she sat out on the wall with her grandchildren between 20
and 25 times a year.
142. She has also used the Site as a “landmark” to meet friends, and her two brothers
used to meet her there to take her out on Saturday evenings and on St Patrick’s
Day.
143. During the last 20 years Mrs Calef has been involved in the campaign to save
Dollis Hill House, and has handed out leaflets advertising the yearly festival on the
Site. She estimates that she did this for an hour about 3 times a week in the
fortnight before each festival.
52
d. Mr Robin Willow (or Yewdall), 36b Belton Road, Dollis Hill NW2 5PE
144. Mr Willow (a.k.a Mr Yewdall – Willow is a stage name) submitted a number of
written documents relating to the planning application for redevelopment of the
site.55 I explained to him that most of this was irrelevant to the issues before me,
and the majority of his evidence was therefore given orally.
145. Mr Willow has lived in Belton Road, opposite the Willesden Green Bus Garage,
since 1987. He states that his area has been “up and down the High Road”. He
said that before it became part of the London Borough of Brent, the Borough was
divided into Wembley and Willesden, which meant that the whole of the area to the
north was Willesden – including the Mapesbury ward.
146. As a songwriter and performer, Mr Willow has performed at Café Gigi at a Sunday
lunch event. He has sometimes got out his guitar and played in front of the library.
He was not busking, but just engaged in a quiet activity. He estimates that he has
done this 2 or 3 times in 20 years. No-one challenged him and he did not feel the
need to ask for permission. As he put it “I felt I could do any lawful activity
without let or hindrance”.
147. He is certain that, on going down the High Road, he has stopped and might have
spent some time at the Site. He has no record of this in his diaries because, not
considering it would be in dispute that he had a right to use the Site, he had had no
need to record these matters.
148. Mr Willow has seen table tennis being played in the open area inside the library.
He observed that it was in Brent’s interest to make the use of the Site less
comfortable, for example by placing “spikes” on the walls, and to discourage
55
a letter dated 22 May 2012 to the Council Planning Department and the Council’s reply of 29 May 2012,
a newspaper cutting dated 31 May 2012 concerning the removal of books from the Kensal Rise Library, an
unsigned letter dated 12 November 2012 to the Council and a letter dated 21 December 2012 from Sarah
Teather MP, a copy of the Letters Page from the Times on 18 October 2012, and a further newspaper
cutting dated 7 February 2012.
53
people from using the area. He was aware that the spikes had been placed on the
walls to prevent “undesirables” being there, but said that this affected the area and
the use and made it less comfortable. He felt that preparations for this had begun a
long time in advance, and felt that closure of the cinema, Café Gigi and the
bookshop were part of this process.
149. He regards the Site as a natural place to be. It is a pleasant open area in the High
Street. It was “good to be here and to sojourn here”. He has seen significant
numbers of people in the area not just passing but standing, talking and doing
things. He has observed a small group of people sitting, quietly drinking, on a wall
on the Brondesbury Park side of the WGLC. He regards this as lawful and was not
concerned about it so long as they drank quietly.
150. In a Note submitted after he had given evidence, Mr Willow commented on the
Objector’s reliance on the notes of the 2012 consultations, and noted that it was his
frequent experience that notes and minutes of meetings were not verbatim records.
They missed out mention of many matters, and were “of poor accuracy.”
e. Dr Ishani Salpadoru, Osborne Road, NW2 5DR56
151. Dr Salpadoru provided Mr Redston with a written statement (based on the
Kwiecien template, but adapted) but presented evidence in her own right.
152. Dr Salpadoru is a GP in Kilburn. She used to live in Kilburn but in 2001 she and
her husband (Dr Alex Colas) moved to Dean Road, where they lived for 4 years
before moving to Osborne Road.
153. In her written statement, Dr Salpadoru indicated that she had seen people attending
and enjoying community markets and festivals, meeting friends, drinking tea,
coffee or cold drinks, playing tag or similar activities, making mobile phone calls or
56
Statement No. 51 , Blue Folder pp. 92-93
54
using portable computers, getting fresh air or eating lunch at lunchtimes, walking
for exercise and general relaxation, sitting or standing watching pedestrians or
vehicles pass by, reading books and listening to music. She had seen toddlers
learning to walk, and children kicking a ball informally and learning to ride a bike
and roller skate there. There had been public meetings and gatherings such as the
St Patrick’s Day parade and another event attended by Cllr Butt. She herself had
attended community markets or festivals, met friends, participated in toddlers
learning to walk and children kicking a football.
154. Dr Salpadoru confirmed that she had filled in/re-typed the Kwiecien Form with her
husband, because they had received a paper (as opposed to electronic) version. She
had looked at the list of activities, which she remembered as being in the form of a
tick-box, but felt she had witnessed all of them, except the meeting attended by Cllr
Butt. She knew about this, because her husband had attended the meeting, but she
had not been there herself. She recognised that the form should be corrected to
reflect this.57
155. Both on the form and in her oral evidence, she explained that her use of the Site
started in 2004, after the birth of her daughter, when they were living in Osborne
Road. After Christmas 2004, she and her daughter used to attend baby nursery
rhyme or singing groups and other similar events at WGLC. It was within walking
distance, and was a way to get to meet other mothers. She and her daughter would
go, have songs, and would then often congregate outside the building and chat. The
Site was a safe area where children could walk around without parents needing to
keep an eye on them at all times. On other occasions, Dr Salpadoru would meet
other mothers. They would sit on the walls and have a cup of coffee while their
children walked on the walls. Her daughter started walking in 2005, but she
brought her to the site in a pushchair before that. Before he daughter could walk,
Dr Salpadoru would not have let her crawl around on the ground. The time they
57
Dr Salpadoru made this point in her oral evidence. It was subsequently confirmed by a letter from Dr
Alex Colas.
55
spent outside increased in warmer weather:
in summer she would come every
week, but in winter “much less”.
156. Once Dr Salpadoru’s daughter started school, the bookshop in the WGLC became a
regular destination, which was a place to browse books and bump into and interact
with other people, both in the bookshop and in the open space outside. The square
“acted as an outdoor extension of the library centre: as a space to chat, relax, take
the sun in, and watch our children run around and play”. It “gives children space
that is not on the streets”.
157. For the last 3 years, Dr Salpadoru has brought her daughter to the Site to kick a
football around.
Sometimes her daughter would bring a friend, and on one
occasion there had been two others, but usually it was just Dr Salpadoru and 2
children. The bulk of the football was played in front of the library. If the ball ran
loose it could roll into the road, but that did not happen often. Dr Salpadoru felt she
always had to be there to supervise.
158. In cross-examination, Dr Salpadoru agreed that her main reason for visiting the Site
was to attend baby group sessions or to go to the bookshop, although more recently
she and her daughter had come to play football. She said that she had seen people
sitting and drinking outside the WGLC. She thought they probably suffered from
alcohol dependency, because they started early in the morning. They were there
when she attended the baby group sessions, which were usually at 10 or 11 in the
morning, but they were not aggressive and she did not regard them as a reason not
to stay in the open space. She did not think there was anything wrong with them
having a can of beer.
159. Dr Salpadoru had participated in the public consultation on the proposals for
redevelopment of the WGLC, together with two other mothers, in February 2012.
She had not referred to the loss of open space as a concern at that time, but says that
56
she was “in shock about the loss of the bookshop”, and that it was only with
hindsight that the loss of the open space has occurred to her. Her husband had
attended a similar meeting, and had not mentioned the open space. When asked if
this surprised her, Dr Salpadoru said that because she was responsible for the child
care, her husband would not have done the baby group events which brought her to
the WGLC.
f. Ms Daphne Meek, Milverton Road, Brondesbury Park
160. Mrs Meek said that the Site was an open space which was intrinsically valuable.
The fact of walking across it was of value.
g. Ms Helen Marcus, 121 Anson Road58
161. Mrs Marcus was a resident of Willesden between 1950 and 1960, and has lived at
Anson Road since 2007. Even if the Site was never used, it was important: the
principle was that it was open for people to use.
162. In her written statement she explained that she had enjoyed various events and
gatherings at the Site in the last few years.
163. She commented on the arguments which had been raised at the Inquiry about the
distance from people’s houses to the Site. She said that when she had lived in the
area as a child, she had lived in Mapesbury, in St Gabriel’s Road, but the whole
area was the old borough of Willesden and it was not for outside people to tell local
residents what their neighbourhood was.
58
Ms Marcus also provided a written statement for Mr Redston: Blue Folder p. 68
57
h. Ms Elizabeth Mioduchowski, Willesden Lane
164. Ms Mioduchowski has lived in the area since 1959. She walks along to the Site and
likes to have a cup of coffee there. She loves this space and thinks it “fits in”. She
had enrolled in the old library when it was still a library, and used it a lot. She
came to the library for events such as discussion groups. It was a place for a break,
where she could meet friends and have a coffee. It was an important part of her
life.
i. Ms Jackie Baines, 498 Kings Road59
165. Ms Baines is a local resident who has lived in Willesden for 24-25 years and now
lives in Kings Road. Before 1989 she had lived in Cornwall Gardens. She had
been to all the consultations on the proposed redevelopment. Although they had
been prompted that they were only there to discuss the building, she had mentioned
and reiterated that she liked the open space. Others were criticised for this, but she
had refused to do what she was told, and had made the point that the space was
valuable because it was visible from the High Road.
166. She said it had been used throughout the last 20 years, by children being taken to
see the Christmas Tree, and for markets. It was a good place to meet and a fantastic
focal point. She had taken cuttings from the plants for her own garden.
j. Ms Sally Long, 116 Olive Road, NW2 6UU60
167. Mrs Long has lived in the area for over 15 years. She has used the Site for meeting
friends and her children. This use has included sitting and reading a book in the
sun, drinking coffee and using a mobile phone. She has often used the café on the
corner as a rendezvous, specifically because she could see out over the paved area.
59
Ms Baines also provided a written statement for Mr Redston: Blue Folder p. 30
Mrs Long had originally asked to speak at the Inquiry, but subsequently agreed that her evidence could
be submitted in writing.
60
58
The Site is a much used meeting place, being near to a bus-stop, the post office and
local cafés. She particularly remembers meeting her daughters (now 27 and 33)
off the bus from their piano lessons in Ladbroke Grove. She would meet them on
foot to teach them to walk independently.
168. She has never been challenged while using the square, and always believed it was
her right to use it in this manner.
169. She considers the town green as part of her neighbourhood, in as much as it is part
of the area in which she lives. She moved to Cricklewood from Kensal Rise, and
Willesden Green is the crossing point between those two areas.
In London,
neighbourhoods are not as narrowly defined as in other places such as the
countryside.
59
THE EVIDENCE ON BEHALF OF THE OBJECTORS
Oral Evidence for the Council
a. Miss Beth Kay
170. Miss Kay is a Project Manager in the Regeneration and Major Projects Department
of Brent Council. She is responsible for managing projects aimed at delivering
major capital projects for LB Brent. Her first involvement with Willesden Green
was in writing a funding application in 2011. The bid document had identified the
forecourt of the WGLC and the boundary of the library site as being in need of
public realm improvement.
171. Her evidence explained the background to the proposals to redevelop the WGLC.
Since the majority of that background is not relevant to the current Application, I
will not repeat it here, other than to say that in the early stages of developing a brief
for the proposed new cultural centre, consultations were carried out with a “small
number of library users” including Mr Redston and Mr Grant.
The “AOC
Participation Final Report” published in March 2011 identified a number of
concerns with the proposals, but the only reference to the forecourt space was a
note that it was valued by some residents, and that, although it was not well-used, it
was valued for its potential.
172. In January 2012 Miss Kay took over project management of the proposed
redevelopment. Non-statutory consultation on the proposals took place in February
and April 2012. The February consultation consisted of a series of 1:1 meetings
with “stakeholders” and an exhibition of proposals. Following this there was a
series of 1:1 feedback meetings in April. Miss Kay had reviewed copies of the
notes of the February and April meetings, and found no reference to concerns about
the space in front of the WGLC having been used or valued for recreation or
pastimes. She had also reviewed correspondence from Mr Redston and three of his
witnesses (including Mr Grant and Miss N Mckenzie) in the period from March
60
2012 to April 2012 and found no reference to such concerns. The loss of the
locally listed building was very much at the forefront of people’s concerns.
173. Miss Kay denied any suggestion that she had prohibited discussion of open space at
these meetings.
Although they had been going out to consultation on a proposal
that included demolition of the 18894 library and building over the open space, and
had made it clear that that was the proposal (and therefore got comments about the
design of the building) there had been no restriction on the issues people could
raise. There was no preamble to the meetings, because they had decided to let
consultees lead the discussion. They had decided to hold 1:1 meetings rather than
anything larger because they did not think this would be constructive. The notes
which had been produced were not a verbatim record or minutes, they were simply
notes.
174. In cross-examination, Miss Kay said did not believe that the shape, size and usage
of the building, or the principle of building over the Site was a foregone conclusion
at this stage. She personally had not agreed with the proposed demolition of the
1894 library, which was not consistent with her understanding of Conservation
Areas.
175. There were also targeted meetings with specific user groups, but these all postdated the Application.
176. Miss Kay explained that the forecourt was not designated as Open Space within LB
Brent’s current or previous development plans. It was also not highway. However,
Street Trading Licences had been needed for events such as the markets because
they had taken place both on the forecourt and in the road. A licence was needed
for any event that was on or within 7m of the road. The licence was for the whole
market, not individual stalls. In cross-examination, she said that someone wishing
to trade from a table in the centre of the Site (more than 7m from the road) would
61
need permission from the library, but not a street trading licence. If someone was
not trading, they could set up a stall anywhere on the Site with the permission of the
owner. Handing out leaflets was not an “event” and so would not involve Brent’s
events booking centre.
177. According to the latest (2011) census, the population of LB Brent was 311,200.
Using Census Output Areas, the Council had estimated that the population of Mr
Redston’s neighbourhood was 28,270. The boundaries of the Output Areas did not
coincide exactly with Mr Redston’s area, but this was a “best estimate within the
spirit of the Map A boundary”.
178. In terms of her own experience of the way in which the Site was used, Miss Kay
does not live in the borough and did not begin coming to the WGLC until January
2012. From then on, she would come between one and three times a fortnight. She
would usually come from Willesden Green Station (walking down Walm Lane and
the High Road) and although she would sometimes enter the WGLC via the rear, it
was mainly by the forecourt (and “probably always” from the Brondesbury Park
side). She did not remember stopping at the entrance, but might have done to look
at the building. She had seen no ballgames or skateboarding.
b. Miss Sue McKenzie
179. Miss S McKenzie has worked for LB Brent for 7 years as Head of Libraries, Arts
and Heritage. In that capacity she manages 6 libraries, the museum, archive and
arts service. She first came to WGLC in 2005 when she took up her post.
180. In 2009 Brent decided to start a series of temporary activities in unused spaces.
This was known as the Greenhouse initiative. Through this initiative Brent has
planned and facilitated events on the forecourt of the WGLC building and the
62
pedestrianized section of Grange Road. These include markets and one public art
installation.
181. The St Patrick’s Day parade is an annual event which started in 1997. It starts at
the Willesden green Station and finishes at the WGLC where there is music, a
funfair and market stalls. The event takes place inside the WGLC, on the forecourt
and in Grange Road. In 2012 it also used the car park space at the rear of the
building. In 2010 and 2011 the parade required a Temporary Event Notice.
182. In terms of her own experience of the Site, Miss McKenzie explained that she
visited the site twice a week, on average. She would try to schedule spending the
whole day there, but it might be just the afternoon or the morning. She would
usually be there during office hours – possibly arriving early at 8am and leaving at
6pm. When there were events, 9 times out of 10 she would also be there in the
evening. Sometimes she came by public transport (via Willesden Green Station or
on the No. 52 bus), sometimes by car, so there was a 50:50 split as to whether she
used the front or rear entrance. She liked to go out for lunch, and there were
occasions when she would go outside onto Grange Road to support staff, but most
of her time was spent inside the building. She could not recall ever seeing football
played at the front, or any other kind of game. Staff had never told her about the
times they had had to move people on for playing ball games.
183. Miss McKenzie could not say that she had never seen people eating their
sandwiches outside, but this was “not the kind of space where people stop”. It was
not a space which she would choose to loiter in.
184. Most of the time she had seen street drinkers, in the entrance to the library or sitting
on the walls around the library building. It could be the case that you had to step
over them to get into the building in the morning. Her impression was that the
63
street drinkers were a daily occurrence.
This had been an issue for the Centre and
could put people off.
c. Mr Noman Ali
185. Mr Ali is a Customer Service Officer employed by LB Brent. He has worked at the
WGCL for 17 years. He had started as “front of house” staff in 1995, and had
become a Senior Customer Services officer in 2001. In 2008 his role had moved
into the library as well. He is currently responsible for managing facilities at the
WGLC. Throughout the period from 1995 to January 2012 he has worked 5 days a
week. Since January 2012 he is only at the site 1 or 2 days a week.
186. Before he started at WGLC, Mr Ali did not come to the building. Between 1995
and 2000 he would travel to work by public transport and so enter via the front
entrance. Between 2000 and 2012 he has used the car park at the rear. However,
for most of the time since 2000 he has been on the early shift (from 7am to 4pm)
and has been responsible for opening up the building. Since this can only be done
from the front he usually walks round from the car park to the front. He sometimes
goes out for lunch, but sometimes brings lunch from home and eats in the staff
room.
187. His written statement stated that the space in front of the WGLC was used as a
thoroughfare and needed to be kept free from obstruction. There were no benches
or seating areas in the space because the WGLC did not want to encourage people
to dwell in the space.
It was not used for games, football or cricket because this
caused a nuisance to visitors to the library. On odd occasions where children had
tried to use the space for ball games, the library had received complaints from
library users and staff had moved the children on. However in oral evidence he
said he had never seen that or asked children to move on personally. The place
where there was a problem was at the back entrance and on Grange Road. It
became an issue when the apartments on the corner of Cornwall Gardens and
64
Grange Road were built (in 2004). Children from the apartments played on Grange
Road. The bookshop used to complain that the ball kept hitting the glass window,
and the children had to be asked to move on. This was mainly the window facing
onto Grange Road: Mr Ali had seen children playing football on Grange Road, but
not in front of the library. There had never been signs telling people not to play
ball games at the front of the library. Mr Ali thought there had been a sign at the
back, but was not sure if it was still there.61
188. On occasions, staff have had to move people away from the space for other reasons.
When the Willlesden Bookshop ceased trading, a “pop-up” bookshop was set up in
the space, but was made to move on.
189. Markets or events which take place in the space have to have permission from the
Library Centre.
190. There is an issue with street drinkers in the vicinity. Mr Ali said they had been a
problem “from day one”. The area is “not licensed” for drinking and as there are
children using the library it is not considered an appropriate place for street
drinkers. Street drinkers fight, swear, beg and urinate in the space and staff
regularly ask them to move on. The numbers increase in summer, when there can
be groups of 4-6 people. When there are only a few street drinkers, staff ask them
to move on, but when there are more they ask the police. The police are called for
support at least once a week.
191. Mr Ali couldn’t say he had never seen people eating on the Site but it was busy and
noisy. In his experience people used the area to the rear more, normally in summer.
61
I was unable to see any sign
65
d. Mr Stephen Onyango
192. Mr Onyango is a Duty Officer who is responsible for the day to day facilities at
WGLC, including supervising the cleaning/security contractors, setting up events in
the hired halls, reporting faults and overlooking health and safety issues. He has
worked at WGLC for 14 years.
193. Mr Onyango comes to the Site “roughly” 5 days a week. On Wednesdays he opens
up the WGLC and enters through the front, but on other days he enters from the
back, which is also the way he leaves. Part of his job involves patrolling the
outside of the building to make sure all the fire exits are properly closed. He does
this twice a day, leaving via the front entrance, walking round the whole building
and re-entering by the front.
194. On Friday 7 December 2012 he observed the CCTV camera which is located at the
front entrance of the WGLC and looks out over the eastern half of the Site. He
observed customers using the area to access the WGCL, and members of the public
using it as a thoroughfare walking to and from Grange Road and the High Street,
and between Grange Road and Brondesbury Park. He did not observe any other
activities taking place in the area.
195. Mr Onyango has personally had to ask people to move away from the space if they
have become a nuisance to library users. His written statement indicates that on the
very rare occasion that children have begun playing ball games in the area, staff had
moved them on; and that they do not allow the space to be used for games like
football or cricket, because this would interfere with people’s use of the library. In
his oral evidence, however, he said that they always had a problem with boys
playing in Grange Road, and he had asked them to stop on more than one occasion.
The game “basically” took place in Grange Road but sometimes the ball would go
over to the area between the WGLC and the 1894 library. The players would then
66
run to get the ball, cutting across customers who were trying to go in and out of the
library.
196. They also move people drinking in that area, and have called the police to deal with
it as well.
197. In cross-examination Mr Onyango’s attention was drawn to the fact that his
statement was the same as that of Mr O’Sullivan. He said that his line manager had
helped him type it, but that he had been asked to watch the CCTV and these were
his observations.
Written Statements for the Council:
a. Ms Cheryl Curling
198. Ms Curling is employed by LB Brent where she is responsible for
Communications, Events and Marketing. She states that the annual St Patrick’s
Day Festival event in Willesden Green first took place in 1997. The parade starts at
Willesden Green Station and finishes at the WGLC, where there is live music, a
funfair and market stalls. The event takes place inside the Library Centre, on the
forecourt and in Grange Road. In 2012 it used the car park space at the rear of the
building. In 2010 and 2011 a Temporary Event Notice was required.
199. The event has to date been organised and funded by LB Brent, but following a
review of its festival strategy in 2011 Brent will not be funding or assisting in the
organisation of future parades.
b. Ms Osita Udenson
200. From 1991 to 2010, Ms Udenson was employed by LB Brent as Town Centre
Regeneration Manager. In that capacity she was responsible for organising and
managing markets in Willesden Green from 2006. In 2006 a steering group was set
67
up for the Willesden Green Town Centre. It was the group’s ambition to activate
the space in front of the WGLC, including the land owned by Brent (which Ms
Udenson describes as the “Library Forecourt”). As a result, Ms Udenson (as Town
Centre Manager) arranged for a French Market to come to Willesden Green.
201. The French Market started in autumn 2006 and takes place once every spring and
once every autumn. It is made up of several stalls which are located in Grange
Road, and on the library forecourt. It requires a Street Trading Licence.
202. Ms Udenson has also organised four other events, namely an African Showcase
event in 2006, a Brazilian Market in 2007 and 2008, and an Internatinal Market in
2011. These were all one day events which took place on a Saturday from 9am
until 6pm.
All four events took place on both Grange Road and the library
forecourt, and required Street Trading Licences.
The Brazilian Festival also
required a temporary Event Notice.
203. As part of a project known as the “Greenhouse Initiative”, Ms Udenson launched a
Saturday Market, known as the World Flavours Market.
This contains
approximately 10 stalls selling a variety of goods, between 10am and 5pm. The
World Flavours Market started as a fortnightly event in April 2011. From that date
until October 2011 it took place on the pedestrianized section of Grange Road and
the library forecourt. It also required a Street Trading Licence. In November 2011,
it moved inside the WGLC building because of the weather. Because there was an
art installation on the library forecourt over the summer of 2012, the market did not
go back outside until September 2012. After October 2012 it returned to the
WGLC building.
204. One other event which took place was the Green Fair, which was organised by
Brent Friends of the Earth. This was held on 21 May 2011 and occupied the
pedestrianized part of Grange Road and the library forecourt.
68
c. Narinder Bhourlay
205. Narinder Bhourlay is the Library Manager, South Libraries, in LB Brent’s
Libraries, Arts and Heritage Department.
She is responsible for 3 libraries
including the Willesden green library, and has worked in the WGLC for 5 years.
206. The space in front of the library, which is owned by the Council is used as a
thoroughfare for people visiting the library or crossing from Brondesbury Park to
Grange Road. There are no benches or seating areas in the space. It is not allowed
to be used for games, football or cricket because that causes a nuisance and health
and safety concern for visitors to the library. On rare occasions where children
have tried to use the space for ball games, the library has received complaints from
library users and staff have moved the children on.
207. On occasion, staff have had to move people away from the space for other reasons.
When the Willlesden Bookshop ceased trading, a customer set up a “pop-up”
bookshop in the space, but was made to move on.
208. Markets or events which take place in the space have to have permission from the
Library Centre.
209. There is an issue with street drinkers in the vicinity. The area is “not licensed” for
drinking and as there are children using the library it is not considered an
appropriate place for street drinkers. Street drinkers fight, swear, beg and urinate in
the space and staff regularly ask them to move on. The police are regularly called
for support.
69
d. Mr Peter Paddon
210. Mr Paddon was employed by LB Brent as Town Centre Regeneration Manager for
Harlesden and Willesden from August 2008 to September 2010. In that time he
was involved in a number of activities which made use of the “library forecourt”.
He was also instrumental in upgrading the landscaping and infrastructure of the
square in 2010.
211. Before Mr Paddon took up his post, Brent had commissioned a report from Urban
Practitioners which was used as the basis to secure funding for improvements to the
public realm at three locations along the High Road, including the library forecourt.
212. During Mr Paddon’s time as Town Centre Regeneration Manage, the main market
event which took place around the WGLC was the visiting French Market. This
took place in April and October each year and occupied the whole area from
Grange Road, through the library forecourt and along the side of the WGLC in
Brondesbury Park. The Council received a fee from the operator and in return
publicised the event through flyers and posters, and the necessary permissions
(which included a street trading licence and permission for the temporary
suspension of parking bays in Grange Road).
213. Other events included the Brazilian Festival in 2008 and the African Market in
2009 (both of which took place across the library forecourt and on the
pedestrianised area of Grange Road); the Willesden “Spring Clean” Day in 2010
(which used the forecourt as a focal point); the Wassail in January 2010 (a parade
which culminated in a tree planting ceremony in the bed outside the library); and
the St Patrick’s Day festival in 2009 and 2010 (which used space within and around
the library including the forecourt, Grange Road and the rear of the building, and
required a temporary Event Notice). The Wassail has taken place every year since
its inception.
70
214. From the time he took up post Mr Paddon was aware of local concern that the
forecourt was unattractive and off-putting because of habitual use by street-drinkers
and poor lighting at night. In 2009 Mr Paddon promoted the re-paving of the whole
of the forecourt together with a proposal to extend the pedestrianized section of
Grange Road, re-landscape the planting beds, change the retaining walls to deter
street drinkers sitting on them, install new lamps and columns, and install
electricity feeder pillars to serve market and event uses. These plans were accepted
and the work was completed in April/May 2010.
e. Mr Darren O’Sullivan
215. Mr O’Sullivan is a Duty Officer employed by LB Brent. He is responsible for the
day to day facilities at WGLC, including supervising the cleaning/security
contractors, setting up events in the hired halls, reporting faults and overlooking
health and safety issues. He has worked at WGLC for 15 years.
216. On Saturday 8 December 2012 he observed the CCTV camera which is located at
the front entrance of the WGLC and looks out over the eastern half of the Site. He
observed customers using the area to access the WGCL, and members of the public
using it as a thoroughfare walking to and from Grange Road and the High Street,
and between Grange Road and Brondesbury Park. He did not observe any other
activities taking place in the area.
217. He has personally had to ask people to move away from the space if they have
become a nuisance to library users. On the very rare occasions that children have
begun playing ball games in the area, staff had moved them on. They do not allow
the space to be used for games like football or cricket, because this would interfere
with people’s use of the library. They also move people drinking in that area, and
have called the police to deal with it as well.
71
Written Evidence from Linden
218. Linden submitted a written statement and appendices from Mr James Entwhistle, a
trainee solicitor with DAC Beachcroft LLP. The main purpose of Mr Entwhistle’s
statement was to exhibit information relating to the relationship between the
“neighbourhood” as defined on Map A, and (a) the addresses (by postcode) of
people who had provided written statements in support of the Application and (b)
the ward boundaries for the area.
219. In very broad terms, Mr Entwhistle’s analysis showed 22 “hits” within Mr
Redston’s neighbourhood to the south of the railway line; 18 within the
neighbourhood to the north of the railway and 10 outside the neighbourhood.
However, this plan was prepared before Mr Redston’s amendment to Map A. On
the basis of the amended Map A, it appears that 4 (possibly 5) of the “hits” which
were previously outside the neighbourhood would now fall within it (1 to the south
of the railway, the remainder to the north).
220. Mr Entwhistle stated that he had undertaken research into the area surrounding the
Site but had been unable to find any demarcation or boundary which corresponded
with the line shown on Map A. He also provided population figures for LB Brent
(255,000 people, taken from the Council’s Core Strategy) and Willesden
GreenWard (12,714 as at 2001, taken from Brent’s website).
72
ADDITIONAL MATERIAL
Inspector’s Questions
221. At the outset of the Inquiry, I provided the parties with a list of questions prompted
by my initial reading of the papers. Most of these were directed to the Council, but
it was open to all parties to respond. Some of the questions were covered in the
evidence which was given, and some in submission. For the record, I set out the
questions and the answers I received from the parties here:
Question 1:
The Council’s evidence makes the point (which does not seem to be in dispute)
that the various markets were organised by the Council, and that stallholders
were licensed. How does this affect the question whether this is or isn’t a
village green? In particular:
a.
if the application site was a recognised village green, would it have
been possible to hold a market without local authority consent, or
would there still have been a need for licences?
b.
the licences appended to the Council’s evidence describe themselves as
“Street Trading Licences” issued under the London Local Authorities
Act 1990. What implications does this have for the status of the
application site (e.g. does it mean that the application site was
regarded as a “street”; if so, why; was this correct; and (either way)
what are the implications of this?)
222. The Council did not provide a direct response to the question whether a Street
Trading Licence would be required even if the Site was recognised as a TVG, but
submitted that the holding of markets on a TVG would not be lawful, because it
would entail the erection of structures on the land which would curtail use of the
land and so be contrary to the Inclosure Acts. Mr Redston disputed this, arguing
that if this was the case then no-one would ever be able to dance around a Maypole
73
either. Linden’s position was slightly different to the Council’s, and was that a
market would be unlawful to the extent that it interfered with LSP on the Site.
Linden also considered that a market would require the landowner’s consent.
223. Both the Council and Linden agreed that Street Trading Licences were required for
the markets not because the Site itself was a street, but because the legislation
requires a licence for a market which takes place within 7m of the road. On this
basis, Linden submitted that even if the Site was a TVG, a Licence would still be
required.
Question 2: Whether or not this is a village green, it is an area which has
clearly been used by the public since it was created. It does not appear that it
has ever been closed to the public, and there are no signs up to indicate that its
use is with the consent of the owner.
If it is not a village green, what is its
status?
224. The Council indicated that the original conveyance of the land to the Council made
no reference to the statutory powers under which the land was acquired. Linden
and the Council drew my attention to the fact that the 1980 Development Plan had
shown the Site, together with the land now occupied by the WGLC and the car park
behind it, as allocated being for “public services”, and to the fact that it was not
allocated for any specific use in the 2004 UDP.
225. None of the parties considered the Site to be either highway land (or a public right
of way) or open space in any statutory sense, although the Councl and Linden
stressed that it had been used “by many thousands of people for access to WGLC
and as a general thoroughfare”. In the Council’s view it was simply land forming
part of the library premises.
74
Question 3: The treatment of the paving/surfacing of the application area
appears to delineate the boundary of the footpath on the Willesden High Road
and Brondesbury Park frontages. What (if anything) is the significance of
this?
226. The Council advised that there was no particular significance. Linden considered
that it corresponded with the edge of the footway, but considered that “from a
user’s perspective the wider paved area is experienced as a whole”.
Question 4: The material which accompanied the application for permission
of the existing library described the area in front of the library as “open
space”, and observed that “Generally high priority has been given in the
design to create a feeling of space and landscaping – to put the ‘Green’ back in
Willesden”. What is meant by the “putting back the Green in Willesden”?
227. The Council’s response was that it could not help, but (for the avoidance of doubt)
it was not accepted that the sentence indicated any intention to reinstate the village
green. Linden considered that this was a “general aspiration”.
228. Mr Redston argued that it was misleading to regard this statement as nothing more
than an “aspiration”. The scheme put forward in 1983 followed the publication of
the Willesden Green District Plan in 1980, which showed that the library centre site
would be used for “Public Services”, and identified local open space as one of the
needs which Brent gave a commitment to meet on that site.
Question 5: Under what powers does the Council hold the Site? Does the
Council envisage that, in order to carry forward the proposed development, it
will be necessary to appropriate it to any particular use; and if so, from what
use would it have to be appropriated?
75
229. The Council advised me that it intends to appropriate the whole of the site of the
proposed development for planning purposes. However, the resolution/intention
does not state from what use it will be appropriated. It is not regarded as open
space: as noted above, the Council’s position is that the Site is held as part of the
library.
Question 6: Although it lies outside the Site, Grange Road has been stopped
up to vehicular traffic and the southern end has been pedestrianized. What
was the extent of the stopping-up order and what is the status of the
pedestrianised area?
230. Although no detail of the stopping up order were produced, Linden advised that
although the southern end of Grange Road has been closed to vehicular traffic, the
land remains part of the highway.
Additional Documents
231. In the thought that they might shed some light on Brent’s intentions when creating
the Site and/or its current understanding of the powers under which the Site was
held, I asked the Council to produce copies of:
(1)
The planning permission for the WGLC building;
(2)
The officer’s report to the committee which granted planning permission for
the WGLC building;
(3)
The officer’s report on the latest proposals for redevelopment of the WGLC
and the Site.
76
232. Of these, the planning permission provided no meaningful insight into the status of
the Site (there was, for example, no condition requiring the Site to be kept open for
public use). The Ground Floor plan attached to the permission showed a building
and external layout which was broadly the same as that shown in the 1983
booklet,62 but on the approved drawing the Site was not specifically identified as
“Public Square”.
233. The officers’ report on the 1984 application was only a little more illuminating. In
a section headed “Remarks” officers commented that:
“The library building should be associated with both covered and open public areas so that
activities ‘spill over’ to involve people outside the building”
And
“Ample space is available within the footpath and open space area surrounding the building for
effective landscaping which will necessarily be provided as part of the project to provide not
merely softening of the building feature, but also an appropriately informal and welcoming
atmosphere in contrast to the noise and activity of High Road”
234. The officers’ report into the current application makes no reference to any need to
appropriate any part of the land involved to planning purposes.
My Own Observations
235. Finally, I add my own observations of the Site. Because the Inquiry was held in the
WGLC building, I walked across the Site at the beginning and end of each day. I
also spent a large part of the lunch breaks walking in the surrounding area and
62
Although there were differences in the internal disposition of uses
77
observing the Site. Although all this took place after the Application had been
made, and therefore outside the requisite 20 year period, no-one suggested that
there had been any significant change in circumstances since April 2012 which
would make what I saw untypical of the way in which the Site is used. However, I
am conscious of the fact that the Inquiry was held on a cold week in February, and
that conditions were not generally such as to encourage anyone to linger outside for
any longer than necessary.
236. Across the four days of the Inquiry, I observed the Site being used in order to
access the WGLC building, and as a short cut between Brondesbury Park and
Grange Road/the High Road. I observed the “street drinkers” sitting on the wall at
the back of the 1894 library, on the Brondesbury Park side. I saw nobody who was
obviously meeting anyone else, and no children playing. Given the weather, I was
not surprised to find that there was no-one sitting outside eating their lunch or
drinking coffee.
78
RELEVANT LAW
General principles
237. The burden of proving that land has become a TVG is on the applicant who is
seeking registration. The standard of proof is the balance of probabilities.
238. When considering whether or not an applicant has discharged that burden, it is
important to have regard to the guidance given by Lord Bingham in R v
Sunderland City Council ex p. Beresford:63
“As Pill LJ rightly pointed out in R v. Suffolk County Counicl ex p. Steed … ‘it is no trivial
matter for a landowner to have land, whether in public or private ownership, registered as a town
green …’. It is accordingly necessary that all ingredients of this definition should be met before
land is registered, and decision-makers must consider carefully whether the land in question has
been used by inhabitants of a locality for indulgence in what are properly to be regarded as lawful
sports and pastimes and whether a temporal limit of 20 years’ indulgence or more is met.”
The Elements of s. 15(2):
239. Prior to the Commons Act 2006, applications to register land as a TVG were
possible under the Commons Registration Act 1965 (both in its original form and
as amended by s. 98 of the Countryside and Rights of Way Act 2000). Although
there have been changes in the precise wording of the legislation, much of the caselaw on the earlier provisions (s. 22(1) of the 1965 Act, and later s. 22(1A)) remains
relevant to the interpretation of s. 15. I summarise the relevant principles by
reference to the individual components of s. 15(2).
63
[2004] 1AC 889 @ para2, Linden Authorities Tab 3
79
“Land”
240. Although the words “village green” generally conjure up a particular image in
people’s minds, the case law makes it clear that if a piece of land satisfies the
criteria in s. 15(2), it is irrelevant whether it fits within any “traditional” idea of
what a village green should look like. In Oxfordshire County Council v Oxford
City Council and others64
(“The Trap Grounds Case”) Lord Hoffman drew
attention to the fact that s. 15(2) had been enacted by Parliament in the knowledge
that previous Commissioners decisions had ordered registration of a wide range of
sites (including “some rocks” which had been “used by the inhabitants of the
locality to moor boats while engaged in the pastime of boating” and a car park in
Windsor), but without any qualification to the definition which would change this.
“A Significant Number”
241. The word “significant” does not have any particular technical meaning. However
“significant” does not mean a “considerable or a substantial number”:
a
neighbourhood may have a very limited population and a “significant” number of
the inhabitants of such a neighbourhood could well be less than would be described
as a considerable or a substantial number. What matters is that the number of
people using the land in question must be sufficient to indicate that their use of the
land signifies that it is in general use by the local community for informal
recreation, rather than occasional use by individuals as trespassers: see Sullivan J.
in R (o.a.o Alfred McAlpine Homes Ltd) v. Staffordshire County Council.65
242. While an applicant need not prove that all of the inhabitants use the land,
conversely, use by only a few of the inhabitants will not suffice: see Sullivan J. in
64
[2006] UKHL 25 (Linden Authorities Tab 1)
[2002] EWHC 75 (Admin) @ para 71. In McAlpine the Inspector heard evidence from 6 witnesses who
could give evidence covering the whole of the 20 year period. Their evidence related not only to what they
had done themselves, but also to what they had seen others doing. Their evidence was “amply supported”
by that of other witnesses who could deal with various parts of the period.
65
80
R (o.a.o. Laing Homes Ltd) v. Buckinghamshire CC.66 In McAlpine Sullivan J.
doubted that 6 people out of 20,000 or one out of 200 would be significant.67
243. The significance of the use must relate to the locality or neighbourhood relied upon,
i.e. it must be demonstrated that a significant number of the inhabitants of the
locality use it so as to establish a clear link between the locality or neighbourhood
and the proposed TVG:
R (Oxfordshire and Buckinghamshire Mental NHS
Foundation Trust) v. Oxfordshire CC.68
“Of the inhabitants”
244. There is no direct authority on the meaning of the word “inhabitants” in section
15(2). While it clearly includes people whose main home is in the relevant area, it
is less obvious whether it includes people who work within the area but live
somewhere else. However, in the very early case of Fitch v. Fitch69 the Court
concluded that a defendant who lived in a different parish, but worked twice a week
in his father’s butcher’s shop in the relevant parish, satisfied the test of inhabitancy
for the purposes of entitlement to make use of an area for lawful games and
pastimes.
“Of any locality or any neighbourhood within a locality”
245. For the purposes of s. 15(2) a “locality” must be an administrative area recognised
by law: see Laing Homes @ [133-134].
246. In contrast, a neighbourhood need not be a recognised administrative unit.
Individual neighbourhoods do not need to be entirely within a single locality:
66
[2003] EWHC 1578 (Admin) (Linden Authorities Tab 10) @ para 31
Note, however, that this is a reference to the number of people who have used the application site, which
is not to be confused with the number of witnesses, especially where the evidence from those witnesses is
not limited to their own use but also relates to what they have seen others doing.
68
[2010] EWHC 530 (Admin) @ para 69
69
(1797) 2 Esp 543. See generally Gadsden on Commons and Greens 2nd ed para 14-122.
67
81
Oxfordshire County Council v. Oxford City Council.70 There can be more than
one “neighbourhood” which contributes to status as a TVG: Leeds Group plc v.
Leeds CC.71 The phrase “any neighbourhood within a locality” was “drafted with a
deliberate imprecision” which contrasts with the law which requires a locality to be
defined by legally significant boundaries: Oxfordshire County Council v. Oxford
City Council.72 A housing estate can be a neighbourhood. However, it cannot be
simply any area of land that an applicant for registration chooses to delineate upon
a plan. Merely drawing a line on a plan does not thereby create a neighbourhood.
The registration authority has to be satisfied that the area alleged to be a
neighbourhood has a sufficient degree of cohesiveness, otherwise the word
‘neighbourhood’ would be stripped of any real meaning: R (o.a.o. Cheltenham
Builders Ltd) v. South Gloucestershire DC.73
“Indulges as of right”
247. The words “as of right” do not require any subjective belief in the existence of a
right on the part of the people using the alleged TVG. Rather, they reflect the
common law requirement that the use must not be by force, nor stealth, nor by
licence of the owner (or, to use the Latin phrase “nec vi, nec clam, nec precario”):
see R v. Oxfordshire County Council ex p. Sunningwell Parish Council. 74 The
right must have been enjoyed “openly in the manner that a person rightfully entitled
would have used it.”75
248. These passages deal with the way in which the land has been used. A related issue
is the extent to which it is relevant to consider the way in which that use would
appear to the landowner. In Sunningwell, Lord Hoffman observed that:
70
[2006] 2 AC 674 (Linden Authorities Tab 1) @ para 27
[2011] 2 WLR 1010 per Sullivan LJ @ para 27
72
[2006] 2AC 674 (Linden Authorities Tab 1) per Lord Hoffmann @ para 27
73
[2003] EWHC 2803 (Admin), (Linden Authorities Tab 6) @ para 85
74
[2000] 1 AC 335 (Linden Authorities Tab 7) at p. 350H-351B
75
Citing Bright v. Walker (18340 1 C.M.& R. 211, 219: see p. 351F-G; 353A
71
82
“The unifying element in these three vitiating circumstances was that each constituted a reason
why it would not have been reasonable to expect the owner to resist the exercise of the right - in
the first case, because rights should not be acquired by the use of force, in the second, because the
owner would not have known of the user and in the third, because he had consented to the user,
but for a limited period.”
249. Having regard to references such as this, authorities after Sunningwell have
consistently laid emphasis on the need to consider the matter from the point of view
of the impression which would be conveyed to the landowner.76 However, some
care needs to be taken when applying this, given the decisions in R (Beresford) v.
Sunderland City Council [2003] UKHL 60 and R (Lewis) v. Redcar & Cleveland
BC (No. 2) [2012] 2 AC 70.
250. In Beresford the Council owned an area of land which had been grassed over and
seating installed around the perimeter. The land was used by local inhabitants for
ball games and other lawful pastimes. When an application was made to have it
registered as a TVG, the registration authority refused on the grounds that the land
had not been used “as of right” but by the implied licence of the local authority.
The House of Lords concluded that the mere fact that the landowner had
encouraged activity on its land did not in itself indicate that use took place by virtue
of a revocable permission. Mere inaction could not give rise to an implied licence.
User can be “as of right” even though it is not adverse to the landowner’s interests.
Neither the cutting of the grass nor the provision of seating indicated the grant of a
revocable consent.
251. In reaching this conclusion, Lord Scott said:77
“Was there any sign that the permission was intended to be temporary or revocable? There was
none. The fact that the land was publicly owned seems to be to be highly material. Neither the
76
77
See e.g. Laing Homes (Linden Authorities Tab 10) @ paras 78, 82, 84, 85, 93, 116
Para 49. See also Lord Bingham para 7; Lord Rodger para 60; Lord Walker para 85.
83
WDC nor ... the council were, or are, private landowners. Their respective functions were and are
functions to be discharged for the benefit of the public. The provision of benches for the public
and the mowing of the grass were, in my opinion, not indicative of a precatory permission but of a
public authority, mindful of its public responsibilities and function, desirous of providing
recreational facilities to the inhabitants of the locality. In these circumstances there seems to me
to have been every reason for the inhabitants of the locality who used the sports arena to believe
that they had the right to do so on a permanent basis.”
252. In Lewis the Supreme Court dealt directly with the question whether the way in
which matters would have appeared to the landowner was relevant when deciding
whether the use had been “as of right”.
In that case, the inspector had
recommended against the registration of land which was also part of a golf course,
where the evidence was that non-golfers used the land for recreation but
overwhelmingly deferred to the golfers, on the grounds that it would not be
reasonable to expect the club to resist the recreational use of land by local users
provided that such use did not in practice interfere with its use by the golf club.
The Supreme Court disagreed with that analysis: where land has been extensively
used for lawful sports or pastimes nec vi, nec clam, nec precario, it is not necessary
to ask the further question whether it would have appeared to a reasonable
landowner that users were asserting a right to use the land in that way. 78 However,
Lord Hope suggested that the way in which matters would have appeared to the
landowner may have a bearing on the quality of the user that was relied upon.79
253. While (Lord Hope’s observation aside) Lewis might at first sight appear to be
saying that the way in which things would have appeared to the landowner is
irrelevant, this is not the way in which the post-Lewis authorities have interpreted
the Supreme Court. So, for example, in Newhaven Ouseley J. summarised the
effect of Lewis as follows:
78
79
See Lord Hope, paras 53 and 67-69; Lord Brown para 107; Lord Kerr at paras 104 and 116
Lord Hope, para 69.
84
“98.
In [Lewis] the Supreme Court rejected the argument that there was a further
requirement, in addition to the need for the user to be neither by force, or in secret or by
permission, i.e. as of right, that it should appear to a reasonable landowner that the users were
asserting a right to use the land. These three vitiating circumstances were unified by the
feature that in each case it would not have been reasonable to expect the owner to resist what
was later claimed as the exercise of the right.
99. What was required was that the user for at least twenty years be of such amount and in
such manner as would reasonably be regarded as the assertion of a public right, so that it was
reasonable to expect the landowner to resist or restrict the use if he wished to avoid the
possibility of registration as a village green.”
254. Although it is not especially easy to reconcile paragraphs 98 and 99 of Newhaven,
the general consensus is that – as Lord Hope indicated - the way in which matters
would have appeared to the landowner has a bearing on the quality of the user that
is relied upon.
“In Lawful Sports and Pastimes”
255. “Lawful sports and pastimes” (“LSP”, or “a LSP” where the singular is required) is
not two classes of activities, but a single composite class which uses two words in
order to avoid arguments over whether an activity is a sport or a pastime. There is
therefore no requirement to demonstrate that at least one sport has taken place: R
v. Oxfordshire County Council ex p. Sunningwell Parish Council80
256. As to what is a “sport or pastime”, there is no requirement for there to be any
communal element such as would be found in playing cricket, or dancing around a
maypole. Sports and pastimes includes those activities which would be so regarded
in our own day. Dog walking and playing with children are, in modern life, the
kind of informal recreation which may be the main function of a village green. It
80
[2000] 1 AC 335 per Lord Hoffman @ p. 356H
85
may be, of course, that the user is so trivial and sporadic as not to carry the outward
appearance of user as of right.81
257. Use as a village green is not incompatible with use as a footpath or right of way.
Consequently, there will often be cases where the registration authority has to
decide whether a particular activity should be attributed to use of the land as a right
of way, or should be regarded as a LSP which contributes to status as a TVG. If
the position is ambiguous, the inference should generally be drawn of exercise of
the less onerous right (the public right of way) rather than the more onerous right
(the right to use as a green):
Oxfordshire County Council v. Oxford City
Council.82
“For a period of at least 20 years”
258. The qualifying use must be continuous throughout the relevant 20 year period.
However, in considering applications for registration of land as a TVG, it must be
recognised that most recreational activities will, by their very nature, be enjoyed by
the local inhabitants outside normal working hours, at the weekend and during the
school holidays. Outdoor recreation is likely to be more frequent in the summer
than in the winter. Since village green uses are, by their very nature, leisure related,
it would be surprising if there was a requirement that LSP should be carried on
sufficiently frequently throughout daylight hours at all times of the year: Laing
Homes.83
81
Ibid @ p. 357A-E
[2004] EWHC 12 (Ch) (Linden Authorities Tab 11) per Lightman J. @ para 102. The point was not
addressed in either the Court of Appeal or the House of Lords. However, Lightman J.’s conclusions are
consistent with the approach taken by Sullivan J. in Laing Homes at paras 102-110
83
@ [95]
82
86
259. Nonetheless, while “one off events” (such as an annual 5 November bonfire) might
become established as a stand-alone custom, they will normally be too sporadic to
amount to continuous use for LSP.84
84
Oxfordshire County Council v Oxford City Council and others per Lord Scott @ para 105; endorsed
by Lord Walker in R (Lewis) v. Redcar & Cleveland BC (No. 2) @ para 47; cf Lord Hoffman @ para 39.
87
THE CASE FOR LINDEN
Introduction
260. The Site is a small inclined paved area between the 1989 Willesden Green Library
Centre and a remnant of the 1894 library, at the junction between Grange Road,
Brondesbury Park and High Road. On any view it is a busy thoroughfare and
access point to the WGLC. The question to be decided is whether the criteria in
s.15(2) of the Commons Act 2006 have been met so that it is registrable as a town
or village green (“TVG”).
261. The sole focus of this inquiry is on the statutory criteria. The evidence falls far
short of meeting those criteria, except that (i) Brent is a relevant “locality” and (ii)
that some (though not sufficient) of the activities that have occurred on the land are
lawful sports and pastimes indulged in by people who live in the defined
‘neighbourhood’ area.
262. There is a preliminary issue as to whether many of the activities relied upon are
LSP. In addition, the following matters are contested:
(1)
That a significant number of inhabitants have used the Site for LSP;
(2)
That those inhabitants have indulged in those LSP “as of right”;
(3)
That this has taken place for 20 years prior to the date of the application (i.e.
1 May 1992 – 30 April 2012;
(4)
That the inhabitants come from a qualifying “neighbourhood”
263. The tests in s.15(2) must each be strictly proved. It is no trivial matter for a
landowner to land registered as a TVG (see Steed) and it is incumbent on the
applicant to satisfy the statutory tests.
88
Background
264. This application arises in the context of a locally controversial planning application
to regenerate WGLC. The merits of that planning application are entirely separate
and not for this inquiry. As far as tangentially relevant, the TVG application was
made in the context of strong local feeling against destruction of the remnant 1894
library building, which was at that time part of the proposal. The TVG application
would have been a way of safeguarding that building.
While that planning
application has been withdrawn and revised proposals have been submitted to the
Council for a new library centre which would incorporate the 1894 building, a body
of local people continue to object and consider that there has been inadequate
consultation.
265. The TVG application is therefore brought for an extraneous purpose: to defeat a
planning application. In the most general terms, there is a common thread: space –
library space for an expanding population of Brent, space to meet housing targets
and provide accommodation for that same population and open space. A TVG is
invariably open space, but open space does not (without more) meet the statutory
criteria.
Lawful sports or pastimes
266. As long as an activity is lawful and can properly be called a “sport or pastime” it
falls within the “composite class” of LSP identified by Lord Hoffman in
Sunningwell (at 357A). It is not disputed that activity, sometimes a great deal of
activity has taken place on the Site. However, very little of that can properly be
called LSP. It is acknowledged that the following of the activities relied upon are
capable of being LSP:
(1)
Children playing (including tag)
(2)
Recreational walking (or running or jogging)
(3)
Football
89
(4)
Skateboarding or roller-skating
(5)
Reading a book or listening to music
(6)
General relaxation (including sitting)
(7)
Attending events (but not markets)
267. These activities are akin to those discussed in Sunningwell where it was held that
individual or informal sports and pastimes could establish TVG rights.
The
examples given in that case are an evening passeggiata, popular amusement, dog
walking and playing with children. Undoubtedly a modern approach to LSP must
be taken and (to use Mr Redston’s example) playing ‘Angry Birds’ may well be
LSP (although it does not arise on the facts of this case). However, there are
sensible limits beyond which the composite definition cannot stretch.
268. This application tests those limits. The following activities are not accepted as
being capable of being LSP:
(1)
General walking (eg as part of shopping, visiting the library or going to work
(etc). In no sense is it a pastime to go from A to B; the passeggiata is an
instructive example: recreational walking (such as that undertaken by Miss
Proud) will count;
(2)
Meeting friends (or others). Meeting may be anterior to a joint pastime (such
as sitting and relaxing) but is not in itself a pastime. To the extent that the
Site is relied upon as a rendezvous point or a landmark at which to meet it
cannot qualify;
(3)
Snacking, drinking coffee or eating lunch. Picnicking may be LSP, but eating
lunch on a break from work (etc) is not generally recreational – it is a matter
of fact and degree, but the kind of perching and snacking (especially by those
on their lunch breaks) that is relied upon in the application cannot qualify;
90
(4)
Speaking on the telephone.
On no view is speaking on the telephone
recreational activity on any normal understanding of the term.
269. The above activities are all entirely unremarkable, they are the kind of quotidian
activities that are done as part of normal occupied life.
Even if, out of an
abundance of caution, they were to be considered LSP, two additional reasons rule
them out of consideration in the context of this TVG application. First, (to use
Lord Hoffmann’s term) they “would be so trivial … as not to carry the outward
appearance of user as of right”. Secondly, in the context of this case, they are
indistinguishable from general use of the highway.
270. Other activities are more significant but must also be discounted for related reasons.
The first of these is attending markets. The provision of markets is a commercial
activity with entirely different connotations and implications than recreational
activities on a common or TVG. Attending markets is not an independent activity,
but is parasitic upon the provision of markets in the first place. It is possible to
establish a customary right to hold a market by prescription, but where this happens
it is the public at large (and not just local inhabitants) who have the right to
attend.85 Attendance at a market therefore cannot be LSP for the purposes of s.
15(2).
271. In any event, the holding of markets is by licence, or so with the permission of the
landowner, and so is not “as of right”.
272. The second is petitioning. This is almost the opposite of a sport or pastime – it is
activity very often with a political or commercial purpose. Further, and for the
avoidance of doubt, petitioning is the kind of activity that is routinely carried out on
footways and pedestrian highways (cf the assembly that took place on the highway
in DPP v Jones).
85
If anything, petitioning is likely to obstruct or interrupt
See Halsbury’s Laws paras 1008 and 1024, Linden Authorities Tab 15
91
recreational walkers (or others carrying out LSP). Mr Grant’s suggestion that
petitioning for the TVG application itself might be LSP demonstrates the
overextension of the Applicant’s case on LSP.
273. The Applicant’s case at times suggested that doing nothing in particular (without
more) is a sport or pastime. ‘Mooching’ summed up the point. This is to confuse
recreation with recess. Pastime in this context does not mean the “passing or
elapsing of time” – the composite definition must refer to something specific that
passes the time, an activity (even one that is relatively low key).
The evidence
a.
Elizabeth Proud
274. Miss Proud used the Site intermittently, when working on radio commissions at
home (3 St Gabriel’s Road) and for a shorter period when caring for her sickly
mother in the 1990s. Only recently (from, say, 2012) has her use been frequent.
Both as carer and as writer, her use was basically to “mooch”, possibly to perch on
a wall (although not after 2003). She accepted that such use is to do nothing in
particular. As a break from writing she would “switch off” for about an hour and
go for a stroll, to use her time efficiently she would combine some shopping, which
is why she would head to Willesden. It is perhaps unlikely given that she was busy
that she would have lingered for as long as 15 minutes on the Site – but there is no
reason to doubt that she would at times have passed over it as part of her break
from writing. Even if the Site may have been her destination (or “stop point”), to
the reasonably observant landowner it would have appeared entirely normal. Miss
Proud was walking along, in a manner that she acknowledged as “trivial”. This
would have seemed nothing more than use of the land as a general thoroughfare.
275. 3 St Gabriel’s Road is on the edge of Mr Redston’s original neighbourhood. While
in postcode terms (NW2) Miss Proud emphasised that it could be understood as
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Willesden Green, in her evidence she had no doubt that “I live in Mapesbury”.
Mapesbury is an area with an active residents’ association the area of which
extends beyond and covers only part of the neighbourhood relied upon. No doubt
the membership varies, but loosely the railway line to the south marks a boundary.
The designation of Mapesbury Conservation Area86 may have given added
cohesion to this area. In her evidence in chief, Miss Proud accepted that the
neighbourhood area relied upon seems “very large”; she made no attempt to justify
it beyond that broad statement. As far as the specific boundary relied upon is
concerned, she did not consider that St Gabriel’s Road could be differentiated, a
boundary would have to include all of St Gabriel’s Road (which neither the original
or the amended neighbourhood areas relied upon do).
b.
Cathy Mercer
276. Mrs Mercer gave evidence of her use of the Site for a “little break” after weekly
visits to Sainsbury’s (and/or the doctor’s and/or WGLC itself). It may be that she
sometimes paused on route, especially on her route back when she would have had
shopping bags to carry. She would not generally sit, but pace, perhaps smoke (up
to 2009) or text (more recently). None of these activities constitute LSP or would
have differentiated her use from that of any pedestrian using the highway.
277. Mrs Mercer did not suggest that she lived in Willesden Green, but in Dollis Hill or
Neasden. Her local library (now closed) was not the WGLC, but Neasden Library.
She may have gone to WGLC due to its greater range of facilities; this
demonstrates the wider appeal of WGLC (and of the High Road in general); but not
the coherence of the neighbourhood: many others from outside the defined area,
including Mr Grant, use WGLC because of its facilities.
She regarded one
boundary of the area that she lives in as the underpass at Dollis Hill station – in the
middle of Mr Redston’s neighbourhood area. In response to further questions from
Mr Redston, Mrs Mercer referred to the wider and different area that represents her
86
In 1982
93
neighbourhood – John’s greengrocer at Dollis Hill, Globe chemists, the garage in
Dudden Hill Lane (for newspapers) (etc); her optician is in Edgeware.
c.
Miki Berenyi
278. Miss Berenyi’s evidence relates to a limited period only – from August 2005. In
January 2007 she started freelance work again and had less time to use the Site –
her time was limited and she would mainly come to WGLC for events or petitions
(etc). Her use, with her daughter, would have been unremarkable and akin to use of
the street for everyday purposes – her daughter might have walked on the walls –
but as Miss Berenyi acknowledges in her statement, “I never really thought about it
much at the time – you take these things for granted”. A reasonably observant
landowner would equally not have thought anything of her use.
279. Miss Berenyi’s experience of her local neighbourhood is consistent with that of
Mrs Mercer. Normanby Road is in Dollis Hill, not Willesden Green. There were
two layers to this: ‘Dollis Hill estate’ that ended at Hamilton Road and Dollis Hill,
a wider area, but not one that crosses the railway line.
d.
Nicolette McKenzie
280. Miss N McKenzie’s use of the Site was enigmatic at best. For a period in the 1990s
when her mother was frail and wheelchair bound, she used to drive to WGLC, push
her mother through WGLC, settle her mother outside of the bookshop, and then go
to buy books or buy a coffee. She would do this even when the weather was cold
and wet, because her mother was (apparently) very robust. It is not at all clear that
sitting in a wheelchair waiting for one’s daughter to do her chores is a sport or
pastime, but it is clear in any event Miss McKenzie clarified that she would
position her mother at the edge of the area so as not to be in people’s way. In
response to the Inspector’s question Miss N Mckenzie said that she would not get
94
coffee in the centre, but from over the road (presumably leaving her mother alone).
Her use of the Site at other times was not exceptional – she would “change books,
potter about, have coffee”, visiting about once a week in the summer.
e.
Dennis Farrell
281. Mr Farrell is a long-standing butcher in the area. He spoke of using WGLC for
lunch, and that his employees would do similarly. He would also have ‘business
meetings’ there – his evidence was that the internal space deteriorated and it
“forced me into using the area outside”. His use was regular. Mr Farrell however
is a businessman who has lived away (in Watford and Hemel Hempstead) for
virtually all the 20 year period. His use is similar to other working people who may
have used the Site in breaks, or to eat snacks.
f.
Andrew Fenn
282. While he lives very close to the Site (16 Grange Road), Mr Fenn’s oral evidence of
his own use was fairly limited: sitting around with his elderly father (mostly on
Sunday mornings a couple of times a month), use of the bar and café at Gigi’s, as a
place to stand (or sit) and chat. He confirmed this as the extent of his use, and only
recalled the other activities he ticked on his statement when the discrepancy was
pointed out (including playing tag!). He clarified that children would play football
not in the middle of the Site, but in the entrance area – his evidence is not
inconsistent in this regard with the evidence of other witnesses that children would
essentially play football in Grange Road (where Mr Fenn would be more likely to
notice them) occasionally straying into the less suitable application area.
95
g.
Bruno Kwiecien
283. Mr Kwiecien gave confused evidence. His real objection was unaffordable housing
(“really, that is the only reason we are here”) and the evidence in his statement
seemed exaggerated to further that aim. He clarified that lived in Spain from 1987
to 1997 (and Italy before) so that he has not in fact been an inhabitant of the locality
for 49 years. As far as teaching his children to walk, ride a bicycle and/or to skate
this was something that would have happened largely in Spain (for his eldest two
sons). He also clarified that he would have taught those activities in other spaces,
including the car park to the rear, and would only have used the Site when his
children had “more confidence”. For reasons discussed below there are good
reasons to treat Mr Kwiecien’s evidence with caution.
h.
Steve Adams
284. Mr Adams ran the bookshop at WGLC from when it opened in 1989 until August
2012 (so for the whole 20 year period). He presented a realistic picture of use of
the area for the whole of the 20 year period. His statement refers to use of the Site
by the public, and refers to events, markets and demonstrations (App p.20). In
cross-examination he said thousands of people go to and fro the area as a
thoroughfare.
285. Against that, he recalled “one particular set of parents” teaching a child to roller
skate – an isolated incident. He acknowledged problems with street drinkers (a
“chorus”).
He also recalled kids playing football (children from the flats at
Cornwall Gardens built around 10 years ago) they tended to play down the side of
the shop (on Grange Road) and would sometimes kick the ball against his windows.
He complained to the police about the street drinkers and appears to be responsible
for various dispersal orders and/or an alcohol control zone that have been enforced
at the Site.
96
286. As far as the neighbourhood is concerned, Mr Adams confirmed that customers of
the bookshop would also come from further afield, such as Neasden and Wembley.
g.
Sarah Calef
287. Mrs Calef gave evidence of her use of the Site as part of her route to Sainsbury’s
for her main shop, one or two times per week. In her handwritten letter (App p.36)
she describes this as a “pit stop”. This does not indicate use of the Site as an
independent venue for recreation. In any event, Mrs Calef lives (and has lived
since 1970) on Dollis Hill Lane – outside the neighbourhood area.
h.
Robin Willow (or Yewdall)
288. Mr Willow has only used the Site sporadically – two or three times in 20 years – to
play music. He had looked but had no mention in his diaries of using WGLC or the
Site. As far as sitting on the walls is concerned, he recalled the wall outside WGLC
being ‘spiked’ and considered that was to discourage people (particularly
“undesirable” people) from loitering. His impression was that the ‘spikes’ were an
indication to users to put them off using the area.
i.
Philip Grant
289. Apart from petitioning in March-April 2012, Mr Grant does not give evidence of
his use of the Site; in any event he lives a long way from WGLC and nowhere near
the neighbourhood area – in Kingsbury. In his statement he relates his impression
(since 2007) of others’ use of the Site, but the observations are of limited use over a
limited period of time and Mr Grant cannot say for certain where the people
observed came from.
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290. Mr Grant presented a great deal of background information, but made no attempt to
justify the neighbourhood area relied upon in the application.
j.
Ishani Salpadoru
291. Dr Salpadoru used WGLC with her daughter to visit baby singing groups, the
mothers involved in those groups would sometimes congregate outside the centre
on the Site. There is no reason to doubt that when visiting WGLC, Dr Salpadoru’s
young daughter would have run around to some extent, but this would have been in
the context of visits for activities within the library.
292. The evidence that Dr Salpadoru would bring her older daughter (8 years old) to the
Site to play football (perhaps with a friend) is more surprising. To the extent that
this took place it is likely that it was controlled and/or took place on the more
suitable Grange Road side (so not on the claimed TVG). Dr Salpadoru corrected
one discrepancy in her statement (in relation to Cllr Butt).
k.
Martin Redston
293. Mr Redston’s evidence of his own use of the Site was surprisingly thin, given the
passion with which he has pursued the application. He did not appear to have a
clear recollection of the areas in which the markets take place and said that he was
“not a great frequenter of the markets”. Similar can be said of his evidence of
others’ use – he emphasised that he did not know how the Site was used (and has
not done a pedestrian count). Only when he got the evidence statements did Mr
Redston “then discover what was going on in the square”. Given that the user
statements were based largely on Mr Redston’s own supposition, there is a
dangerous circularity to this.
294. Mr Redston did not in his oral evidence expand on the case made in his written
statement on neighbourhood.
He frankly accepted that the neighbourhood
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boundary is an “arbitrary line” that he had drawn himself without discussing it with
his witnesses. His approach was that this did “not seem unreasonable” to fashion
the line around the users whose evidence he was relying upon (for significance). In
answers to the Inspector he acknowledged that he cannot say exactly where the
neighbourhood is and repeated that it was a “reasonable line” given that it was clear
that “people came from all over”.
l.
Sally Long
295. Ms Long attended the inquiry and submitted a further statement as evidence - her
use the Site has been as a meeting place - as it is near to the bus stop, cafes and the
post office. It is likely that she would sometimes wait at the Site, but that is very
different to engaging in specific activities.
296. In relation to neighbourhood, in the handwritten addition to her statement Ms Long
describes the Site as being "part of my neighbourhood" - however, she lives
without the area defined in the application (116 Olive Road).
m.
Council witnesses
297. Beth Kay, Sue McKenzie, Noman Ali and Stephen Onyango gave evidence for the
Council. Their evidence was consistent with (i) a very limited amount of use of the
Site other than as a busy thoroughfare, (ii) football being played down Grange
Road, only sometimes crossing over onto the Site, causing problems at times for Mr
Adams in the bookshop from both locations (from Grange Road by kicking the ball
against the side window) and (iii) street drinkers being an issue “since day one”,
who would sometimes block access and require involvement of the police.
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n.
Further witnesses
298. The three further witnesses who gave evidence after the Council did not suggest
any significant recreational use of the site. Daphne Meek gave a brief statement,
but not in relation to her use (in any event she lives outside of the defined
neighbourhood - on Milverton Road).
Her position was that the Site is
“intrinsically valuable” as an open space area where (i) people would walk across
and (ii) events took place.
299. Helen Marcus lives on Anson Road (just off Gladstone Park), but she did not give
evidence of her own recreational use of the Site. Although she would use it when
she cycled to WGLC, her main comment was on neighbourhood – she said that the
Site “serves the whole borough”.
300. Elizabeth Mioduchwski gave evidence of her use of the library and the post office,
she considered that the Site “fits in with the rest of the street” . Again she gave no
evidence of recreational use, by herself or others.
301. Ms Baines has lived very close to the Site (Cornwall Gardens and then Kings
Road). She spoke of the value of the open space for visual amenity and of her use
of it for markets, to meet friends and at Christmas. This evidence is consistent with
her letter87 which, other than events (etc) does not speak of recreational activities.
o.
Written statements
302. The application is supported by 65 user statements. Most of these are pro-forma
statements supplied by Mr Redston.
No weight should be given to these
statements, for reasons that go beyond the fact that they have not been tested by
cross-examination.
87
Blue Folder p. 30
100
303. Most importantly, the proformas direct the witnesses into giving answers
favourable to the TVG application.
statements were given “freely”.
It is not really accurate to say that the
Mr Redston was candid that he selected the
‘Planning Sanity’ proforma statement, instead of a more neutral (but longer)
template, because he “wanted to help people along with possible ideas”. Those
“ideas” include essential matters such as the identity of the site, the period of user’s
knowledge of relevant use the Site and, crucially, the activities relied upon.
Although Mr Redston drew attention in re-examination to the fact that his plan of
the ‘Public Square’ was attached to one of the statements; there is however no
reference to a plan in the proforma document. There was also no space on the
proformas to disagree with the assertion that use (for say playing ball) has not been
challenged or prevented.
Mr Redston acknowledged that he resorted to the
proformas when the information he received from witnesses was irrelevant or
“mixed”. It appears that he sought to improve the focus of evidence that (like the
planning consultation responses in February-April 2012) did not emphasise
recreational use of the Site, but other concerns of greater significance or urgency to
the witnesses.
304. Secondly, there is much important detail that the proformas do not cover, such as:
(i) the frequency of the activity seen or partaken in, (ii) periods (if any) when use
ceased and (iii) the neighbourhood that the witnesses consider themselves to come
from. Similarly, the information in many of the letters or emails is vague and does
not explain the period of use or the nature of the activity.
305. Thirdly, insofar as the electronic proformas are concerned, Mr Redston accepted
that “corruption”88 had taken place. The reference to Cllr Butt in five of the forms
is hard to explain – Dr Salpadoru acknowledged an error, but that does not account
for the other cases. The near identical reference to activities carried out, including
helping all the witness’s children “to learn to walk ride a bicycle and skate board”
88
Inspector’s note: for the avoidance of doubt, both in the way the evidence was presented and in the way
the word is used by Linden in closing, I have taken “corruption” to be a reference to the amendment of the
text on the Redston Form rather than any form of (e.g. financial) impropriety.
101
is even harder to explain. Mr Lazarus’ and Ms McLean’s children are too old to
have learned to walk on the Site (that was not available before 1989).
Mr
Kwiecien’s children would have been in Spain. Inadvertently or otherwise, what
appears to have happened is a serious amplification of the evidence in the
proformas beyond credible limits.
At the very least the completion of those
statements was supremely sloppy. What is more surprising is that attention has
been drawn to the point by the emboldening of significantly (perhaps because
skateboarding (etc) is at least a recognised LSP).
p.
Consultation responses
306. The Council has produced notes of consultation meetings and email
correspondence relating to the redevelopment proposal in 2012, prior to submission
of the TVG application on 30 April. It is plain from the record that the scope of the
consultations was not curtailed. While concern was expressed about the loss of the
1894 building and changes to the internal library spaces, there was limited concern
about the loss of open space and even less about the use of the Site for recreation.
This suggests that use of the Site for recreation was not something so significant
that it readily came to mind when users were presented with a scheme that would
have involved its loss.
307. In relation to a number of the witnesses on which the Applicant relies, no mention
was made of open space or outdoor recreation prior to the TVG application. The
argument produced overnight and after cross-examination that retention of the
Victorian building and open space were not up for discussion is inconsistent with
the evidence that consultees such as Jackie Baines referred to these matters, and
only serves to undermine those witnesses’ credibility.
308. Nor did Mr Redston and Mr Grant mention open space or outdoor recreation. In
fact both promoted at the time alternative schemes (not dissimilar from that now
proposed) that would have entailed loss of the outdoor area.
Mr Redston’s
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surprising explanation was that he did not in fact support the alternative scheme.
He said that “given the fait accompli I realised something had to be done” and
asked Mr Abbo to do a sketch on the morning of the meeting. In other words, Mr
Redston (i) pursued a proposal in which he did not believe in the merits and (ii) put
that proposal together hastily and informally. Those points also might well apply to
this TVG application.
Mr Redston decided “something had to be done” and
pursued it regardless of merit.
q.
Documents
309. An unusual feature of this case is the paucity of photographs or other
contemporaneous evidence of actual use of the Site over the 20 year period (save
for recent photographs of the ‘Wassail’ event, art installation and Christmas tree
stump).
Analysis
310. In light of the evidence outlined above, it is plain that the Applicant has not met the
burden of satisfying the statutory criteria in issue.
a.
Whether a significant number of inhabitants have used the Site for LSP
311. The number of local inhabitants using the land must be significant – this is a matter
of impression, the question being whether the number of people using the Site is
“sufficient to indicate that their use of the land signifies that it is in general use by
the local community for informal recreation, rather than occasional use by
individuals as trespassers” (McAlpine Homes). The land in this case is unusual in
that it is a very busy thoroughfare and the access way for a popular library centre:
Zadie Smith’s estimate is that nearly 500,000 visit WGLC every year. In this
context, the numbers of local inhabitants who use the site for LSP (as opposed to
103
ordinary use) is truly negligible. Only 65 user statements are put forward (some
from without the neighbourhood, some who do not suggest recreational activities).
Mr Redston has not done a pedestrian count. Nor has he calculated the proportion
of local inhabitant recreators to general users. There is every indication that such
local residents are generally outnumbered, so that it could not be concluded that the
Site is in general use by the local community for informal recreation.
312. Furthermore, to be significant the number of inhabitants must at least be such to
show a “clear link” between the Site and the neighbourhood or locality relied upon
(Oxfordshire & and Bucks NHS Trust).
In this case, the population of the
neighbourhood is estimated at 28,270. It is hard to see how that can be done.
313. This last point is not a technicality. If land is registered as a TVG, the inhabitants
of that neighbourhood acquire enforceable rights against other who may wish to use
the land. It is necessary not only that the neighbourhood area be sensibly defined
(see below) but that it sensibly represents actual use of the Site.
b.
Whether those inhabitants have indulged in the LSP “as of right”
314. The fundamental question when considering whether use is “as of right” is “how
the matter would have appeared to the owner of the land” (Sunningwell @ 352H353A); the community seeking to assert a right “must have used it in a way which
would suggest to a reasonable landowner that they believed they were exercising a
public right” (ibid. at 354F; see also Lewis v Redcar @ [67]).
315. For a number of reasons there is no basis on which the use for LSP that has been
demonstrated by local inhabitants would be “as of right”.
316. First, a great amount of the use relied upon (even if LSP) is referable to use of the
highway or akin to use as a public right of way, so would not alert the reasonably
104
attentive landowner to the assertion of TVG rights. Recreational use of land that a
reasonable landowner would consider referable to use of a public footpath cannot
be relied upon to establish recreational rights over the whole of the land: Laing
Homes; Oxfordshire.
317. This point is firmly grounded in both reality and the evidence before the inquiry –
box 7 of the TVG application itself records use of the Site “by thousands of
members of the public as a right of way and thoroughfare between Grange Road,
Brondesbury Park, the library and the bookshop.”
This early impression is
significant as it comes from a time when Mr Redston’s evidence was less tutored
by the statutory requirements. Similarly, Dr Salpadoru’s summary impression was
that the Site was a “friendly and sunny thoroughfare”.
318. It is undeniably the case that there is no real physical distinction between the Site
and the surrounding footways and pedestrian areas – one merges into the other. A
very great amount of use of the claimed TVG will therefore appear to the
reasonable landowner to be nothing more than extended use of the highway. Very
few of the activities relied upon are properly distinguishable from use of the
highway – walking, talking, eating, meeting, greeting, protesting and generally
looking around are in fact the very kind of activities that are common on the
highway (see DPP v Jones).
Skateboarding, roller skating, playing ‘tag’ and
bouncing a ball will also be part of highway use – especially if, as in this case, the
football is primarily played on Grange Road.
319. Secondly, and on a similar point, a great amount of the use relied upon (even if
LSP) is referable to use of the facilities at WGLC (including the bookshop), so
would not alert the reasonably attentive landowner to the assertion of TVG rights.
320. It is rightly not suggested that activities organised within the library centre could
give rise to TVG status. There should be no difference in relation to the ancillary
105
sports and pastimes that local people may have recourse to on arrival or departure
from WGLC. It is wholly unrealistic that the landowner would be expected to
monitor visitors to the library to ensure that they are not having a cigarette or sitting
on the wall with a sandwich – or to have to give them express permission to do so.
On the contrary, that would be ridiculous and disproportionate. Logically it would
mean that private entrance ways to public buildings would be at constant risk of
TVG registration on the basis of activities that are indistinguishable from everyday
life.
321. This impression has a firm basis in the evidence.
The Applicant’s opening
statement set out that the building and the public area “melded seamlessly
together”. Dr Salpadoru’s summary impression was that the Site “acted as an
outdoor extension of the library”.
322. Thirdly, as far as events are concerned, the use is not “as of right” but is plainly
permissive (or precario). There are two bases for this. One is express regulation
by the Council landowner.
The other is the need for permission from the
landowner in its private capacity. Most of the events held in this case are in fact
organised by the Council so are clearly precarious in the sense that the Council
could cease organising them – as it has unfortunately had to do in relation to the
Christmas tree and St Patrick’s Day.
323. Mr Redston’s question to Miss Kay was instructive in the lengths to which the
Applicant will struggle for a basis for his application: he posited a hypothetical
stall set up in the middle of the Site, although he acknowledged that it would still
need permission.
324. Fourthly and to the extent that there are outstanding events (perhaps ‘Wassail’) that
are organised (at least primarily) by local people, these are clearly sporadic in
nature and insufficient to establish village green rights.
As Lord Walker of
106
Gestingthorpe said in Lewis v Redcar use of land for an annual bonfire celebration
would be “far too sporadic to amount to continuous use for lawful sports and
pastimes”. The same would apply to sporadic intrusions of football and sporadic
occasions of skating (etc).
325. Finally, it is clear from the evidence – in particular of Mr Willow – that some of the
use became contentious (or vi) after 2009/10 when the ‘spikey’ walls were
installed. Sitting in the area after 2009/10 was expressly discouraged – it does not
matter that the discouragement was aimed at a troublesome minority (i.e. street
drinkers), it was a proportionate step taken after long standing issues with antisocial behaviour. Mr Willow’s impression was that all users were put off from
sitting or loitering, which would not be surprising. Similarly where footballing kids
were warned away from the entrance to the bookshop by security guards (or Mr
Adams) that use would have become contentious.
c.
Whether the use took place for 20 years
326. Mr Redston acknowledges in his first rebuttal statement that activity has increased
at the Site; this refers in particular to ‘Wassailing’ from 2010. The markets (if they
count) and art installations also date from recent years. The football played by
children from Cornwall Gardens does not go back for much more than half the 20
year period.
As far as the user statements are concerned, many contain
uncertainties as to the period or do not state a period of use. To the extent that
users refer to markets and events, they must be referring to 2006 and onwards
(except for St Patrick’s day).
327. No evidence was put forward on behalf of the Applicant of earlier events or
celebrations taking place. Insofar as events may be relied upon to support the case
for registration the time period for them is plainly deficient.
107
d.
Whether the inhabitants come from a qualifying “neighbourhood”
328. At the outset of this inquiry the Inspector indicated to the Applicant that he would
like to hear evidence on cohesiveness and the rationale for drawing the line that
marks the boundary of the Applicant’s “Willesden Green” neighbourhood.
329. The Applicant has failed to provide any serious justification for his neighbourhood.
Mr Grant acknowledged that there is no justification from an historical (or any
other) point of view for drawing the line so that it cuts across the middle of
Dartmouth Road, St Gabriel’s Road or Teignmouth Road on the eastern side. Mr
Redston accepted that his neighbourhood line was “arbitrary” and drawn to
encompass his (equally arbitrary) selection of users of the Site.
330. This is contrary to the clear wording of s.15(2) that requires the identification of a
locality or a neighbourhood (within a locality): that neighbourhood must refer to an
area of sufficient pre-existing coherence, if the word “neighbourhood” were
intended to mean any area it would be stripped of any real meaning (Cheltenham
Builders @ [85]).
331. Recent Inspector’s decisions are clear that where the evidence heard failed to
indicate cohesiveness of the area identified as a neighbourhood, that is
determinative against a TVG application (see report of Ruth Stockley on Fern Road
at para.6.39) – it is unacceptable to simply draw a line on a plan (ibid. para.6.40).
In the report on Station Road, the Inspector (Ms Ross Crail) noted that where there
is no relevant difference between properties on either side of a line, that is “the
hallmark of arbitrariness” (para.300) (as here, hence – perhaps – the concession).
332. There is no question in this case that the Applicant’s neighbourhood lacks the
requisite coherence.
Save for himself, Mr Redston’s witnesses compiled and
presented their evidence without addressing what they considered to be the
neighbourhood. In cross-examination, different answers were received – some
108
from outside the area purported to share the neighbourhood; others from inside said
that they lived in Mapesbury or Dollis Hill. The neighbourhood was acknowledged
to be an “amorphous mix”.
333. The attempts to justify the neighbourhood in the Applicant’s written evidence do
not stand up to the slightest scrutiny. Mr Grant spoke of an area (but not the
neighbourhood area) that related to his time working for Brent People’s Housing
Association in the 1970s – his ‘beat’ would have been an administrative allocation
rather than a coherent place, especially given the few and scattered properties that
such a new housing association would have controlled. As far as he refers to an
area called “Willesden Green”, he considers Chichele Road without it (although it
falls within the application neighbourhood).
334. The neighbourhood cannot be defined by the services listed in Mr Redston’s
statement – the area served by the facilities listed will vary considerably: the
supermarket for instance serves a wider area, the Jewish cemetery in fact lies
outside the neighbourhood.
e.
Scope for considering alternative neighbourhoods
335. The circumstances in which a Commons Registration Authority may consider a
different neighbourhood on an application under the 2006 Act area are strictly
limited. It is a matter of procedural propriety and fairness. The Inspector must
consider the application on the basis that it is made and on the evidence that is put
forward in favour of it at a full inquiry. It will be recalled that the Applicant sought
common ground on neighbourhood at the outset of the inquiry.
336. As a matter of fairness it would not be open for the Inspector to consider a different
neighbourhood to the one put forward and to which objections have been made
109
(including evidence on that point from Linden). In addition, it would not be right
as a matter of process.
337. To the extent that Dollis Hill Estate has been mentioned, no evidence was presented
on the coherence of this area. It is therefore not appropriate to try to address in any
detail the implications of Dollis Hill Estate as a neighbourhood in these
submissions. Mr Grant’s argument in fact was that there is a connection between
that estate and the area to the south of the railway by underpasses and a school
catchment area.
338. A TVG application is a formal process that engages and affects landowners’ rights,
it would be quite wrong for the Commons Registration Authority unilaterally to
open up matters to consider this new area.
339. In any event, the evidence on sufficiency of use and whether it is “as of right”
applies with only greater force against a smaller area – given the very great public
use of the claimed TVG, as noted above. Even were it a proper neighbourhood
(which is not accepted) in no way would a recalibrated neighbourhood improve the
other aspects of the Applicant’s case.
Conclusion
340. For the reasons set out above, the Application should be refused.
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THE CASE FOR THE COUNCIL
Introduction
341. The Application was made under s. 15(2) of the 2006 Act, and the burden of proof
is on the applicant to demonstrate that the requirements of the statutory definition
are satisfied. The comments of Lord Bingham in Beresford are the yardstick by
which an application to register land as TVG should be assessed. Lord Bingham’s
exhortation regarding the need for authorities to scrutinise carefully applications to
register land must be borne in mind in respect of each and every aspect of such an
application. It would not be appropriate, or indeed lawful, for the Inquiry/Authority
to assume any element of the Applicant’s case, in circumstances where that element
is not substantiated by sufficient evidence.
Preliminary Issues
a.
Context of Application
342. While the Council does not accept the totality of the evidence given by the various
witnesses called in support of the Application, the Council readily accepts that for
the most part, those witnesses were doing their best to provide their honest
recollection of events on the Site. However, human nature being what it is, it is
inevitable that some witnesses will be more reliable than others. Some will have a
clear recollection of events, others may be more easily confused and may – wholly
innocently – allow their passionate support for an application to colour the
testimony that they provide. This is all the more understandable in circumstances
where a witness is being asked to remember events that happened many years ago.
343. The risk of such ‘coloured’ evidence is all the greater in circumstances where the
purpose of an application is to frustrate development of land, particularly where
witnesses live close by the development site. There can be no doubt that such is the
position in the present case. Having regard to the manner of the evidence of many
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of those who spoke in support of the Application, it is clear that the Application has
been pursued for one reason – and for one reason only – to stop the proposed
redevelopment of the Library Centre. Accordingly, it must necessarily be the case
that the passion of local people to frustrate this development will – to a varying
extent – colour their recollections and the evidence they give to the Inquiry.
b.
Evidential Weight
344. The Inquiry has heard from 12 witnesses who have spoken in support of the
Application. In addition, the Applicant relies on material (Questionnaires/Letters/
Statements) from many other people, which he asks be taken into consideration
when the Application is determined (‘the Written Evidence’).
345. The Council does not suggest that the Written Evidence should be excluded, or that
it should be wholly disregarded. However, only very limited weight can properly be
accorded to the evidence of persons who have not attended the Inquiry, given that
the Objectors have not had the opportunity to test their evidence by way of crossexamination. For example, if one looked at Mr Kwiecien’s written statement, one
would have understood him to have lived within the claimed neighbourhood
continually for more than 40 years, during which time he had taught his three
children to ride bicycles/rollerskate on the Site. However, in the course of crossexamination it transpired that for a large portion of the relevant 20 year period he
had lived not only outside the claimed neighbourhood, but abroad in Spain.
Moreover, it also became apparent that both his children were largely taught their
cycling/rollerskating in Spain, and that whilst they did use the Site on occasion
during the 8 weeks they would spend in the UK each year, most of their cycling
practice in London occurred on the larger paved area at the rear of the Library
Centre.
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c.
Irrelevant Matters
346. The Council does not accept any of the assertions/allegations of improper conduct
made by the Applicant, but does not respond to them because they are irrelevant to
the statutory process with which the Inquiry is engaged.
The discussion of
planning policy is also irrelevant.
Neighbourhood & Locality
347. The Application relies on the London Borough of Brent as the ‘Locality’. The
Council takes no issue with this. However, the application was not made on the
basis of use by the inhabitants of that locality, but on the basis of use by inhabitants
of a neighbourhood within the locality. The Applicant has failed to demonstrate
that the use of the Land has been undertaken by the inhabitants of a qualifying
neighbourhood for the purposes of the 2006 Act.
348. Specifically, the Neighbourhood identified by the Applicant is not sufficient to
satisfy the statutory definition. It does not satisfy the legal requirement identified in
Cheltenham, but it is ‘the line on the plan’ approach identified by Sullivan J in that
case as being an unacceptable method of delineating a neighbourhood.
In
particular:
(1)
there is insufficient evidence to justify a conclusion that it is in any way
‘cohesive’. Indeed, the Neighbourhood was sufficiently ‘uncertain’ that
although one area was originally identified on the original Map A, that area
was later substantially amended. This uncertainty as to the extent of the
Neighbourhood is instructive when considering the extent to which the area
comprises a genuine neighbourhood, as opposed to some artificial construct.
Also relevant in this context is Mr Kwiecien’s opinion, in cross-examination,
that it was a “transient” area. A ‘transient’ community is in a very real sense
the antithesis of a ‘cohesive’ one.
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(2)
In terms of the documentation, the witness statements/questionnaires
submitted in support of the Application, cannot provide any assistance to the
Applicant’s case. There is no link between any of this written evidence and
the claimed Neighbourhood identified by the Applicant and there is no
suggestion that the authors of these documents concur with the Applicant’s
Neighbourhood. Indeed, it is certain that they did not agree to it when
drafting their statements, since the Neighbourhood Plan was only provided as
part of the Rebuttal, and so postdated the written evidence. The Applicant
confirmed in cross-examination that he had not consulted with any of the
witnesses in respect of the original ‘neighbourhood’ (save perhaps his wife
and Mr Grant), or in respect of the claimed (ie amended) Neighbourhood.
Quite simply, there is no connection between the written evidence, and the
Neighbourhood claimed.
(3)
The position is no better as regards the oral evidence called in support of the
Application. The majority of the witnesses who spoke in support of the
Application were not asked to comment about the Neighbourhood. They did
not claim to support it, and nowhere stated that they recognised it as being
their own. With the exception of Mr Grant and the Applicant himself, the
only witnesses who did address the issue of the Neighbourhood, did so in
response to questions put by the Objectors. Secondly, where witnesses did
address the Neighbourhood, their evidence did not support the Application:
a. In her evidence in chief, Miss Proud volunteered that she lived in
“Mapesbury”, which area she later clarified extended north towards
Cricklewood – well outside the Neighbourhood. Her concept of Willesden
Green extended beyond the area envisaged by the Applicant, all the way
eastwards to the A5.
b. In cross-examination, Mrs Mercer explained that she regarded herself as a
resident of “Dollis Hill”, and that whereas Miss Proud over in Mapesbury
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was not a neighbour of hers, residents of streets such as Lennox Gardens streets outside the Neighbourhood – very much were.
c. Miss Berenyi was another who agreed that she lived in Dollis Hill
d. It is not clear whether Mr Adams’ home on Exeter Road is inside or
outside the Neighbourhood (it is off the edge of the map provided).
However, if it is intended that the Neighbourhood does include that
northern end of Exeter Road where Mr Adams’ house is situated, it
certainly does not include the remainder of that street. Mr Adams
confirmed that there was no distinction to be drawn between any of the
houses on Exeter Road – so that it is wholly unclear why part of that street
should be included within the Neighbourhood, while the remainder
shouldn’t be.
e. Mr Grant’s evidence provided an interesting tour of the evolution of this
part of North London, without providing any detail as to why/what
comprised the modern Neighbourhood relied upon. However, insofar as
this matter was raised with him in cross-examination he accepted:
i. That it was not his intention to ‘overrule’ someone such as Mrs
Mercer, who lived on Normanby Rd and who thought of herself
living in Dollis Hill, with Lennox Gardens as part of her
neighbourhood – as opposed to St Gabriel’s Road
ii. That his understanding of Willesden Green in the 1970s, at least in
the context of his job working for a housing association, was that
the eastern boundary of the area ran along Lydford Rd (he could
provide no justification for the Applicant’s decision to ‘push’ the
boundary of the Neighbourhood 100 yards to the east); and on the
northern boundary, Chichele Road lay not within Willesden Green
but within Cricklewood.
iii. That the school catchment area plan which he provided did not
accord in any sense with the boundaries of the Neighbourhood –
for example in the north west (Normanby Rd) or south west (Glebe
and Beaconsfield Rd)
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f. As regards the evidence of the Applicant himself, no sensible justification
was provided for the borders of the Neighbourhood as drawn. He himself
referred to the boundary of the Neighbourhood as an “arbitrary line”,
before going on to describe it as an “amorphous mix of neighbourhoods”,
and felt that insofar as there was a real neighbourhood it was “sort of
vaguely within these confines”. The Applicant’s case in respect of the
eastern boundary, running ‘midway’ through St Gabriel’s Road,
Teignmouth Rd and Dartmouth Rd, was particularly telling. He explained
in cross-examination that the reason for drawing the line where he did,
was to ensure that certain of his witnesses lay within the Neighbourhood
as opposed to outside it. Such is not in any way a sound basis for
identifying the extent of a neighbourhood for the purposes of the 2006
Act.
349. The Applicant has therefore failed to identify any neighbourhood capable of
satisfying the statutory provision. Certainly the claimed Neighbourhood is not such
an area. Rather, it represents a line drawn on a plan, the intention of which was to
‘wrap around’ as many of the Applicant’s witness as possible.
The result is a
claimed Neighbourhood that is truly vast in scale – one so big and of such great
extent that it cannot sensibly be claimed to be a true neighbourhood for the
purposes of the 2006 Act. Instead it is an artificial composite of bits of various
areas – parts of Neasden, Dollis Hill, Mapesbury and Cricklewood – having no
identity of its own.
350. In these circumstances the Application must fail, on the basis that the criterion
relating to neighbourhood/locality has not been satisfied.
351. The only further matter to address in this context is the suggestion that the
Application may be determined on the basis that the Neighbourhood in fact
comprises two different neighbourhoods. As regards this issue:
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(1)
The concept of ‘multiple neighbourhoods’ is not the basis on which the
Application was put at the Inquiry.
(2)
Importantly, it is not the position that the Council understood when crossexamining the Applicant’s witnesses.
(3)
The matter was raised for the first time as a potential ‘alternative’ basis for
the Application, by one of the Applicant’s witnesses, after all the evidence
had been called by the Applicant, save his own re-examination.
(4)
There is no plan before the Inquiry identifying the bounds of the multiple
potential ‘new’ neighbourhoods it is suggested might be relied upon
(5)
There is no evidence from any of the witnesses called by the Applicant as to
the extent of any such ‘new’ neighbourhood.
(6)
It is not the role of a registration authority, or an inspector advising such an
authority, to conduct its/his/her own investigation with a view to identifying
such new neighbourhoods.
352. In the circumstances of the present case, fairness and good administration demands
that the Council (and indeed the other objector) be entitled to respond to the
Application as put. To do otherwise would necessarily lead to unfairness.
Significant Number
353. One issue which arises in consequence of the Neighbourhood relied upon, is the
question of ‘significant number’.
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354. The best evidence before the Inquiry is that the population of the Neighbourhood is
in excess of 28,000. The number of local inhabitants who have given evidence of
themselves having used the Site for lawful sports and pastimes (‘LSP’) during the
relevant 20 year period is in no way a significant number, given this population.
Nor is the number any more ‘significant’ when one has regard also to use by other
local residents, which witnesses at the Inquiry might claim to have seen. Even
having regard to the low threshold set in the McAlpine Homes case, the
Application is still deficient.
355. The Applicant must show a significant level of use throughout the totality of the
relevant period. When one strips away the uses which do not qualify as LSP, there
is insufficient evidence of use. Not enough of the witnesses have used the Site in
the requisite way themselves, and insofar as they saw others making use of the Site,
the witnesses were candid in acknowledging that they did not know where those
others were from (ie did not know whether they were inhabitants of the
Neighbourhood).
356. Accordingly, the Application should also fail on the basis that the Applicant has
failed to demonstrate use by a significant number of the inhabitants of the claimed
Neighbourhood, throughout the relevant 20 year period.
Sports and Pastimes Carried on As of Right
357. Numbers of the Applicant’s witnesses spoke of having used the Site for various
purposes. The terms “refreshment” and “recreation” were used. In such
circumstances, it is important to remember that what the statutory provision is
concerned with is ‘sports and pastimes’.
358. The Applicant has failed to demonstrate that the Site has been used for sports and
pastimes with the requisite intensity and for the requisite duration, in order to
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justify registration of the Site. The relevant question is how matters would have
appeared to the notional landowner observing events: see Laing Homes. Perhaps
the truest assessment of how such a landowner would have perceived use of the
Land during the relevant 20 year period is provided by the Applicant in the
Application documents where he stated – before making any mention of any other
activity -
that “thousands of members of the public” use the Site as a
“thoroughfare” or a “cut-through”.
359. If a notional landowner would have reached any conclusion about use of the Site
during the 20 year period, it is a conclusion more consistent with the view
expressed by the Applicant in the Application document. i.e. he would have
concluded that it was being used in a manner far more consistent with a highway,
than a village green. If the position is ambiguous, the inference should generally be
drawn of exercise of the less onerous right (the public right of way) rather than the
more onerous (the right to use as a green): Oxfordshire County Council v
Oxfordshire City Council & Robinson.
360. Turning to the other evidence of user of the Site, the Council does not accept that
the holding/attending of markets is a ‘sport or pastime’ relevant to the 2006 Act.
There is no legal authority to support the proposition that this kind of retail activity
amounts to a LSP.
However, even if markets should be regarded as LSP, the
markets were not held throughout the relevant 20 year period: they only took place
in the last few years of that period. Further, they were occasional, infrequent
‘events’ rather than an ‘ongoing’ form of user. Additionally, the market activity is
that it was not carried on as of right, but is permissive, and reliant upon the grant of
licences by the Council. Indeed, the holding of markets on a TVG would not be
lawful, entailing as it would the erection of structures on the land. Such curtailment
of the use of a TVG would be contrary to the Inclosure Acts. Given it would not be
a lawful use of the Site, it cannot possibly contribute to the case for the Site’s
registration.
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361. The issue of the user having been permissive extends not only to the stall-holders
but also those members of the public who attended the markets. Their use was
parasitic on the permissive activity carried on by the market holders. The position is
no different to that of spectators at a cricket match where permission has been
granted for the game. If a wealthy landowner granted the local cricket club the
right to hold matches on his land, the fact that member of the community came to
watch did not mean their user was “as of right”, since the only reason they were
there was because of the cricket. The St Patrick’s Day festival and other similar
events are also not activities carried on ‘as of right’, by reason of the permission
granted in respect of them.
362. The Council, as landowner, provided for the markets to take place. When members
of the public attended, what should the landowner understand by this?
The
landowner would not understand that rights were being asserted against it.
363. The evidence as to the playing of football/ballgames was not of any material depth:
(1)
Witnesses who claimed to have attended the Site on a regular basis had not
seen such activity: Miss Proud had not seen it once, and Mrs Mercer had
only seen it on 2 or 3 occasions during the 20 year period. The Applicant did
not claim to have seen any football, and expressly confirmed that the original
Application did not rely on his having seen any such activity.
(2)
Mr Adams confirmed that football was played, but he was clear that the
children “tended to play down the side of the shop” on Grange Road, and
“didn’t choose to play [on the Site] because of the slope”. He confirmed that
the games would take place “across” Grange Road.
(3)
Further, whilst Mr Adams did refer to games spilling onto the Site, he also
explained that he and others asked the children not to play there. Indeed, he
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confirmed the evidence of the Council that security guards would come –
sometimes at his request – to move the children on.
(4)
Mr Adams’ evidence was entirely consistent with that of the Council’s
witnesses. Mr Ali and Mr Onyango confirmed that football took place on
Grange Road. Mr Onyango’s evidence is particularly relevant because he has
responsibility for monitoring the Library Centre (including the CCTV which
depicts that part of the Site closest to Grange Road) in the evenings. Thus,
his since he is best placed to confirm where football was played after the 5pm
‘watershed’.
(5)
Mr Ali’s clear and unchallenged evidence was that football only began to be
played after the erection of the block of flats on Grange Road in 2004; as with
the markets therefore, the use only relates to the latter end of the 20 year
period.
364. The evidence of Mr Fenn on this point was simply not credible. From his evidence,
one would have understood his house to overlook the Site, and that on a nightly
basis he saw children playing football on it. Indeed he suggested that those
attending the Inquiry should expect to see football being played when they left the
Library Centre. Quite apart from the fact that no such football will have been
observed when the Inspector left the Inquiry, the important point to note is the
location of Mr Fenn’s house at 16 Grange Road. Insofar as it commands any view
at all of the Site, such view is a ‘sliver’ at best, and would be available only if one
had one’s face up against the glass and took the most oblique view available. It is
clear that Mr Fenn’s hostility to the proposed redevelopment has materially
‘coloured’ the evidence he gave to the Inquiry.
365. As regards other ‘children’s play’, the position is extremely thin. Miss Proud – a
resident of longstanding who visited often – spoke of having seen, on one single
121
occasion, children playing hopscotch. Dr Salpadoru spoke of having spent time on
the Site in summer time with her children, but that was only from 2005 onwards.
There was certainly no evidence of use throughout the 20 year period. Those few
who did speak of children playing on the Site were not able to say where those
children were from, and there cannot be any assumption that they were inhabitants
of the claimed Neighbourhood. In short, there was very little evidence upon this
issue at all. This is perhaps unsurprising, given that it is a regular haunt of street
drinkers/alcoholics.
366. Of the remaining evidence of user, some falls to be discounted because they live
outside the claimed Neighbourhood. This is true of Mr Farrell, Mrs Calef, Mr Grant
and Ms Long. Of the remainder, all they had to speak of was time spent sitting
on/by walls on the periphery of the Site, drinking a coffee or reading a newspaper.
This activity – limited as it is – cannot possibly justify the Application Site. In
particular:
(1)
Street drinkers consuming alcohol from 7.30am is not properly described as
an LSP. Even if it were, (which it certainly is not), then following the
imposition of the ‘no-alcohol zones’, such ‘activity’ was not carried on as of
right. Rather, it could be curtailed at any time.
(2)
Activity on the periphery (such as eating one’s sandwich) cannot support
registration of the ‘body’ of the Site. The Council adopts Linden’s
submissions on this point: sitting out eating a picnic would be a pastime, but
the same could not be said of eating a quick sandwich at lunch. In any event,
the evidence of the Council’s witnesses (McKenzie/Ali in particular) is that
sandwiches were not eaten on the Site. Rather, as Mr Ali explained, to the
extent that this ‘activity’ has happened, people sat out to the rear of the
Library Centre.
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(3)
Activities such as speaking to someone on the phone/texting are very clearly
not LSP. Indeed, such activities are perhaps more likely to be found taking
place in an office than a TVG;
(4)
“mooching about” is not a LSP. Again, one must consider how matters appear
to the notional landowner. The Council, perceiving someone ‘lost in thought’
on the Site, could not sensibly be expected to understand that that individual
is engaging in LSP so as to assert TVG rights.
(5)
Further, such activity was not carried on all year and thus was not carried on
throughout the 20 year period. Time and again, witnesses conceded that they
would only have done X or Y in good weather. The Council does not say that
the use has to take place on every hour of every day, but there needs to be
continuity.
The Site stands in contrast to other TVG applications where
status has been confirmed by reason of activity such as dog-walking, which
happens rain or shine. Although, in the context of planning law, it is possible
to have seasonal uses, that is not an appropriate analysis for TVG
applications. It is accepted that even recognised TVGs are likely to be used
less over the winter rather than the summer months, but there needs to be
some activity throughout the year. There is not even close to a sufficient
evidential basis of LSP having been carried on as of right to justify
registration.
367. This is not surprising, having regard to the various statements made by members of
the public in the context of the planning application consultation, undertaken before
the TVG Application was launched. At this time (ie February – April 2012),
members of the public did not have any reason to exaggerate their fondness for the
Site, or the manner in which they used it. It is therefore noteworthy that the records
of these ‘consultations’ (and also the correspondence of key Application witnesses
such as the Applicant, Mr Grant and Ms McKenzie generated during this period),
are deafening in their silence as to the question of the proposed loss of open space.
123
368. The emails/correspondence form Ms Berenyi and a Ms Gill Wood which were put
in after Ms Berenyi gave evidence did not provide evidence of user or concern for
the Site. None of the documents refers to the Site being used for sports, pastimes,
children’s play etc. Indeed, the only reference to any use of the Site is implicit,
insofar as the area is referred to as a “market square” or “market space”. It is
telling that the only suggestion of use of the Site is in the context of ‘markets’ – an
activity that has recently been introduced, which was carried on with the permission
of the Council in any event.
369. The suggestion that members of the public were ‘prohibited’ in some way from
raising this issue is simply not credible. The lack of credibility is borne out of the
fact that witness such as Ms Proud and Ms McKenzie did not make this claim
whilst on the stand, and by the fact that Ms Baines – from whom the Inquiry did not
hear – appears to have raised the issue without difficulty. Although Miss Proud
claimed to have been prevented from raising open space and the historic building as
issues, it is clear from the record that she had not been so restricted (in particular as
regards the historic building).
370. If the space had been used in the manner now claimed, one would have expected
there to be multiple references to this. Instead there are virtually none. The absence
of any material level of reference to the open space and its importance is extremely
telling. It is ‘the dog that didn’t bark’.
371. Returning to the notional landowner, and the extent to which use of the Site was, if
it resembled anything, more akin to use of a highway than a TVG, the decision of
the House of Lords in DPP v Jones is important. That case involved identifying
the activities that could reasonably be expected to take place on a public highway.
All the activities claimed by the Applicant’s witnesses are ones which their Lords
Irvine and Hutton regarded as being consistent with highway user.
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372. The Council does not say that the Site forms part of the adopted highway: it is not.
Similarly there is no public right of way. However, in considering how matters
would have appeared to a notional landowner – in particular whether he could be
expected to have understood that village green rights were being asserted against
him – the fact that the use of the Site was such as to suggest highway activity rather
than TVG activity is highly relevant.
Conclusions
373. The Site does not merit registration as TVG. It is what it appears to be, namely a
‘wide pavement’ of sorts, where people come and go, pass this way and that. As
various of the Applicant’s witnesses, such as Mr Kwiecien, noted it is a ‘transit
point’, where people pause before heading off somewhere else – perhaps on the
bus. That people may pass the time of day with one another from time to time while
there is not in any way sufficient to justify registration of the Site pursuant to the
2006 Act.
374. The Application should be rejected.
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THE CASE FOR THE APPLICANT89
Overview: Submissions on the history of the Site and the Planning Application for
Redevelopment
375. In 1983 LB Brent had recognised the need for “much needed public space in the
High Road” by voting to create a Public Square. It had ensured that the new public
area melded as seamlessly as possible by pedestrianising Grange Road, in order to
enlarge the area of public realm. The Council had recognised the need for the
community to have permanent free access to the Site as an “area of peace and
calm” next to the busy High Road.
376. Mr Grant’s documentary evidence shows that the Site came into being as a
deliberately created ‘much-needed open space’ as part of Brent Council’s
development scheme for a Library Centre and other community facilities on the
much enlarged site of the original Willesden Green Library. Linden’s suggestion
that this was just a ‘general aspiration’ was misleading. The scheme was put
forward in 1983, following the publication of the Willesden Green District Plan in
1980, which showed that the library centre site would be used for “Public
Services”, and identified local open space as one of the needs which Brent gave a
commitment to meet on that site.
377. Since then, the community and others from further afield have used the Square as
anybody would, without considering their actions. Obviously, they used it to enter
the WGLC and as a short cut to and from their places of work, local shops and bus
stops, but they also used the Site to “stop, pause and reflect” – to meet friends, read
books, drink coffee and eat sandwiches; as a safe haven for their children to run
around; as a breathing space during and after studies in the library. Young people
used it to “malarkey about” e.g. by kicking a ball. Teenagers living in the flats on
89
In this section I have combined elements from Mr Redston’s Opening Statement, his Witness Statement
(Red Folder), Rebuttal Statement (Black Folder), Oral Evidence, Legal Submissions and Closing
Submissions.
126
Cornwall gardens used it to get away and meet others. Less fortunate members of
society (i.e. the street drinkers) used it as a place to sit and watch the world go by.
378. The evidence relied on by the Objectors with regard to the 1:1 consultations and the
Abbo cartoon is not relevant to the TVG Inquiry. These meetings took place at a
time when the community was told in no uncertain terms that the removal of the old
library and the building over the Site was non-negotiable.
379. The Officer’s Reports on the current planning and consent applications were also
not relevant. They were withdrawn on Tuesday 12 February because of “technical
difficulties”, and were being rewritten because of inaccuracies which have been
drawn to Brent’s attention.
The Relevance of the Appearance of the Land
380. Linden’s submissions and cross-examination have used language such as ‘a little
piece of paved land’ in order to play down the significance of the Site. However, in
The Trap Grounds Case Lord Hoffman made it clear that Parliament has
specifically declined to import any restriction derived from the “ordinary” meaning
of village green into the statutory test under what was now s. 15(2).
381. Any doubt that land which does not necessarily look like a “village green” can be a
TVG, was removed by the recent case of Newhaven Port, concerning an
application to register a beach covered by the sea for around 40% of the time. In
that case the judge expressly accepted the submission that Parliament has chosen to
legislate in terms which do not incorporate the notion that the land to be registered
has to be green, must not be covered for part of the time at least by water, or has to
reflect, by whatever language, the traditional concept of a TVG.
Instead, the
legislation focuses on the activities, by whom they were carried out, for how long
and on what basis. These criteria do not necessarily accord with any traditional
view of what a town or village green is, but the law has always been more
127
concerned with the character of the use than with the physical characteristics of the
land over which the usage occurred.
382. The Newhaven decision is also relevant to the Objectors’ submission that the Site
could not be a TVG if it was only used for LSP in the summer months. The beach
in Newhaven was inundated for 40% of the time due to tidal flow, but was still
capable of being registered. If one adds in the fact that the beach was unlikely to be
used at night, it was probably only actually used for about 40% of the year.
Parallels can be drawn with the Site, where most activity is during the day and in
warm weather.
The Relevance of the Fact that the Site is used as a Thoroughfare
383. The evidence of Brent’s witnesses (not all of whom were put forward for cross
examination) that the Site is little more than a footpath or thoroughfare for the use
of visitors to the Library Centre is so similarly worded that this casts doubt on the
authenticity of those witness statements. The Site may be paved, in a similar way
to adjoining footpaths, but just from looking at its shape and size, it is more than a
mere thoroughfare. Parts of it are used for access to the Library Centre, the 1894
library building and, throughout the 20 year period before it closed, the Willesden
Bookshop. That is because, in designing its 1980s development, Brent chose to put
the Site between the front of the new Library Centre and the rear of the 1894
library. As page 13 of the December 1983 Development Department booklet
“Willesden Green Library” showed, access to these buildings would be through a
“Public Square”.
384. There have been many other cases where there have been footpaths running across
land which was registered as a TVG. In this case, there is no public right of way,
but one would expect from the design of an open space in front of a public building
that there would be large numbers of people walking across the Site. That does not
mean that the Site is not a TVG.
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The Statutory Criteria
385. It is accepted that there are a number of legal tests set out in Section 15(2),
Commons Act 2006, which must be passed before the Site can be registered as a
Town or Village Green (“TVG”), and that the onus is on the applicant to prove that
all of those tests are met.
Has the Site been used for “lawful sports and pastimes”
386. That people have indulged in a variety of informal activities on the land is amply
demonstrated by the evidence provided by the Applicant’s witnesses and, to a
certain extent, by witnesses for Brent. The various adaptations to the Redston Form
and the Kwiecien Form in the written statements, and the significant proportion of
self-written statements demonstrates that witnesses have, on the whole, actually
thought about what they are saying.
387. The evidence demonstrates that the following activities had taken place: passing
time or relaxing, meeting point, markets, demos, festivals (Wassail etc),
carols/Christmas tree, church events, art installation, speeches, canvassing, eat
sandwiches, children or toddlers play, senior exercise, phone calls/computer,
reading a book or newspapers, walking for exercise, drinking coffee etc, sketching,
listening to music, courting couples, poetry recital. There is no reason to doubt that
these activities were generally done in a social, informal and off-duty manner – i.e.
as recreational pastimes.
388. With regard to football, although organised games may have occurred on Grange
Road, it is clear that the square in front of the bookshop would be used as a run-off
area where kids would run after the ball or possibly compete for it. Witnesses have
described the kicking of a ball on the square, not as part of any formal or semiformal game, but between one or two individuals only.
129
389. As to whether these activities were “lawful sports and pastimes”, there is nothing in
any of the authorities cited which rules out any of them. There is no case law to
back up the Objectors’ assertion that these activities are not “sports or pastimes”
because they are “trivial” or “not recreational”.
390. “Pastime” is defined as “an activity that occupies one’s spare time pleasantly”, but
other definitions of pastime include the word “recreation”. The objectors have
provided a definition of the word “pastime”, but not of “recreation”. “Recreation”
is defined as “refreshment of one’s mind or body after work, through activity that
amuses or stimulates”. It includes any form of relaxation. That is very much what
the Site is used for. It is what people have been doing on the Site by stopping,
waiting, meeting, reading, drinking and eating. They have “enjoyed the ambience
of the Square”.
391. The Sunningwell case establishes that “lawful sports and pastimes” is not two
separate classes, but a single composite class. Solitary activities or family activities
such as playing with children are the kind of informal recreation which, in modern
life, can be the main function of a village green. Lord Hoffman also rejected the
notion that sports and pastimes had to be communal activities, and made it clear
that the phrase includes activities which would be so regarded in the modern day.
Sunningwell thus expands the notion of pleasurable activities in such a way that
innovations such as playing Angry Birds or SuperMario Brothers and tweeting
one’s high scores to friends should be included. Lots of the pastimes relied on in
this case are of a more modern variety.
392. Aside from the activities which the Objectors say are not LSP, there are others on
the list which are credible and have taken place late at night when there are few
passers-by, nobody entering the library and no security guards on duty. None of
the witnesses (with the possible exception of the security guards) could have been
on the Site 24 hours a day. They could not know what happened when they were
not there. Anything could have happened without being observed by the guards.
130
Library staff have confirmed that they merely travel quickly into the library, 2 or 3
times a day. Security men on their rounds were concentrating on checking fire
doors, not looking outwards onto the square.
The CCTV evidence is not
conclusive, since it was carried out in the winter on a cold day when the public
would still have been at work or at school in the busy run up to Christmas. A
similar exercise done on a hot sunny day in July or the school holidays would paint
a different picture.
393. The Objectors have placed great emphasis on the anti-social behaviour of the streetdrinkers.
However, while witnesses such as Mr Adams acknowledged that there
were problems, their evidence was that this was occasional. Most of the time the
street drinkers were simply sitting there, chatting, using the space, the Site and the
walls around it. They too were engaged in a form of recreation. A number of
witnesses had referred to the fact that the street-drinkers were often there very early
in the morning, from which it is reasonable to conclude that they live locally and
are inhabitants of Willesden Green. There is also clear evidence that they have
been using the Site since it was created in 1989. This is therefore one example of a
pastime which has taken place on throughout the 20 year period.
Are the people who have used the Site the inhabitants of a locality, or any
neighbourhood within a locality?
394. The Willesden Green neighbourhood shown on Map A is a proper ‘neighbourhood’
for the purposes of Section 15 (2), Commons Act 2006, and is a ‘neighbourhood
within a locality’.
395. As to “locality”, it is not disputed by the Objectors that the London Borough of
Brent is a locality. It is a recognised administrative area, and has been since 1965.
396. As to “neighbourhood”, Willesden Green is a neighbourhood entirely within the
London Borough of Brent. Mr Grant’s evidence demonstrates that its history goes
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back many centuries. By the 16th century it was the largest hamlet in the Parish of
Willesden. In 1744 the common land after which it was named was of great size,
with farms and houses around it, although the Green was lost as an open space after
an Enclosure Act nearly 200 years ago. The name of the area stayed, but its built-up
area grew rapidly after the railway arrived in 1879. By the 1930s Willesden Green
and other surrounding built-up areas had merged physically, but still retained their
own local identities.
397. Mr Redston’s own evidence, and that of a number of his witnesses, shows that the
local community in the area marked on Map A regard Willesden Green as the place
where they live. Its main streets are the High Road and Walm Lane (where its main
shops are to be found) together with the Post Office, Willesden Green branches of
Barclays, Lloyds and Natwest banks. There are a number of estate agents along
these roads, advertising properties in “Willesden Green” including several at or
near Willesden Green Station.90
There are doctors’ surgeries, including the
Willesden Green Surgery in Anson Road, the soon to be closed Willesden Green
Police Station, and many places of worship, including Willesden Green Baptist
Church.
398. Mr Paddon’s evidence, on behalf of Brent, included a report which clearly
identifies the forecourt of the library as a key site within Willesden Green’s ‘town
centre’. Another section of that report speaks of Willesden Green’s strong sense of
community.
399. Willesden Green is the neighbourhood which local people identify as the area in
which they live. It is not, and does not have to be, defined by statutory boundaries.
400. Although the Council contends that the decision in Cheltenham Builders supports
the argument that “the neighbourhood relied upon by the Applicant is not capable
90
Strictly speaking, this was a new point introduced by Mr Redston in closing. It was therefore not a
matter on which the Objectors had any chance to comment, and I place less weight on it accordingly.
132
of amounting to a lawful neighbourhood for the purposes of the 2006 Act”, that
decision deals solely with what is meant by a “locality”, and does not apply to a
“neighbourhood within a locality”. It is not relevant here. The judgments of
Sullivan and Arden LJJ in Yeadon Banks free the term “any neighbourhood within
a locality” from needing to have the fixed boundaries of a legally recognised area.
401. It is difficult to define precisely what the boundaries of a particular neighbourhood
are when they have become part of a larger built-up area, but the boundaries of the
Willesden Green neighbourhood shown on revised Map A are as fair a
representation of what people living in Willesden Green regard as their
neighbourhood as could be produced. The notions of neighbourhood in urban
London are very much blurred at the edges. Although the Objectors say that the
neighbourhood on Map A is arbitrary, there is a rationale for it based on the
position where centres such as Neasden merge or meld into Willesden Green.
402. Linden relies on the statement of Sullivan J in South Gloucestershire that “the
registration authority has to be satisfied that the area alleged to be a neighbourhood
has a sufficient degree of cohesiveness, otherwise the word ‘neighbourhood’ would
be stripped of any real meaning”. However, Willesden Green is a neighbourhood
with a great deal of cohesiveness. Over time, it has become part of a larger built-up
area, so there may be disagreements over exactly where its boundaries lie on a map,
but that does not undermine the fact that it is a neighbourhood. The boundary
shown on Map A is the best estimation of the area which is regarded by its
inhabitants as being “Willesden Green” and is sufficient to represent a valid
neighbourhood for the purposes of Section 15 (2).
403. The Willesden Green neighbourhood also passes the tests posed the Inspector’s
report on the TVG Inquiry at Station Road, Newport, where the Inspector said:
“Historical and social characteristics as well as geographical characteristics must be taken
into consideration in determining if an area is objectively identifiable as a discrete
133
neighbourhood distinct from adjoining areas: whether the area has a name, what
community facilities and shops it has, whether estate agents sell properties by reference
to its name and/or characteristics, the style and date of housing in the area, and
connections between streets.”
404. Willesden Green has the historical and social characteristics, as well as a name
which appears on maps to show that this is, in fact, Willesden Green. It has the
main roads with their shops and other services, and the estate agents that you pass
as you walk from Willesden Green Station to Willesden Green Library Centre
advertise properties in Willesden Green. The gates into the Jewish Cemetery are
situated within the neighbourhood. The Sainsbury’s supermarket is a key feature,
because if you live in Normanby Road or St Gabriel’s Road you can drive and park
or walk. There is no other supermarket where you can do this.
405. Although the Council challenges the boundary of the neighbourhood shown on
Map A, particularly where it has been amended to the east of Lydford Road, there
is no reason why roads such as different parts of Dartmouth and Teignmouth
Roads, which stretch a long way from west to east, cannot be within different
neighbourhoods, even though the houses in them may be of a similar age and type.
At their western end (Walm Lane) they are indisputably within Willesden Green.
At their eastern end, they could be regarded as within the historical neighbourhoods
of Cricklewood, Kilburn or the smaller area between these historic areas on the old
“Watling Street” known as Shoot Up Hill. Somewhere along their length, people
living there will tend to travel east rather than west for their shopping and other
services. At around that point there will be a neighbourhood boundary, but exactly
where that would lie on a map may be open to debate. Mapesbury residents are
clear that they lived in Willesden. Kilburn is the other side of the line, even if
estate agents still prefer to call it Mapesbury.
406. The other area where the Objectors have questioned what is, or is not, within the
Willesden Green neighbourhood is the area which several witnesses referred to as
“Dollis Hill”. Seven of the witness statements were from people from Dollis Hill.
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Mr Grant’s evidence shows that this estate was laid out between 1899 and 1914 on
land between the Slade Brook along its northern edge and the Metropolitan
Railway. At its eastern end was the newly opened Park Avenue North, built to link
the centre of Willesden Green with the newly opened (1901) Gladstone Park. That
Park was created on land acquired from the Finch family of Dollis Hill, on the
upper slopes of the hill half a mile to the north of the Slade Brook. The Dollis Hill
Estate was an extension of Willesden Green, which had grown rapidly, both north
and south of the railway, since Willesden Green Station opened in 1879. There
were road links at either end of the estate (at Park Avenue and Dudden Hill Lane)
as well as two pedestrian links under the railway at Dollis Hill Station and opposite
Churchill Road. Map A is based on the concept of a single neighbourhood with
two stations. One can walk to the site from either.
407. The map showing the catchment area for Gladstone Park Primary School shows
that the railway is no barrier for children walking to school from that part of
Willesden Green south of the railway to the school on the Dollis Hill Estate. That
catchment area also includes the whole of the Dollis Hill Estate, except for
Mulgrave Road and Normanby Road.
However, Miki Berenyi (who lives in
Normanby Road) confirms that her children attend that school. When originally
built, as the final “M” and “N” in the Estate’s alphabetical grid of roads, they were
linked by a level crossing across another railway line which divides them from the
rest of the estate. That has now been replaced by a footbridge. Historically,
architecturally and still socially, those two roads are still part of the Dudden Hill
estate, and of the Willesden Green neighbourhood.91
408. Although Mrs Mercer and Miss Berenyi described where they lived in Normanby
Road as ‘Dollis Hill’, and accepted in cross-examination that roads like Sonia
Gardens and Lennox Gardens were “on their patch”, and although these two roads
91
In his Closing Submission, Mr Redston added to his written text with an explanation of the way in which
housing in the area of his own house (Kenneth Crescent) had developed before and after the war. Strictly
speaking, this was new evidence, on which it was not possible for the Objectors to comment. I have
therefore not set it out here. I do not consider that anything turns on it.
135
were only a couple of streets away, Mr Grant’s evidence shows that there were
originally open fields from the Slade Brook behind Mulgrave Road up the long
drag of a hill to Neasden. It was not until around 1930, twenty years after that part
of the Dollis Hill Estate was completed, that suburban housing including Sonia and
Lennox Gardens crept down the hill from Neasden to meet this built-up edge of the
Willesden Green neighbourhood. Dudden Hill Lane is a significant barrier to cross
if one wants to go from Normanby Road to Lennox Gardens.
409. In any event, in the Yeadon Banks case Sullivan LJ accepted that the words "any
neighbourhood" could include two or more neighbourhoods. By its very nature a
locality is likely to contain a number of neighbourhoods. Lady Justice Arden
agreed, concluding that it was “unlikely without some clear indication to that effect
that Parliament intended that no Class C TVG should be registered if it was used by
a significant number of inhabitants from more than one neighbourhood”. Even
though the Applicant’s primary case is that Willesden Green is a single area as
shown on that map, the judgments in Yeadon Banks recognise that the area within
the boundary shown on Map A could comprise more than one distinct
“neighbourhood”, and still provide a basis for registration.
410. Linden’s closing submissions place a biased “spin” on what the Applicant’s
witnesses have said, and also misrepresent what Mr Grant had said was the
Applicant’s proposition as to “neighbourhood”.
Has the use been by a “significant number” of inhabitants?
411. The McAlpine case demonstrates that a “significant number” does not mean a
considerable or substantial number. “Significant” meant that the number of users
had to be sufficient to indicate that their use of the land signified that it is in general
use by the local community for informal recreation, rather than occasional use by
individuals as trespassers.
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412. That a “significant number” of inhabitants have used the public square is amply
demonstrated by the names of users provided in the original application, the 66
written statements and the witnesses who presented live evidence.
413. Of the witness statements submitted, 59 come from the neighbourhood shown on
Map A, and 7 from the wider locality (LB Brent). 31 are definitely from Willesden,
as accepted by all parties, and the amendment to Map A brings in a further 5 from
Mapesbury.
Have they indulged in sports and pastimes “as of right”?
414. It is a key condition of the Section 15(2) tests that the inhabitants of Willesden
Green have indulged in their sports and pastimes on the open space “as of right”.
The leading authority on this test is the judgment of Lord Hoffmann in the
Sunningwell case. In the present case:
(1)
the inhabitants of Willesden Green have never had to use the open space in
front of the Library Centre by force (“nec vi”). As Miss N Mckenzie said in
her oral evidence:
‘We knew that little patch was ours. Brent Council had put it there for us!’
(2)
Nor have residents had to use the open space by stealth (“nec clam”). The
London Borough of Brent was fully aware that local people were using the
“public square” as the “much-needed open space” they had provided. Council
staff working in the Library Centre have admitted seeing examples of that
use;
(3)
The inhabitants have not been restricted to using the Site by licence of the
owner, or because (to use Lord Hoffmann’s words) Brent “had consented to
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the user, but for a limited period” (“nec precario”). They have used the Site
for their informal recreation since it became available without needing or
receiving any specific consent from Brent Council to do so.
415. Linden’s contention that “how the matter would have appeared to the owner of the
land” is “a fundamental question”, and that “the community seeking to assert a
right ‘must have used it in a way which would suggest to a reasonable landowner
that they believed they were exercising a public right”’, is not a test put forward by
Lord Hoffmann, but is merely a quotation from one of the many cases reviewed in
the judgment. Linden’s argument on this point is a “false trail”. Lord Hope’s
judgment in Lewis case makes it clear that there are only two questions which need
to be asked. The first is the quality of the user during the 20-year period: has it
been by a significant number of the inhabitants, have they been indulging in lawful
sports and pastimes on the land, and have they been doing so “as of right”, i.e.
openly and in the manner that a person rightfully entitled would have used it. If the
user for at least 20 years is of such amount and in such manner as would reasonably
be regarded as being the assertion of a public right, the Council will be taken to
have acquiesced in it, unless it can claim that one of the three vitiating
circumstances applies. If this is claimed, the second question is whether that claim
can be made out. Once the second question is out of the way, that is the end of the
matter.
416. As far as the “as of right” test in this passage is concerned, the evidence shows that
inhabitants of Willesden Green have been openly, using the open space in front of
the Library Centre in large numbers, and in the manner of persons rightfully
entitled, for the past 23 years. They have asserted that public right, and Brent must
be taken to have acquiesced in it. It was, after all, Brent who promised to provide
this open space to meet an identified local need in their 1980 Willesden Green
District Plan, so it would be going back on their commitment to the local
community if they had not.
138
417. Much has been made in the closing submissions for the Objectors about whether a
“notional owner” of the site would have perceived the use of the land during the
relevant period to be asserting the right to a TVG. Brent was not a “notional
owner”, it was the owner and the inhabitants using the Site were doing what Brent
had wanted them to do in their use of it. It is rich of the Council to claim that they
did not “perceive” that use. If the Council or its employees were not aware of what
the Site was there to be used for, that was their fault, not that of the local
inhabitants who were using the land as a TVG.
418. In the period 1989 to 2008, people used the Site for their everyday leisure without
thinking about it. Latterly the Site has been enhanced by the provision of markets
and the display of public art work promoted by the Council. The Objectors’ claim
that, because Brent has licenced a number of markets on the Site, those markets and
the people attending them have been there by permission or “precario”, is not
correct. The requirement for a licence applies only to the setting up of market stalls
by street traders rather than the perusal of or purchase of items by members of the
public. People attending the markets did not do so under licence. In any event, the
number of days over the period of 20 years that such licences were in place does
not satisfy Lord Hoffmann’s third example of someone who has “consented to the
user, but for a limited period”. It is the licence, not the “user”, which was for a
limited period. Even when markets were being staged or promoted by Brent on the
land, there was no restriction on local people using it for other pastimes, although
the space available for enjoying them would have been less because of the stalls
occupying some of the land.
419. The Objectors’ suggestion that the erection of market stalls was in fact inconsistent
with status as a village green, because it would be illegal, is preposterous. If it were
right, then events such as dancing round a maypole or travelling fairs (which were
part of the traditional notion of what occurred on a village green) would also be
unlawful.
139
420. The Beresford case, which contains important guidance on “as of right”, is very
useful because it deals with the case of land belonging to a local authority. As Lord
Scott had said in the same case, “Public Ownership of the land is plainly a relevant
consideration”. Brent have encouraged increased public use of this valuable local
amenity. Osita Udenson’s written witness statement on behalf of Brent gives details
of how, as Willesden Green’s Town Centre Manager, she and a steering group
started to arrange markets because they wanted ‘to activate the space in front of the
Willesden Green Library Centre’. Peter Paddon’s also shows how he was involved
in organising activities which made use of the forecourt, and how he was
instrumental in upgrading the open space in order to encourage more events and
markets. As with Sunderland City Council, it is hard to see how Brent’s conduct
can be treated as indicating that the public had no right to use the land, or did so
only by virtue of the council’s licence.
421. There is a total lack of any evidence from Brent’s witnesses of any byelaws or
notices preventing users of the open space from enjoying the pastimes that they
were indulging in there, apart from an alcohol control area in an attempt to stop
nuisance from “street drinkers”. Although Narinder Bhourlay’s written statement
claims that “the space is not allowed to be used for games football or cricket or any
other pastimes as this causes a nuisance and health and safety concern for visitors
to the library” Ms Bhourlay was not made available for cross-examination. Had
she given evidence she would have been questioned as to the authority on which
she, or other members of her staff, had “moved on” children playing football or
other games on the open space.
422. In Beresford Lord Walker referred to the situation where land had either been
vested in a local authority under section 10 of the Open Spaces Act 1906, or been
appropriated by the local authority for the purposes of public recreation, and
indicated that in those cases it would be difficult to regard those who used the space
as “trespassers”. However there is no evidence that the land in this application has
been the subject of any statutory trust over the land, nor of any formal appropriation
140
of the land as recreational open space. Nor is there any evidence from which it
could be inferred that the land had been appropriated in such a way. Neither the
Council nor Linden has argued for an appropriation, formal or inferred, and para 17
of Linden’s Closing Submissions accepts that there is no known statutory context
that would preclude TVG registration. The Applicant submits that the Site can be,
and is, a TVG.
Has the use for lawful sports and pastimes been for “a period of at least 20 years”?
423. The evidence shows that the inhabitants of the Willesden Green neighbourhood
have indulged in these activities for a period of at least 20 years.
Did they continue to do so at the time of the application?
424. The use was continuing at the time of the application (and has continued since
then).
Conclusions
425. All of the key tests in Section 15(2), Commons Act 2006 have been shown, on the
balance of probabilities, to have been proved. The Site has been used continuously
as a TVG since 1989, and is still being so used. In the 1980’s Brent Council, after
careful research and consultation on the needs of the Willesden Green area, brought
the Site into existence. It said that it wanted to ‘put back the “Green” in Willesden’,
and as has been clearly shown by the evidence in person, the inhabitants of the
Willesden Green neighbourhood have embraced their “Green”. The Site should be
registered as a TVG.
141
FINDINGS
Introduction/Structure
426. In many TVG applications it is possible to take all the activities relied upon as LSP
as a group, and to break down consideration of the application simply by reference
to the individual components of the s. 15(2) test. In this case, however, there is a
high level of disagreement in this case as to whether the individual activities relied
upon can even constitute LSP. Further, even where there is common ground that a
particular activity (such as football) would amount to LSP, there are activityspecific arguments as to the length of time for which that activity has taken place,
the number of participants and/or whether that activity was contentious (or “vi”).
Accordingly, there are sections of my findings which it has been more sensible to
structure by reference to the individual activities relied upon.
On this basis, I
consider the following issues:
(1)
Preliminary issues:
(a) The relevance of Mr Redston’s motive for making the Application;
(b) The weight to be attached to the written evidence;
(c) The relevance of the consultation exercise on the proposed scheme for
redevelopment
(2)
Section 15(2):
(a) Is the application site “land”?
(b) Have a significant number of inhabitants indulged in LSP on the land for
20 years or more?
(c) Has the use of the land been “as of right”?
(d) Are the people who have indulged in LSP the inhabitants of a
“neighbourhood within a locality”?
(e) Did the use continue at the date of the Application?
142
427. In this section, references in square brackets “[ ]” are to earlier paragraphs in this
Report.
Preliminary Issues
Mr Redston’s motive for making the Application
a.
428. Both the Council and Linden have contended that the Application was made for an
irrelevant or “extraneous” purpose, namely to defeat the planning application for
redevelopment of the WGLC.92 In large measure, I do not doubt this, but I do not
consider that this helps very much in determining the Registration Authority’s
response to the Application.
429. In McAlpine93 the Inspector was also faced with the submission that the TVG
application in that case was intended to “try to trump the outstanding planning
application”. He concluded that the motive of the applicants was legally irrelevant
to the question whether the application land had become a TVG, but was a factor to
be taken into account when assessing the credibility of the witnesses who gave
evidence in favour of the application.
430. I agree with that analysis. If the requirements of s. 15(2) are satisfied, then the Site
should be registered as a TVG, irrespective of Mr Redston’s reasons for making the
Application. The existence of an “ulterior motive” for making the Application is
only relevant to my consideration of the Application if and so far there is any
reason to believe that it has influenced the way in which Mr Redston or his
witnesses have given their evidence. On this issue, I note and agree with the
92
93
[265], [343]
Linden Authorities Tab 4 @ para [20]
143
Council’s acceptance that, for the most part, the witnesses who appeared before me
were doing their best to provide an honest recollection of events on Site.94
b.
Weight to be attached to the written statements
431. In closing, Linden has suggested that I should place no weight on the written
statements,95 while the Council argues that they should be given “only very limited
weight”.96 There are three distinct strands to these submissions:
(1)
The absence of detail in the written statements;
(2)
The use of “pro-forma” statements;
(3)
The fact that the authors of the written statements have not been available for
cross-examination.
432. As to the first of these, I agree that, even if everything they say is taken at face
value, there are limitations on the conclusions which can be drawn from the written
statements. For example, aside from the written statements of Mr Redston and Mr
Grant, almost all the evidence before the Inquiry relating to the “neighbourhood”
was given orally. Although the statements which were prepared on the Redston
and Kwiecien Forms state that the person filling out the form is “an inhabitant of
the locality”, there is no indication of what that person considers the locality or its
extent to be. Similarly, while most of the statements list activities which have been
seen or participated in,97 very few indicate either the frequency with which this has
occurred, or the period of time involved. Whether or not this goes to the weight to
be attached to the written statements, there is undoubtedly a need to be careful
when deciding precisely what it is they say.
94
[342]
[302]
96
[345]
97
Some do not even do that: see e.g. Sawacha, Blue Folder p. 94
95
144
433. As to the use of standardised forms, this is not unusual in TVG applications, not
least because it is often necessary to focus people’s attention on the nature of the
information required. I therefore make it clear that I do not attach any improper
motive to Mr Redston’s decision to distribute the Redston Form, which seems to
me to be entirely understandable. It is equally understandable that a person in Mr
Kwiecien’s position might provide other potential supporters of the Application
with a copy of their own statement, not as a document to be copied but simply as an
example what might be said. However, the use of standardised forms carries its
own risks, especially when – as has occurred in this case – the form has been
written or adapted by someone without any particular experience of writing
questionnaires.
By way of illustration, I note the following points about the
Redston and Kwiecien Forms:
(1)
There is no provision for the person filling out either form to describe the Site
in their own words. Both forms state, as part of the pro-forma wording:
“I have used the Public Square as a Town Green for more than ___ years”.
Consequently, while the person filling the form was able to insert the number
of years, the description of the site as a “Public Square” was fixed.
(2)
Both forms state:
“I am an inhabitant of the locality, and have been for ___ years”.
The forms did not explain what is meant by “the locality” and there is once
again no provision for the person completing the form to identify or explain
what they meant by phrase.
145
(3)
Both forms state:
“To my knowledge the Public Square in front of WGLC has been used as an Open Space
for at least 23 years …”
irrespective of the period of time for which the person signing the form
signatory had lived in the area or used the Site. No-one completing the
Redston Form had crossed this out or corrected it, even though a number of
people completing the form had lived in or known the area for a significantly
shorter period.
(4)
Paragraph 3 of the Redston Form provided a list of activities, with the
instruction that people should tick those which were applicable to them.
Although most people completing the Redston Form did specifically tick the
items which were relevant to them, some did not. It is not possible to tell
whether this meant they had seen all of the listed activities taking place, or
none, or had simply filled in the form too quickly to notice.
In re-
examination, Mr Redston himself volunteered the observation that, because
his form “looked a bit legal” people may have been wary of crossing things
out.98
(5)
In contrast to the Redston Form, the Kwiecien Form omitted the instruction to
tick the items on the list which were appropriate.99 The consequence was
that, when the Kwiecien Form was distributed to others, people were simply
presented with a list of activities which the form said they had personally
observed, without the instruction (which had been present on the Redston
Form) to tick only the relevant items.
98
[105]
I suspect this is because, when Mr Kwiecien adapted the Redston Form, he initially did so for his own
use. Since he was retyping the Redston Form, but only copying out the activities which were relevant to
him, there would have been no need for him to copy the words “as ticked below”.
99
146
(6)
Some of the items on the lists on both the Redston and Kwiecien forms
contain more than one element, without any means of disaggregation.
“Attending markets or festivals”; “playing tag and other similar activities”;
“workers at lunch time getting fresh air, eating lunch” and “public meetings
and gatherings such as St Patrick’s Day Parade” are all examples of this. The
inability to identify the precise reason why the person completing the form
ticked a particular item becomes important in cases where one item on the list
qualifies as a LSP, but the other may not.
(7)
In comparing the responses on the Redston and Kwiecien Forms, there is a
noticeable trend. The majority of people using the Kwiecien Form state they
have attended public meetings and/or seen the site used for assembling
groups of school children. Many of them also refer to teaching children to
ride a bicycle or rollerskate. In contrast, none of the people using the Redston
Form makes any mention of these activities. While this does not mean that
the entries on either series of forms are incorrect, it does indicate that the
people have tended to sign up to whatever is on the list in front of them,
rather than apply a completely independent mind to what it is they are
signing.100
(8)
Mr Redston himself accepted that some of the statements on the forms were
(to use his own words) “ridiculous” and “inaccurate”. For example, Louise
McLean’s form101 stated that she had helped her 5 children – two of whom
were now aged 33 – to learn to walk, ride a bicycle and skateboard on the
Site. Since the Site did not exist until 1989, Mr Redston readily agreed that
100
A similar point appears from the material submitted by Mr Redston with the original application, where
there were 8 separate pages of names. Where people signed on the same page, later signatories often
repeated or took their cue from the activities already mentioned on the same page. Hence, on one of the
pages food markets are a consistent theme, but there is no reference to use of the site as a sitting area; on
another public art and the St Patrick’s Day Parade are repeatedly mentioned; while on a third nearly all the
signatories refer to using the Site as a public seating area and enjoying the markets, but there is no mention
of St Patrick’s day or festivals. This does not mean that the detail contained in the responses is wrong,
merely that one should not read too much into what individual signatories may or may not have listed.
101
Blue Folder p. 71
147
they could not have learnt to walk there. Mrs McLean’s was not the only
statement to give the impression that the signatory had known or used the Site
for periods which were longer than the time for which it has actually existed.
434. That these were not simply hypothetical concerns was demonstrated by the crossexamination of the witnesses in support of the Application. Even where forms had
been filled out carefully and conscientiously, it became clear that the written
answers were not always entirely accurate or quite what they seemed. Hence:
(1)
Mr Kwiecien’s form indicated that he had been an inhabitant of the locality
for 49 years, and had taught all three of his children to walk, ride a bicycle
and rollerskate on the Site. However, when Mr Kwiecien came to give
evidence, it became clear that (although he visited Willesden regularly
throughout this period) he was in fact living in Spain from 1987-1997, which
was the period in which his two eldest children had been born.102 This did
not make what was said on the form untrue, but it placed a different
complexion upon it.
(2)
Mr Fenn’s form indicated that he had taken part in “playing tag and other
similar activities on the site”. In his oral evidence, however, he clarified that
as “playing around with his mates”.103
(3)
Similarly, Mrs Mercer explained that she had ticked the same item because
she had often seen “children running around”, and regarded “playing tag” as a
“catch-all” phrase which covered that.104 Although her written statement
indicated that she had seen people kicking a football on the Site, in oral
evidence she said that this had happened only two or three times in the 19
years she had known the Site.
102
[130], [133], [135-6]
[56]
104
[123]
103
148
(4)
Dr Salpadoru’s form suggested that she had attended the public meeting at
which Cllr Butt had been present. In fact, when she gave her evidence, this
turned out not to be the case.105 I am completely satisfied that this was an
innocent mistake, corrected as soon as it was drawn to Dr Salpadoru’s
attention, but it was nevertheless a mistake. This point is relevant because
other people who used the Kwiecien Form also stated that they had personally
observed the same meeting.106 I have no way of telling whether they were
actually present or (like Dr Salpadoru) had simply failed to amend or delete
the item from the form they were given.
435. In all four cases, these points only emerged because the authors of the written
statements gave oral evidence on which they were cross-examined.
436. For all these reasons, I consider it is necessary to treat the written statements with
caution, especially in those respects where the forms used have given people no
choice as to the words used. However, Linden’s suggestion that I should place no
weight on them whatsoever goes too far.
Notwithstanding the points above,
significant parts of the written statements have been completed by the signatories
themselves, even if only by ticking or cutting and pasting the items on the lists
which were applicable to them. Where people have ticked some, but not all of the
items on the list they have been given, they have clearly applied some thought to
what they are doing.
A substantial number of the written statements are not
provided on any form at all, and again I consider that these people have (as Mr
Redston put it) “actually thought about” what they were saying. The concerns
about how far that evidence goes in terms of proving the extent, frequency and
duration of the various activities remain, as does the possibility that crossexamination would have revealed that some of the answers were either incorrect or
did not mean quite what they seemed. However, if one looks at the forms as a
105
[153-154]
See Lazarus Statement, Blue Folder p. 65; McLean Statement, Blue Folder p. 71; Swade Statement
Blue Folder p. 98.
106
149
whole, I consider that they provide a relevant, albeit incomplete, impression of the
way in which the Site has been used. In so far as this impression is consistent with
and supportive of the oral evidence I have heard, I can see no reason why I should
not attach weight to it. 107
437. Finally, and in the interests of fairness, I should record that although the Council
has been critical of Mr Redston’s use of standardised forms, there are substantial
parts of the Council’s own evidence which suffer from a similar defect. Aside from
the personal details, the statements of Mr Onyango and Mr O’Sullivan are virtually
identical, as are the statements of Narinder Bhourlay and Noman Ali.108 This does
not mean that what is said is necessarily untrue, but it is quite clear that the words
used are not the witnesses’ own, and the fact that more than one witness uses
exactly the same words suggests that these parts of their statements have been
presented to the witnesses to agree, rather than arrived at through careful discussion
with them.
438. Once again, this point is not academic. Although Mr Ali’s written statement109
records that
“There have been odd occasions where children have used the space for ball games and we have
received complaints from library users and have moved children on”
in his oral evidence Mr Ali said he had never seen that or himself asked children to
move on.110 Without for a moment suggesting that his written statement was
deliberately misleading, the fact remains that the impression which it gave was not
the full picture.
107
See para 75 of the judgment in the McAlpine case, Linden Authorities Tab 4.
Albeit to a slightly lesser extent.
109
Ali para 6, Council Evidence p. 14
110
[187]
108
150
439. In the circumstances, the written statements on behalf of the Council should also be
approached with a degree of caution.
c.
The relevance of the consultation exercise on the planning application
440. As I made clear to the parties at various stages throughout the Inquiry,111 neither the
fact that the Council is proposing to redevelop the WGLC nor the merits (or
demerits) of the current planning application have any bearing on whether the Site
should be registered as a TVG.
However, in their cross-examination of the
witnesses in support of the Application and in their closing submissions, both the
Council and Linden have placed considerable emphasis on the fact that, in the
course of the 1:1 consultations on the proposed redevelopment, none of the
witnesses who support the Application raised any concern about the loss of the
open space,112 and that the Abbo sketch produced by Mr Redston would in fact
have involved development over it.113
441. On the assumption that the Council’s notes of the 1:1 meetings are accurate,114 this
argument appears to be factually well-founded:
although there are occasional
references to the decision to locate public open space at the rear of the proposed
new centre,115 in only one case was this linked to a comment that this “could not
replace what was being lost”.116 However, Mr Redston argued that this was only
because people had been told that topics such as retention of the 1894 library and
loss of the open space were “not up for discussion”.117 In this regard, he referred in
particular to the notes submitted by Miss Proud and Miss Mackenzie.118
111
And at the Pre-Inquiry Meeting
[306-308]; [367-370]
113
[112]
114
As to which, see [442(1)] below
115
Per Ms Baines (Council Appendices p. 183); Mr Adam (ibid p. 190); Ms Pollen (ibid p. 193); Mr nd
Mrs Spence (ibid p. 200)
116
Mr Adam, recorded in the Council’s Appendices at p. 190
117
[111],
118
[32], [48]
112
151
442. If this were the case, it would significantly undermine the point being made by the
Objectors. However, Miss Proud’s and Miss N Mckenzie’s notes (which were at
odds with the explanations they gave in oral evidence) were hotly disputed by the
Council. Doing my best to reconcile the differing accounts, I reach the following
conclusions:
(1)
It is common ground that the Council’s notes of the 1:1 meetings are not a
verbatim record. There will, therefore, have been comments made which
were not recorded;119 and I accept that it is possible that these may in some
cases have included reference to the loss of open space. Nonetheless, none of
the witnesses who gave evidence positively remembered commenting on the
loss of open space,120 and many agreed that they did not.121 The notes clearly
record the most significant points that were raised, and if there are omissions
in the notes it is unlikely (in the absence of deliberate censorship, which was
not alleged) that these would always involve the same topic. If and so far as
the loss of the open space was mentioned, I concluded that it cannot have
come up very often, and that when it did, it did not feature as a “key” point of
concern on which there was any significant discussion;
(2)
On balance, I accept Miss Kay’s evidence that there was no positive
prohibition on the discussion of open space at the 1:1 meetings. 122 This is
corroborated by Mr Grant,123 while both Mr Kwiecien124 and Dr Salpadoru125
gave entirely different reasons for the fact that they had not mentioned the
loss of the open space. Neither Miss Proud nor Miss MacKenzie remembered
or made any mention of a prohibition on what they could say in their oral
119
[38], [150]
[38]
121
[31], [47], [90], [159]
122
[173]
123
[90]
124
[137]
125
[159]
120
152
evidence, and only referred to it in a subsequent Note on which they could
not be cross-examined;
(3)
The conclusion at (2) is reinforced by the frequent references in the notes to
concerns about the loss of the 1894 library. This is consistent with the
contention that people were told this was “not up for discussion”.
Conversely, if that is what they were told, the notes demonstrate that the
prohibition did not in fact prevent people from raising any concerns they had,
even though these went to the heart of the design principles behind the
proposed scheme.
(4)
On the other hand, I accept that – although they may not have been told that
certain topics were “not up for discussion” – some of the consultees may have
felt constrained by the fact that they were being presented with proposals
which were, at the very least, at an advanced stage of development, if not a
fait accompli.126 Others will have used the limited time available to them to
focus on other aspects of the proposals which were possibly of greater
concern, such as the 1894 library, the bookshop or the provision of affordable
housing.127
443. On this basis, I agree with the Objectors that there is a noticeable and noteworthy
lack of any reference, prior to the Application being made, to concerns about the
loss of open space. However, the more important question is where that leaves the
Application.
444. In my view, while it is potentially relevant, it cannot, on its own, be decisive. In
the first instance, the Application has to be considered by reference to the detailed
evidence which I have heard about the actual use of the site. As the House of Lords
made clear in Oxfordshire, TVG status does not depend upon the subjective beliefs
126
127
See e.g. the comments of Dr Colas, Council Appendices p. 189
[31], [47], [90], [137], [159]
153
of the people who have used it.128 If the evidence before the Registration Authority
demonstrates that the requirements of s. 15(2) are met, then the fact that people
may not previously have consciously thought of the Site as an important open space
has no bearing on the question of registration. That said, I agree with the Objectors
that the fact that, prior to the Application, no-one appears to have given the Site
much thought as a place in its own right, is a factor to be taken into account in my
consideration of the quality of the user throughout the 20 year period.
Section 15(2)
a.
Is the Site “land”?
445. The extent of the Site is well defined.129 There is no dispute that the whole of this
area is “land” for the purposes of the 2006 Act. Although Linden has referred to it
as a “small paved area”130 it has not been suggested by either of the Objectors that
its appearance means it cannot be a TVG. In view of the decision in The Trap
Grounds Case131 it is clear that the physical appearance of the site is irrelevant to
this question.
446. This part of the s. 15(2) test is therefore satisfied.
b.
Have a significant number of inhabitants indulged in LSP on the land for 20
years or more?
447. As noted above, in this case there is significant dispute between the parties as to
which of the activities relied upon by Mr Redston even qualifies as a LSP. Further,
for a number of the activities relied upon there are activity-specific arguments
about the number of people who have taken part, the length of time over which the
128
[247]
[14-17]
130
[260]
131
[240]
129
154
activity has taken place, and whether the activity took place “as of right”. I have
therefore structured my consideration of all these issues by reference to the
individual activities relied upon, and then gone on to consider the effect, when
taken together, of the activities that I have concluded are LSP. However, it is
helpful at the outset of this analysis to say something more about the precise
meaning of “lawful sports and pastimes”, and about the relevance of the use of the
Site as a thoroughfare.
The meaning of LSP
448. I have summarised the case-law on the meaning of LSP above. It is common
ground that the phrase has to be read in a modern context, and is not limited to
communal or organised activities. Nonetheless, there is force in Linden’s
submission that this case tests the boundaries of the legal definition, particularly in
terms of the word “pastimes”.132 While Mr Redston is right that there is no caselaw which demonstrates that the activities on which he relies are not LSP,133 it is
equally the case that there is no authority to say that many of them are. In short, the
arguments in this case take the Registration Authority into uncharted legal territory.
449. In the absence of decisive case-law, I have been presented with various dictionary
definitions to guide the way:
(1)
Linden’s Authorities134 include an extract from the Shorter Oxford English
Dictionary, which defines “pastime” as:
“1. That which serves to pass the time agreeably; recreation.
2.
A particular form of (enjoyable) recreation; a hobby; a sport, a game.
3.
A passing or elapsing of time”
132
[268]
[389]
134
Shorter Oxford English Dictionary (2007), Linden Authorities Tab 14
133
155
(2)
Based on the fact that “pastime” includes “recreation”:
(a) Mr Redston has referred me to the Concise Oxford Dictionary definition
of “recreation” as:
“an enjoyable leisure activity”
and in his submissions argued135 that recreation also meant:
“refreshment of one’s mind or body after work, through activity that amuses or
stimulates”
which included
“any form of relaxation.”
(b) Miss Proud referred136 to an alternative definition of “recreation” as
“an interval of free time between school lessons or work”
450. Although these definitions of “recreation” are helpful, I remind myself that the
words with which I am directly concerned are “lawful sports and pastimes”, which
is a composite phrase designed to avoid argument over whether an activity is a
sport or a pastime. In my view, there are dangers in construing the wording of the
Act by reference to the “definition of a definition”, since there comes a point at
which the chain of definitions takes one so far from the original wording that the
definition defined is no longer a reliable guide.
451. Without suggesting that “pastimes” are limited to the second of the Shorter Oxford
English Dictionary categories cited by Linden (an enjoyable recreation such as “a
135
136
[390]
[24]
156
hobby, sport or game”) I consider that this is closer to what (as part of the
composite phrase “sports and pastimes”) s. 15(2) intended to capture than the more
elastic notion that a pastime is simply “something which passes the time”.137
Ultimately, however, it is easier to assess individual activities than it is to provide
an over-arching definition.
Use as a thoroughfare
452. On the application form, in the section headed “justification for the application”,
Mr Redston began his list of activities which have taken place on the Site with the
observation that:
“Since its creation it has been used by thousands of members of the public as a right of way and
thoroughfare between Grange Road, Brondesbury Park, the Library and the Bookshop.”
453. When I first read this, it was not entirely clear to me whether Mr Redston was
relying on use as a right of way or thoroughfare in support of the Application.
However, whatever his original intentions, it was clear from his evidence138 and
submissions139 to the Inquiry that he does not contend that use as a right of way or
thoroughfare provides a basis for registration of the Site as a TVG.
454. This is clearly correct: merely walking across land to get from point A to point B is
not a LSP. Although continuous use of land in this way for a period of 20 years
may give rise to an independent right to have the route registered as a right of way,
that is not the same as use as a TVG, and in cases where the position is ambiguous,
the inference which should be drawn is that the use was as a right of way rather
than as a TVG.140
137
[273]
[100-101]
139
[377], [387]
140
[257]
138
157
455. Both the Council and Linden maintain that the Site is not part of the highway and
that no public rights of way exist over it. However, the principle of inferring the
less onerous use is one which has been applied to putative footpaths as well as
those which are already shown on the Definitive Map.141 It is no part of my role to
express any view on whether an application to recognise the Site as a footpath or
other right of way would succeed. However, it is common ground between the
parties that the Site has (as the application form states) been used by thousands of
people as a thoroughfare, both in order to gain access to the library and as a
shortcut between Brondesbury Park and Grange Road/the High Road. From my
own observations of the Site, I have no doubt that this is correct.
456. Although this use as a right of way or thoroughfare neither proves nor disproves the
use of the Site for LSP, it is an important part of the background against which the
Application has to be judged. In this regard, it is a point which cuts both ways:
(1)
There are no signs up to tell the public that they may not use the Site as a
thoroughfare, or even to put them on notice that any such use is only by
permission of the Council. Although the boundaries between the Site and the
edge of the highway on Brondesbury Park and Grange Road are delineated by
the coloured paving stones,142 I doubt that many people give much (if any)
thought to this: as Linden observed, the Site and the surrounding areas merge
into one another.143 Certainly, there is nothing which would give anyone
using the site as a cut-through from Brondesbury Park to Grange Road cause
to doubt that they were entitled to do so. Consequently, if asked “was this
use of the Site as a thoroughfare ‘as of right’?” my unequivocal answer
would be “yes”.
141
See the Oxfordshire case at paras 102-105, [257] above
[226]
143
[318]. See also Mr Redstons comment that the area “melds as seamlessly as possible” [375]
142
158
This is material when it comes to the consideration of whether the use of the
Site for LSP has been “as of right”. Although some of the activities relied
upon by Mr Redston give rise to potential conflict with use of the site as a
right of way (for example, playing football across a space where people are
trying to walk), others do not. In my view, it would be unrealistic to suggest
that anyone who has regularly used the Site as a thoroughfare will have
drawn any meaningful distinction between their right to walk across it and
their right to use it for meeting people, sitting on the walls to read a magazine
or drink a cup of coffee, making mobile phone calls or pausing for a moment
while their children walk along the top of the walls: the Site “reads” as part
of the public realm, and people have used it accordingly. If the accepted use
as a thoroughfare has been “as of right” this adds credence to the argument
that these other activities have also been indulged in “as of right”.
(2)
The obverse side of the coin is that it would be unrealistic to expect a
landowner to realise that someone taking part in an activity which could
reasonably be seen as part of or associated with the use of the Site as a
thoroughfare was asserting an independent right to use the Site as a TVG.
The very high level of use as a thoroughfare is therefore an important factor
to bear in mind when assessing the quality of the user of the Site.
457. With these observations in mind, I turn to the particular activities which are relied
upon by Mr Redston. I list them in order of the frequency with which they were
mentioned in the written statements.144
Markets/Festivals (including the Wassail, Carol Singing and the Christmas Tree)
458. There is no doubt that the markets and festivals which have taken place on the Site
have been popular. The photographs included as part of the original application
144
Table C above
159
documentation145 suggest that they were well attended, and this is supported by
both the large number of written statements which refer to them and the fact that
Council has continued to support them. The written statements, together with the
common sense proposition that many of the people who went to these events will
have come from the surrounding area, satisfies me that they have been indulged in
by a significant number of the inhabitants of the Map A neighbourhood.
459. However, it is common ground that the markets did not start until 2006 (when the
first French Market and one of the two African Showcase Markets took place), and
that the first Brazilian Festival was in 2008. The St Patrick’s Day Parade, which is
an annual event, started in 1997. Moreover, although in recent years the total
number of markets and festivals has increased, for much of the time they have been
isolated annual or bi-annual events of the sort which, in isolation from any other
activity on the Site, would be to sporadic to amount to continuous use.146 It follows
that, if these activities are to be regarded as LSP in which people indulged “as of
right”, they would not on their own be sufficient to justify registration of the Site as
a TVG. They could, however, contribute to the wider use of the site for any other
LSP which have taken place.
460. As to whether these activities are LSP, Linden147 accepts that the events such as the
festivals are. I agree. Subject to my observations below about whether attendance
at these was “as of right”, I consider that the annual St Patrick’s Day Parades (since
1997), the Brazilian festival in 2008, and the Wassail which has taken place every
year since 2010 (and attracts 150-200 people148) are all LSP which would count
towards the acquisition of status as a TVG. Carol-singing and the Christmas tree
by definition happen at Christmas, but I have no evidence as to when these first
occurred on the Site, and the numbers who claim to have taken part are low.
Neither on their own nor together are these activities sufficient to justify
145
Core Bundle page 12
[259]
147
[266]
148
Reid statement, Blue Folder p. 87
146
160
registration, but they would need to be taken into account as part of the overall
picture.
461. The position with regard to the markets is different. While I readily accept that
going to an open-air market can be a “fun thing to do”,149 the activity has at its core
a commercial purpose: the buying and selling of goods. 150 Aside from the fact that
they have happened less frequently (and may therefore have had a greater novelty
attraction) I find it difficult to distinguish the markets which have been held on the
Site from the weekly outdoor markets which are a feature of many towns in this
country, or indeed more permanent outdoor markets such as those at Camden which
are open every day. The latter is perhaps a case in point: the Camden markets are a
well-known tourist attraction, attended by large number of people for pleasure, but
that does not make what takes place there a LSP.
462. Accordingly, I do not consider that the markets are a LSP which should be taken
into account when considering the use of the Site over the last 20 years.
463. If the Registration Authority takes a different view, it is still necessary to consider
whether the use of the Site for markets (both holding and attending) has taken place
“as of right”. Both the Council and Linden argue that, because the markets are
licensed, the holding of markets is by permission (or “precario”) and so cannot be
as of right.151
464. While this argument has a superficial attraction, I do not consider it stands up to
scrutiny. In particular, the only “permissions” of which the Council has produced
evidence152 are street trading licences, temporary events notices and an occasional
sales licence (which I am told was required “due to change in the legislation”).
Significantly, none of these “permissions” is issued by Brent in its capacity as
149
As indeed some people feel about shopping generally
[270], [360]
151
[271], [360]
152
See the table at Council Appendices p. 279
150
161
landowner, nor does the need for the permission arise out of Brent’s ownership of
the Site. Hence, the street trading licences have been issued by Brent in its capacity
as the authority responsible for regulating street trading. Critically, a licence is not
required because the land is privately owned, but because it is on or within 7m of a
road or footway, is not enclosed and is accessible to the public without payment.153
465. The irrelevance of the fact that these events were licenced is demonstrated by
Linden’s acceptance154 that a street trading licence would still be necessary, even if
the Site was registered as a TVG. On the basis of the information in Brent’s
guidance on Street Trading Licences,155 I agree: the majority of the Site is within
7m of the footway, it is not enclosed and the public have access to it without
payment. However, if a street-trading licence would be required even if the Site
was registered as a TVG, the fact that licences have been issued for the markets
which have taken place to date cannot logically be relied upon to demonstrate that
this use of the Site is not “as of right”.
466. I reach a similar conclusion with regard to the Temporary Event Notices, which I
was told were required because of the sale of alcohol. Since they would also have
been required for the sale of alcohol at any celebration or sporting event on a TVG,
they reveal nothing about whether the use of the Site was “precario”.
467. My conclusions on this might have been different if there had been any evidence
that either Council or library staff, acting in the capacity of landowner, had granted
permission for the markets, but there is none. The most that can be said is that the
Council organised the markets. However, that is not so very different from the
position in Beresford, where the authority mowed the grass and erected seating so
as to make the land attractive to the public. The fact that a local authority takes
steps to encourage the use of land is not inconsistent with that land’s status as a
153
[176], see also Brent’s Street Trading Information, Black Folder p. 192
[223]
155
Black Folder, p. 192
154
162
TVG. Indeed, if a market or fair is a LSP, a TVG may well be thought a logical
place on which to stage it.
468. For the reasons set out in para 456 above, I consider that anyone using the Site as a
thoroughfare has done so as of right. This is directly relevant to the question
whether people attending the markets did so “as of right”. It would in my view be
wholly unrealistic to conclude that someone who routinely used the Site as a
thoroughfare suddenly became an invited guest the moment they stopped to look at
a market stall on the way past. In my view, attendance at the markets was “as of
right”.
469. Finally, under this heading, it is necessary to deal with the Council’s argument that,
far from contributing to status as a TVG, holding a market on a TVG would not be
lawful because it would obstruct others in their pursuit of lawful sports and
pastimes on the Site.156
470. As Mr Booth acknowledged, there is a degree of circularity in this. A number of
sports may involve the erection of temporary structures (such as goal posts) on
land. As Mr Redston observed, if the Council’s argument is correct, it is difficult to
see how anyone would ever have been able to erect a Maypole to dance around.
The same argument could be raised against funfairs, which is not an unusual use of
a village green.157 In my view, if a market is itself a LSP, the temporary structures
which are necessary for it to take place will be lawful. If it is not a LSP, then use
for that purpose cannot assist an application under s. 15(2), irrespective of whether
the stalls would be an unlawful obstruction. However, for the reasons I have given,
I do not consider that markets are a LSP.
156
[222]
At one of the villages near my own home in Kent, the village green (which is a typical village green in
the most traditional sense) is used by the local horticultural society for its annual show. This involves the
erection every year of at least one large marquee. I note that in Lancashire v. Hunt (1867) LR2 EX96
(Linden Authorities Tab 8, but cited to me by Linden in a different context) the Court concluded that a
customary right to use Stockbridge Common for the purposes of recreation included “any reasonable
arrangements for the carrying out in comfort” of the right they had acquired, including the pitching of a tent
for a cricket match.
157
163
471. In summary, therefore:
(1)
Festivals are a LSP. However, they have taken place infrequently and only in
the last few years. On their own, they therefore cannot justify registration.
They should, however, be taken into account as part of the overall assessment
of LSP on the Site;
(2)
Markets are not a LSP, and should not be taken into account. Even if the
Registration Authority takes a different view on this, the markets which have
taken place have been sporadic and only began in 2006. Neither on their own
nor taken together with the festivals would they justify registration, although
they could contribute to the overall picture.
Meeting Friends/People
472. Together with “attending markets and festivals”, “meeting friends” was the activity
most frequently identified in the written statements, and was well attested to in the
oral evidence I heard. Given the Site’s appearance as a civic space, its location
outside a well-used public building, its proximity to the local bus stops, the ease
with which it can be identified and the fact that it is close to but away from the
hustle and bustle of the High Road, there is nothing surprising about this. In the
circumstances, I am satisfied that a significant number of people have used the site
for this purpose. Moreover, while I am sure that the Site is also used in this way by
people from further afield, I consider that a high proportion of the people who have
met friends there will have lived within walking distance of the WGLC, and are
therefore likely to have been inhabitants of the Map A neighbourhood.
473. I have more limited evidence on length of time for which it has been used for
meeting people. Of those who have known it for the early part of the requisite 20
164
years, Miss Proud did not use it to meet friends,158 Miss N Mckenzie did not refer
to meeting anyone there, and Mr Farrell referred to only meeting staff and having
business meetings there (neither of which would I regard as LSP) ; but Mr Fenn
referred to meeting neighbours there when his father was alive, 159 Mr Adams saw
people congregating there,160 Mrs Mercer and Mrs Mioduchowski met friends
there161 and Mrs Calef took her disabled friend there on shopping trips.162 The
evidence for the earlier years is therefore undoubtedly thinner, but that is not
unusual in cases of this sort. It has not been suggested to me that there has been
any change in the locational characteristics which would always have made this an
obvious place to meet, and on balance, I conclude that the Site has been used in this
way throughout the 20 years.
474. However, the critical questions are whether this is a LSP, and whether the quality
of the user is such that the Council (as landowner) should reasonably have
understood that people were asserting rights to use the Site in this way. In my
view, while meeting someone may be the precursor to going on to participate in
some LSP, the mere act of meeting another person is not itself a LSP, and would
not have the quality of user which – given the nature of this Site - would suggest to
the landowner that anyone using it to meet others was asserting rights to use it as a
TVG. Hence:
(1)
The Site is at the junction of two major roads, and close to a number of bus
stops. Mr Kwiecien describes it as the “starting point for lots of families to
meet” before going off on the bus together “rather than crowding around the
bus-stop”.163 Although the Site may be a more pleasant place to meet and
wait than the pavement, the essential nature of the user remains the same: it
158
Or if she did, did not say so.
[57]
160
[69]
161
[124], [164]
162
[140]
163
See also Mrs Long (Blue Folder p. 67) who refers to the site as a “much used meeting place, as it is near
a bus stop, the post office and local cafes” and describes meeting her daughter from off the bus after music
lessons
159
165
is associated with the use of public transport and the wider highway. People
waiting for a bus may be “passing the time”, but that does not make what they
are doing a LSP.
(2)
The Site is also the entrance to the WGLC. Aside from the fact that it is a
library and a museum, and previously contained a cinema and café, there are
events at the WGLC which bring people together. It is inevitable that people
visiting the building or attending these events will arrange to meet, or simply
bump into, friends with whom they will stop to talk.164 However, that is
something that happens on pavements outside cinemas and theatres and
public buildings everywhere. I do not consider that the natural overspill from
events which have taken place in the WGLC building (including the overspill
from other facilities within the WGLC, such as Gigi’s café165) has the quality
of user which would suggest to a landowner that people are asserting an
independent right – or if they are, that it is a right to use the Site as anything
more than a thoroughfare where, as long as they do not impede others, they
are free to stop and chat.166
(3)
Similar points could be made about the proximity of the Site to the shops on
the High Road and the pedestrianized area of Grange Road, and whether the
use of pedestrianized areas in shopping centres for meeting others is properly
to be seen as a LSP rather than a part of the shopping trip and/or use of the
Site as a thoroughfare. In my view, it is the latter.
475. For these reasons, I do not consider that simply “meeting friends/people” is a LSP.
Rather, it is necessary to ask what those people go on to do once they have met. In
this regard, I would point out that although a large number of the written statements
refer to meeting friends, very few provide any information about the reason why
164
[36], [155]. See also Pratt, Blue Folder p. 80
[59], [155]
166
[319-320]
165
166
the meeting took place, or how long it lasted. Consequently, there is in most cases
no way of telling whether people simply met outside the library but immediately
got on a bus or went off to a coffee shop together (neither of which would
constitute use of the Site for a LSP) or whether they went on to spend any
significant time on the Site engaging in some other activity which might have been
a LSP. However, to the extent that the witness statements do refer to some other
activity, such as sharing a cup of coffee, this is addressed in my consideration of the
other activities below.167
Reading/Listening to Music
476. Linden168 accept that both reading and listening to music are capable of being a
LSP,169 and I agree. Around half of the written statements indicate that people have
both seen and themselves participated in either reading or listening to music on the
Site, and this is broadly consistent with the oral evidence (albeit that the oral
evidence suggested that the balance was more heavily towards reading than
listening to music).170 The issues in relation to these two activities relate to the
quality of the user, and the evidence for and significance of the numbers who have
indulged in it over the 20 year period.
477. On these matters, I note the following:
(1)
Unsurprisingly, the evidence suggests that anyone stopping on the Site to read
or listen to music did so while sitting on one of the walls on the periphery of
the Site. Anyone looking at it will have seen this use of the margins of the
Site against the backdrop of the far more extensive use of the main body of
the area as a thoroughfare.
167
Although it is worth observing that, in the case of the majority of the written statements, it is simply
impossible to tell why the meeting took place.
168
Although I asked both the Objectors for a clear indication of the activities which they agreed could
qualify as LSP, only Linden’s submissions provided this.
169
[266]
170
[26], [36], [75], [124-125], [139 + 141],
167
(2)
It is impossible to divorce the use of the Site for reading from the fact that the
Site is the main entrance to and effectively the forecourt of the public library,
and what was clearly a much-loved bookshop. Although some people read
newspapers, and others may brought their own books, it is a notable feature
of the statements in the Blue Folder which were written in the author’s own
words that the author’s reading matter was what they had just borrowed from
the library or bought from the bookshop.171 This seems to be what planning
officers had in mind when, in their consideration of the application for
permission for the WGLC building, they described the intention that activities
from within the building would “spill over” to involve people outside it.172
As Dr Salpadoru described it, the Site operates as an “outdoor extension of
the library centre”.173
(3)
Although no-one made this point specifically in the context of reading,
virtually all the witnesses who were asked174 agreed that their use of the Site
for sitting out was seasonal. This is consistent with my own observations.
Both as a matter of evidence and common sense, I conclude that very little
reading or listening to music has taken place on the site over the colder
months;
(4)
Although I have clear evidence of user for reading and listening to music
throughout the 20 year period, there is very little in the way of detailed
evidence of the number of people involved, especially in the early part of that
period.
171
Adams @ [75], Redston @ [96]; Arnold, Blue Folder p. 25; Carter, Blue Folder p. 39; Foster, Blue
Folder p. 54; Lakshmipathi, Blue Folder p. 62; Whitney, Blue Folder p. 110; Wood, Blue Folder p. 111;
Woods, Blue Folder p. 112. Donoff, Blue Folder p. 46 also talks of reading outside in conjunction with
her frequent visits to the library. Sensi, Blue Folder p. 95, who also read books on the Site worked in the
bookshop.
172
[233]
173
[156]
174
Miss N McKenzie’s mother was a hardy exception
168
478. Although I have not found this a straightforward matter, having regard to the above,
and bearing in mind that the burden is on the Applicant, I have reached the
conclusion that there is insufficient evidence that the quality of the user of the Site
in this way has been such as to put a reasonable landowner on notice that rights
were being asserted. Given that the Site served as the gateway to both the library
and bookshop, I do not consider that the use (in warmer weather) of the walls at its
edge would have signalled any intention to assert rights, especially when so much
of the material which people were reading was obtained from the within WGLC.
479. If I am wrong about this, there is still the question of numbers. From the evidence
available to me, it is almost impossible to get any real feel for the number of people
who have used the Site for reading or listening to music at any one point in time.
However, in the context of the hundreds of people who cross the Site every day, the
impression I have is that the number is small.
In the context of a claimed
neighbourhood with a population of over 28,000, it is even smaller. Although
“significant” does not mean “substantial”,175 if user is to give rise to rights which
then vest in the entire community, there must be some correlation between the
number of people who have used the application site and the size of the community
on whose behalf the user rights are claimed.176 In this case, the evidence does not
demonstrate that this correlation exists. On balance, I do not consider there is
sufficient evidence to demonstrate that the number of people who have used the
Site for reading or listening to music is significant.
175
[241-242]
See Sullivan J.s observation in McAlpine [241] that the use must signify general use by the local
community for informal recreation, rather than occasional use by individuals as trespassers.
176
169
Taking refreshment: drinking tea, coffee etc; eating lunch at lunchtimes
480. Over half of the people who completed written statements reported seeing others
either drinking tea or coffee or some other drink on the Site, or “getting fresh air,
eating lunch”.177
481. This phrasing is an example of the sometimes unfortunate way in which the
Redston Form was worded, since it is not clear whether people who ticked this item
have actually seen workers eating their lunch, as opposed to simply “getting fresh
air”. In this regard, I note Mr Ali’s evidence that it was more usual for people to
use the area to the rear of the WGLC to eat their lunch.178 However, a number of
those who gave oral evidence in support of the Application were very clear about
the use of the walls around the Site as a place for workers to sit and eat their lunch
in the summer months,179 or to have a cup of coffee themselves, and I accept their
evidence.180 Although when I saw the Site, the weather was too cold for anyone to
consider sitting outside, I can well believe that on fine days in the summer it is
much more attractive, and would be used in this way.
482. On this basis, the key issues with regard to eating or drinking on the Site are:
(1)
Whether workers eating their lunch are “inhabitants”;
(2)
Whether these activities are LSP;
(3)
Whether the quality of the user would justify registration of the Site;
(4)
Whether there is sufficient evidence that they have been indulged in by a
significant number of people throughout the 20 year period.
177
With somewhere between a quarter and a third of that number having done so themselves.
178
[191]
[53], [68], [139]
180
[155]
179
170
483. As to the first of these, in the absence of authority, I might have questioned whether
the employees of local businesses should be regarded as “inhabitants” for the
purposes of s. 15(2), but on the basis of the decision in Fitch v. Fitch181 I shall
assume that they are.
484. As to the second, eating and drinking are necessities of life. Whether or not they
can be regarded as a LSP depends very much on the manner and circumstances in
which they are carried out. At one end of the spectrum, picnicking is plainly a LSP.
At the other, drinking a cup of coffee or eating a sandwich at one’s desk at work is
not. Workers taking a lunch-break or shoppers or library-goers stopping for a
coffee seem to me to lie somewhere between the two: the choice of location clearly
makes the exercise more pleasurable, and reinforces the sense of getting away from
work; but the exercise is still some way removed from the organisation, anticipation
and sense of “going on an outing” which turns a picnic from just “having lunch”
into a leisure activity. Ultimately, the question here is one of fact and degree. In
my judgment, however, choosing to sit outside in the sun is not enough to turn a
worker’s lunch-break into a LSP.
485. As to the quality of the user, the evidence overwhelmingly suggests that anyone
stopping to eat their lunch or drink a cup of coffee on the Site did so while sitting
on one of the walls along the edges of the Site.
Moreover, not only is there no
evidence that anybody ever tried to spread a picnic rug or put up a collapsible chair
in the middle of the Site, but I cannot imagine that anyone would even have thought
this was an appropriate thing to do.
486. The point here is subtle, but nevertheless important. This is not simply a question
of deference in the Lewis v. Redcar sense (i.e. where people walking across a golf
course customarily waited for the golfers to go through first): there would simply
181
[244]
171
never be a time when anyone would think it was right to sit down and have lunch in
the middle of the Site. In that sense, the use of the Site for eating lunch or drinking
coffee etc is, literally, peripheral.
487. As was the case with “reading and listening to music”, this point is compounded by
the fact that this is not a year-round activity: during the week of the Inquiry I saw
no-one sitting outside eating or drinking, and the evidence I heard suggests that this
is normal during the winter months.
While I do not accept the Council’s
submission that there has to be some use throughout the whole of the year,182 the
combination of the facts that the use is peripheral in the summer and that it
dwindles to nothing in the winter leads me to the view that this is not a use which
would suggest to the reasonable landowner that anyone was asserting rights over
the land. In the context of the hundreds of people who must cross the Site every
day, the few who perch on the walls for a drink or a snack would, in my view, seem
trivial.183
488. Finally, if I am wrong about this, one still has to ask: what is the evidence of the
extent of the use? While I have no doubt that some workers have sat outside to eat
lunch in the summer months throughout the whole of the 20 year period,184 the
evidence of actual numbers is very thin, especially in the early years. In this
regard, I note (for example) that Mr Farrell’s use of the Site as a place to eat lunch
only began after the closure of Gigi’s Café: it was this which “forced” him into
using the outside area.185 I have no way of telling whether other people were
similarly affected.186
182
[366(5)] cf [258]
[256], [269]
184
Mrs Calef certainly used it in this way in the period 1990-1998, and saw others doing the same: [139]
185
[52]
186
Although I do note that the closure of Gigi’s has affected others: Mr Kwiecien used to use Gigi’s as a
place to meet other families before heading off on an outing [134]; Miss N McKenzie and her mother used
to use the café when it was open [41]; and it was Mr Fenn’s “local pub”.
183
172
489. Consequently, although I am satisfied that people have sat upon the walls on the
Site eating their lunch and/or drinking tea and coffee since the early 1990s, I do not
know where most of these people came from and I cannot, on the balance of
probability, say that their number was “significant”.
Sitting on walls/sitting or standing watching pedestrians go by
490. There is no formal seating anywhere on the Site, and aside from Miss N Mckenzie,
who on one or two occasions brought a collapsible chair on which to sit beside her
mother,187 there is no evidence of anyone sitting on anything other than the walls. I
have therefore grouped “sitting or standing watching pedestrians and vehicles pass
by” (which appears on the Redston and Kwiecien Forms) together with the “sitting
on the walls” mentioned in other written statements.
491. Linden acknowledge that “general relaxation (including sitting)” can be a LSP,188
and in principle I would not disagree. However, these words are broad enough to
cover a range of activities, from spending several hours on a deckchair in the sun to
snatching a moment’s respite on a wall which may be convenient but is not
designed for that purpose. The fact that the former would be a LSP does not mean
that the same is true of all other types of sitting, and (for reasons similar to those
given in relation to “meeting friends” above189), I do not consider that sitting (or
sitting on walls), on its own, is a LSP. Rather, its status depends on the reasons
why the person is sitting. For example:
(1)
Mr Farrell described sitting on the walls to have business meetings. The fact
that the wall was a pleasant place to sit does not transform that activity into a
LSP.
187
[42]
[266]
189
[474-475]
188
173
(2)
Others have described sitting on a wall to read or drink a cup of coffee. In
that context, sitting on a wall certainly has the potential to be a LSP;
(3)
Somewhere between these two is the case of the weary shopper who sits on a
wall for a few moments to catch their breath (and may, in that time “watch
pedestrians and vehicles pass by”). While this person is no doubt using the
Site to relax (which might be seen as a part of “recreation”) I find it difficult
to distinguish this from the sort of incidental activity which would be
expected within the pedestrianised area of any shopping centre. It is not, in
my view, a LSP.
(4)
I take a similar view of the way in which Miss N Mckenzie would “park” her
mother outside the front entrance of the WGLC while selecting books from
the library or the bookshop.190 It is clear from the way in which Miss N
Mckenzie described this that, although her mother enjoyed sitting outside
because it enabled her to watch the world go by, this activity was inextricably
connected with their visits to the WGLC. Waiting for someone outside a
shop or public building is neither a LSP nor the sort of activity which would
have put the Council on notice that Miss N Mckenzie’s mother was asserting
rights to use the land in that way.
492. Regrettably, the written statements do not provide any guidance as to the reasons
why people have sat on the walls.191 However, it is reasonable to assume that,
where this has been for some other purpose such as reading or drinking coffee, this
will have been picked up under one or more of the other activities which I consider
elsewhere in this section. Where people have sat on the wall for no particular
reason other than the desire to take the weight of their feet for a few moments, I do
not consider this to be a LSP, or to have the necessary quality of user for the
190
[42-43]
The statements completed on the Redston and Kwiecien forms state that the sitters “watch[ed]
pedestrians and vehicles pass by”, but this was part of the pro-forma wording, to which I attach less weight.
Moreover, it merely describes what people di,d rather than why or for how long they did it.
191
174
purposes of s. 15(2). Accordingly, I do not consider that this particular activity, as
a distinct or freestanding item, is likely to add anything significant to the overall
use of the site for LSP.
493. If the Registration Authority takes a different view on this, it would also be
necessary to consider Linden’s argument that the use of the Site for sitting was
contentious, or “vi”. This relates to the period after 2009 when the “spikes” were
added to the walls to prevent people sitting on them.192
494. I would find Linden’s argument on this issue more compelling if the spikes had
been placed on all the walls on the Site, but this is not the case: the only walls
which I saw to have been “spiked” were those in the immediate vicinity of the
entrance to the library. I can well understand why the Council would want to keep
this particular area free, but this does not indicate either a desire or an intention to
prevent people using the Site as a whole for sitting. Indeed, in circumstances where
it must have been clear to the Council that people were sitting on other walls, one
might even infer that the decision to “spike” only the walls immediately outside the
door of the library was a proportionate response to the competing demands for use
of the Site as a means of access to the WGLC, and use for sitting out, and in that
sense a tacit endorsement of the use of other walls for sitting. However, whether or
not one goes that far, the Council clearly did nothing to prevent people from sitting
on other walls on the Site.
495. I also note that, although there was no clear evidence on the point, the general
impression was that the reason why the Council had spiked the walls was to
discourage the street-drinkers from congregating immediately outside the library.193
While the consequence may have been to make those walls unattractive to all and
sundry, I have reservations about the extent to which action which was perceived to
have been directed at a particular sector of the community could reasonably be
192
193
[325]
[148], [325]
175
taken as notice to the world that there was no right to sit on the walls. However,
my conclusions on this part of Linden’s case do not depend on this: in my view
the limited extent of the “spiking” is itself determinative.
496. Finally, it is necessary to consider the position of the “street-drinkers” themselves.
From everything I have seen and heard (and although some people were cautious
about expressing it this bluntly) it is apparent that this is a group of men who suffer
from alcohol dependency.194
The evidence of both the Applicant195
and the
Council196 is that they have been a feature of the Site almost from the opening of
the WGLC opening. However, I would not myself regard their use of the site as a
LSP. Even if it were, it is clear that they are frequently asked to move on, either by
library staff or by the police at the library staff’s request.197
497. The Council has also argued that the street-drinkers cannot be on the Site “as of
right” because of the Alcohol Exclusion Zone.
I find this more difficult to
understand. The Exclusion Zone does not make it unlawful to sit and consume
alcohol on the Site, it merely gives the Police the power to ask people not to drink.
Critically, the power is one exercised by the Police (not the landowner) on grounds
related to public order. In this sense, it is distinguishable from the occasions on
which the street-drinkers are asked to move on. Mr Ali explained that whether the
library staff ask the street-drinkers to move on themselves, or call the police to help
depends on the numbers involved.198 The point is not whether library staff have the
authority to move the streetdrinkers on, but whether it is more sensible to ask the
police to do it.
498. Since there is no suggestion that anyone else has been asked to move on in this
way, this cannot make contentious the use of the Site by other members of the
194
[158]
[76]
196
[190]
197
[76], [190], [196].
198
[190]
195
176
public for sitting, but it is in my view sufficient to preclude reliance on the streetdrinkers as evidence of the use of the Site “as of right” for sitting.
Making mobile phone calls or using portable computers
499. The written statements provide no breakdown between those who made mobile
phone calls while on the Site, and those who used portable computers there, but
common sense dictates that the former will have been the more common.199 In my
view, neither is properly to be regarded as a LSP. In any event, since neither
mobile phones nor portable laptop computers or tablets were in widespread use in
the early 1990s, these activities are only likely to have become common in the latter
half of the 20 year period.
Toddlers learning to walk
500. Although just under half of the written statements indicate that people have seen
“toddlers learning to walk”, there is very little to explain what is meant by this, or
how or why this activity is to be distinguished from something that could take place
anywhere – including a pedestrianized thoroughfare. Mr Fenn, who visited the Site
quite frequently) said that he had never seen toddlers learning to walk. 200 While he
may be mistaken, this suggests to me that anything of the sort which he saw did not
strike him as particularly distinctive or out of the ordinary. I do not consider that
this is a LSP, and to the extent that the nature of the user is ambiguous, I would
attribute it to use of the Site as a thoroughfare.
Children playing tag or similar activities
501. On the face of it, “children playing tag” would seem to be an obvious LSP.
However, the oral evidence I heard makes me cautious about reading too much into
199
Deepa Lakshmipathi’s statement (Blue Folder p. 62) specifically refers to using a laptop, but this is
unusual
200
[56]
177
the fact that 27 of the written statements state that the author has seen this activity
taking place:
(1)
The actual item on the Redston Form is “playing tag and other similar
activities”. In fact, nobody who gave evidence referred to seeing children
actually playing tag. Mrs Mercer explained that she regarded “playing tag”
as a catch-all phrase for “children running around”,201 while Mr Fenn said he
had filled out the form to say he had taken part in “playing tag and other
similar activities” on the basis that he had “played around with his mates”.202
People’s understanding of “playing tag and other similar activities” therefore
seems to have been somewhat elastic;
(2)
Although Mr Fenn also said he had seen kids “playing pretty much every
day” from his window,203 my own assessment of what he can see from his
house leads me to believe that what he was talking about was children
playing in Grange Road, rather than on the Site;204
(3)
Miss Proud recollected one incident of children playing hopscotch,205 but
made no reference to any other occasion on which she saw children playing.
Whatever other activity she witnessed children participating in, she clearly
did not regard it as worthy of mention or in the same league;
(4)
Miss Berenyi described letting her daughter run around, walk on the walls
and jump from paving stone to paving stone;206
201
[123]
[56]
203
[62]
204
[65]
205
[29]
206
[36]
202
178
(5)
Mr Adams’ evidence makes the point that a number of the children “hanging
out” on the Site were there waiting for a bus home.207 This is relevant both to
the question whether the quality of their use would have been distinguishable
from use as part of a highway or thoroughfare, and to the question whether
they should be regarded as “inhabitants” of the neighbourhood.208
502. Overall, I was not left with any clear impression that “playing tag and other similar
activities” meant anything more than simply “messing about” or filling in time
while parents were chatting or school-children were waiting for the bus to come.
Hopscotch is the only formal game which anyone has mentioned, and Miss Proud
saw this only once. Beyond that, I have no way of telling what proportion of the
use might be LSP, as opposed to merely “running around”. In the context of a
wide, pedestrianized thoroughfare which is (a) at the entrance to a public building
which not only contains a library and a museum, but also hosts singing and similar
classes for parents with young children and (b) in close proximity to bus-stops
which are used by school children, I do not consider that this has the quality of user
which would suggest that the activity was being carried out independently of the
library209 or the use of the Site as a thoroughfare.
Football/kicking a football informally
503. It is common ground that playing football is a LSP. The issues in this case are the
extent to which it took place on the Site, the period over which this happened, and
whether the use was contentious.
The key witnesses in this regard were Mr
Fenn,210 Mr Adams,211 Mr Ali212 and Mr Onyango.213
207
[73]
[365]
209
[319]
210
[63]
211
[70-72]
212
[187]
213
[195]
208
179
504. Although there were some differences of emphasis, on the whole the four accounts
were broadly consistent. Taking their evidence together, I find that:
(1)
The football to which they were referring was played mainly in Grange Road.
Although Mr Fenn said that it was also played “on the bit next to it” (i.e. the
entrance to the library), Mr Adams was clearer that this was overspill, i.e. that
the game would start in Grange Road and only progress across the Site if the
ball ran that way and the children chased it. Since Mr Adams had the “best
seat in the house” to observe this, I place considerable weight on his evidence
in this regard.
(2)
Although Mr Onyango thought the overspill onto the library forecourt only
happened on very rare occasions, common sense suggests that it was much
more frequent than that. However, it is equally obvious that, had the game
remained in this area for any prolonged period, rather than gone back to the
intended playing area on Grange Road, it would have impeded the passage of
people going to and from the WGLC. I accept that, on occasions when this
happened, library staff would intervene in response to complaints from
members of the public.
(3)
When the children were playing in Grange Road, they would normally only
be asked to stop if they were kicking the ball against the windows of the
bookshop.
(4)
The games did not take place on, or stray onto, the Brondesbury Park side of
the Site;
(5)
While Mr Fenn was not certain where the players lived, he recognised them
as local children; and Mr Adams was very clear that the football only began
after the construction of the apartments on the corner of Cornwall Gardens
180
and Grange Road. On the balance of probability, therefore, a number of the
children came from the new apartments, as Mr Ali believed.
(6)
Whatever the origin of the children, the football matches themselves only
began when the apartments were constructed. Mr Adams thought this was
about 10 years ago, while Mr Ali said it was in 2004.
505. Overall, this evidence does not persuade me that the Site has been used for football
in the manner required. These games were clearly centred in Grange Road, and
although I accept that they sometimes spilled over onto the Site, this was because
the players got carried away rather than because they had intended to play there. I
do not consider that such youthful exuberance would reasonably have been
regarded as asserting rights to use the Site as a TVG; and even if they did not
happen every time play spilled over on the Site, the requests by the library staff not
to play in the entrance to the library would have made it clear that there was no
right to play in that area.214
506. If I am wrong about this, the football to which Mr Fenn and Mr Adams and Mr
refer has still only been played for 10 years.
507. In addition to the games which took place in Grange Road, Dr Salpadoru gave very
clear evidence that since 2009 she and her daughter (and a friend of her daughter)
have played football on the Site. There is no suggestion that Dr Salpadoru was ever
told that they were not allowed to do this.
508. I accept this aspect of Dr Salpadoru’s evidence in its entirety. It is in my view
evidence of the use of the site for a LSP. However, the number of people who have
214
In my view, this is distinguishable from the occasions on which the children were playing in Grange
Road, but were asked to move on because they kept kicking the football against the glass window of the
bookshop. It was clear from Mr Adams evidence that his objection – and the reason why he thought it was
appropriate to ask library staff to intervene – was not because playing football in Grange Road was not
allowed, but because of the risk of damage to the WGLC.
181
taken part is very small, and this has only happened over the last three years. This
use needs to be taken into account together with any other LSP which have taken
place, but is patently not enough on its own.
General relaxation and exercise/walking for exercise
509. “General relaxation and exercise” and “walking for exercise” both achieved a “midtable” ranking in the summary of the written statements. There is obviously an
overlap between the two,215 and it is helpful to take them together.
510. The first point to make about these activities is that there is more than a little
ambiguity as to their content:
(1)
If “general relaxation” involves sitting on a wall, reading/listening to music,
drinking tea or coffee or having lunch, it will have been covered under one or
more of the other headings in this section. If it does not, then it is not clear
what it means.
(2)
“Exercise” can be taken in many ways. However, no-one has described
using, or seeing the use of the site for “exercise” in any sense other than
walking (there is, for example, no account of anyone jogging around it or
using it for calisthenics or Tai Chi);
(3)
Given the nature and scale of the Site, it is not obvious how one is supposed
to distinguish “walking for exercise” from normal walking. In particular,
while “walking for exercise” (and even simple recreational walking) can be a
LSP, this is easier to identify on larger tracts of land where “once around”
might constitute a meaningful recreational walk, or where a jogger might do a
number of circuits. The Site is a much more limited space than that, and
215
Indeed, whereas the Redston Form had them as two separate items, the Kwiecien Form combined them
under the single heading “walking for exercise and general relaxation”
182
aside from Mrs Proud’s “mooching about” (which she herself described as
“trivial” 216) and Mrs Mercer’s “pacing around”217 there is no evidence that
anyone engaged in recreational walking or walking for exercise did anything
more than walk across it as part of a more extensive walk that might have
involved Brondesbury park, Grange Road or the High Road. 218 However,
walkers of this sort would have been (and been perceived as) using the Site as
a footpath or thoroughfare.
511. Accordingly, I conclude that there is unlikely to be any significant activity under
this heading which is either not taken into account (as a form of “general
relaxation”) under one of the other headings, or not attributable to use as a
footpath/thoroughfare.
Children learning to ride a bike, rollerskate or skateboard
512. Children learning to ride a bike, or rollerskating and/or skateboarding would, in my
view, all be LSP. The issue in this case is the extent to which it has taken place.
The written statements indicate that 13 people have observed this, of whom 6 claim
to have actually taken part. Of the latter, Mr Redston accepts that one (the written
statement of Mrs McLean) is “ridiculous” and “inaccurate” in so far as it speaks of
teaching all three of her children to learn to walk on the Site,219 and I consider the
same is also true of the probability that she taught at least the elder children to ride
a bicycle there. As Linden point out,220 a similar criticism can be levelled at the
statements of Mr Lazarus and Ms Swade.221
216
[26]
[126]
218
Though I note that Tung Tse often does circuits of the square with his son in a pushchair to help the
child to sleep: Blue Folder p. 106
219
[105]
220
[305]
221
Blue Folder pp. 65 and 98 respectively. Since the two share the same address and give the same ages
for their children, I infer that Mr Lazarus and Ms Swade are the same family.
217
183
513. Over the space of 20 years, I would not regard this as a significant number without
some evidence of the frequency with which it has occurred. Regrettably, that is a
matter on which the written statements are silent, and the only direct evidence I
have comes from the oral testimony of Mr Adams, Mr Kwiecien and Dr Salpadoru.
Of these
(1)
Mr Adams remembered seeing “one particular” set of parents teaching small
children to rollerskate, as well as a phase when the rollerskating was in
vogue. There has also been skateboarders using the slope and jumping off the
walls222 I attach considerable weight to this, given that the windows of the
bookshop where Mr Adams worked looked directly out onto the Site. As he
put it, he had a “daily view of what happened”;223
(2)
the extent of Mr Kwiecien’s use was clearly limited by the facts that:
(a) he was living in Spain in the period 1987-1997. Since his children learnt
to ride and rollerskate in the period 1991-1995 they could therefore at
most have used the Site for this purpose during the eight weeks a year
when they were visiting Mr Kwiecien’s parents;224
(b) teaching his children to ride a bike and rollerskate happened “as the time
was appropriate for their learning”;225
(c) they used the car park at the rear of the WGLC until his children had more
confidence;226
(3)
Dr Salpadoru’s witness statement indicated that she had seen children
learning to ride a bike or rollerskate on the site, but no greater detail was
provided in her oral evidence.
222
[69], [73-74]
[67]
224
[130], [135]
225
[135]
226
[135]
223
184
514. Against this, the vast majority of the written statements made no reference to
bicycling or rollerskating on the site, even though many of them were presented
with it as an option to select on either the Redston or the Kwiecien Form. Other
than Mr Adams, only two other people mentioned skateboarding.227 Mr Farrell said
that, if he had to come in to his shop on a Sunday, he would bring his family, in
which case his son would skate around on the Site for 20 minutes or so.228 Mr
Farrell did not suggest that this was a frequent occurrence.
515. Looking at the totality of the evidence, I conclude that the Site has undoubtedly
been used for teaching children to ride a bicycle or rollerskate, but that this has
been an infrequent and low key activity. I accept Mr Adams’ evidence that it has
also been used for skateboarding, but this also was not at a level which was
sufficient to imprint it on the minds of other people who regularly used the Site.
There is no evidence that any of these activities has taken place continuously
throughout the 20 year period, or anything close to it. While these incidents must
be considered as part of the overall pattern of use of the Site, they are a very long
way from justifying registration in their own right.
Public Meetings and gatherings such as St Patrick’s Day Parade
516. I have grouped “public meetings” and “gatherings such as the St Patrick’s Day
Parade” because these two things were listed as a single item on the Kwiecien
Form. Left to my own devices, I would not have done this because I consider there
is a significant difference between a celebratory gathering such St Patrick’s Day
(which I would regard as a form of festival) and a public meeting (such as that
which was attended by Cllr Butt) which has a more political purpose. However, the
Kwiecien Form provides no way of determining which people have attended public
meetings and which have attended “gatherings”, so it has not been possible to
disaggregate the figures.
227
228
Ms McLean Blue Folder p. 71; Mr Pratt, Blue Folder p. 80;
[54]
185
517. To the extent that people ticking this item have attended “gatherings” such as the St
Patrick’s Day Parade, their use has been taken into account under “Markets and
Festivals” above. They might swell the number of people who have taken part in
festivals, but I am already satisfied that this is significant. As far as the public
meetings are concerns, I do not regard public meetings with a political purpose
(whether it be the “Safer Streets” campaign referred to by some or protests against
the planning application for the WGLC) as a LSP. Even if I am wrong about this,
the number of such events is small, and those of which I have been told have taken
place in recent years. They would add something to the totality of the use of the
Site, but would not on their own justify registration.
Assembly of school groups for library visits or transit.
518. This activity is one which was added to the Redston Form by Mr Kwiecien.
519. Given that the WGLC houses both a library and a museum, the assembly of visiting
school groups outside is unremarkable. It is not in my view a LSP, nor does it have
the quality of user which would lead a landowner to conclude that anyone was
asserting an independent right to use the land as a TVG. For the reasons I have set
out in [474(1)] above, I take the same view of the assembly of school groups for
transit (whether by public transport or school bus).
Art Installations
520. Although “art installations” have been mentioned in a handful of the written
representations, I have very little information about them. However, according to
the schedule provided by the Council229 there has in fact been only one art
installation. From the evidence of Miss Sue McKenzie230 and Mr Adams231 this
229
Council Appendices p.279. See also [180]
[180]
231
See dated photographs in the Blue Folder p. 21
230
186
seems to have been a relatively recent event, after 2009, and the evidence I have
suggests that the number of people who spent time on the Site appreciating it was
very low. While I would regard this as a LSP, its contribution to the overall use of
the Site is minimal, and only contributes towards the levels of us at the end of the
20 year period.
Petitioning, Demonstrations and Rallies, Speeches and Canvassing, Surveys
521. Petitioning, demonstrations and rallies and speeches and canvassing are essentially
political activities which do not fall within the definition of LSP. Surveys also are
not a LSP. Even if these activities were relevant, their contribution to the use of the
site for LSP would be extremely small. There is no evidence as to when they took
place.
Courting Couples
522. If courting is a “pastime” (which may be open to debate, but for the present I am
happy to accept) there is only 1 recorded incident of courting couples being seen on
the Site. In reality, I suspect the true figure will be higher, but I have no evidence
of this.
Watching performances/poetry recitals
523. I would regard watching performances and poetry recitals as a LSP. However, only
3 people refer to this. The numbers are very small and no dates are provided for the
events attended.
187
Photography and Sketching
524. Photography and sketching are both capable of being LSP. In the present case, one
of the two photographers describes taking photographs as part of her work,232
which arguably excludes her use from being a LSP, but even if it is included, there
are only three people who have used the Site in this way, and there is no evidence
as to the dates on which that use took place.
Exercising Dogs
525. Dog walking is an activity which qualifies as LSP. However, only one person
describes having done so on the site and (unless it was a very small dog) the Site is
an unlikely place to walk the dog around, rather than pass through as part of a more
extensive route. The latter would be indistinguishable from use of the Site as a
thoroughfare.
Summary and Cumulative Assessment of LSP
526. For the reasons set out above, of the various activities which have been referred to
in the course of the Inquiry, the only ones which I consider to be LSP for the
purposes of s. 15(2) and potentially distinguishable from the use of the site as a
thoroughfare are:
festivals, reading, football, riding bicycles/rollerskating/
skateboarding, viewing the art installations, courting, poetry recitals and
photography and sketching. However, of these:
(1)
The activity which has attracted the greatest number of people (festivals) is
comparatively recent: until the Brazilian Festival in 2008 there was only the
annual St Patrick’s Day Parade. As a 1-day-in-a year event which only began
in 1997, the St Patrick’s Day Parade is of limited assistance in demonstrating
LSP for a continuous period of 20 years dating back to 1992.
232
Wilda Woods, Blue Folder p. 112
188
(2)
The most significant football has not taken place on the Site, but on Grange
Road. To the extent that it has taken place on the Site, it has only happened
since 2004. The football played by Dr Salpadoru and her daughter was
undoubtedly on the Site but in numerical terms is not significant, and in any
event has only taken place since 2009.
(3)
The art installation started in 2009.
(4)
There is no evidence of the dates on which the courting, poetry recitals,
photography and sketching took place. Even if I could infer that these took
place at the beginning of the 20 year period (which would require at least
some evidential basis), the number of people involved is negligible (8 people
over the 20 year period).
(5)
Although I regard reading as a LSP, I do not consider that the quality of the
user associated with it in this case was such as to bring it within the sort of
activity which could be relied upon to establish an independent right to use
the Site as a TVG.
If I am wrong about this, there is still insufficient
evidence to demonstrate that a significant number of the inhabitants of the
claimed neighbourhood have used the Site in this way for the full 20 years.
(6)
The only other LSP of which there is any evidence that it has taken place
throughout the 20 year period is riding bicycles/rollerskating/skate-boarding.
However, the evidence suggests that these activities have at best been
sporadic, and that numbers involved at any point in time were extremely low.
527. Ultimately, the difficulty which this Application faces is the dearth of evidence of
any significant use of the Site for LSP in the period 1992-2004/2006. Even if, with
the benefit of the doubt, I were to add together the number of people who have
indulged in the activities in sub-paragraphs (4), (5) and (6) above, I would still not
189
arrive at an overall number of inhabitants which was, in my view, significant.233 In
this regard, it makes no difference that I have concluded (for example) that visiting
markets is not a LSP, or that the football took place predominantly on Grange
Road. Even if these activities were added in to the overall use, they would only
swell the numbers in the later years.
528. In the circumstances, I conclude that the Applicant has not demonstrated that the
Site has been used by a significant number of the inhabitants of the claimed
neighbourhood for a period of at least 20 years.
529. In reaching this conclusion, I have made full allowance for the fact that it is almost
always more difficult for an applicant to provide evidence of the levels of use at the
beginning of the 20 year period. In this case, however, the reason for the marked
increase in the evidence available for use in more recent years lies not in the
availability of witnesses,234 but in the specific efforts which have been made to
make better use of the Site through the instigation of events such as markets and
festivals.
c.
User “as of right”: generic comments
530. My views on whether the use of the Site has been “as of right” have largely been
set out in my analysis of the individual activities relied upon as LSP. For the
reasons given in [456] above, I conclude that the vast majority of the user of the
Site has been “as of right”. In this regard, I do not think it is realistic to distinguish
the basis on which people use the Site as a thoroughfare from the way in which
they use it when sitting on walls to eat their lunch or read a paper, stop to chat to
friends or make a phone call, collect signatures for a petition or sing carols. For the
233
In the next section of this Report, I consider whether there is a “neighbourhood” for the purposes of s.
15(2). For the avoidance of doubt, I would still reach the same conclusion about the significance of the
number of inhabitants, even if one took as the appropriate “neighbourhood” a smaller area such as the
electoral ward of Willesden Green, for which the population in 2001 was 12,700 [220].
234
As appears from Tab B above, the majority of the people who completed written statements have known
the site for more than 20 years.
190
reasons given in [464-466] above, I do not accept the Council’s argument that
attendance at markets or festivals was “precario”. The only aspects of the use of
the Site which I consider were not “as of right are:
(1)
Playing football across the entrance to the library;235
(2)
The street-drinkers.236
d. Use by the Inhabitants “of any Locality or any Neighbourhood within a Locality”
531. The statutory test is that the land must have been used by a “significant number of
the inhabitants of any locality or any neighbourhood within a locality”. I have set
out my views on the question of “significant number”
237
in the analysis of the
individual activities relied upon as LSP above. In this section, I consider the issues
of locality and neighbourhood within a locality.
532. Although it is common ground that the London Borough of Brent is a “locality” for
the purposes of s. 15(2),238 the Application was made on the basis of use by the
inhabitants of a neighbourhood within that locality.239 I therefore start with the
question whether the area shown on Map A is a “neighbourhood” for the purposes
of s. 15(2).
533. In general terms, it is clear that “Willesden Green” has existed as a place with its
own geographical identity for many years. The maps produced by Mr Grant 240
show that the area has been known by that name since at least 1744, and by 1866
there was a nucleus of housing, which might reasonably be called a
235
[505]
[496-498]
237
Both in the context of the claimed neighbourhood, and a potentially smaller neighbourhood such as the
Willesden Green electoral ward
238
[347]
239
[11(4)]
240
Blue Folder pp. 119-120
236
191
“neighbourhood”, developing around what is now the High Road and the junction
of Walm Lane and Willesden Lane. The 1920 map shows the expansion of which
followed the extension of the Metropolitan Railway, at that stage mainly to the
south of the railway line but including land to the west of Walm Lane up to
Melrose Avenue. Willesden Green today has a station of the same name, and an
identifiable “high street” with a range of shops and services (including a police
station and the library).
534. These features provide an obvious focal point for the surrounding residential
properties. Taken together with the historic development of the area, there is a
clear basis for Willesden Green’s sense of identity as a place in its own right,
distinct from adjoining areas such as Kilburn, Cricklewood or Neasden.
In this
sense, I do not see anything artificial or arbitrary in the suggestion that there is a
“neighbourhood” which thinks of itself as “Willesden Green”, and for which the
WGLC is its “local” library centre. Indeed, it would be surprising if there were not.
535. Thus far, I have no difficulty with the basis on which the Application was made.
The more problematic issue is whether the “neighbourhood” of Willesden Green is
accurately reflected in the line drawn on Map A.
536. In terms of the applicable principles, I note the Objector’s reliance241 on the
judgment in Cheltenham Builders, in particular where Sullivan J held that a
neighbourhood has to have a sufficient degree of cohesiveness and that merely
drawing a line on a plan does not create a neighbourhood.242 Although Mr Redston
submits that these comments are not relevant, because they are concerned only with
the test for “locality”, he is clearly wrong about that: while paragraph 45 of the
judgment is undoubtedly concerned with “locality”, at paragraph 85 Sullivan J.
241
242
[330-331], [348]
[246]
192
expressly concludes that the same principles apply to the consideration of
“neighbourhood”.243
537. However, while I accept that a “neighbourhood” cannot be created simply by
drawing a line on a map, I consider the Objector’s arguments on this point run the
risk of confusing arbitrariness with imprecision. As Mr Redston points out, in an
urban area such as London, it will not always be easy to identify the point at which
one area ends and another begins, but this does not mean that the areas do not exist
as “neighbourhoods”. If that were the case, there would be large parts of London
(together with most other large cities in England) where it was impossible to
register a TVG under s. 15(2). Provided it is based on the idea that Willesden
Green and Cricklewood are two separate neighbourhoods, and that its purpose is to
define the boundary between the two, a line which reasonably seeks show where
Willesden Green ends and Cricklewood begins would not, in my view, be arbitrary
merely because it was not precisely accurate.
538. This point is particularly relevant to the arguments about Mr Redston’s amendment
of the eastern boundary of his neighbourhood, as a result of which the boundary no
longer runs along Lydford Road, but cuts across Dartmouth, Teignmouth and St
Gabriel’s Roads.244 The Objectors argue that there is absolutely no difference
between the houses on either side of the line, and accordingly that the line is
“arbitrary”.245 However, it seems to me that there is considerable force in Mr
Redston’s riposte that, where there are long roads (such as St Gabriel’s Road)
which run east to west, where the eastern end is undoubtedly in Kilburn and the
western end is undoubtedly in Willesden Green, there must be a point at which
Kilburn ends and Willesden Green begins.246
The fact that different people
disagree about where that line should be drawn does not mean there is no boundary,
nor does it make a considered attempt to draw that line “arbitrary”.
243
Linden Tab 6
[12(2)]
245
[329], [348]
246
[405]
244
193
539. On this issue, Linden have also referred to the Inspector’s report on the application
to register land at Station Road, Newport as a TVG247 where Miss Ross Crail
observed that:
“the blue line depicting the alleged boundary bisects streets, dividing one side from the other …
and one house from the next adjoining house … where inspection indicates that there is no
relevant difference between the properties on opposite sides of the line. In Cheltenham Builders
Sullivan J described that as a hallmark of arbitrariness, inconsistent with the requisite quality of
cohesiveness.”
540. Miss Crail has very considerable experience in this area, and I attach due weight to
her views accordingly. However, there are dangers in reading too much into a
Report which was concerned with the facts of a different case. In particular, I note
that Miss Crail also recorded that “the Applicant himself disavowed any
understanding of why the boundary was drawn as it was”. 248
541. In densely populated urban areas, if one does not run the boundary line down the
middle of a road (which was one of the features of the boundary at Station Road
which Miss Crail found unacceptable) it will frequently be the case that the only
alternative is to separate one house from the adjoining house.
If this also is
unacceptable, then many urban areas will be unable to define a “neighbourhood”
for the purposes of s. 15(2). I find this difficult to reconcile with the fact that the
concept of a “neighbourhood within a locality” was specifically “drafted with
deliberate imprecision”249 in order to remove the “unnecessary technical obstacles”
to the registration of land which had become associated with the “locality” test.250
247
Linden Authorities Tab 13, para 300
Para 300. As she pointed out, this was “not a promising start”.
249
See The Trap Grounds Case [246]
250
See paras 26-27 of Sullivan LJ’s judgment in Leeds Group
248
194
542. Applying these principles to the Application, the main areas of dispute at the
Inquiry related firstly to the inclusion within the Map A neighbourhood of the area
to the north of the railway line which was referred to in evidence as the Dollis (or
Dudden) Hill Estate; and secondly to the area within the Mapesbury ward on the
north-eastern boundary.
543. The Dollis Hill Estate: Having heard all the evidence at the Inquiry, I have
considerable doubts about the inclusion of the Dollis Hill Estate (including
Mulgrave and Normanby Roads) within the same neighbourhood as Willesden
Green:
(1)
Although the Dollis Hill Estate was originally built as part of the outward
expansion of Willesden Green (rather than as part of the expansion of Dollis
Hill), it was a separate and later phase in the development of the area.251
(2)
It was a notable feature of the evidence of both the witnesses who came from
that area that they described themselves as living in “Dollis Hill”. 252 Mrs
Mercer regarded the underpass at the railway line as the boundary between
Dollis Hill and Willesden Green, and was clear that her “local library” was in
Neasden.253
(3)
This perception is understandable. Notwithstanding the fact that provision
was specifically made for residents of the new estate to obtain access to the
High Road via tunnels under the railway line, the railway significantly
reduces the permeability between the two areas.
(4)
Across the whole of the “neighbourhood” shown on Map A, the railway line
also forms the boundary of the electoral ward.
251
[84]
[33], [121]. See also the written statement of Joan Foster, Blue Folder p. 54
253
[121]
252
195
(5)
The railway line also appears to have been taken as the boundary of
Willesden Green by the authors of the 2009 Study “Positioning Willesden
Green”.254
(6)
Although, as a relative stranger who has only spent 5 days in the area, I am
wary of imposing my own subjective views on those who live there all the
time, the general message conveyed by points (1) to (5) above is consistent
with the impression I gained on walking around the Map A “neighbourhood”.
This was that the railway line is a significant barrier, both physically and
psychologically. The sense of moving from one place to another as one
passes under the tracks is accentuated by the fact that there is a line of
development immediately to the north of the railway line which is of late 20th
century origin, in clear contrast to the Victorian housing to the south of the
underpasses.
544. While no one of these factors would be conclusive on its own, the important point
is that they tell the same story. The only significant countervailing factor is that the
catchment area for Gladstone Park Primary School extends both north and south of
the railway line.255 However, my general experience of primary school catchment
areas in boroughs such as Brent is that they are defined by reference to walking
distance from the school rather than any concept of a cohesive neighbourhood, and
Mr Grant specifically disavowed reliance on the catchment area as evidence of the
extent of a neighbourhood. His point was simply that it demonstrated that the
railway line was not necessarily a barrier.256
545. Looking at the evidence in the round, I find that whether one looks at the matter
historically, physically, architecturally, politically or from the point of view of the
254
Council Appendices, p. 17, where the socio-economic profile is assessed by reference to the electoral
wards of Willesden Green and Brondesbury
255
Black Folder p. 213 (as inserted in the course of the Inquiry)
256
[85]
196
people who live there today, the Dollis Hill Estate is not part of the same
neighbourhood as the area to the south of the railway.
546. Mapesbury: The position with regard to Mapesbury is less clear:
(1)
Mr Grant’s maps257 demonstrate that development south of Melrose Avenue,
in the area between Riffel Road and Walm Lane, had taken place by 1920 and
was at that time regarded as part of Willesden Green;
(2)
Although the railway line still separates Mapesbury from the area to the
south, the sense of severance is greatly reduced by the fact that the railway
line passes under the main road (Walm Lane), and by the presence of
Willesden Green Station, which draws in commuters from both north and
south;
(3)
The evidence of the witnesses from Mapesbury was more equivocal than
those from Dollis Hill. Miss Proud as both a resident of Willesden Green and
as living in Mapesbury.258 On the whole, I gained the clear impression that –
at least since its designation as a Conservation Area – she would have said
“Mapesbury” first and “Willesden Green” second (or when giving a postal
address), but she also indicated that she thought the boundary of Willesden
Green extended as far as the A5. Miss N McKenzie was more specific,
describing Dartmouth Road as being “in Mapesbury” 259 but Mr Adams was
of the opposite view: while some might call it Mapesbury, he was clear that
it was Willesden;260
257
Map B, Blue Folder p. 119
[22-23]
259
[40]
260
[66]
258
197
(4)
Mapesbury is a separate electoral ward. However, Miss N Mckenzie was
clear that this was not the reason why she regarded herself as living in
Mapesbury;
(5)
Asked about the boundary lay between Willesden Green and Cricklewood,
Mr Grant identified the point at which Walm Lane meets Chichele Road.261
Although this answer was based on his responsibilities which working for
Brent Housing Association, it is also consistent with the outer limit of
Willesden Green as shown on the 1920 Map which he produced.262 Having
walked that route each day on my way to and from the Inquiry, I would agree
with that assessment.
547. Taking these points together, while there is undoubtedly a case to be made for the
argument that Mapesbury (and possibly the whole of the ward) could be seen as a
“neighbourhood” in its own right (and while it may well be a self-contained
neighbourhood for other purposes), I consider that it is reasonable to include at
least part of the Mapesbury ward within the “neighbourhood” of Willesden Green.
This would be entirely consistent with the historic development of the area. It
would reflect the fact that Cricklewood and Willesden Green exist as locations of a
higher order than Mapesbury (which has no station of that name, nor any readily
identifiable high street), and that the boundary between them is likely to lie
somewhere in the Mapesbury ward. It would avoid the rather odd consequence that
properties which are right next to Willesden Green Station, but immediately to the
north of it (in roads such as Blenheim Gardens) are not in Willesden Green.
548. Accordingly, I do not accept the Council’s general objection to the inclusion of
parts of Mapesbury within the neighbourhood as shown on Map A.263 However, I
do agree with some of the more detailed points which have been made with regard
261
[78]
Blue Folder p. 119
263
[348(3)(a)
262
198
to the point at which, and the manner in which, the boundary line on Map A has
been drawn:
(1)
Along the northern boundary, it has been drawn along Anson Road (and
therefore includes part of Chichele Road), when the evidence I have heard
suggests that Chichele Road is in Cricklewood – which would suggest that
Melrose Avenue is a more logical boundary;
(2)
Along the eastern boundary where, notwithstanding my comments in [538]
above, I am not convinced that the line has actually been drawn to represent
the point at which Willesden Green becomes Kilburn. Rather, the decision to
move the line east from Lydford Road appears to have been a response to the
evidence produced by Linden, which showed that 4 (possibly 5) of the
witness statements in the Blue Folder were written by people who lay outside
the “neighbourhood” shown on the original Map A.264
By moving the
boundary, Mr Redston brought these people within his “neighbourhood”.
(3)
Sub-paragraph (2) is entirely consistent with Mr Redston’s answer to me that
the neighbourhood boundary had been defined by reference to where he had
most evidence of use.265 His explanation for this was that, if people used the
library, this demonstrated that they regarded it as being within their
neighbourhood. In my view, this reasoning suffers from two flaws:
(a)
First, people might choose to use the WGLC, not because it was
their local library, but because it was a better facility than the one
in their own neighbourhood266 or because they could combine it
with some other reason for being in the area, such as a trip to
264
[219]
[108]
266
As was the case with Mrs Mercer [121]
265
199
Sainsbury’s267 - the catchment area for which is clearly wider than
the neighbourhood on Map A. Mrs Mercer is a case in point: she
shops at Iceland in Neasden, Sainsbury’s in Willesden while her
optician is in Edgware. If Mr Redston’s approach is correct, this
would make Mrs Mercer an inhabitant of all three areas.
(b)
Second, the fact that two people use the same library does not
mean that the general area in which they both live is otherwise
sufficiently cohesive to be considered a single “neighbourhood”.
Indeed, this part of Mr Redston’s argument turns the analysis
required by s. 15(2) on its head: if one could argue that people
who use the same application site for LSP live within the same
neighbourhood by reason of that shared use, the requirement to
demonstrate that the use was by the inhabitants of a neighbourhood
would be superfluous.
(4)
These problems are illustrated by Mr Redston’s acknowledgement that the
Map A neighbourhood was an “amorphous mix of neighbourhoods”268.
549. In summary, given my conclusions about the separateness of the Dollis Hill Estate
and my reservations about the way the boundary to the north and east of Mapesbury
has been drawn, I agree with the Objectors that the area shown on Map A is not a
“neighbourhood” for the purposes of s. 15(2).
550. In many cases, this conclusion alone would be a sufficient reason to recommend
that the Application should be dismissed. In the present case, however, I have been
concerned that this could lead to injustice. For the reasons set out in [534] above, I
have little doubt that there is a “neighbourhood” around the WGLC which thinks of
itself as Willesden Green, even if Map A does not accurately show it. In particular
267
268
As was also the case with Mrs Mercer [128]
[108]
200
(without drawing any exact boundary) I consider there is a strong possibility that a
greater focus on the Willesden Green and Brondesbury Park wards, with the
possible inclusion of parts of Mapesbury (up to Melrose Avenue) would yield a
“neighbourhood” which was sufficiently cohesive to satisfy the s. 15(2) test.
551. It was this concern which led me, at the Inquiry, to seek the views of the parties on
whether it was open to me to recommend registration on the basis of a different
neighbourhood to that shown on Map A. The Objectors’ submissions on this are
set out in the summary of their respective cases, above.269 In short, they argue that
it would be unfair to consider the Application on a basis which was different to that
on which it had been made, and that it is not for me or the Registration Authority to
conduct our own investigation with a view to identifying new neighbourhoods.
552. With regard to the latter point:
(1)
In Laing Homes270 Sullivan J. endorsed the view of the Inspector in that case
that the relevant locality (or neighbourhood within a locality) was a matter of
fact for the Registration Authority to determine. Rights which were being
claimed (under what was then s. 22(1) of the 1965 Act) were being claimed
on behalf of a section of the public and the form on which the application for
registration was made was “not to be treated as though it [was] a pleading in
private litigation.” Subject to considerations of fairness towards the parties,
the Registration Authority should be able to determine the extent of the
locality whose inhabitants are entitled to exercise the right in the light of all
the available evidence;
(2)
In the Trap Grounds Case Lord Hoffman held271 that a registration authority
could register an area of land which was different from that originally
269
[335-339], [351] and
Linden Authorities Tab 10 at para 142-143
271
Linden Authorities Tab 1 at para 61
270
201
claimed. The authority should be guided by the general principle of being
fair to the parties. It would be pointless to insist upon a fresh application if
no prejudice would be caused by an amendment, or if any prejudice could be
prevented by an adjournment to allow the objectors to deal with points for
which they had not prepared. However, Lord Hoffman also stressed that the
registration authority has no investigative duty which requires it to find
evidence or reformulate the applicant’s case: it is entitled to deal with the
application and the evidence as presented by the parties.
While these
comments were directed at the land to be registered as a TVG, I see no reason
why they should not also apply to the neighbourhood relied upon.
(3)
In R (Oxfordshire and Buckinghamshire Mental Health Trust) v.
Oxfordshire County Council it was common ground272 that it was open to a
Registration Authority to register land on the basis of a neighbourhood which
is different to that relied upon by the Applicant.
553. All these cases involved decisions made under the pe-2006 legislation. Although it
was not a matter to which either of the Objectors made reference, I note that in her
report on application at Station Road, Newport, the Inspector Miss Crail concluded
that the decision of Sullivan J. in Laing was no longer good law, and that it was
“not open to a registration authority to determine a section 15 application on the
basis of an alternative locality/neighbourhood”. This conclusion was based on the
fact that, under the 2007 Regulations, applications for registration must be in a
prescribed form, which “unequivocally makes it mandatory for every applicant to
identify and commit himself to a particular locality or neighbourhood, defined by
name or (where that would be insufficiently certain) by a map.
554. If and so far as Miss Crail was suggesting that there is simply no jurisdiction for a
registration authority to make a decision by reference to a different neighbourhood
to that relied upon by the applicant, I respectfully disagree. I do not see how,
272
[2010] EWHC 530 (Admin), Linden Authorities Tab 5at para 10
202
merely by requiring an application to be made on a particular form, Parliament can
be taken to have removed from registration authorities the power which they
previously held to decide for themselves what the qualifying neighbourhood is.
Although the pre-2007 regulations may not have required quite the same level of
detail, they also required applications to specify the locality relied upon.273
Sullivan J.’s view that applications are made in the public interest, and should not
be regarded as a “pleading in private litigation” is equally applicable under the
2006 Act, as are Lord Hoffman’s observations on the pointlessness of requiring the
parties to make a fresh application if the matter can be dealt with without unfairness
to the parties.
555. Accordingly, I can see no reason why, subject to the requirements of fairness to the
parties, the Registration Authority should not be able to consider whether the Site
should be registered by reference to a “neighbourhood” which is different to that
shown on Map A. Indeed, I did not understand either the Council or Linden to be
advancing Miss Crail’s jurisdictional argument: the highest that Linden put the
point was that “it is a matter of procedural propriety and fairness”274 and the
Council’s submissions were to similar effect.275 However, I do accept that the
consequence of requiring an applicant to specify the neighbourhood on which (s)he
relies is likely to narrow the focus of discussion and debate at any Inquiry (as has
happened in this case); and in so doing, to increase the risk of procedural unfairness
if, on consideration of the evidence, the Registration Authority takes a radically
different view of the neighbourhood from that which has been considered to date.
556. In the circumstances of this particular case, I agree with the Objectors that it would
not be fair to recommend registering the Site on the basis of an alternative
neighbourhood without first allowing them the opportunity to comment on the
alternative. In particular, while I have indicated the general area which seems most
likely to constitute a coherent “neighbourhood”, I have not come to any clear view
273
See Laing Homes paras 24 and 143
[335]
275
[351-352]
274
203
about where the eastern boundary lies, or to any final view on whether it is
necessary or appropriate to include Mapesbury. Until there is a plan showing the
extent of the new neighbourhood, the Objectors cannot comment or cross-examine
witnesses on the validity of the revised boundary, nor could any party make
meaningful submissions on matters such as the number of the inhabitants from that
area who have used the site for LSP.276
557. For similar reasons, I do not consider it would be fair for me, at this stage, to
consider the Application on the basis that:
(1)
the Dollis Hill Estate, although not part of the same neighbourhood as
Willesden Green, is a separate neighbourhood which has itself made
significant use of the Site as a TVG. Although there is no reason in principle
why there cannot be more than one neighbourhood using the same TVG, I
have heard no evidence or argument on what the proper boundaries of Dollis
Hill might be; or
(2)
there is no need to identify any “neighbourhood within a locality”, since all
parties agree that the London Borough of Brent is a “locality”, and one could
simply ask whether the Site has been used by a significant number of the
inhabitants of Brent. This would fundamentally change the nature of the case
which has been argued at the Inquiry. In any event, there is no evidence
before me of use of the Site by the inhabitants of other parts of Brent (such as
Wembley) and given the overall population and geographical spread of Brent,
I would have severe doubts about the realism of the proposition that the Site
has been used by a “significant number” of inhabitants, sufficient to invest
the whole of the Borough with the right to use the Site as a TVG.
276
I note Linden’s submission @ [339] that “recalibrating” the neighbourhood to a smaller area would
simply exacerbate the problems of showing sufficient use, this does not automatically follow. Although a
smaller neighbourhood would mean that some of the witness statements relied upon by Mr Redston were
no longer relevant, the effect of this on the proportion of inhabitants of the neighbourhood who used the
Site (i.e. the arguments raised by the Council @ [354] based on McAlpine) would need to be established.
204
558. Consequently, irrespective of my conclusions on LSP, it seems to me that the
Application could only succeed if the Registration Authority was willing to allow
the parties the opportunity to respond to my conclusion that there is likely to be a
qualifying a neighbourhood, but that it is not the one identified by Mr Redston. In
reaching a decision on that issue, the Registration Authority would need to take into
account the following:
(1)
It is not under any duty to consider an alternative neighbourhood. It is
entitled to consider the application on the basis on which it was made.
(2)
The Council’s proposals for redevelopment of the WGLC have already been
delayed by the Application. Considering an alternative neighbourhood is
likely to require a re-opening of the Inquiry, which would introduce
significant additional delay.
Subject to subparagraph (3) below, this is
obviously prejudicial to the Objectors.
(3)
If “neighbourhood” is the only obstacle to registration, there would be
nothing to prevent Mr Redston making a further application immediately on
receipt of the Registration Authority’s decision. Refusing registration would
therefore not necessarily prevent further delays;
(4)
Just as there is a public interest in the Council being allowed to progress its
aspirations for a new cultural centre (in whatever form the local democratic
process decides is appropriate), so too there is a public interest in ensuring
that, if the Site is a TVG, it is not built upon. This would be particularly
relevant, given my view that there is likely to be a qualifying neighbourhood,
albeit not the one which Mr Redston has defined.
205
559. Ultimately, the decision on where the balance between these considerations lies
would be a matter for the Registration Authority.
For my own part, if my
conclusions as to Map A neighbourhood were the only obstacle to registration, I
would be inclined to recommend seeking further evidence and/or representations on
a revised neighbourhood boundary. However, if the Registration Authority accepts
my conclusions on LSP, then the Application must fail in any event. In those
circumstances, there would be no point in considering whether there is an
alternative neighbourhood.
560. Overall, my conclusions on this issue are therefore that:
(1)
The Map A neighbourhood is not a true neighbourhood for the purposes of s.
15(2). As matters stand, this element of s. 15(2) has not been proved.
(2)
It is likely that there is an alternative area which would qualify as a
“neighbourhood”. However, I cannot say precisely what its boundaries are,
and it would in any event not be fair to the Objectors to recommend
registration by reference to it without allowing them the opportunity to
comment on the suggested alternative.
(3)
The Registration Authority is entitled to consider the Application on the basis
on which it was made, and is not obliged to consider whether there is an
alternative neighbourhood.
Consequently, it could simply refuse the
Application on the ground that Mr Redston has not discharged the burden of
proving that the use of the Site has been by a significant number of the
“inhabitants of a neighbourhood within a locality. Given my conclusions at
sub-paragraph (2) above, I would not do this myself if this were the only
obstacle to registration, but the Registration Authority may take a different
view.
206
(4)
If the Registration Authority accepts my conclusions on LSP, there is no
point in postponing consideration of the Application to allow the parties to
comment on my conclusions at sub-paragraphs (1) and (2).
e.
Did the use continue at the date of the application?
561. Aside from the fact that the Council has decided not to fund future St Patrick’s Day
Parades277 there has been nothing to prevent any of the activities which have
previously been carried out on the Site. In so far as certain activities such as
“teaching children to ride a bicycle” have been infrequent and sporadic, they may
not have been active on the day the Application was made, but in general terms the
Site was being used by the public on 30 April 2012 in the way that the Application
described.
277
[199]
207
CONCLUSIONS AND RECOMMENDATION
562. Since the WGLC building was opened in 1989, the Site has been open to the public,
and has been used by them as of right as a means of access to the WGLC, and as a
thoroughfare between Brondesbury Park and Grange Road/the High Road. From a
relatively early stage after the opening of the WGLC, and certainly by 20 April
1992, there is evidence that it was being used as a place where people would meet
one another, and where in warmer weather people would sit on the walls to talk,
read a book, eat their lunch or drink a cup of tea or coffee. Much, though not
necessarily all of this activity was directly associated with the library and the
bookshop, and/or activities such as baby groups taking place in the WGLC
building.
Much of it would have been indistinguishable from the normal
“highway” use of any pedestrianized shopping area. On the whole, these uses were
“low key”. 278
563. Over time, the use of the Site and the pedestrianized section of Grange Road
adjacent to it has increased. Ironically, a large part of this increase has been a
direct result of Brent’s own efforts to invigorate what was previously regarded as
an underused space through the staging of markets and festivals. It is clear, both
from the way in which Mr Redston’s original application was phrased and from the
frequency with which markets and festivals were mentioned in the written
statements, that these have been popular events which have come to feature
prominently in the public consciousness. They have undoubtedly increased the
value which local residents attach to the Site as a civic space, with the result that it
is beginning to accumulate the levels and types of use which, if continued for long
enough, might well have resulted in it acquiring status as a village green. In this
regard, it seems to me that the Application has itself also raised the profile of the
Site, such that many people are only now beginning to think about what it is that
they might be about to lose.
278
See e.g. Bailey-Smith statement, Blue Folder p. 29
208
564. The difficulty for this Application, however, is that the law requires land to have
been used for LSP for a period of 20 years or more before it qualifies for
registration as a TVG. Whatever the affection with which the Site is held today by
local residents, there is in my view simply not the evidence there to support the
conclusion that the same was true in the early 1990s. More particularly, there is
insufficient evidence to show, on the balance of probabilities, that the Site has been
used for LSP for at least 20 years.
565. I am also not persuaded that the neighbourhood which Mr Redston has identified as
the basis for the Application is a true “neighbourhood” in the way which the
caselaw requires for the purposes of s.15(2). Of itself, that is a basis on which it
would be open to the Registration Authority to refuse this application. However, if
this were the only reason for refusal, I would recommend adjourning consideration
of the Application in order to give the parties the opportunity to respond to the
conclusions in this Report. The Registration Authority would not be bound by that
recommendation, but – although I fully understand the Council’s desire for an early
resolution of the Application - it seems to me that the Registration Authority would
want to think carefully before reaching a conclusion which might be construed as
saying there is no such place as Willesden Green.
566. However, this issue only arises if the Registration Authority disagrees with my
conclusions on the sufficiency of the evidence of use of the Site for LSP. If those
conclusions are accepted, then there is no point in seeking further representations
on an alternative neighbourhood.
567. I am conscious that my recommendation will come as a disappointment to Mr
Redston and those who have supported him. I would stress that I do not doubt the
sincerity of his views. As will be clear from this Report, there are aspects of his
case (particularly in relation to the use of the Site “as of right”) where it seems to
me that he has a point. From the evidence I have heard, and the attendance at the
209
Inquiry, it is also clear to me that there are many people who have come to value
the Site as a civic space. However, that is not the test for registration as a TVG. I
am not concerned with whether open space is a “good thing”, or with whether it is
the best use of the Site. Those are matters for the planning process. My role is to
consider the statutory test in s. 15(2).
568. For the reasons set out in this Report, my recommendation is that the Registration
Authority should reject the Application.
PAUL BROWN
11 March 2013
Landmark Chambers
180 Fleet Street
LONDON EC4A 2HG
210
ANNEX 1
211