We have taken advice from a partner in a London law firm who specialises exclusively in planning law. We gave him the Land Registry entry and a link to Google maps so he could see the land. We told him: “The Council plans to lease part of this plot to a private developer. That developer will then build beach huts on the plot which will either be sold on the open market (leasehold, I imagine) or rented.”
His legal advice follows:
Q: Is what the council intends to do in accord with the idea that this is an open space?
A: No - the OCE provided makes it clear that the land is to be kept as an open space (subject to suitable buildings for the public use/enjoyment of the land). [OCE is an Official Copy of the land title from the Land Registry.]
Q: What does the council need to do to change the status of a piece of land that is open space so that it can dispose of it for development?
A: The Council needs to apply to the Land Registry to remove the covenant from the title. This is very difficult to do and the Council would need a very good reason to do so and not just for commercial development.
Q: Is the involvement of a private developer and the possible sale of beach huts to private individuals in accord with the idea that this land should be kept for public use?
A: No.
Q: The council put up beach huts nearby years ago to let to the public on a seasonal basis. That would seem to be keeping it all public?
A: Correct.
Q: Is a private developer a different thing altogether?
A: Yes.
Q: What does “obstruct the view” in C1 mean?
A: "Obstruct the view" would mean materially impact upon the visual amenity…. I would think constructing beach huts here would obstruct the view.
Your legal advice from Mrs Trevett is flawed. It repeats but doesn’t deal with the covenant that says the land is to be “an open space…for… the public for ever”. Leasing land to a private developer then selling or renting beach huts to people for their sole use keeps the land neither open nor public.
Your advice says that, if the beach huts aren’t high enough to obscure the views of 49 to 60 Beacon Hill, the council won’t be in breach. This is not what the covenant says. It says that nothing “shall obstruct the view of any of the houses…on… the Beacon Hill estate and the Lees Estate and the land fronting to Beacon Hill and lying between Hilltop Road and Bellevue Road”. You can not reduce the scope of this covenant to the view from just 12 houses.
Photo 1 shows the height of the Council’s preferred style of Tankerton hut. Photo 2 shows the height of the Coastwatch Lookout. The front row of huts will be taller than the Lookout. The rear row of huts will stand taller still and will “materially impact on the visual amenity”.
The council’s plan therefore breaches the covenants threefold:This proposal can not legally be taken forward.
- It fails to keep the land as open space
- It fails to keep the land in public use
- It obstructs the view from the Beacon Hill estate, the Lees Estate and the land fronting to Beacon Hill.
Phil Rose and Ros McIntyre
saveourdowns@gmail.com
.:.
Hi Coasted,
ReplyDeleteI like the blog. I'm a bit confused about what happened when. Any chance of a brief chronology? Others might find it too dull to read....but I'll read it!