Sunday, 15 September 2013

Part 1 Park Lane and Churchfields public meeting - the truth, the whole truth or just half truths and lies?

There was a public meeting this Saturday morning.  It was brought together by [persons unknown - ed] with a view to discussion FTC's plans to sell off the Park Lane play area and also to discuss the plans to provide improved play facilities at Churchfields.

I hadn't been invited - and in fact no-one from FTC was invited to attend the meeting.  I just turned up as a member of the public.

Now I'm going to split up this blog into parts - because before anyone reaches any judgments about any of these issues there is quite a lot of detail that needs to be understood first.

The law governing local council meetings

The legal position on council meetings is very simple and straight forward.  All meetings have to be advertised to the public with agendas published typically a week in advance.  For FTC this means publishing the agenda on the council's notice board and publishing it on the council's website.  The council's timetable for its ordinary meetings is published in May of each year and published in advance.  If you want to know the meetings schedule go to http://www.frodsham.gov.uk .

All council business has to be held in public - unless there is some legally justifiable reason which the council in that meeting accepts as being necessary to place that business in private session.   The vast majority of council business is held in public session.

These legal reasons for holding a meeting in private have to be ones recognised in the Local Government Act 1972.  Anyone reading the list of what should be dealt with in private session will immediately realise that they are reasonable and sensible.  They include things like confidential employment matters, confidential commercial matters and confidential legal advice.

So just ask yourself the following question - would you like your confidential business arrangements and your confidential legal advice broadcast to the world?  Would it undermine your negotiating position if your confidential legal advice or your business position was made public - of course it would.   The same is true of councils.

All Councillors are under a legal duty to keep confidential matters confidential.  This includes keeping confidential legal advice confidential.  Any councillor who breaks the duty of confidentiality can be sanctioned for doing so.  The fact that the council's confidential legal advice was made public regarding the Park Lane play area almost certainly involved one or more councillors breaching the duty of confidentiality they owed to the council.  Councillors also have a duty to protect the best interests of the council.  Making confidential legal advice public almost certainly breaches this duty too.

No council can just choose to hold its business in private session.  Anyone who suggests to you that this is the case is at best mistaken, or at worse being deliberately misleading or simply lying.

What is the legal advice the council has received?

Normally I would not be in a position to discuss it.  However as the confidential advice had been made public I argued before the council's meeting in August that the meeting should remain in public session - as there was no point in discussing the legal position in confidential session when it had already been made public.  This is what happened - and so I can discuss the position here.

So what is the legal status of the Park Lane play area.

This was raised at the public meeting on Saturday morning.  Those opposing the sale of the land gave their description of how the land came to be owned by Frodsham Town Council.  Unfortunately those explaining the situation didn't describe it accurately or fairly in my view.

We heard expressions expressions such as 'donation' and 'sale' used interchangeably.  They are not alternative terms.  A donation means a gift.  A sale is, a sale!  We also heard words such as 'restrictive covenant' as an apparent description to describe what some saw as restrictions on the use of the land.   We also heard nonsense from one corner about the Town Council acting in secrecy.  

The simple position is this:

In November 1939 what was then Frodsham Parish Council bought a piece of land on Park Lane.  They bought that piece of land from the estate of Harriet Elizabeth Wright.  They paid £50 for the land. The parish council bought the land to be a recreation ground. 

We've looked at the minutes kept by the old Parish Council to see what their intentions were when they bought the land in 1939.  What we've found is that the parish council was looking for land to be a recreation ground.  They looked at a site near where the tin church is today - and for reasons which are not recorded they decided instead to buy this piece of land at Park Lane.

When they bought the land there were no restrictive covenants or indeed any other form of restriction imposed on the land limiting its future use either by the late Ms Wright's personal representatives or by the then parish council.

Now FTC has a number of recreation grounds - several of which are held under Charitable Trust.  The lands held under trust include land such as Marl Pits, Manley Road Copse, Crummers/Crowmere Lake.  This recreations ground trust was established during World War I.  It would have been well known to the then parish council.  Neither that parish council then, or later, nor Frodsham Town Council subsequently chose to bring this piece of land within the charitable trust.  (Lands within the charitable trust can be sold by the way - I will return to this point later.)

In 2001 the Town Council registered its legal title to the Park Lane site.  When they did that all the legal documents proving the Town Council owned the land were submitted for scrutiny to the Land Registry.  This included the Conveyance between Ms Wright's personal representatives and the Parish Council.  If there were any enforceable restrictive covenants or any other restrictions on the land they will now appear on the registered title.  Now those of you familiar with your own registered land titles will be familiar with the paperwork.  Often the restrictive covenants affecting a piece of land will run to several pages.  In this case there is only one restrictive covenant - and that simply relates to fencing the land.  It is one of the 'cleanest' and shortest legal titles you are ever likely to read.  Anyone can inspect the legal title if they wish - if you pay the relevant Land Registry fee.  There is a copy of the title at the Town Council's office that can also be inspected.

So when anyone tells you, or suggests to you that there are restrictive covenants on this land confining its use to a recreation ground they are wrong, mistaken or perhaps telling lies.

I hope you also realise that FTC has been painstaking and careful in examining exactly how it came to own the land and what restriction could affect it.

OK - so no restrictive covenants - but can FTC sell land that is a recreation ground is there any other legal protection?

At the risk of stating the blindingly obvious.  Things change over time and the law recognises this.  Just because a council bought the land for one purpose doesn't mean that it cannot be used for another purpose or sold off when it becomes surplus to requirements.  In fact all council's have a duty to maximise the use of their public assets.  Simply owning a closed play area isn't a good use of public resources - you are spending money on insurance and limited maintenance that simply doesn't make sense especially in times of public sector austerity.  There are various Local Government Acts of Parliament that specifically allow local councils to sell recreation grounds without restriction.

The legal advice received by the council specifically confirms that the council is entitled to sell the land if it wishes to do so.  The money raised by the sale could be used for any purpose so far as the law is concerned.  Incidentally FTC is looking to reinvest all the proceeds of sale from this site in play facilities across Frodsham - exactly what it would have to do if it sold one of the recreation grounds that was held in charitable trust.

This Park Lane play area has fallen into disuse and was formally closed some years ago.  This play area was built before Castle Park became a public asset (controlled now through CWaC and not FTC).  It was a play area before the High School / Leisure Centre was built.

When FTC was considering the future of Park Lane two years ago the council carried out a consultation exercise with the residents in and around Park Lane about closing the play area.  This involved sending letters to residents.  If memory serves no one sought to persuade FTC to keep the play area open.  This made sense anyway - especially bearing in mind the significant investment in play facilities by CWaC at Castle Park - a matter of a few yards away.

So concluding the legal position:

  • there are no legal restrictions on FTC selling the land;
  • there are no legal restrictions on how FTC could use the money that it raises if it sells the land
Fortunately though this is not just a legal question.

The legal position is only part of this issue. Just because something is legal doesn't mean it has to happen - there are practical and other considerations too.  I will turn to those in my next blog entry.

Ed - this piece was amended on 21 September with the insertion of the words in [    ] in the first paragraph.  See blog post for 21 September 2013 for other comment.