Behind Closed Doors at 5-pm Today 24 Feb 2016, SDC Cabinet made up of 9 Tory Cllrs will discuss the Hythe Town Green Restrictive Covenant and more specifically the legal advice SDC has received regarding the covenant.
Restrictive covenants are restrictions that are put onto land to prevent people from performing certain actions on it. The most common restrictive covenants are;
To disallow any building on a section of land
To disallow any business activity on the land
To disallow any use of the land which is not agricultural
Hythe Town Green has such a covenant – made absolute in 1862 – not to build on it. Battles in 1939, 1966,1995 and 1999 have been fought over putting buildings and a car park on the site. (For a full history see Hythe Green Preservation Society webpages)
So what advice might this legal opinion give? Will it tell you that there are two Victorian Laws still on the statute books; which you as residents, who live in the boundaries of Hythe, allows you as an individual or a group to bring an action against both Hythe Town Council (HTC) and SDC if necessary.
A churchwarden, the owner, a parish, community or district council or an inhabitant of the parish can bring an action (a legal proceeding) against anyone causing an offence in respect of s 12 of the Inclosure Act 1857 . Anyone living in the parish can bring an action against someone causing an offence in respect of s29 of the Commons Act 1876.
Section 12 of the Inclosure Act 1857 against injury or damage and interruption to their use or enjoyment as a place for exercise and recreation. It imposes a criminal sanction for the offence of injury to village greens.
Section 29 of the Commons Act 1876 makes encroachment or inclosure of a green, interference with or occupation of the soil or the erection of any structure unlawful unless it is with the aim of improving the enjoyment of the green.
These Victorian Acts only have any relevance if they are enforced. In both cases this means someone needs to know what the law is, notice the offence and then wish to do something about it. Important issues will be whether material harm has been caused to the green, if there has been interference with the public’s recreational enjoyment, the proportion of the green affected by development or activity and the duration of interference with the green.
Hythe Town Council is the management group they will have powers under the Open Spaces Act 1906 to maintain, to make byelaws for and to prosecute for interference with village greens and to manage and control land for recreational use or simply as an open space.
So will HTC take SDC to court if the interfere with the Green?
Under Section 84 of the Law of Property Act 1925, a person interested in certain types of land can apply to the Lands Tribunal to have any restriction on that land cancelled or modified. So HTC could do this or may have done this ,as could SDC if the land is transferred to them.
So in the end the question is can HTC or SDC build on the Green?
Generally we think not but we are not lawyers. The 1876 Act appears to makes this unlawful. However, if the buildings are put up ‘with a view to the better enjoyment of the green’ i.e. for the purpose of recreation or enjoying recreation, then they are allowed. This means small building work like football nets, rugby posts, tennis-courts, play equipment, seats, benches, shelters and even sports pavilions are all OK, such as that on South Road Open Space. To stretch to a “Leisure Centre” with a swimming pool and other facilitates, is one step to far, as it would not be for the better enjoyment of the green but the destruction of it.
None of the above constitutes legal advice.
PS: If the legal opinion received by SDC and made known to Cabinet behind closed doors later today says no, Hythe Town Green cannot be built on, how much would this comedy of errors have cost both HTC and SDC and at whose expense?