Friday, 17 June 2011

Ashton Vale Town Green

Yesterday I had the dubious pleasure of sitting on the Public Rights of Way and Greens Committee that determined the Ashton Vale town green application. I was one of two councillors (along with Alex Woodman) to vote against the agreed proposal to register the bottom 'half' of the site and not the top 'half' (I know they're not equal sizes).

I was somewhat caught on-the-hop by the swiftness with which the Chair moved to a vote - there is usually a period after questions to officers where councillors make statements about their views which can be batted back and forth before the vote is taken. This didn't happen yesterday (it's common practice, but not procedure), so I lost my chance to explain my thinking.

The first thing to make clear is that Town Green decisions are based on a pretty fixed set of legal criteria that have nothing to do with future uses, how much the land is valued by local people or the strength of feeling on either side. The key criteria in layperson's terms in this case is whether the applicants (i.e. the people who wanted the Town Green) could prove on balance of probability that the site had been used significantly for recreation throughout the 20 years prior to the application - i.e. from late 1989 onwards.

The recommendation made by officers was that new evidence had been submitted which showed that the top half couldn't have been significantly used for recreation until mid/late 1990 as it was still being converted from a landfill site to a grass field. We were asked to agree with this recommendation on the basis of the officers' judgement and the committee was provided with a short precis of the new evidence.

I went and spent two hours yesterday pouring over the full versions of the new evidence and the Inspector report. My view was that it was important and certainly undermined, to a degree, the applicants' case for 20 years of significant use. However, I did not consider that it was an irrefutable 'killer blow' and I was mindful of the applicants' contention that it was not substantively different from what was provided to the Inspector.

As a quick detour, let me explain my attitude to independent inspectors: they are not infallible. I see lots of inspector's reports on town green applications and planning applications and so on. I have seen plenty that I believe make the wrong call on the basis of the evidence and, more tellingly, I have seen a good handful of important factual and interpretive errors. Remember too, it was an independent inspector that wanted to force Bristol to take a deeply-damaging tropical biofuel plant - we fought that one all the way!

As a result, I will never be persuaded by an argument that says "you must approve X because the Inspector says so". Interestingly, I also sat on the Committee for the unsuccessful application for Castle Park to be designated as a town green. At that meeting, the applicants shouted that the inspector's report (which recommended rejection) must be ignored because it was flawed and biased and that councillors should show some spine and think for themselves. Maybe there were even some people at both meetings!

I do try to think for myself and I am not convinced that the applicants did demonstrate significant use across all 20 years, on the balance of probabilities, for the top half of the site. 18 years or so is beyond doubt as you can clearly see footpaths that have emerged by the early 1990s in the contemporary photographs. But the evidence for significant use in 1989 and 1990 is flimsy. That's my call at the moment and I know that the applicants won't like it! However, I do believe that it would have been proper to have referred this back to the Inspector for them to comment on the new evidence. I wouldn't have necessarily taken their amended view as sacrosanct, but I think it was proper to draw on their expertise again.

My preferred option, yesterday, would therefore have been to register the bottom half of the site as a town green and to refer the top half back.

I anticipate that this posting is going to attract comments and possibly some heated ones. Please remember the house rules: I won't allow anything to remain published here which may constitute libel or, frankly, which is pointlessly unpleasant. I maintain an open commenting blog, so please respect it and don't force me to start moderating.


Harry Mac said...

I imagine it was a difficult position to be in and I think your reasoning is fair. I do feel the split between green space and football ground represents a good compromise. I would add, though, that for the wildlife value of the green space to be protected there should be a very effective barrier between the two to minimize trampling, disturbance, litter etc

Redland Tennis Club said...

As a local resident based in Redland, i am suprised by your decision. The fact that councillors (mr abraham)new for themselves that the land had been used as a refuse tip within the allotted timescale proves the additional evidence is well founded and that, had the original tg inspector had this at the time
she would never have been able to reccomend town green status in the first place. I can only assume your decision was tainted by ulterior it was not based on facts. John Griffin

Neil Harrison said...

John - the fact is that tipping stopped on the site at some point in early 1989, as can be seen in the aerial photos of the site later that year. The bone of contention is when the reparation work (covering the tip with topsoil and planting grass seed) finished. Effectively, the applicants say mid 1989 and the objectors say mid 1990. Despite spending two hours looking, I couldn't see any conclusive proof either way.

I'd be fascinated to know what the ulterior motives I might have are - perhaps I'm in the pay of the squirrels!

Redland Tennis Club said...

Clr Abraham said at the meeting he had seen with his own eyes that the 'tip' was still a tip well into the 90's, as he had visited it himself many times during the 90's. It would seem a majority of other Clr's looking at the the same aerial pictation of the site that you were privy too, were happy that they were conclusive. So i am afraid i am not convinced by your account of things, and it is why i sadly question your motives. You Know full well that when the tipping on the site finished is of no relevance. If it was still open and hence a danger to the public it could not have been used for recreational purposes. Perhaps as a Clr it is difficult to look at things objectively?

Neil Harrison said...

John - Peter Abraham is demonstrably mistaken. The photos from 1992/3 clearly show the area grassed over and with footpaths running across it. It is not a tip at that point - just no way. I don't know if he (or the other councillors) bothered to look at the photos, but I certainly did.

Neil Harrison said...

(Just to be clear - the photos were not in the papers for yesterday's meetings and I made a special request to see them.)

Redland Tennis Club said...

Let's get this straight! A clr of many years experience (clr Abrahams)...many more years experience than yourself. Who said he visited the site himself in person during the 90's and his own eyewitness account is it was still a tip at the time. Whereas you (in your own words) have only seen what you describe as an inconclusive aerial pic. And he's the one who's mistaken. How can you be so sure, as you state you the pics are inconclusive. And as for the fact it has grass on it, well what a suprise if it hadn't been used as you say from 1989. You don't need to be Allan Titschmarsh to know grass grows very quickly...what did you expect to see? And footpaths pos made by councill employees over the years. I am v grateful for your reply, i was really hoping you might be able to shed some light on the whole issue. Will these aerial pics be made public? I would very much like to see them for myself. Though i trust Clr Abrahams word as a goog an honest public servant.
If only Bristol had a few more like him. John

Stockwood Pete said...

Hi Neil

Thanks for daring to publish a post on this topic - and for the rigour and the extra effort you've put in to look at the background evidence that wasn't available at last night's PROWG Committee.

My own stance is that I'd like to see the applicants succeed, because I think there are too many public costs associated with a new stadium on this particular site.

Like you, I was very surprised when the Chair moved straight from questions to a vote, without the normal debate. (It's all the more galling to see him claiming now that 'we had a good debate'!). I would have been far less disappointed with the outcome, though, if there had been a serious examination of the crucial test question that you've identified, relating to the use of the landfill area in the key year 1989-1990.

There was a case in Redcar a year or more ago that may be relevant. The council wanted to sell off part of the old municipal golf course to developers (Persimmon) to attract a payback in the shape of a swimming pool and other amenities (plus, no doubt, a bit more council tax). Locals (good friends of mine) who used the land thought there were better ways of doing it and slapped in a Town Green application. It went all the way to the supreme court, where the applicants won.

The ruling hinged on whether the people routinely 'trespassing' on the golf course deferred to the golfers using the course legitimately. Self evidently, access was possible, but potentially dangerous. The court held that such deference was not evidence that they weren't using the land 'as of right'.

If this Ashton Vale application does go further in law, then the same arguments, and precedent, will apply to the use of the northern part of Ashton Vale during any short period the landfill was being remediated.

Redland Tennis Club said...

Hi Pete, i can assure you cost of a new stadium will be less of a strain on the public purse than the cost incurred by the the 'Ashton Vale ' residents fighting for a Village Green...they have actually been awarded (but hey 23 acres is not big enough for a village green is it? They want all the site). The stadium is being funded by the private sector. As for the golf course in Redcar where people played golf i guess! As to the ex landfill site in Ashton Vale where uh waste was dumped. I am guessing the golf course didn't suffer from flooding? Wasn't used for farming? Didn't have a tip on it? Just guessing?
And how you can say there hasn't been enough debate on this subject is beyond me. Let's face it 42 acres for a village green is a joke. I am very confident that when this goes to Judical review, the Councils sound and sensible compromise will be upheld. John

Anonymous said...

I find it incredible that councillors who are asked to make a decision of such importance do not actually read all of the available paperwork. I'm not pointing the finger at you in particular, but it was obvious from some of the questions from the councillors that they either hadn't bothered to read the documents or hadn't asked for supplementary documentation. Not for the first time I find myself asking if they are up to making these important decisions. As to the Ashton vale issue, it's clear to me that there has been a lot of exaggeration from the applicants in their version of the usage of the land and whether that would stand up under oath is questionable. It's also clear to me that aerial photographs cannot possibly be conclusive and witness statements should be taken as read provided they can be backed up with documentation. It's also clear to me that if part of the land is now deemed to be not TVG status, then the original application must be void. I don't see how the council can apply imaginary boundaries in this case. It is either a TVG or it isn't. I would fully expect both sides to appeal against that decision. It's a bit of a fudge and one which may backfire spectacularly on the council. The landowners I am sure will go for full non-TVG status on the land (that is what I have been told) and they fully expect to get it. If the applicants have the backing then I'm sure they will also appeal, but ultimately fail. Either way, the council will pick up a tab of some sorts due to not having the balls to take a proper decision.

George's Dad said...

Sounds like you wanted to sit on the fence, shift the decision to somebody else and generally prevaricate, in the process wasting further taxpayers' money. You were already presented with a compromise position where NIMBYs get their TVG and the stadium goes ahead so surely that should have made the position pretty simple.

Thankfully the remaining councillors saw sense and at least moved things forward rather than waste further money, that surely could be better spent, on referral back to an Inspector.

No matter her recommendation it, and the subsequent decision on it, would equally have been open to judicial review. So referral would simply have wasted time and money getting to the same position we are in now, leaving your position wholly flawed.

Robbie said...

"As a result, I will never be persuaded by an argument that says "you must approve X because the Inspector says so"."

This is an issue of law, and is regularly used. For example, a judge will direct the case in a criminal trial, and then direct the jury to a decision much like the Inspector did. This is surely the correct method to ensure that the law is correctly applied?

Anonymous said...

If I didn't know any better, you'd think that Stockwood Pete was just another failed local politician. And then you find that he is. Quelle surprise.

Neil Harrison said...

Thanks for all playing largely nicely, so far. The reason I run a blog is so that I can be held to account, so I'm happy to take criticism on the chin. A few responses:

John - I don't think I can say anything to persuade you out of your admiration of Peter Abraham! The photos are certainly available through a freedom of information request, but I don't know if they will be published. There's no real secret to them - the one from late 1989 clearly shows a muddy field, not an operational tip. It is not in the slightest bit inconclusive on this point. The ones from a few years later show a grassy field with a path running across. Peter must have been thinking about another area or have his dates muddled from 20 years ago.

Pete - Thanks for your understanding! Like me, you've seen a few of these and know how they work. I am aware of the Redcar case as it's often quoted in the 'as of right' debate. I think the question here is more about the meaning of 'significant', but we'll see.

Anon 1 - Aerial photos can be conclusive on some things, like the presence of footpaths or when tipping stopped. In my experience of seeing these sorts of applications, witness statements going back decades can be demonstrably wrong on occasion, with people claiming to have used areas that didn't exist. There was quite a bit of this in the South Purdown application we saw a year or so back. It's not necessarily that people lie, but that their memories fade.

George's Dad - the point, which was covered in the meeting, is that the Committee isn't permitted to think about compromises or deals. We are charged with deciding whether the applicants have proved their case about the past, not what might happen in the future. The law is clear on this.

Robbie - The Inspector's report is framed in terms of "recommendations", not "instructions". They are engaged by the Council to look through the evidence and to come to a view based on their interpretation of the law. There is no compulsion for the Committee to then simply rubber stamp their recommendations without question. That is the correct application of the law, providing democratic oversight to the workings of an external individual. Juries don't always follow judges' directions either.

Anonymous said...

The photographic evidence that the tip was concluded by June 1989 was conclusive. The Waste Tip Manager from Haul-Waste who attended the Public Inquiry confirmed that the tip was all over, grassed, finished by June 1989 at the very latest.

This was an issue which took up many hours of the original inquiry. Various letters from the landowners also showed the tip finished by this time.

So how can Mr Abraham "know" something which photographic evidence and direct witness evidence from the manager contradicts ???


1. the tip was 8 acres but the stadium site 19 acres !!!

2. the Inspector accepted (as did the waste tip manager) that the tip did not stop the use of the land in any event. The land remained open for use at all times.

Its a great shame that rather than seeking a compromise, the council has decided instead to rely upon bent evidence to fix a solution. They have enraged the applicants and given them all the ammunition they need for a judicial review.

Simply for the sake of exposing the corruption, I for one hope they do bring a JR.


Anonymous said...


I also remember Castle Park. This is what I remember:

1. The applicants complained that the Inspector had invented an entirely new and additional legal test to reject town green status.

2. McNamara advised that the Inspector's report MUST be accepted by the committee, unless it could be shown to be biased or OBVIOUSLY flawed.

3. The Councillors all apologised and explained that their hands were tied and they had to accept the Inpector's report.

I also remember Cotswold Road:

1. the same inspector and same new test

2. same advice

3. same result.

So what was different about Ashton Vale.

a. Before the council could hire their favourite Inspector, the club hired him as their barrister.

b. The Applicants won

c. McNamara's view on the law has mysteriously changed

d. Councillors' memomories of all previous advice have been altered

Fortunately, all of the above is recorded in writing in the PROW papers.


Anonymous said...

As a councillor of Cotham you shouldn't have been given a chance to vote anyway, this was a case for South Bristol - and thankfully those 6 councillors from South Bristol knew what was best for our area.

Chris said...

Neil - did you have the option to abstain from the vote on the recommendation?

Neil Harrison said...

HarryT - welcome back... not heard from you in a while. And unusually, I think we agree at least partially. Part of the new evidence that I looked through on Thursday was a report from an expert witness on aerial photos. Their professional view is that the late 1989 photo shows the site still in the process of 'remediation' - i.e. soiling and grassing. Certainly it was not an active tip at that point.

I'm not going to get drawn on the issue of how the recommendation came to be, largely as I have no privileged knowledge - I have deliberately stayed out of it. The Castle Park case was different in that the regret expressed by the Committee (me included) was that the Town Green application was not the method to protect Castle Park as it failed the 'as of right' legal test. It was not a desire (on my part at least) to overturn the Inspector's report, but an acknowledgement that we agreed with the aims of the applicants, while agreeing that the report was legally sound.

Anon 2 - you maybe have a point about who is on the panel, but the flip side is that I have no axe to grind in Ashton Vale. Your geography is a bit skewy though - Peter Abraham is a Stoke Bishop councillor and Cotham is closer to Ashton Vale than Brislington (Peter Main) and probably Knowle (Chris Davies). Anyway, it's the way it works - south Bristol councillors approved new houses in my area the day before.

Chris - yes, abstaining is always an option.

The Bristol Blogger said...

"I went and spent two hours yesterday pouring over the full versions of the new evidence"

The problem is that the "new evidence" is not substantively different from the "old evidence" that's been properly cross-examined and considered by the inspector already.

"The recommendation made by officers was that new evidence had been submitted which showed that the top half couldn't have been significantly used for recreation until mid/late 1990"

As Harry's already pointed out, if the landfill site is in dispute (which most accept it is and therefore think this evidence should be returned to the inspector) then 9 acres of the site is in dispute, not the top half (19 acres).

What is the reason for this huge discrepancy? The landfill did not cover 19 acres. No one claims it did either.

The recommendation from officers was perverse.

floraswift said...

1) the inspector heard 10 days evidence and wrote a 250 page report.
2) an accountant does not hear any evidence and writes 3 paragraphs
3) his recommendations just happen to be what the council wants and what the developers want
4) members of the committee clearly had not read the statements - see the behaviour of cllr jackson
5) you have preliminary views on the basis of having spent 2 hours reading the papers - but you have not heard any witnesses and you rely upon some photographs
6) Cllr Woodman moves that it should be referred back to the Inspector - surely that is the only fair thing to be done
7) this really is a sham being done in the hope of currying favour with the evening post, and hoping that there will be no challenge
8) you seek to justify your position but I think that you know that this is a sham

Neil Harrison said...

Flora - I think you've misread. I voted with Alex Woodman to refer the new evidence back to the Inspector (or, more correctly, not to accept the officers' recommendations). Also, I spent two hours on the new evidence, but much more time on the other documents. I agree that it appeared that some of the other councillors hadn't.

The Bristol Blogger said...

Remember, PROWG members were advised they were not required to read the evidence by the Head of Legal Services:

"The new evidence comprises a bundle of documents from the objector and from the applicant. This evidence is summarised in the appendices. There is no statutory requirement that a Committee reads this documentation, and there is no statutory requirement that it hears from the witnesses who have submitted statements."

Odd piece of advice, eh? In effect, they can get away with not even knowing what this new evidence is.

floraswift said...

Bristol Blogger -- I agree and so how many of the councillors read the Inspectors report, how many read the new evidence, and did they really all read the applicants submissions attached to a statement -- this refutes the claim that the new evidence proves anything and shows that the new evidence had to be put before the inspector
I think that the McNamara trick is to keep referring to statutory requirements - but this is not good enough if this is about fairness
Neil - did you read the inspectors report, and do you know if anyone else apart from you and cllr woodman read the new evidence
And is it really fair for the committee to decide on 3 paragraphs plus a lot of irrelevant stuff written by someone who knows nothing about this law (and who has not seen any cross examination) as against 10 days of evidence and a 250 page report by an expert
Dont you agree that this stinks

The Bristol Blogger said...

Of course while there may be nothing in TVG statutes about members' being required to read evidence, Mr McNamara conveniently forgets to draw members' attention to Part 5, Section 11 of their own constitution.

This deals with the conduct of members in relation to statutory committees such as PROWG:

"11.3 Members should come to a decision only after due and proper
consideration of all of the information reasonably required upon which to base a decision. If members are of the opinion that there has been insufficient time to consider new information or there is insufficient information before them then they should request further information and, if necessary, defer or refuse the application."

To reasonably take the decision, members would have required the Inspector's Report, the "new evidence" and the applicant's "new evidence" at the very least.

None of this was provided.

floraswift said...

Bristol Blogger - thanks case proved that this was a sham
Neil - are you going to do anything about this, you know this is a sham. Or is your position within your political party to important for you to do the right thing, It really is not enough for you to just vote against, This stinks because the council is breaking the law to get what it wants, in the hope that the Evening Post stories of how much it will cost will frighten people off. Please help this to be exposed - do the right thing, restore my faith in councillors and democracy, dont just take the pieces of silver and keep quiet

Anonymous said...

The committee decision (to adopt the recommendation for partial registration) includes cast iron evidence of its own illegality.

The question to be decided was how the site has been used in the past. Future developments are not a material consideration and should not be taken into account.

So how did they decide the line between the two parts?

The northern part: "all the land to the north of and including the proposed Bus Rapid Transit route"

The southern part: "to the south of and excluding the proposed BRT route"

That boundary is intrinsically defined by consideration of future use, not by past use.


Anonymous said...

Thankfully the committee voted for Bristol as a whole, as is right and proper in our democracy.

People seem all too easy to forget that the applicants reasons were just about stopping the stadium development. It really had nothing to do with saving green space. In any case, the fact is, the site was used for landfill. The arguments are whether it was 21 years ago or 19 years ago. Of course this matters with regards the statutory tests, but the fact remains it was landfill give or take a number of months around the 20 year mark. This has meant that the application has always abused the original purpose of the village green laws.

A lot of debate surrounds the evidence not being available. This is absolute nonsense. The VG report had been on BCC's website for months. If for any reason the councillors did not take all the evidence on board before making a decision then this would be a matter for their own constituents either now or at the next round of local elections. This is what democracy is about.

As for the council or committee breaking any laws or being unlawful in any way, well it just smacks of desperation really!

Anonymous said...

"In any case, the fact is, the site was used for landfill."

The landfill only covered part of the site - about 6-8 acres out of a total acreage of 42 acres for the Town Green application.

When the landfill was first applied for, it was described by the authorities as being suitable development for Green Belt because its use would only be temporary, and once the temporary use was over, the site would be returned to agricultural use compatible with the designation of Green Belt.

Anonymous said...

Landfill lasted early 1986 to late 1988 on small section of field one only. Photographic and documentary evidence shows this very clearly. Much Of the public inquiry focused on this in detail.

Applicants evidence was of 60 years of use of whole land.

The nonsense being spouted about this land being "just" and old landfill is simply foul minded propaganda. It has surprised me the extent to which stadium supporters have been prepared to lie about these issues.


The Bristol Blogger said...

"Thankfully the committee voted for Bristol as a whole, as is right and proper in our democracy."

The committee is a statutory committee charged with reaching decisions on the basis of a very strict and specific set of guidelines. None of these guidelines involve giving regard to "Bristol as a whole".

This blatant disregard by councillors for the process they were required to follow is an abuse of process and our democracy.

If members of the committee wished to discuss "Bristol as a whole" they should have stood down from the committee and made these points in the public forum provided for such matters.

Anonymous said...

Neil, I suspect that you wish you hadn't bothered now? In regards to moving this back to the Inspector, I thought that both parties wanted a decision by the council, not for it to be pinged around for a year or so, with additional cost to the tax payer?

It appears that there are some angry people here. Well it's one of those swings and round-a-bouts moments. I suspect that the objectors looked on with incredulity and anger when they saw the inspectors report.

It is one of those moments where one can sit back with a wry smile on ones face and think, now you know how it feels when you think something is corrupt and crooked.

Let's move this on to it's conclusion and see where the merry-go-round takes us. Let's test "all" the evidence and see if everyone still comes out smelling like roses.

Surely everybody would like their evidence tested a bit more rigorously?

Anonymous said...

Bristolblogger, don't forget that the committee consists of elected members of BCC so of course they will be influenced by the bigger picture, whether they're concious of it or not.
The committee isn't an independent body!

Anonymous said...

Yes the committee was not independent but the enquiry was,that is the point of the whole process.
We paid £30000 to avoid BCC being involved with the TVG investigation,so the outcome would be free of bias.
So what happens,BCC don`t like what they paid for,so they arrange a mini enquiry of their own,using evidence that was available in the orginal enquiry,they ignore the whole site and only comment on field one,so they have reversed the whole process to suit the objectors.
Not only that, they also included in the agenda document many references to the development that they wished to have on the site,and what would happen if they did not vote as they were instructed(advised).
Also the enquiry was for the whole site not bits of it,so it defeats me how the activity on the south bit appears to have met the test requirements when it is less accessible and quite wet,but the north part after 1989 a lot drier than it was and more accessable.
It seems that an independent enquiry needs a independant committee to ratify its findings.

Neil Harrison said...

Apologies to all for being an absentee landlord for the weekend - I was away at a wedding and for father's day.

I am not going to comment on the process, largely as I have deliberately stayed completely out of the various twists and turns, but also as the issue may return to the Committee at some point.

The purpose of my post was simply to explain my thinking on the basis of what was presented to me and my own voting.

The Bristol Blogger said...

"they will be influenced by the bigger picture, whether they're concious of it or not"

The councillors were driven by unconscious impulses? Freud made me do it!

In all honesty it is not that difficult for anyone to control their unconscious impulses over this and look at the piece of land in question objectively and look at its use over the last 20 years.

Anonymous said...

To be fair Bristolblogger, humans are not aware of their subconscious by definition!

Still Waters said...

Can Councillor Harrison state whether or not he read the advice in the Agenda that referred the members toward the benefits of 'partially' registering the land as TVG and thus allowing development of the stadium and, very conveniently, the rapid transport link?

Still Waters said...


It may seem a strange thing to ask, given the Agenda provided to all members, but legally I have to ask all members to confirm that they did indeed read the advice.

Many thanks.

Neil Harrison said...

Still Waters - I read all the papers for committees that I sit on.

Anonymous said...

I have now witnessed two Rights of Way applications be turned down, 3 Town Greens turned down and now this farce over Ashton Vale.

The same thing happens each time:

1. A ridiculous and absurd legal adcice is provided which justifies exactly what the council want. In each occasion, it has no resemblance to the law.

2. The structure of the meeting does not allow the legal advice to be challenged in any meaningful way.

3. The majority of the councillors nod it through

4. the minority make out they are objecting whilst essentially doing nothing but going with the flow.

The PROW acts to serve no one but the landowners of this city. It fails to act for the people it is elected to act for.

If the people had the money to bring Judicial Review proceedings of every PROW decision, every one would be overturned.


Anonymous said...

Anonymous said...

If I didn't know any better, you'd think that Stockwood Pete was just another failed local politician. And then you find that he is. Quelle surprise.
18 June 2011 07:41

Rob F/Ole/Mike Ford alert