Here are some notes following a conversation with a Common Land Case Worker. This may help if you are submitting an objection to WBC’s plans to seek Common Land consent for refurbishment of the Wey Hill (Fairground) Car Park.
1) If an S38 application is straightforward the process will not involve an inspector and will take 12 weeks from the date they receive the confirmation from the applicant that they have given written notice to all whom that they have to notify.(not from the date of submitting the application). If they get anything wrong in the application it could take longer.
2) If there is anything not straight forward or questions need to be addressed the time will go out to 26 weeks for exchange of correspondence etc.
3) An inspector will become involved and a hearing or public inquiry held if there is complexity or there is sufficient weight of public opposition.
4) Any application must meet/be in accordance with the criteria set out in S39 to demonstrate benefit (or disbenefit also considered) to the community.
5) The initial informal consultation before making a submission is advisory and not mandatory but should be done to try to ensure a smooth passage of the application and no unexpected issues being raised.
6) The Planning Inspectorate deals with S38 applications on behalf of DEFRA who have the ultimate responsibility/authority. DEFRA have published a document which goes into the background and policy relating to S38 and S39 Common Land consents.
7) I queried the validity of the suggestion that P&D charging was irrelevant to this S38 application, that it should not be used as a reason for objecting and that if it was it would invalidate the whole objection submission. I was told that objectors can mention anything they like if they think it is important (and often mention many irrelevant matters) and the casework officer will determine its relevancy and the weight the point may have in determining the application.
Relevant statements in S39 – The Authority shall have regard to :-
– Interests of the neighbourhood
– Public interest
– Any other matter considered to be relevant
Consents may be given:-
– In relation to all or part of the works
– Subject to modifications and conditions as the Authority thinks fit
The effect of the application will be considered in conjunction with previous consents under S38 and section 194 of the Law of Property act 1925 (c.20)
A time limit may be specified.
The DEFRA publication – Common Land Consents Policy Guidance July 2009 may be helpful. It is too long to summarise and does, inter alia, enlarge on the three regards above (neighbourhood, public and any other relevant matter). Necessary reading to prepare comprehensive objections.
Here is the text of a letter of objection to the Planning Inspectorate regarding Waverley Borough Council’s plans to refurbish the Wey Hill car park.
Reference: Waverley Borough Council’s application for Common Land consent Wey Hill (Fairground) Car Park, CASE REFERENCE: COM 454
Waverley Borough Council has submitted its application for Common Land consent for the area known as The Fairground within the Register Unit No CL340 land which is divided into three pieces: one a triangular piece north of the road and south of an Arts And Crafts church St. Christopher’s Church, being a grassy area open to the road: another being a slightly larger piece on the opposite of the road, between the road and the railway and The Fairground and the third piece being much smaller than the others, a grass area south of the road and west of the car park area. This area was formerly known as Clay Hill Common. The Fairground itself was a former clay pit with its surface now comprised of tipping materials. Haslemere, in South West Surrey, is a market town that is separated in two by the mainline train station. The Wey Hill area, where The Fairground is located, is less historic than the main town centre and struggling economically.
Waverley Borough Council knows that as a community we are creating a vision for our town. Haslemere Vision http://haslemerevision.org.uk/ has been convened in Haslemere under the provisions of the Localism Act. The Vision is endorsed by Jeremy Hunt, MP South West Surrey, who supports the Neighbourhood Planning Forum’s vision to put forward its own creative plans for The Fairground. This land was transferred to Waverley Borough Council when the Urban District Council became defunct with local government reform. Surrey County Council was directed to register Waverley District Council as owner of this Common Land on 6th April 1977, however, Haslemere Town Council is applying for an asset transfer for this Common Land in order to work collaboratively with Haslemere Vision.
Accommodating a growing number of commuters travelling by car is a growing problem in Haslemere and there are many initiatives in place that are helping to alleviate this problem. Firstly, Network Rail is in pre-planning with the council for an additional 60 plus spaces on land north of the station in the land known as Jewson’s Yard (located off Weydown Road). Secondly, South West Trains obtained planning permission for a multi-storey car park to be built on the existing station car park (this car park is 0.3 miles away from the fairground car park) in 2009. Jeremy Hunt, MP, South West Surrey, recently met with the Department for Transport and the Transport Secretary and is representing his constituents to find a solution to accommodate this growing number of commuters, specifically at Haslemere station. (Ref: South West Surrey, Conservatives newsletter: http://haslemereparking.com/wp-content/uploads/IMG.pdf Jeremy Hunt, MP, supports: “a robust plan for a multi-storey car park at Haslemere station”)
Commuter parking for the station is a problem. Finding a solution for car parking must not compromise the attractiveness of our town. Space must be put aside to build additional parking capacity in the town. This must also be done at the same time as better public transport solutions (buses and park and ride schemes etc.) are considered. The Fairground belongs to the community and should not be considered as part of the parking solution without a full assessment of the multi-storey train station car park provision and full local engagement.
The town must have the opportunity to draw up plans for alternative uses for the site via the neighbourhood planning forum, Haslemere Vision. The Wey Hill area in Haslemere seeks a new regeneration and The Fairground site could play a vital role in realising that vision.
Having reviewed Waverley Borough Council’s application for consent for the refurbishment of the Wey Hill (Fairground) Car Park I list below my numerous objections to this application:
I strongly object because a Section 38 application does not apply to these works.
The Planning Inspectorate’s Guidelines* for Section 38 state:
“Works for the management, improvement or protection of the common, or which would be otherwise consistent with its traditional uses (eg grazing, public recreation)”.
However, Waverley Borough Council intends to carry out works that would not be
“consistent with the traditional use of the common, or for its management, improvement or protection (eg works for purely private benefit, or which would be to the detriment of the common).”
An example cited in the Common Land Guidance is
“car parks on the common for private use, where use has no connection with legitimate uses of the common for recreation”
with the recommendation that in this case the best option is a Section 16/17 Deregistration and Exchange.
I would suggest that “traditional use” on a common would include the cutting of bracken for animal bedding, the cutting of birch to make besom brooms, collecting firewood, grazing animals, access for air and exercise but not the parking of vehicles and certainly not the creation of a hard surface, installation of light columns, installation of a 1 metre high barrier, installation of underground cabling and Pay & Display machines! The car park is intended as a 60:40 Commuter:Shopper split.
There will be a private use for parkers via season ticket sales or daily tickets via a parking machine. Commuters have no legitimate use of the common as they are parking on site and leaving work to catch a train. (*Ref: Common Land Guidance Sheet 1a Consent To Construct Works on Common Land.)
There are structures such as barriers, re-cycling bins and approximately 170 parked cars that have no consent either under Sec 38 of the Commons Act 2006 Act or Law of Property Act 1925.
Should the Inspectorate decide that this Section 38 application is appropriate I ask you to review and consider my further objections below:
I object because Waverley Borough Council has not carried out an extensive informal consultation with local residents, shops, business owners and commuters. Below are examples that highlight this failure to consult broadly with the local community:
- The response rate to the informal consultation was very low at only “0.4%” of the electorate. This demonstrates there was no extensive consultation with the community. (Citation: Councillor Else, 28th January 2013, Meeting of the Corporate & Overview Scrutiny Committee.)
- Not all letters of objection were included in Waverley Borough Council’s informal consultation, for example, a personal letter of objection from the Mayor of Haslemere, Cyndy Lancaster, was omitted.
- Waverley Borough Council’s Parking Portfolio Holder declined a meeting request with residents to discuss the plans for The Fairground refurbishment through Haslemere Vision.
- In the week commencing 10th February 2013, Jeremy Hunt, MP for South West Surrey, asked the Leader and Chief Executive to slow down this Common Land application in order to allow for engagement with Haslemere Vision and to give the Planning Forum more time to submit plans for this site. Our MP was informed the application has already been submitted. It hadn’t. Please note WBC’s site plan that was submitted with the application is dated more than 2 weeks later on 27th February 2013. This is a further example of a lack of local engagement.
I object because Waverley Borough Council did not use its informal consultation to identify or overcome any objections. Below are examples to highlight this failure:
- Waverley Borough Council’s Parking Portfolio Holder has asserted that the responses in the recent informal consultation “are absolutely no different at all” from responses to the 1994 Secretary of State application which “means we do have a completely up-to-date view”. (Waverley Borough Council’s Overview & Scrutiny Committee on 28th January 2013.) This is absolutely not the case. The word “neighbourhood” in the context of collaboration with Haslemere’s Neighbourhood Planning Forum, Haslemere Vision, was used a total of 29 times in the recent informal consultation. There was no Localism Act in 1994. In 1994 we were not on the cusp of a triple dip recession. In 1994, we were not discussing significant additional parking capacity via a multi-storey car park at the train station or the recently available spaces in Jewson’s Yard which would free up the Wey Hill (Fairground) for alternative uses. Waverley Borough Council has given no consideration to the full potential of uses for The Fairground.
- Waverley Borough Council received 64 letters as part of the informal consultation based on a public notice that drew notice to a refurbishment with the words “pay & display” and “parking meters” in small print. Their officers summarised this as 15 in support and 16 against refurbishment of. Letters of objection that mentioned future charging on the site were ignored by WBC. On reading Annexe 2 of the report that was presented to WBC’s Overview & Scrutiny Committee, 45 letters were clearly against refurbishment, i.e., 70% of respondents. Had the Mayor’s letter been included, that would have been 46 letters opposing refurbishment. Waverley Borough Councillor’s Head of Environmental Services, reported to the Overview and Scrutiny Committee on 28th January 2013 that the responses that mentioned charging “are not actually of relevance to this consultation process.” This is at odds with Waverley Borough Council’s own submission as part of the application which specifically addresses the charging element (Item 15): “The conflict of interest between long-stay commuter parking and short-stay shoppers’ parking is increasing becoming difficult to manage. A refurbished car park, with a carefully structured charging and enforcement regime will ensure the interests of both are balanced and safeguarded.”
- At Waverley Borough Council’s Overview & Scrutiny Committee on 28th January 2013, Councillor Maurice Byham expressed concerns about the informal consultation: “Well, many of us have said it already but I’ll say it again, I think it is totally disingenuous to actually not consider and look at the very long list of people who are objecting strongly because of the possibility of charging … The officers are in a very difficult position of having to put forward a case where they are basically misleading the public.” This was also reported in the Haslemere Herald, 8th February 2013.
- The council has ignored its own policy “Understanding Peoples’ Needs” by failing to recognise residents’ concerns communicated via the informal consultation that this refurbishment will have a significant damage for the business owners in the Wey Hill area of Haslemere. The area is already feeling the effects of the current severe economic recession.
I object because the plan that has been submitted has significant information missing. Waverley Borough Council intends to install parking machines for the purposes of charging for parking services and the plan that has been submitted to you does not indicate how many parking machines there will be and, as a consequence of this omission, there is no way of knowing where they will be located.
- Please review the plan here on the community website haslemereparking.com: http://haslemereparking.com/wp-content/uploads/Wey-Hill-Application-Plan-March-2013.pdf which shows absence of markings for parking machines.
- The Pay & Display parking machines installed across all Waverley Borough Council’s car parks are manufactured and maintained by Cale Bri Parc with a recent upgrade to the 104 model (Page 12, Waverley Borough Council’s Car Park Review, 2011). Page 1 of WBC’s Car Park Review demonstrates the visual impact of installing such machines with its visually unattractive signage, tall canopy and concrete fixings for these machines on Common Land. http://haslemereparking.com/wp-content/uploads/WBC-Car-Parks-Review-15a_annexe_1_1_1.pdf
I object because Waverley Borough Council has not considered the displacement effect that charging will have on roads in the area.
- These plans will reduce car parking capacity in Haslemere and will cause serious displacement issues in residential roads where many car users will not pay to park. This will not be for the wider benefit of the community.
- Cllr Byham and Cllr Cockburn of WBC both raised concerns about displacement. These were disregarded because an Officer informed them: “On street parking is probably not of relevance because again that concerns displacement as a consequence of charging.” (28thJanuary 2013, Community Overview & Scrutiny Committee, WBC)
Waverley Borough Council has ignored the basic principles of The Social Value Act by not considering the Social, Economic and Environmental impact of spending £342,000 for this refurbishment.
In submitting this application to refurbish the land and create revenues via pay & display it is my view that the fundamental principle is for Waverley Borough Council to raise revenue via parking fees and enforcement fines with no consideration of the social, economic and environmental procurement requirements of the Social Value Act. Listed below are examples highlighting this under the headings of negative social impact, negative economic impact, and negative environmental impact.
EVIDENCE TO SUPPORT OBJECTION SIX: Negative social impact
- There is a negative social impact of the loss of free parking and the lost potential from introducing a community space via Haslemere Vision.
- There is a negative social impact of the proposals on the community. Shops, the youth centre, the library, businesses and the church will all be badly affected. The council has ignored its own policy “Understanding Peoples’ Needs” by failing to provide any evidence based research as to how this capital spend of £342,000 will benefit residents, businesses, visitors, commuters, etc.
- Waverley Borough Council has had 39 years to consider uses for this site and has failed to bring solutions to the table. It has failed in its current duty as custodian to manage and protect this Common Land (Ref: DEFRA Common Land Consents Policy Guidance, Introduction 1.1) and has blighted the town with a site that the Vice-Chairman of the Overview & Scrutiny described as a “bomb site”, “Berlin in 1945” and “a kind of dump” (WBC Overview & Scrutiny Committee, 28th January 2013).
- It would be premature and wrong to proceed with these Wey Hill proposals until a holistic assessment of the current and future parking issues and a Neighbourhood plan has been drawn up for this site. There are so many ideas that might feed into a neighbourhood plan regarding future uses of this Common Land: Haslemere is a small market town with no market square – here is an ideal opportunity to provide one which would also be an outside meeting place; There is an opportunity here to substantially improve the appearance of this area to provide for informal recreation and to match the green space on the other side of Wey Hill which is attractively dominated by St Christopher’s church, one of the most important Arts and Crafts Churches in the country; Linking the Wey Hill (Fairground) car park site with the Wey Youth Centre that borders the site; Planning of the site to assist positive social and economic regeneration of the Wey Hill area: There is an opportunity to consider alternative transport solutions for commuters to arrive from out of the county.
- The development of a bleak commuter car park with all its soulless surfacing and visually detracting mast lighting and signage is contrary to the intentions of The Haslemere Design Statement for planning considerations in Haslemere. It is also contrary to Guidelines of providing aesthetic beauty in the landscape, which encourages tourism (Ref: DEFRA Common Land Consents Policy Guidance, sub-heading, Economic, 2.2)
- This area of Common land means that EVERYONE has a right of access at all times [24/7 365 days of the year] for air and exercise on foot and on horseback under Section 193 of the Law of Property Act 1925. WBC should be protecting this area of Common Land and not developing it. WBC states in Q28 of the application that the “Off Street Parking Places Order 2012” applies to the Fairground car-park. This states that persons cannot, without permission, tether, drive or ride any animal or undertake any recreational activity. This contradicts the rights under the Law of Property Act 1925 that apply to this area of Common Land. (Ref: WBC Off Street Parking Places Order 2012: http://haslemereparking.com/wp-content/uploads/Off-street_parking_places_Order_2012_final_-_Dec111.pdf)
EVIDENCE TO SUPPORT OBJECTION SIX: Negative economic impact
- There is a negative economic impact of these proposals. Waverley Borough Council has calculated the income potential of £100,000 – £120,000. In the WBC, Overview & Scrutiny Committee, 28th January 2013, the Parking Portfolio Holder stated: “We also have to bear in mind that following a recent survey the other half of the car park which is actually the biggest half, is occupied by commuters and a very very large percent of them, 80 something percent I seem to recall off the top of my head come from out of the county. They are not even within our county.” These commuters take up valuable space but the drivers are not supporting local shop keepers, as they are out of town all day. It has already been stated that the Wey Hill area is struggling economically. This application will provide an income stream via parking charges paid for by out of county commuters but it does not meet any cconomic requirements for the community as set out in 2.2 (sub-headings Economic, Recreation) DEFRA Common Land Consents Policy Guidance. It does not confer any wider public benefit as set out in “Policy Objectives – our policy objectives” – DEFRA 3.4 Common Land Consents Policy Guidance. Furthermore, as set out in this same item (3.4), the works proposed would not be temporary in nature since the pay & display machines and lighting would be set in concrete.
- Formalising car parking arrangements and introducing charges might cause reduced footfall for shops and business located in Wey Hill.
- A £342,000 spend cannot be justified as it would preclude any future development for the Common Land which might be aimed at providing wider public benefit to the community. This is profligacy in the face of uncertainty of future uses of the site.
- Furthermore, Pay & Display revenues on this site can be apportioned anywhere in the borough, with no benefit whatsoever for Haslemere. There was a £2.3 million surplus in the last reported year 2011-2012. There is no information regarding where that revenue has been spent.
EVIDENCE TO SUPPORT OBJECTION SIX: Negative environmental impact
There is a negative environmental impact on these proposals.
- The proposed drainage SUD system is geologically unsuitable as the ground composition of The Fairground is an impermeable clay pit.
- The sole environmental consideration in the consent application relates to low carbon lighting. There is no consideration to the impact of “Protect Commons for people to enjoy, understand and care for the natural environment and improved local environment quality.” (Ref: DEFRA Common Land Consents Policy Guidance, Protecting Commons – Our Policy Objective 3.2)
The recently established Neighbourhood Planning Forum has ideas for the site to allow much greater community use. I object to these WBC proposals because they will seriously jeopardise those forward looking and exciting creative ideas for the Wey Hill area.
- Approval of this S38 application would cause serious harm to developing the Wey Hill area through the Neighbourhood Planning Forum, Haslemere Vision, under the provisions of the Localism Act. The proposed application to refurbish The Fairground site will not positively benefit the neighbourhood. (Ref: DEFRA Common Land Consents Policy Guidance, 3.9.2 – The Interests Of The Neighbourhood.)
- Sections 16(6) & 39(1) of the Commons Act set out the criteria that an application must propose the best possible outcome for the Common Land. I believe a more acceptable outcome might be realised by adopting a different approach through the Neighbourhood Planning Forum, with extensive, inclusive and transparent engagement.
I object because Waverley Borough Council’s decision to refurbish the Wey Hill (Fairground) is pre-determined to raise revenue via parking charges aimed at commuters who travel from out of the County. This revenue raising exercise does not confer any wider benefit on the local community for Haslemere residents (Ref: DEFRA Common Land Consents Policy Guidance, Underlying public benefit, 4.14).
- In the 28th January 2013 Community Overview & Scrutiny Committee, The Head of Environmental Services, Robert Anderton confirmed that the budget for refurbishment fee of £342,000 was agreed on the basis of payback in the future for the council. He informed councillors that: “On the question of charging, I think all I can say is that yes, when the capital bid was first submitted and approved, it was submitted and approved on the basis that it was a sound business case because there was payback”
- In the 12th March 2013, Joint Community and Corporate Overview & Scrutiny Committees, Councillor Vorley pointed out that revenue from charging has been included in Waverley Borough Council’s Service Plan. He stated: “But clearly I think the disingenuous nature of this seems to be confirmed by the fact that it is already in your service plan as a done deal, despite the fact that the last time we discussed this you talked about it wasn’t being done on an income based model. And yet, clearly, you are stating anticipated annual income of £100K to £120K per annum. So, it strikes me that it is a done deal and yet you are telling councillors in other meetings that it is not a done deal and I put it to you that you are again being somewhat disingenuous.” (WBC Service Plan here: http://haslemereparking.com/wp-content/uploads/WBC_Env_Services_Service_Plan_13_14-_FINAL_1_Mar_2013.pdf pages 8-9)
- Waverley Borough Council’s Service Plans presented to the Joint Community and Corporate Overview & Scrutiny Committee on 12th March 2013 listed the following under its ‘success criteria/measures’ heading: 1. Robust consultation process carried out, 2. Common Land Consent obtained for the project, 3. Refurbishment project delivered and 4. Amendment to Parking Order made to enable introduction of charging, including further statutory consultation. The service plan sets out that £342,000 will be spent on the refurbishment, £1,500 on consultation, £20,000 contingency for public inquiry, anticipated annual post completion of £100,000 – £120,000 per annum depending on agreed tariff structure. Clearly this refurbishment is intended for WBC to create private use for parking as set in Objection One.
SUMMARY AND REQUEST TO REFUSE THIS APPLICATION
I believe this Section 38 application should be refused and Waverley Borough Council should consult properly with residents over use of the land. If, after extensive and open consultation, it is obvious that the town believes a car park is the right use for this common land, then Waverley Borough Council should be applying for a Section 16/17, to de-register and exchange.
There is now an opportunity for Haslemere Vision to create a new plan to reinvigorate the Wey Hill area and The Fairground site is central to this regeneration. The original 1994 consent by the Secretary of State accepted the continued use as a car park as beneficial to the community. However, in 2013, a business plan is now in place to develop a multi-storey commuter car park at Haslemere station, which will remove any need for commuter car parking on The Fairground. At the same time, better transport infrastructure (buses and park and ride) ought to be considered to discourage so many cars from out of county. This Fairground site belongs to the community and should not be considered as a commercial enterprise by Waverley Borough Council. I urge you to consider in detail all my objections and refuse this S38 permission for refurbishment of The Fairground.