Report of the Village Green Working Party, February 2008

A Working Party was set up at the November 2007 Parish Meeting to clarify the various implications of the generous offer made earlier in 2007 by Mr Giles Thompson to gift ownership of the "Village Green" to Mallerstang Parish Meeting, on behalf of the residents of Mallerstang. Their Report was presented to the elected Officers of the Parish Meeting on 11th February 2008.

Printed copies of the full Report were then posted to all households in Mallerstang, in preparation for a Extraordinary Parish Meeting to be held on Wednesday 27th February 2008 at the Black Bull Inn, Nateby,  to discuss and to decide on the recommendations contained in this Report. 

The Report begins with a summary of Recommendations; the main body of the report follows in 12 Sections.  Appendix 2, a map showing the pieces of land concerned, has been inserted in Section 5  -  but unfortunately it has not been possible to reproduce the other appendices here.

Recommendations

1. The offer should be accepted.

2. The land should be referred to as The Mallerstang Village Green at Outhgill

3. The ownership of the land will be vested in the Trustees of The Mallerstang Parish Meeting.

4. A Village Green Committee should be established, responsible to the Parish Meeting for the management and maintenance of the Village Green. It should be a sub-committee of the Parish Meeting, appointed at a General Meeting. It should consist of five members, two of whom should be residents of properties adjacent to the Village Green. It would appoint its own officers, have power to co-opt additional members, arrange suitable procedures and report annually to the Parish Meeting .The Committee would research and monitor the use of the Village Green, investigate any financial requirements and raise necessary funds.

5. Temple Heelis Solicitors of Kendal and Windermere (partner involved Charles Robinson) should be appointed to act on behalf of the Parish in the acquisition.

6. At the next renewal of the Parish’s Public Liability insurance both the coverage, the quantum and the description of the Insured Parties should be reviewed.

7. This Report should be made available in full to each member of the Parish in a timely manner prior to the Extraordinary General Meeting.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1. Introduction

At the Mallerstang Parish Meeting held on Thursday, 21st June 2007, Giles Thompson offered to gift the Parish, the land located at Outhgill known as the Village Green. The offer was subject to the Parish paying any conveyance expenses incurred by him.
At the next meeting on Thursday, 1st November 2007 a Working Party was appointed to investigate the matter and to report findings and recommendations to the Parish Officers as soon as possible, after which an Extraordinary General Meeting would be called to discuss options and to make a decision.

2. Terms of Reference

1. To investigate the financial implications of accepting Mr Thompson’s offer of ownership of the Village Green, including any ongoing costs. (e.g. insurance)
2. To clarify the boundaries of the land involved.
3. To investigate the setting up of a Trust, as holder of the land.
4. The working party shall elect its own chair- person and secretary and determine its methods of working, the frequency of meetings, etc.
5. The elected Parish Officers (Chairman, Vice-Chair and Parish Clerk) shall not be members of the Working Party but may be called upon to give assistance on particular matters.
6. The Working Party shall be empowered to co-opt others, either as full members or to assist with particular points.
7. A report shall be presented to the Parish Officers as soon as practicable, aiming for the first week of February.
8. If unanimous recommendations cannot be agreed, the report shall include a list of possible options.

3. Members of the Working Party

The Parish Meeting appointed Robert Bradley, Gordon Hutton, Richard Tattersall, Paul Watson and Margaret White. 
At the first meeting of the Working Party Richard O’Connor, as Parish Clerk, attended by invitation. Gordon Hutton was elected Chairman and Margaret White was elected Secretary.

4. Meetings and Procedures 

The Working Party met on five occasions; administration funding was established and action and decision points were recorded.
A letter from the Working Party, (Appendix 1) dated 5th December 2007 asking for submissions to be returned by 2nd January 2008, was sent to all the households in the Parish. Six responses were received and the Working Party acknowledges those with their thanks.
The Working Party is also grateful for help and information received from other individuals and organisations.

5. The Land

The Working Party has investigated which land is included in the offer and the status of each individual piece involved.
For descriptive purposes only and with reference to the annotated map, (Appendix 2) they are numbered: -

1. The Beckside Piece - adjoining Outhgill Beck
2. The North Piece - in front of the Travers Institute
3. The Triangle
4. Area in front of High House
5. The Small Triangle
6. 5’ strip - part of 1 above
7. Small area adjoining The Barn

Appendix 2

Notes
· Only 1 and 2 are currently registered as Village Green
· Although the Village Green, as shown on the map, does not incorporate Outhgill Beck, there is a presumption that ownership will encompass the bed of the Beck up to the halfway point. This could be proved otherwise e.g. that the land on the other side (currently owned by Giles) specifically includes ownership of the whole Beck, (which does not seem to be the case).
· Any rights of way or other easements over the land will be identified.
· There is no conflict with the rights of The Lordship of the Manor over the land.
· Opinion is clear that no liability attached to the existing owner of the land in relation to the July floods - arising from his ownership of the land forming part of the offer.

Under the Commons Registration Act 1965 six pieces of land (1-6 inclusive) were identified for provisional registration as Village Green on 4th December 1969. Following an objection by the Highway Authority on 21st September1971 four pieces were removed (3-6 inclusive) but when the objection was later withdrawn they were not re-registered. The reason for this is not entirely clear. However, there is some evidence that these four pieces were part of the common or moorland (East Mallerstang Common) bought by Guy Thompson from the Hothfield Estate in 1962, but this is for interest only.
Two of these pieces, (5 and 6) have now been incorporated into the public highway, or are de minimus to consideration of the offer, and another (4) has for some time been treated as part of High House land.
The final unregistered area, The Triangle (3) adjoining the property called The Lodge, is subject to a Right of Way contained in a Deed of Easement dated 7th June 1993 granted by Giles Thompson to the then owner of The Lodge. This Deed was drawn up in such form, in the absence of any proof of ownership by any other party, thereby establishing Giles’ rights, so far as they exist. This is the basis on which a conveyance to the Parish would be given. No challenge to Giles’ rights has ever been made and the Parish has used this piece of land uninterruptedly for at least thirty years for parking and on one occasion, for planting the Frankland memorial oak tree. 
The Beckside Piece and the North Piece (1 and 2) were given final registration as Village Green on 7th September 1972 and, following publication of The Commons Commissioner’s decision dated 8th January 1981, were confirmed as owned by Guy Thompson under The Commons Registration Act 1965 on 15th April 1981. This land subsequently passed to Giles Thompson on his father’s death.
The main Beckside Piece has a small area, situated in front of The Barn (7) which Giles sold earlier and which is now in Receivership as a result of the bankruptcy of the previous owners of The Barn. Therefore this cannot be conveyed. Technically it is still part of the Village Green and is registered as such and the Parish’s enjoyment of it is not impaired.

In summary, the land included in the offer that would be conveyed to the Parish, subject to the qualification stated above, is comprised of three pieces, (1, 2 and 3) namely:- 1.The Beckside Piece, 2.The North Piece, 3.The Triangle.

6. Arguments Against Acceptance of the Offer
Identified by the Working Party and from the Valley Survey.

1. Initial financial burden arising from the costs of conveyancing, registration, setting up any necessary trust arrangements, any additional insurance premium and administration of the acquisition. See paragraphs 8(e), 9(a), and 10.
2. Ongoing cost of maintenance and management. See paragraph 9(b).
3. Additional legal liabilities attaching to the Parish arising as a direct result of ownership. See paragraphs 7(b), 8(f), and 8(h).
4. Increased responsibilities to maintain and safeguard the land and the banks of Outhgill Beck. See paragraphs 8(g) and 9(b).
5. Trepidation about the outcome arising from any future flooding. See paragraphs 8(g) and 9(b).
6. Opinion that no material advantage will be gained through ownership over existing rights enjoyed from the present Village Green registration. See paragraphs 7 and 8(d).
7. Discord may arise between those who live adjacent to the land and those who live further a field.


7. Arguments for Acceptance of the Offer
Identified by the Working Party and from the Valley Survey

1. The Parish will acquire the unencumbered freehold of most of the land.
2. Control and power of decision will be vested in the Parish.
3. Protection will be provided should the present benign ownership, at a future date, be replaced by a less helpful or more aggressive attitude.
4. Interests of Parishioners at large, as well as residents adjacent to the Village Green, will be reinforced by the Parish acting collectively e.g. against development, local authority intervention, legislation or statutory body attitudes, and for negotiation with authorities.
5. Enjoyment of the land will be secured for future generations.
6. Insurance will cover any foreseeable existing or future public liabilities. 

8. The Legal Aspects

a) What is a Village Green?

Other than for the purpose of registration under the Commons Registration Act 1965, village greens, though frequently referred to in Acts of Parliament, are not the subject of either statutory or judicial definition.
However the essential characteristic of a village green is that by immemorial custom the inhabitants of the village or parish should have acquired the right of playing lawful games on it and enjoying it for the purposes of recreation. There is, however, no right of occupation accruing on the inhabitants.
The nature of the enjoyment is a matter for proof in each case, and the custom must be limited to the inhabitants of the parish for which it is claimed.

b) Registration of a Village Green.

Village greens were required to be registered under the Commons Registration Act 1965 between January 1967 and July 1970 and unless so registered were not deemed to be a village green. In the case of the Green at Outhgill this was registered in 1969 as required in order to protect such rights as there may be.
Recent legislation since the turn of the century does now allow parcels of land not previously registered as a village green to be so registered provided certain criteria are met, for example, land on which for not less than 20 years a significant number of inhabitants of the locality have indulged in sports and pastimes as of right. “Sports and pastimes” is a composite phrase to avoid arguments about whether an activity is a sport or a pastime.

c) Effect of Registration 

The law in relation to this is unclear. There have been a number of legal cases on this issue over the years but the law is uncertain. One view is that even though a village green may have been registered there is still a requirement to prove the nature of its use, for example, the playing of a particular sport, say cricket or football, or, the exercise of a particular pastime, say tobogganing, in order for the inhabitants to exercise that right. That unless that particular use can be proved, the owner can refuse its use for that purpose despite registration as a village green.
In a case in 1975 Lord Denning the then head of the Court of Appeal suggested that the mere fact of registration as a village green meant that it should be available for sports and pastimes for the inhabitants. That suggestion is non-binding and is somewhat controversial.

d) Why bother to acquire The Green?

If the Parish Meeting owned the land as well as the inhabitants having the benefit of the registration as a village green, there would be no uncertainty as to what pastimes the inhabitants could use the green for without having to establish proof of use over the years. Subject to the consent of the Parish Meeting (and the laws of the land including planning and environmental issues) it could be used for any pastime provided that that use was not inconsistent with the fact that it is in fact primarily to be kept as an open space. 
By way of example, a bring and buy sale, or a village fete, could be organized without having to establish customary use for such event over many years.
Presently Giles Thompson is the effective owner of the green and may be regarded as public spirited in his approach. If Giles sold the green, his successor may not prove to be so benevolent. At the moment the Mallerstang Parish notice board is on the green and a red telephone box, there may be an issue as to whether a new owner could require their removal.

e) Does the Parish Meeting have the legal capacity to buy The Green?

Yes it does. The constitution of a parish meeting is set out in the Local Government Act 1972 s.13. 
The trustees of the Parish Meeting are the Chairman for the time being of the Parish Meeting and the proper officer of Eden District Council. The trustees are known as “the Trustees of the Mallerstang Parish Meeting” and are in law a statutory corporate body capable of holding legal title to land. (Appendix 5)
However s.13(4) of the Local Government Act 1972 stipulates “The parish trustees shall act in accordance with any direction given by the parish meeting.” This is a mandatory requirement and their failure to do so would be illegal. The only exception is if the Parish Meeting directed them to anything in itself illegal.
There was initially some uncertainty as to the right of a parish meeting to acquire land (despite the fact that the trustees can hold legal title) but these uncertainties have been dispelled now by the letter of 15th January 2008 from Paul Foote, Solicitor and Director of Corporate and Legal Services of Eden District Council. (Appendices 3 and 4)
Furthermore Mr. Foote has confirmed that Eden District Council will be directed by Mallerstang Parish Meeting in respect of the decision whether to buy the Green.
One specific question that was raised as a result of the working party’s consultation is;
Would it be better to acquire the Green without involvement of the district or county councils by owning it via a stand alone trust nominally independent of the Parish Meeting?
Our emphatic recommendation on this point is “no” It would be inappropriate for the Parish Meeting to be used as a vehicle to try to thwart the constitutional mechanism where by virtue of the Local Government Act 1972 the District Council has influence in the affairs of the Parish Meeting. It would be undemocratic. Furthermore it would not be possible to set up a stand alone trust which was “nominally independent” of the Parish Meeting, and yet the Parish Meeting retain control. You either have control or you don’t.

f) What legal obligations would be imposed on the Parish Meeting by virtue of owning The Green?

Technically the obligation would be on “The Trustees of the Mallerstang Parish Meeting” the corporate body.
Whenever anybody buys land they have responsibilities to owners or occupiers of neighbouring land and to visitors to the land.


Main areas of responsibilities

1. Not to be negligent in what you do or don’t do with the land

2. Not to be a nuisance to your neighbours or visitors to the land

3. Not to breach any duty imposed by statute to visitors or neighbours

Explanation

1. Negligence
In order to be liable in negligence you must
(a) owe a duty of care to someone
(b) breach that duty
(c) your negligence (careless conduct or omission) must be the actual cause of damage
(d) the damage must not be so unforeseeable as to be so remote to found a claim

2 Nuisance
This is a condition or activity (or omission) which unduly interferes with the use or enjoyment of neighbouring land

3. Occupiers Liability Act 1957
This Act of Parliament imposes a duty to take reasonable steps to ensure that any visitor to the land is reasonably safe

To all intents and purposes there is little difference between negligence and nuisance to the practical application of these principles to the ownership of the Village Green.


g) Flooding

There are numerous nineteenth century cases that decide that a landowner is not obliged to take any precautions to prevent a natural watercourse flooding onto a neighbours land. Although those cases have not been specifically overruled the consensus amongst lawyers is that they are no longer good law.
The law evolves over time to adapt to changes in society and in the present climate as flooding becomes an ever increasing problem the law will continue to evolve.

The law as is presently stated is set out in two cases. (Appendix 6) Firstly, the case of Goldman v Hargrave (1967) which is an Australian case and was decided in the final court of appeal for Australia, the Judicial Committee of the Privy Council. The JCPC sits in Downing Street and is made up of the same judges who sit in the House of Lords appeal court and so although not binding on the domestic courts of this country is very persuasive authority. Secondly in the case of Leakey v National Trust (1980) which was heard in the Court of Appeal when the court felt obliged to follow the decision in the 1967 case. Neither case involved a flood and so only principles can be taken from these cases. However in Goldman v Hargrave a hypothetical example was set out by one the judges in which he considered the legal responsibilities of an owner of land with a stream flowing through it .An extract of what the judge said in giving the hypothetical example is set out for those people who wish to read it, but it can be summarized; 

Provided the trustees did not and Giles has not moved the course of the beck the only responsibility is likely to be to keep the bed of the stream clear, cutting weeds and removing silt or stones accumulated. Even then the failure to do so would have to be the cause of the damage for there to be liability. If the only remedy to prevent flooding is substantial and expensive works then it might well be that the trustees would discharge their duty of care to neighbouring landowners by saying you have permission to come on to my land to do agreed works at your expense, (see bottom of page 526 and top of 527 in the extract from the case of Leakey v National Trust) 
If the trustees were to move the course of the beck or Giles had (at least in the last 20years) done so (which we believe he has not) the position would be entirely different. In those circumstances the trustees would be liable for any reasonably foreseeable damage caused by water escaping from the channel, even if they were not negligent, because it is the duty of anyone according to the law of nuisance) who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which they have provided for the natural channel, they will be liable.

h) Injury to visitors to the Green

This is the main risk of liability to the trustees. It is the risk of someone injuring themselves whilst visiting the site, for example, whilst visiting the Jew Stone or whilst simply having a picnic. The most likely scenario would be someone falling over due to hole in the ground. The owners do owe a duty of care to visitors both in common law (negligence and nuisance) and under the Occupiers Liability Act. The duty is simply to take reasonable steps to ensure they are reasonably safe whilst on the green. It is not felt that this is an onerous responsibility. It would be necessary to perhaps walk over the green maybe twice a year to look for obvious defects. Whilst each case turns on its own precise facts there is a recently reported case Coles v Davis-Gilbert The Times April 5th 2007. In that case the occupiers of a village green were not liable for an accident suffered by the claimant who fell into a hole left by a maypole used in a fete.

i) Conclusion

Whilst there are undoubtedly risks associated with the ownership of land the risks in this case are limited.

9. Funding

a) The financial cost of acquisition. 

The Working Party is now satisfied that there is no requirement to set up any new Trust arrangement to own the Village Green and that no immediate additional cost will be incurred for insurance.
The remaining cost implications relate to conveyancing and Land Registration.
A condition of Giles Thompson’s offer to gift the land to the Parish is that the Parish meets his conveyancing costs. The present estimate of the work involved would indicate a cost in the region of £600 + VAT - say up to £1000 in all.
Temple Heelis Solicitors have offered to act on the Parish’s behalf on a pro bono basis - no legal fees and no stamp duty - in return that some promotional literature is circulated with the Report. The Land Registration fee will depend on how our application is treated, but may be as little as £40. Due to the uncertainty explained in section 11 the estimate is between £50 and £250.
To fund the costs of acquisition, the Working Party has approached both The Friends of the Lake District and Cumbria County Council Community Unit, both of whom sounded as if they would support the application by contributing to an overall amount of £1500.
Mallerstang Consolidated Charities have indicated their willingness to meet any immediate shortfall in fund raising for this purpose, subject to their own operating policy.
A representative of the Friends of the Lake District will have visited the site on February 15th.
The Cumbria application will be passed to our own Eden District Councillors who will make any recommendation for funding.

b) Ongoing cost of maintenance and management. 

Until now, no annual cost has been incurred to maintain the land. Any mowing or tidying up has been carried out on a voluntary basis.
Following the most recent flooding caused by the overflowing of Outhgill Beck, renovation was funded privately, largely by adjacent owners.
The future use of the land will be within the remit of the Village Green Committee. Maintenance and management will be controlled by it and clearly will be conditioned by the use to which the land is put, as will the level of any necessary funding. Regular inspection and maintenance of the banks of Outhgill Beck will help to mitigate the consequence of a future occurrence other than in the most extreme conditions. This indicates some future modest cost, which the Committee would deal with.
The Parish might well have a responsibility as part owner of the waterway to re-dig the bed following a catastrophe at some time in the future, but this would depend on the exact facts and is not quantifiable.

10. Insurance

The existing Public Liability insurance, in the name of Mallerstang Parish Meeting, will cover any additional legal liabilities which may arise from the assumption of ownership. The Insurers have been approached and have confirmed that no immediate additional premium will be incurred. Nevertheless, at the next renewal date, insurance coverage and quantum should be reviewed. (Appendices 7 and 8)

11. Registration of the Parish’s Ownership

The two main pieces of land, the Beckside Piece and the North Piece, will be registered by the Land Registry. The Triangle might be registered if the Land Registry accepts Giles’ title; if they are not satisfied they may not register this piece at all, or they may raise requisitions, in which case we may have to provide an affidavit from Giles, which may or may not satisfy the Land Registry.
Currently the Triangle is not registered as Village Green. The Working Party’s view is that this is not critical but might be considered at a later date if deemed necessary.

12. Future Timetable - if the offer is accepted.

It is anticipated that the completion of conveyancing, registration and raising of the necessary funding will take place within two to three months.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Disclaimer

Whilst these are the views of the working party including the retired solicitor on the working party these views are personally and not professionally expressed. The working party do not collectively or individually hold professional indemnity cover for the views expressed in the legal section of this report. Nothing in this report should be taken by anyone to constitute legal advice. Should anyone reading this report wish to have the benefit of advice they should seek it professionally through a practicing solicitor or barrister. No liability shall be accepted for any loss or damage caused by reliance of these private views.