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The footpath at the centre of the controversy, looking towards the main road.

The footpath at the centre of the controversy, looking towards the main road.

Second bid for control of Old Town footpath

Following a second attempt by the Flamingo amusement park owner to secure control over the footpath running between the park and the boating lake, Old Town residents and representatives are looking to the Foreshore Trust to help their cause but look likely to be disappointed. Nick Terdre reports.

A second attempt to take over the footpath which runs between the Flamingo amusement park and the boating lake in the Old Town has been launched by Michael Lee, the amusement park owner. Like the first, the move is opposed by Old Hastings Preservation Society, local councillors and the Greens, not to mention many residents.

The views of Old Hastings Preservation Society (OHPS) remain the same as before – the new application is no more welcome than the previous one, chair Anne Scott told HOT. The move amounted to “creeping enclosure,” she said. The first time round, OHPS delivered a petition opposing the application to the planning committee.

This time Ms Scott has written to the Foreshore Trust, which owns the land, suggesting that they declare the footpath a public one right of way. Cllr Beaney, chair of the council’s charity committee which constitutes the trustees, replied that ESCC could be petitioned to designate the Right of Way but they had already refused. She also said that, “Foreshore Trust has no right to compel its lessee to create a footpath over the latter’s land.”

In view of the “strange” response, Scott said she would check back in the files to see “when we or ESCC last suggested the Foreshore Trust did this.”

Lease changes unviable

It is presumed that the lease granted by the Foreshore Trust to the amusement park does not specify that the footpath is a right of way, or the application would not have been made. Amending the lease would therefore seem to be one solution, but HOT understands that the council’s legal department does not believe such a move is viable. It is also considered unnecessary as the amusement park owner is not proposing closing off the path.

Beaney’s position may surprise others who expected the Foreshore Trust to respond more positively, such as Old Hastings councillor James Bacon. “A suggestion has been made for the Foreshore Trust to consider designating the existing footpaths on the site as public rights of way,” he told HOT. “This would seem to potentially protect this area more so than the current arrangement.”

He said he had notified council officers of his dissatisfaction with the application, as well as the Stade Partnership and the Coastal Users Group. His fellow ward councillor Dany Louise said she shared Bacon’s views, and would be disappointed if the application were successful.

The first attempt to take control of the footpath failed earlier this year when Hastings Borough Council’s legal department dismissed claims by the owner’s agents, RPS, that the boating lake and amusement park, and the footpath which divides them, were a single entity for planning purpose. The application was refused by the planning department in April.

The footpath looking towards the sea.

The footpath looking towards the sea.

New argument from applicants

The second request for a certificate of lawful development argues that all the land to the east of the boating lake, including the footpath, forms part of the amusement park. If a certificate is granted, it will give the owner the right to build on the footpath or otherwise change it or close it to the public.

There is no statutory right to comment on an application for a certificate of lawful development, a state of affairs which was criticised by both Scott and Bacon.

At the time of the previous application, the Greens also delivered a petition opposing it to the Foreshore Trust. Although this was back in March, it has yet to be approved and passed on by the legal department.

According to Julia Hilton, the local Green Party secretary who stood in Old Hastings in the May elections, another option is to apply to East Sussex County Council to have the footpath recognised as an unrecorded right of way. This would require members of the public to testify that the footpath had been used as of right, without interruption, for at least 20 years.

Some 10 years ago, when OHPS applied to have the footpath designated as a public right of way, the matter was adjudicated by Defra, the Department for Environment, Food and Rural Affairs, which concluded that designation was not necessary as, since the land is owned by the Foreshore Trust, the public is guaranteed use of the footpath.

The amusement park owner’s agent takes a different stance, asserting in the planning statement that the “accessway…is not believed to be a public right of way.”

The dispute over the status of the footpath could be grounds for refusing to grant the certificate – according to government guidance certificates containing wrong information should not be issued as they can cause planning problems.

Status “misrepresented”

Meanwhile a complaint has been sent to the council that Mr Lee has misrepresented his status in both the application form and in a sworn affidavit. In the former he describes his interest in the land as “Owner.”

“This is of course incorrect as the whole of the site is owned by The Hastings and St. Leonard’s Foreshore Trust, who previously leased it to Stade Developments Ltd., a company owned by Mr. Henry Moreton, who sold-on the renewed lease to Luxury Leisure, a subsidiary of Novomatic UK,” the complainant says. “Mr. Lee has only ever been a sub-lessee of part of the site.”

In a sworn affidavit dated 19 January 2018, Lee states that he “bought the entire site in 2002. This must have come as rather disconcerting news to the Trustees of the Foreshore Trust.”

Mr Lee’s attempts to gain control of the footpath are coupled with an application to make changes to the amusement park buildings and rides, including building a new boathouse and children’s themed play area, as well as a “new formalised and landscaped pedestrian footpath.”

 

Posted 17:29 Wednesday, Aug 8, 2018 In: Home Ground

6 Comments


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  1. Chris Hurrell

    Yes it is the same application that has been refused on the grounds that the land cannot be considered an enclosed area. There is always a chance that there will be another application or an appeal.

    Comment by Chris Hurrell — Wednesday, Aug 15, 2018 @ 07:48

  2. Ms.Doubtfire

    According to Hastings Council’s planning website, on 9 August 2018 application HS/EX/18/00485 was refused under a delegated decision – is this the same application which is referred to in this article? If so, then the amusement park proprietors have failed with their application. Or does the sword of Damocles remain hovering over this special site?

    Comment by Ms.Doubtfire — Tuesday, Aug 14, 2018 @ 09:46

  3. Bolshie

    It would appear to me this Foreshore Trust should have either had it designated as a Right of Way long ago. Or made it a Covenant in the lease to this amusement park that is was a public access Way.

    Comment by Bolshie — Tuesday, Aug 14, 2018 @ 08:58

  4. Eye on the ball

    I thought that one of the reasons the Foreshore Trust was set up was to ensure this land is kept for the benefit of the people of Hastings. The idea therefore of allowing private businesses to take control and possibly even enclose and restrict use to the public clearly contravenes the public use of the land. Does anyone out there have some legal knowledge of the public’s rights with respect to this land and what can be done to gain redress if the Foreshore Trust fail in their duty. We really do need to stop our rights being slowly nibbled away at. We also have to ask what the long term effect would be of the loss of public use of this land to the proposed marina developments.

    Comment by Eye on the ball — Monday, Aug 13, 2018 @ 08:56

  5. ken davis

    Given the complexity of rights of way law, both common and legislative, it is not surprising that many people are confused by the status of this and other ‘ways’. It is not just necessary for a right to have been exercised without force, without secrecy and without permission i.e as of right, but the use must be with the acquiescence of the owner of the land.The trouble here arises from the clear need of the site owner to give the public access to the facilities that comprise his business. Thus the site owner must show by evidential statements that he has regularly challenged people using the way. At the moment there appears to be no such evidence.

    Comment by ken davis — Thursday, Aug 9, 2018 @ 08:15

  6. Ms.Doubtfire

    Yet again we appear to have an application form which has been incorrectly filled in.
    How many more of these invalid application forms will our planning officers accept? Where is the evidence that Mr. Lee purchased the entire site in 2002? What have the Trustees of the Foreshore Trust (aka Hastings Borough Council) to say about this?

    Comment by Ms.Doubtfire — Thursday, Aug 9, 2018 @ 08:11

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