Foreshore Trust again silent on development as decision pends

The Hastings foreshore is again under threat, with a live planning application affecting the Old Town Conservation Area: case HS/FA/21/00946, recommended for approval by Council officers. With constitutional fancy footwork, the independent Foreshore Trust (FT), a registered charity, is  also the Charity Committee of Hastings Borough Council (HBC). The HBC Planning Committee is to decide this case affecting the foreshore on Wednesday 21 June. Bernard McGinley reports and took the photos.

The FT/Charity Committee met on 5 June. Yet again it was not the Annual General Meeting (AGM). Cllr Batsford was missing, and without all three members, the meeting was inquorate and couldn’t begin. When he eventually turned up 12 minutes late, he didn’t apologise for the waste of resources or time.

The concerns of the Coastal Users Group (CUG) about the Stade Pathway still being closed were mentioned. Cllr Rogers expressed her disappointment at the situation, meaning the apparent lack of works. However the range of possibilities for the Pathway reopening was not discussed. FT Chair Cllr Cannan said he was keen to establish a relationship with the CUG. The Marketing and Major Projects Manager made the point that ‘we’re limited in what we can do’. This is disputable until the FT justifiably uses its ample resources to get serious advice from a good environmental solicitor.

The draft minutes state:

The Council has the responsibility for the proper management of the financial affairs of the Trust. In doing so it complies with Accounting Codes of Practice and the high standards required for the accounting of public money.

However nothing was said about the FT accounts being 500 days overdue.

Amusement building application

A Stade Amusement Park planning application will be decided (probably) on Wednesday 21 June at the HBC Planning Committee. Case HS/FA/21/00946 is for 

Proposed extension and refurbishments to main amusement building (amended) 

As is traditional the Foreshore Trust has nothing to say. HOT has pointed this out often in recent years. For this case, the HBC Property and Commercial Assets Manager wrote:

I’m emailing as Estates Manager for the Hastings & St Leonards Foreshore Charitable Trust and would advise I have no comments on this application. 

If planning consent is granted the tenant is required to obtain the Trust’s consent as their Landlord prior to carrying out any works. 

The FT has a role in giving consent but declines to negotiate. Similarly it has no dialogue with the Amusement Park, or even with CUG.  

A clear statement was made by the Foreshore Trust’s then-Protector in October 2018:

The Foreshore Trust is legally quite separate from the Council as a local government entity, despite the fact that HBC is its sole Trustee. This means that the three Councillors that constitute the Charity Committee of HBC (ie the individuals who actually exercise the powers of the sole Trustee) need to be formally advised on an individual basis by Planning of any request for permission affecting Foreshore Trust land.

Yet there is no comment, ever. (On one occasion the Chair did comment, but in a private capacity, which was worse than not commenting.)  

Back at HBC, the committee report on the current Stade case repeatedly ducks or misrepresents the issues. It duly and shortsightedly notes:

Foreshore Trust – No comments received.

It is reminiscent of Mugsborough that the FT won’t comment on the usage of their land, leased to a developer. Apparently they will do nothing to seek to restore the  24/7 public access across this site that there used to be, or explain how it was lost. 

The latest site plans do not show that the developer has any intention of restoring public access. FT muteness is offensive. The FT is responsible for the protection of the land in the interests of residents. Yet it continues to fail to carry out its  responsibilities. 

In the spring of 2021 Enforcement enquiry ENF/21/00091 was begun, about the status of the Stade Amusement Park fence. It was still open in January  2023 and is open still, but is not mentioned in the committee report for HS/FA/21/00946. Instead, mention of it was suppressed (‘redacted’) in an objection of December 2022. The objection also suggested ‘a dereliction of duty’ by the Trustees, and that was redacted too.

Conservation Officer objections

The HBC Conservation Officer raised concerns and made several detailed statements about the unsatisfactoriness of the present application. The application of November 2022 discusses 

errors and a lack of clarity on the submitted drawings, missing information that will be needed to fully assess the scheme, and detailed design changes that will be required.

Works carried out were not works related to the previous permission but related to the current application. The application is therefore in part a retrospective one. This is nowhere mentioned in the committee report. Those works do not fully comply with the plans submitted with this application.

The most recent published Conservation statement is dated March 2023 and states: 

Objection — less than substantial harm.

The committee report states that further comments by the Conservation Officer on 20 April 2023

indicate that the objections which were previously raised are now withdrawn and the scheme is now considered to be acceptable from a heritage perspective, subject to condition.

These revised comments of April are not on file, which is unsatisfactory.   

Some cases

Related cases full of relevant documentation include HS/FA/17/01056 which was not resolved. Additionally application HS/CD/21/00240 for ‘Discharge of condition 6 (details of boundary walls, fences and other means of enclosure) of Planning Permission HS/FA/18/01009’ was refused on 2 November 2022.

Several times the committee report and current case file refer to ‘the extant planning permission’. There is no extant planning permission (bar the minor, perimeter cases of HS/FA/20/00355 and HS/FA/21/00979). Even if there were, the applicant would have no obligation to carry out works approved in the previous permission.

Stade Pathway

In the Planning Statement for HS/FA/18/01009, para 3.10 referred to the Stade Pathway as a ‘private accessway’, without explanation (or apparently dispute). The ‘enlargement of the amusement park to incorporate land where the current footpath in located’ is mentioned but not further discussed. The word ‘enlargement’ clearly indicates that that land is not part of the amusement park. The Pathway, that was closed temporarily, has still not reopened. The basis of any reopening (permanent as before or something less than that?) is unexplained.  

On the right-of-way question, East Sussex County Council did a report dated 8 June 2010, which included the following: 

Land Ownership — History 

11.  HBC own the land subject to the terms of a Trust of 1893 when it acquired the land from the Crown. The Council holds the land subject to a Trust ‘for the common use, benefit and enjoyment of all Her Majesty’s subjects of the public for the time being and forever’. 

12.  Prior to this Trust the land was private property of the Crown where no right was freely enjoyed by the public. The subsequent Trust of 1893 gave people this right to enjoy the land which is still current and in full effect. 

13.  Due to changes in the organisation of local government the body that was a party to the Trust (the Corporation) have become HBC. The Trust is still fully binding on HBC because the trust shall apply ‘to all successors of authority’. 

14.  Hastings Corporation were under a covenant to,

Duly observe and perform the trust and provisions herein contained and will not do, or permit, to be seen to be done anything upon or in relation to the premises hereby granted which shall be contrary to the said trust and provisions. 

15.  This is clear evidence that Hastings Corporation, who have been succeeded in title by HBC are under a legal obligation to adhere to the Trust of 1893, ensuring that the land is held ‘for the common use, benefit and enjoyment of all Her Majesty’s subjects and for the public for the time being and forever’. 

A formal right of way was not needed because there was already access ‘by right’. By way of section 10 of the Open Spaces Act 1906, the ESCC report continued: 

42.  The public are explicitly granted access to the land by the Trust of 1893. Their right to access is conferred by right. Open spaces, which are protected by trust, are statutorily protected by the Open Spaces Act 1906. [. . .] 

43.  Upon applying this interpretation the Trust of 1893 legally gives permission for the public to pass over this land for ever more. HBC are permitted to do as they please with the land as long as the public can enjoy the space. [. . .] 

44.  It must be stressed that the Trust of 1893 gives the public a general right to pass and re-pass over the land. They are not, therefore, confined to segments within the area defined by the Trust. These are issues that the applicants could be expected to address, but they haven’t.

The FT as landlord could seek a reopening of the Pathway. 

Clever hopes expire

A previously application, HS/FA/18/01009, was for major works, including:

extensions and  refurbishments to main amusement building including . . . raised roof . . . Increased height and footprint of raised huts behind the main building . . . Proposed new formalised and landscaped pedestrian footpath from adjacent to shelter to beach front access and enlargement of amusement park to incorporate land where current footpath is located. 

and was approved in March 2019. That permission expired in March 2022. 

The committee report for HS/FA/21/00946 states disingenuously:

. . . the agent for the applicant has confirmed that public access through the site will be restored through the creation of the new pedestrian pathway which was approved as part of application ref: HS/FA/18/01009.

But that is irrelevant, and there is no assurance of any pathway here. The current case’s Existing Site Plan shows a footpath as having already been built — but there is no footpath there. This is again deceptive (like the Conservation omissions): the path does not exist. 

The report ignores that the applicant is under no obligation to implement the previous permission and therefore has no obligation to build a Pathway. No conditions are suggested to make the Pathway happen, or the basis of its opening. Also, the report ignores that the previous permission is anyway defunct. 

 

Deciding what?

The involvement here of the Foreshore Trust, the Charity Committee, the HBC Cabinet, the councillors as individuals, the Protector, and others of the secretariat has made for a prolonged spectacle of supposedly disclaimable responsibility, and the disregarding of conflicts of interest. 

People across Hastings and St Leonards want an explanation on how and why their access ‘by right’ to pass and re-pass over this part of the land has ended — or better still, how it is to be regained in the public interest.

The Planning Committee meeting is on Wednesday 21 June, livestreamed. Despite the procedural and other flaws, the planning officers’ recommendation is Grant Full Planning Permission.  

Issues are the quality of the proposed design, the future of the Pathway, the muteness and lack of independence of the FT, the influence of HBC (whose Chief Accountant seems more important than the Trust’s own Protector), and – not least – the question of when the people of Hastings can resume walking on the land and enjoying the space.

The Foreshore Trust members (all HBC cabinet members) are Cllrs Cannan, Batsford and Rogers.  The AGM will be on 18 September, possibly.

 

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