Right to pathway being walked all over

The public footpath through the Stade amusement park is under threat. What will the Foreshore Trust do? What does the Council think?  Bernard McGinley takes a stroll down it, while he still can.

Between the boating lake and the funfair on the Hastings seafront is a small path, shortish and straight, from the main road to the miniature railway. It’s been there for decades, certainly since the 1940s. As it is freely used (without permission, secrecy or force), it seems to have the status of a right of way.

Except it doesn’t. The arbitrator of such matters is East Sussex County Council (ESCC): in 2010 they decided that this footpath didn’t need to be a right of way because people could use it ‘by right’.

The problem with this legal situation is that the right only lasts for as long as the footpath does. If the footpath goes, so does the option to use it ‘by right’.

The matter was appealed to the Secretary of State for Environment, Food and Rural Affairs, who referred it to the Planning Inspectorate, who upheld the original finding. The reference was NATROW/G1440/529A/10/35, dated 29 March 2011. The Inspector did however emphasise that ownership lay with Hastings Borough Council (HBC):

. . .  a Land Registry Official copy of register of title, dated 26 October 2009, showed the title absolute to lie with the Borough Council . . .                                                                                                                           [para 13]

More fair

Now there is exactly such a proposal to do away with the footpath: planning application HS/FA/17/01056 is for extensions and refurbishments of the Stade Amusement Park, aka Flamingo Park. The plan is to amalgamate the amusement sites, take over the existing footpath and build on it as part of an expansion. There is to be a new pathway by the lake — much narrower, and twisty, less safe and with no right of way.

What of the guardian of such beachy matters, the Foreshore Trust? Although they were notified of this application in 2017, and are ‘a statutory consultee’, the Trust have yet to say anything — despite concerns being repeatedly raised at the Trust’s annual general meeting in September (including its role as statutory consultee), and the Charity Committee in June noting rumours, later scotched, of amusement park footpath purchase (Coastal Users Group minutes, Item 7).

Despite these formal triggers, at the September Planning Committee meeting the Stade case was deferred. In October the same thing happened.

The chair of the Charity Committee wrote a personal opinion in favour of the application, which another member of the Trust has broadened to ‘our personal views’. Their views as Trustees remain unknown, but the letter shows that they’ve been aware of the case for some time.

The Trust is formally advised by the Coastal Users Group, and is required to heed their views. As the minutes of the Trust’s 2015 annual general meeting noted (Section 18, Item 12):

Under the Scheme established on 22 March 2006 by the Charity Commissioners for England and Wales, the Trustee has to consult with the Coastal Users Group on the maintenance and management of the assets of the Foreshore Trust, and has to have regard to the recommendations of the Coastal Users Group when reaching its decisions.

The Coastal Users Group have formally and strongly objected to the proposals. In the absence of Trust comment, can it be assumed that the Coastal Users Group speaks for the Foreshore Trust?

1893 and all that

The Foreshore Trust, a vehicle of HBC, nominally owns the foreshore, and has done since an indenture (conveyance) of 8 September 1893 appointed the Council as Trustee. There were amendments under the Hastings Borough Council Act 1988, and a restructuring in 2011. Some of the car parking revenue was put into a grants programme, with visible benefits on the beach.

The history was summed up by ESCC on 8 June 2010:

11.  HBC own the land in 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 and 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 this right which is still current and in full effect.

13 . . . The trust is still fully binding on HBC because the trust shall apply ‘to all successors of authority’.

The Trust has a separate formal existence from the Council but its Trustees are HBC councillors. The Council explains that:

decision-making powers for the Foreshore Trust have been delegated to the Charity Committee, which is a Cabinet committee.

Burble

The Charity Committee members are Cllrs Beaney (chair), Batsford and Rogers, who are also the members of the Foreshore Trust. The Trust makes bland declarations such as:

The Trust continues to concentrate efforts on ensuring a secure and viable future for the Trust, especially in terms of maintaining and improving its assets, managing its available resources for the long term benefit of the community . . .

but does not seem to want to move to protect Hastings. The Council similarly states of the Trust:

When making decisions relating to or affecting the Charity, it must act in its best interests.

Given the threatened loss of open space and access, this does not seem to be happening.  

The case was previously discussed in HOT here. The article and its forceful comments did not lead to a response in the vicinity of Muriel Matters House. The footpath is also the subject of another case.

What next?

The Hastings foreshore is now at serious risk of:

•   a much worse pathway than the existing one
•   the loss of a longstanding de facto right of way
•   a failure to seek designation of that right of way while that can still be done
•   bulky new buildings in the funfair, negatively affecting the Old Town
•   the handover of land to the amusement park (‘enlargement of amusement park to incorporate land where current footpath is located’) to its commercial benefit, apparently without stated terms.

The ESCC decision noted carefully (at para 59 c):

The public have used the land for many years . . . This has been as a result of the Trust of 1893 which shall continue to protect their enjoyment of this part of the Seafront.

Unless the Foreshore Trust bestir themselves, however, this footpath will be permanently lost, and the enjoyment that goes with it.

The Planning Committee report for this case in September and October carried the planning officers’ formal recommendation:

Grant Full Planning Permission

and scarcely mentions the question of existing access or the role of Foreshore Trust.  

At paragraph 4 of Section 3 (‘Revised landscaped pedestrian footpath from A249 to the beach’) it states:

Amusement park would be increased by virtue of reduced path width and would contain one new ride, a swinging pirate ship. As shown hatched on the block plan. The extended area measures approx. 1,200sqm.   [1200 square metres is nearly 40 yards square.]

The planning case file is here, and comments can still be made to the Planning Committee until 7 November. Its next meetings are on 7 November and 12 December.

If it wanted to, the Council could seek to make the pathway available ‘as of right’ (a stronger claim) instead of ‘by right’, and enshrine free permanent access for the people of Hastings.  It has not explained its point of view. The Inspector noted that

. . . the Trust is expressly revocable and this provides evidence that the landowner intended that the public could be stopped from using the land at any time he chose . . .                                                             [para 19]

The present situation has some of the features of a mutually convenient standoff, whereby – if they do anything at all – each side can point to or blame the other.

The Hastings and St Leonards Foreshore Charitable Trust is Reg No 1105649 with the Charity Commission. The Trust’s persistent neglect of its duties is causing concern.  So too is the Council’s silence on an important question of access.

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