The clarity the Foreshore Trust owes the public is missing

The Foreshore Trust continues to say nothing about the future of foreshore assets, as the Stade pathway application continues. The proposal seeks to reroute the footpath and give land to the amusement park. Bernard McGinley takes another look at a case lacking in defenders.

Hastings Borough Council (HBC) have still to resolve the case of the threatened footpath and transfer. The case was recently revised, though the application is still for works including the ‘enlargement of amusement park to incorporate land where current footpath is located’.

The planning reference for the new application is HS/FA/18/01009 (formerly HS/FA/17/01056). The proposed developments at the Stade have previously been  discussed in HOT here and (indirectly) here.

Since 1893, the foreshore has been controlled by the Foreshore Trust, whose three members now are all councillors and make up the entire HBC Charity Committee. Do they therefore represent the council? No, according to the Foreshore Trust’s constitutional ‘Protector’, who in October 2018 explained that:

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.

Since the first application from the amusement park owner in December 2017, the three trustees have said very little to explain their views, despite their involvement as ‘statutory consultees’ or ‘individuals’ (or both).

The Chair has said ‘from my personal perspective’ that she was in favour of the new pathway. Then eventually, in December 2018, she said formally that all three trustees were. Regarding the proposed transfer of Foreshore Trust land – equivalent to nearly 40 yards square – from the present pathway to the amusement park, they stated:

In principal [sic] we have no objections to the expansion of the Amusement Park . . .

But how this attitude is consistent with ‘long-term community benefit’ and the requirement to act in the trust’s ‘best interests’ has not been explained or defended in the course of these applications. To many this seems to be a failure of duty by the trustees. Even the HBC estates manager commented in January 2019 that:

under the terms of the lease of the site the Trust’s consent as Landlord is required to any alterations.  

Cabinet connexions

By a strange coincidence the three councillors who are the Foreshore Trust trustees are all also members of the HBC Cabinet (where many key decisions are made).  As there are only six Labour members (from 24 altogether) of the HBC Cabinet, the chances of this are slim. Given that the leader and deputy leader automatically sit on the Cabinet, that leaves room for only four more Labour councillors – and remarkably, three of these are the Charity Committee/Foreshore Trust members.

The Council Constitution (Part 3) states grandly that:

It is intended that Cabinet delegates its functions to the Charity Committee to make trustee decisions and to avoid any breach of trust or perception or apprehension of breach of trust by reason of a conflict of interest between the Charity and the Council and its executive.

How this works in practice is not explained. Nor does national guidance by the Charity Commissioners illuminate the matter. The Cabinet has all the Foreshore trustees and all the HBC Charity Committee. All the Trustees are Cabinet members.

Consultation

The Coastal Users Group (CUG) expressed its opposition to the Stade proposals. (See item 9 of the Charity Committee agenda of 24 September 2018 (page 81), which records their ‘strong disappointment and disgust . . . at the lack of notification and consultation with CUG on the Stade Family Amusement Park planning application’.)  The Foreshore Trust is obliged to take notice of  – ‘have regard to the recommendations of’ –  such views, but has not given an opinion.

Other than as above, the trustees have not commented on the proposed loss of Foreshore land (the wide footpath). If they are minded to endorse the application, there is an obligation to explain why the proposals are acceptable, and what the proposed leasehold terms are.

Their purpose, after all, is

to hold and maintain the charity’s land…for the common use, benefit and enjoyment of all Her Majesty’s subjects and of the public for the time being for ever.

Charity Commission guidance  is clear about how the trustees of a charity should act in any proposed transactions (including disposals of assets), as part of their legal duty of care. Public consultation is recommended wherever disposal is being proposed, and the taking of legal advice. A professional surveyor’s report is also required, which should then be publicised.

Whether legal advice has been taken, and a surveyor’s report commissioned, we do not know. No such report has been made public, nor has there been a consultation, though in view of the high level of interest from local residents, there is an overwhelming case for holding one.

New application form still incorrect

The first application form filed with the revised application in November has been withdrawn (and is no longer on the online case file, instead of being marked ‘superseded’, as, say, drawings often are.)

The replacement application form is somewhat disingenuous. Section 8 wrongly answers No to the question:

Do the proposals require diversions/extinguishments and/or creation of rights of way?

(The right answer is Yes, as the existing footpath is a ‘by right’ right of way, though this article does not address this issue.)

Section 20 asks about the type of machinery to be installed, commercial activities and processes, and details of plant, ventilation or air conditioning. Despite the increased height sought for buildings (in a conservation area) and the proposals for new fairground attractions and equipment, the response given is ‘NA’ (Not Applicable). This is inaccurate.

Section 24, Certificate of Ownership – Certificate B, gives the Name of Owner as:

Hastings Borough Council as trustee of the Hastings & St Leonards Charitable Foreshore Trust

Section 25, Certificate of Ownership – Certificate B, gives the Name of Owner as

Foreshore Charitable Trust

Which is it? Some clarifications are desperately needed —  from the trustees (including their acceptance or not of the Coastal Users’ Group’s views) as trustees or individuals or councillors, from the applicants, from the council’s planners in their pending Planning Committee report.  (Both the September and October committee meetings had the report recommendation ‘Grant Full Planning Permission’ for the Stade case.)

Consideration by the Planning Committee of the original application was deferred last September (‘as it was not clear to members of the public what was being proposed i.e. enlargement of the amusement park area’) and again in October (‘because the application form had not been filled in correctly by the applicant’), thus leading to the new application. A decision will be made by the Planning Committee at the earliest on 6 March.

Clarity still needed

It is still not clear what is being proposed. What of the legal and financial terms of the land transfer, for instance? How are these proposals ‘maintaining and improving’ Foreshore Trust assets? More broadly, it is proposed to unify the boating lake with the funfair to make ‘one site’. The footpath would be lost – diverted and narrowed – and the foreshore land it occupies would go to the funfair. How the new footpath is to cross the miniature railway track is not explained.

The new application does not have the full documentation of the previous one.  The HBC conservation officer’s findings have not been transferred to the later case, despite findings of incompleteness such as:

The agent should clarify the degree of demolition that will be required to implement the proposals. Information provided should include floor plans and elevations hatched in red to identify those buildings/parts of existing buildings that will be demolished.

If Permitted Development Rights (PDR) are also gained, new massing and new buildings would very likely follow, as protection for the Old Town site would be greatly lessened. The revised application shows a new fence along part of the edge of the boating lake. The Old Hastings Preservation Society has objected to this new proposed enclosure.

The new deadline for comment is Friday 8 February.

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