Pay Apply Report

A message from Chief Executive, Lawrence Conway, on New Road Common

23 January 2018

Message from Lawrence Conway, Chief Executive, South Lakeland District Council

I would like to take this opportunity to be as clear and definitive as I can be responding to some of the many questions raised about the common land at New Road in Kendal.

Hopefully this explanation, while lengthy, will help our residents to better understand the council’s position, the reasons for the actions taken and the chronology of those decisions.

I should also start by saying that we recognise that this is an emotive issue. We understand that people have strong views on this subject, and we respect people’s right to express those views.

However, the council has a duty of care to act in the best interests of its community and taxpayers.

While sometimes decisions taken in the interest of the wider community may prove unpopular with some, particularly if they consider they have been adversely affected, that doesn’t mean that the decision taken is wrong, or undemocratic. Sometimes decisions have to be taken that may not meet with everyone’s approval.

In this instance it may be helpful to outline the timeline of the decision to close the common land at New Road to vehicles.

As part of its ongoing routine reviews of council assets, including buildings and land, the council conducts health and safety audits of its off-street car parks, to identify any issues that may need dealing with.

The land at New Road was not a recognised, formal car park managed by the council, but the land was in the council’s ownership and was being used for parking. So in the interests of public safety a health and safety assessment was undertaken, as it was considered reasonable to apply the same standards required of the recognised off-street parking managed by the council.

That review raised a number of concerns. These included that the land was not properly marked out, there were no proper entry and exit points and the number of vehicles parking on the site was overly intensive and unregulated.

The main concern was not for safety on the land itself, where vehicles tended to move at fairly low speeds and any incidents were likely to be minor, but fears for public safety arising from vehicles entering and exiting the site on to the main highway.

Once these issues were highlighted it was important that the council did not ignore the concerns.

However, as this review had been carried out internally through a council assessment, I considered it was prudent to get a ‘second opinion’ from an independent source.

An engineering consultancy, with extensive experience in road safety audits and highway engineering design, was requested to consider the relationship between the parking on the land at New Road and the highway.

The result of that organisation’s report confirmed the earlier concerns about the potential for conflict between cars and other road users, including pedestrians and cyclists, with issues highlighted with poor sight lines, no proper entry and exit points and over-intensive use that often resulted in unsafe vehicle manoeuvres.

That report was made public as part of the information pack given out at public meetings and is available to view on the council’s website.

At this point it is worth referring to one of the points that has been made by some opposed to the closure of New Road common to vehicles.

They claim that, because the council commissioned this report, that it can’t be independent. That because we paid for it, by definition it can’t, therefore, be independent.

That implies two things. One, that the council has influenced an independent report from a respected organisation, and two, that the organisation has compromised its integrity and independence by allowing itself to be influenced.

I can assure you that such assertions are wholly untrue. The organisation concerned is obliged to act impartially and apply rigour and professionalism in the advice it provides.

Reference has also been made to ‘three safety reports’. We did not commission three reports, we commissioned one report, that was subject to earlier draft versions (described as ‘versions’ on the front sheet of the report).

We may all, whether writing a report, a letter or an essay, produce a few drafts before arriving at a final version. It is the final version that is the critical document, and it was on the contents of the final version of the report that decisions were made and this final report has been made public.

Once the independent report was received its contents and findings were considered.

We now had a situation where an independent report had identified that the unregulated parking on New Road was creating a safety risk.

Coming back to my earlier point about a council’s duty of care to act in the best interests of its community, the council had to take this situation seriously.

In addition, the parking from which the safety issues were arising was recognised as unlawful in that it was occurring on common land (as confirmed by independent expert legal advice), and advice was given by our insurers that, now a safety issue had been identified and given that the council was allowing an unlawful use of the land, that any accident occurring as a result of that unlawful use would not be insured.

In a worst case scenario, a child knocked off a bicycle by a vehicle reversing off New Road on to the highway and suffering injuries that required life-long care, could leave the council, and therefore the district’s taxpayers, exposed to a compensation claim in excess of £1 million.

I can assure you that no stone was left unturned when looking at the options for what the council should do next. We were well aware of the history of the site, its extensive use for parking over the years and we looked in great detail, and consulted legal experts in common land law, to see what bearing, if any, this historic use had on the situation.

All of these many and complex factors were taken into account when putting together the final officer report on New Road.

What was clear was that a safety issue had been identified, both internally and by an independent assessment.

Ignoring that risk would not only be a reckless failure of the council’s duty of care to protect its residents’ safety, it would also leave the council vulnerable to potentially massive compensation claims. This is in addition to the fact the parking itself on the land was unlawful and a breach of bye-laws established in 1951.

I’d like to think that most people would recognise that, faced with this reality, the council had little option other than to recommend action to prevent the unlawful, unsafe and uninsured parking on that land.

I’d also like to think that that would be the course of action our residents would expect of us, as a responsible authority acting in their best interests.

The alternative would have been to ignore the safety concerns and allow an unlawful and uninsured activity to continue. Imagine, if you can, the reaction if an accident then did occur, and it emerged the council had been warned about the risks, but had failed to act, had ignored the warnings and someone had suffered serious injuries as a consequence.

A recommendation was therefore made to councillors that the land at New Road be closed to vehicles.

It is fair to say that councillors were immediately concerned by the potential impact of any closure of the land to vehicle access. They requested that officers investigate a package of alternative parking measures to minimise that impact, from adjustments to existing tariffs on council-operated car parks to looking for suitable sites for alternative parking, as well as options for the future use of the land.

This resulted in a report to the council’s Cabinet, which not only recommended the closure of the common land to vehicles, but also a number of changes to parking fees and charges, investigation of land the council owns at Beezon Fields as a possible venue for a new car park and proposals that the land at New Road be developed as public open space for the benefit of the community, in line with its common land designation.

All of this was discussed and agreed at an open Cabinet meeting on 30 August 2017 and included contributions from members of the public, representatives from the Church of Holy Trinity and St George on New Road, the Open Spaces Society and South Lakes Action on Climate Change.

Public meetings were held the following week to explain the decision and to receive feedback on some of the alternative parking proposals.

This resulted in further changes to parking fees and car park opening times to take account of some of the specific issues being raised at the public meetings and separately with the council, including taxi and market trader parking provision. Reserved visitor parking bays were also removed from the top level of South Lakeland House car park to free up more space. It is perhaps worth pointing out at this stage, contrary to what some may believe, that no member of council staff gets a free parking space at South Lakeland House car park or anywhere else for that matter, and all staff have to buy permits if they choose to park on SLDC operated car parks.

It was further decided following this feedback that the long-term future use and design of New Road common should be subject to further public engagement.

In other words, residents will be able to have their say on the ultimate use of that land.

All options remain on the table at this stage. The land could be developed as community green open space, it could even be developed, in part or as a whole, as a safe, lawful car park, subject to any successful de-registration of the land as common land.

However, we cannot commence that public consultation or hope to complete any long-term scheme for the land until we know the detail and timescales of the Environment Agency’s £24 million flood alleviation scheme for Kendal.

We do know that one option the EA has indicated it is considering is to build some sort of flood defence wall along New Road, as part of its scheme to protect homes and businesses from any future flooding.

We therefore need to take any flood defence in to account when considering the long-term options for the common, so that any scheme allows for and complements the new defences, which will take several years to complete.

The council is adopting a two-step approach to work on the common land at New Road.

First, to make the New Road Common more accessible, safe and attractive, some interim work will be carried out now to deal with contamination on the site (mainly caused by the years of use for unlawful parking) and install pathways and partial landscaping.

Second, once the detail of the EA scheme is known, long-term options for the use of the site can be developed. These options will be subject to public engagement, so everyone can have their say on them and help determine the site’s eventual long-term use.

It is important to note that the decontamination being carried out as part of the first-stage interim works would be required regardless of the outcome of the public engagement on the long-term use of the site, so it is money well spent at this stage as it will lay the groundwork for the final use of the land.

The nature of the interim work - which is due to start next month and is intended to be completed by the end of April - is therefore no indication of the outcome of the public engagement to determine the future use of the land.

The interim designs have taken in to account the use of the site by the fair, and the fair will remain on New Road. Indeed, the layout of the site in the interim plan has been designed specifically to take account of the fair.

It is worth repeating, for the avoidance of any doubt, that the fair is not being asked to move off New Road common. This decision was taken in an open Cabinet meeting in September last year and has been extensively reported.

Back to the subject of car parking, in December the council reviewed the trial of reduced tariffs and extended opening hours of car parks, introduced to mitigate the effects of the closure of the common land to vehicles, looking at usage figures and costs.

It was decided that, even though car parking revenue has dropped by £1,500 as a result of lowering ticket prices during the trial period, the reduced price parking offers would continue.

This includes continuing with the  £1 ‘early bird’ all-day parking offer at Westmorland Shopping Centre, which was reduced from its previous rate of £2.20 as part of the package of offers. This is the cheapest all-day parking – by some distance – on any council-operated car park anywhere in Cumbria, and has proved popular with residents and town centre workers.

The reduced rate parking tickets will continue until at least 31 March 2018 and councillors are proposing that they continue into the new financial year.

The extended opening hours of the South Lakeland House and Westmorland Shopping Centre car parks had proved less popular, with only a handful of drivers taking advantage of the later openings.

The cost of keeping the car parks open later – including staffing and security costs – balanced against the effectiveness of the offer, meant a decision was taken to revert to the pre-trial opening times at these car parks from 13 January 2018.

The top, open-air level of the South Lakeland House car park is of course always accessible for overnight parking, and there is plenty of capacity to accommodate the numbers of vehicles using the car park for this purpose.

Also, two new sites for additional car parks have now been identified. We are entering into an agreement with the ski club at Canal Head to enable them to open up their car park for public use and there is a proposal that, subject to planning approval, a new public car park will be developed on land the council owns off Parkside Road.

This will create up to 86 extra public car parking spaces in Kendal.

It is perhaps worth reminding that investigations have shown that developing a lawful, properly laid out and safe car park on the land at New Road would only accommodate around 70 parking spaces.

There are ongoing discussions with other landowners about looking to bring forward even more additional public parking in the town.

It has been claimed that the council has not responded to concerns raised about this issue.

I would say that the council has been open and transparent at every step of the way on this matter.

The decision was taken quickly, admittedly, through necessity. Once the safety issue was identified there was clearly an imperative to act quickly.

The council also does not need to hold a lengthy public consultation to address an identified safety issue on land it owns. What it does need to do is take action to address the safety issue.

However, the closure decision was taken in public, democratically and all reports have been made public.

We have held public meetings, have issued more than a dozen press releases, published articles in the resident newsletter South Lakeland News, have responded to nearly 40 Freedom of Information Requests and have published many of the documents online, including the safety report, copies of the byelaws, land registry documents, land management scheme documents and committee reports.

We have published, and updated as questions arise, a comprehensive Q and A document on New Road.

There has also been an attempt by some to suggest this council is not acting in its residents’ best interests, or is damaging Kendal’s economy with its actions on New Road.

I would strongly refute both these allegations. This action has been taken precisely because we are acting in the best interests of all our residents, as this council will always do, and there is absolutely no evidence to support the claim that Kendal’s economy has suffered.

Indeed, the feedback we have had from organisations representing town centre traders is that the town centre economy is extremely vibrant at present, while this council’s excellent track record in supporting the district’s economic prosperity is clearly shown in the latest Gross Valued Added figures (GVA) from the Office of National Statistics, which shows South Lakeland’s economy is the fastest growing Cumbria.

Hopefully this has answered many of the questions our residents may have had about this issue, but there are one or two questions that keep getting asked that are worth addressing in more detail:

Is New Road Common a car park? Why couldn’t the parking on the land be allowed to continue as it was?

The land on the south (river) side of New Road is owned by the council and is designated as common land. The land registry, management schemes and byelaws relating to the common are all available to view on our website (see the link above).

The common land designation means that the council should maintain it for use by the community for ‘air and recreation’.

It is similar to owning a home that is listed – you own the home, but you can only carry out works that are consistent with its listed status.

It is true that the land has been used for many years for parking. The byelaws, which state quite clearly that driving on the common is unlawful, have been in place since 1951 but have not been enforced.

That doesn’t mean it has been a designated car park. It is common land, subject to byelaws, where unlawful parking has been allowed to continue.

Whilst the land has been used for parking, this council has never maintained it as a car park or formally recognised it as a car park.

If it has been identified over the last 60 years, in brochures or on maps, as a ‘car park’ then that is unfortunate, but the council’s formal position is that this land was never recognised as a car park.

Indeed, when we carried out some repairs to the surface on the land to prevent trip hazards we faced questions from national government auditors, concerned that we were spending taxpayers’ money on maintaining the land as a car park, which would have been an illegal use of public funds as the land is designated common and parking therefore unlawful. We explained that the money was being spent to allow safe access for the community, not to prevent damage to cars or facilitate parking, and this was accepted by the auditors. As part of their report the government auditors did, however, express concern that parking was being allowed to continue on the common land and indicated that they wished to see this addressed.

The council’s position, that this wasn’t a designated car park, has therefore been the status quo for many years.

South Lakeland District Council inherited the site when the council was created in 1974. The ownership of the land was considered through the Commons Registration process following the implementation of the Commons Act by the government. The council registered its absolute freehold title in 2005 under the voluntary registration scheme.

This offered the council an opportunity to look at the contradictory situation on New Road, that it was designated as common land but wasn’t being used in the true sprit of that designation for ‘air and recreation’ (I doubt many people would be able to argue that the intense parking on that land was consistent with that designation), and many discussions and ideas came forward over the next few years considering how best to use this land in the interests of the wider community.

But, let me be clear, none of those plans are current or relevant today.

The 2007 Kendal Economic Regeneration Action Plan document - that some have recently cited as evidence of the council’s agenda for this land - that had as one idea some sort of riverside bar/cafe with underground parking on the land, is not a current or material document. It was an idea that was never taken forward. That is a 10 year old document and has no status in these discussions.

What happened in 2017 was that the council received the safety report and insurance advice, as previously explained. That meant the council had no option other than to address the identified risks, and the existing byelaws have been enforced to manage this.

The byelaws have not been suddenly drawn up, they have been in existence since 1951. So for at least the last 66 years any parking on that land has been unlawful, it’s just the owners of the land haven’t, until now, enforced them.

As mentioned at the start of this explanation, the health and safety review followed by the independent safety report resulted in the council enforcing the byelaws to prevent an unsafe and uninsured activity that presents a risk.

As for the future, as previously explained, all options are still on the table in terms of future use and the ultimate use of the land will be determined following further public engagement.

That could still include turning it (in part or whole) into safe and lawful parking, but that could only be achieved if the land could be successfully de-registered as common land.

Other options, in line with its existing designation and therefore not requiring de-registration, would be for some form of green open space for community use.

That, I believe, clearly explains why it wasn’t possible just to ‘leave it alone’ once we’d received the safety reports, and why it has never been officially recognised or maintained as a car park by the council.

Kendal needs more parking

This is a statement often made by those who have opposed the closure of the common land at New Road to vehicles, and the council wouldn’t disagree.

That is why the council has already brought forward proposals for two additional public car parks at Canal Head and on land the council owns off Parkside Road. This will create up to 86 extra public car parking spaces in Kendal.

The question is therefore whether the land at New Road is the best place for a car park.

Again, as previously stated in this response, if de-registration is feasible, a possible car parking option for that land is still on the table at this stage.

If de-registration is considered feasible, the question that residents will be looking at will be whether they would rather the council pursue that as an option, or whether they would rather see that area of common land used in line with its existing designation as community open space, with options investigated to address car parking provision at locations other than New Road.

We have proved that we can find alternative sites for parking and discussions are ongoing about other locations in the town.

It needs to be further understood that whatever the long-term solution for the common land at New Road, it will come at a cost.

Pursuing de-registration of the land as a common, which would be required to lawfully develop the site for parking (or anything other than use as a common), would be costly. The de-registration process would likely result in a public examination of evidence by a government appointed inspector, an examination that would be paid for by local taxpayers.

There is a considerable degree of uncertainty in pursuing de-registration of the land as common, as it would need to be approved by government and part of the requirement is that suitable alternative land, of a similar size and in the same area, is provided for a ‘swap’.

Despite this we are currently undertaking further work to look again at the prospects for a successful de-registration application.

Gooseholme Footbridge

In response to some comments about Gooseholme footbridge, can I please make it clear that the footbridge is owned by and is the responsibility of Cumbria County Council, not South Lakeland District Council.

However, our understanding is that the county council has plans to re-open a footbridge, that will be widened to accommodate a cycleway.

Why are you enforcing common land byelaws on one section of the common and not on other parts?

The situation with the north side of New Road differs from the situation on the main area on the south side.

We only own small parcels of land on the north side and  each of these are situated directly outside a business/organisation premises and have been used by the business, organisation or previous occupiers, for parking and/or vehicular access for several years.

Although, at the moment, none of the businesses adjoining the council’s land on the north side of New Road have any rights registered at the Land Registry, this does not mean that such rights do not exist. It simply means that they have not been recorded. It is the council’s view, having sought expert legal advice, that those organisations adjacent to the land would be successful in proving that they have such a right.

In other words, as the use of those parcels of land by vehicles is specific to those parcels of land and is directly attributable to each business, the businesses are likely to have accrued vehicular rights over that land and, therefore, we would have no legal basis for preventing access.

This differs from the south side, where it is extremely unlikely that anyone who has parked on there could have accrued the same rights.

In terms of the small triangle of land just beyond the Gooseholme footbridge, which has not been closed off to vehicles, there are sections of this area of the common where parking rights have been legally acquired in the past. To access those legitimate parking sections it would be necessary to cross the common land, so again vehicular rights have been accrued over that land.

All of this has been looked at in great detail and in consultation with common land legal experts.

Are you ignoring calls for a public inquiry into the New Road issue?

We believe we have dealt with this complex decision in an open, transparent and democratic way and that the council has acted in the community’s best interests.

All decisions have been made in open committees where members of the public have been able to attend and make representations.

The decision has been subject to scrutiny by our Overview and Scrutiny Committee and we have held public meetings, issued information packs, made safety reports and a number of other documents available on our website, issued press releases at every stage, included answers to frequently asked questions on our website and in our South Lakeland News publication and responded to nearly 40 requests from individuals for information.

In any event, public inquiries are governed by the Inquiries Act 2005, under which a government minister may cause an inquiry to be held if he/she believes there is sufficient concern about the way a decision has been handled.

We do not believe that this decision would raise such a concern, but it wouldn’t be up to us to decide – it would be a decision for a government minister to order a public inquiry, not this council.

The council has put all of the relevant information in the public domain from the very start of this process, and will continue to use its website and social media to update and inform our communities about current and future activities and consultation.

I would urge anyone interested in this issue to look at the information on the website using the link earlier in this response.

I hope that anyone reading this will now recognise that this council has acted in the best interests of the wider community that it serves with this decision and subsequent actions.

I also hope that this explanation has also addressed some of the rumour and mis-information that has unfortunately surrounded this debate.

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