New Road: answers to your questions

Q: Why have you closed the common land at New Road to cars?

A: The principal reason is one of safety. We received safety reports, including from an external independent road safety organisation, that identified safety risks associated with the use of the common land for unlawful parking.

We have a duty of care to do all we can to protect public safety on land that we own.

The reports led to discussions with our insurers. The insurers indicated that, as we had been made aware of the safety risks, we wouldn’t be covered for any accident arising out of the unlawful use of the common land for parking and that we could be exposed to significant costs.

We sought expert external legal opinion from a barrister specialising in common land law. His advice was that the extent of the parking was such that it was interfering with the rights of the community to access the common land for its designated purpose for ‘air and recreation’.

Taking all these factors into account, it was concluded that the use of the site for parking was unsafe, uninsured and unlawful.

Faced with the safety, insurance and legal advice a decision was taken to close the land to vehicles to protect public safety. This was decided by Cabinet on 30 August and confirmed following further examination by the Overview and Scrutiny Committee on 15 September.

Q: If it’s common land, doesn’t that mean it belongs to the people of Kendal, not the council?

A: The land at New Road is owned by us and is designated as common land. That means that we 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.

Q: Are you allowed to put boulders along the edge of the common. Isn’t that stopping people using it?

A: The community has a protected right of access to the common to use it for its intended purpose and access has been maintained.

Initially temporary fencing was installed, with gaps allowing public access to two pedestrian crossings. The fencing has now been replaced by boulders. Again, gaps between the boulders allows free access for pedestrians, but they will prevent vehicle access. The boulders will remain until such time as the land is developed.

Consent is not needed to install a row of obstacles, such as bollards or large stones, to stop unlawful vehicle access to common land.

Q: Why can’t you just make it safe for parking on New Road?

A: As the land is currently registered as a common it is unlawful to do any works on the land that could make it safer for parking, because that would be contrary to its common land designation.

That means we would be acting unlawfully if we spent money on any works - such as marking the site out as a car park, putting up barriers/fencing or establishing proper entrances/exits - to make the common land safe for use as a car park.

If we wanted to develop the land as a car park we would first need to apply to de-register it as a common. This would require an application to government. As part of that process we would need to identify land of a similar size and in a nearby location to offer as a ‘swap’ for the land at New Road.

A de-registration option has already been explored and is being reviewed as part of the long-term options for the future of the land.

Q: Why are vehicles still allowed to park on the north side of new road as this is also supposed to be common land?

A: The situation with the north side of New Road differs from the situation in respect of the south side. We only own small parcels of land on the north side. Each of these are situated directly outside a business/organisation premises and have been used by the business or organisation for parking and/or vehicular access for several years. As the use of those parcels of land by vehicles is specific to those discrete 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.

Q: Why didn’t you close the land immediately once you received the safety report if it was so unsafe?

A: Councillors wanted to consider all options and impacts and explore the measures available to mitigate the increased demand on parking, as well as provide a public forum (via an open Cabinet meeting) for this decision to be made. We have worked quickly and thoroughly to address this issue.

Q: Where are people supposed to park now you have closed New Road to cars?

A: Councillors realised the closure of the common land at New Road to vehicles could put pressure on parking elsewhere in Kendal.

Following representations from users of New Road, Kendal BID and others, a package of parking options was approved for existing car parks we manage to help alleviate these pressures, which are:

  • £1 ‘early bird’ all-day parking offer at Westmorland Shopping Centre, reduced from its previous rate of £2.20
  • Sunday tariffs on all levels at South Lakeland House car park adjusted to 20p per hour, up to a maximum of £1 for over 4 hour hours
  • Charging hours on South Lakeland House car park to change from current 8am to 6pm to 8.30am to 5.30pm
  • £1 a day parking on Blackhall Road car park if ticket purchased before 7am, seven days a week
  • Sandes Avenue car park be designated for blue badge holders and permit parking for market traders only on Wednesday and Saturday
  • Sandes Avenue car park to be made 20p per hour, up to a maximum of £1 for over 4 hours on non-market day
  • Visitor parking bays removed at South Lakeland House car park, to increase parking capacity

Q: What will happen to the common land now?

A: Cabinet agreed at its meeting on 15 September that options for the future use of the land will be subject to public consultation.

The options will reflect input from the Environment Agency, which is looking at flood alleviation works in the New Road area as part of a major flood relief scheme for Kendal. The EA has already indicated that it would like to be involved in discussions about the long-term design of the site at New Road so that it can incorporate flood alleviation measures.

Some initial works will be carried out to decontaminate and resurface the site to make it safer and more accessible as a common. This will just be the first phase of the project. Residents will be able to have their say on the final design and use of the site from options drawn up with input from the likes of the EA and business.

Q: What will happen to the funfair? Don’t they have a protected right to use that land for the fair?

A: The fair will be remaining on the current site at New Road. The initial works to the common will be complete prior to the fair returning in May 2018.

Q: How much will be spent on these initial works and what will it involve?

A: A meeting of Full Council in October agreed to provide a budget of £286,000 for ‘reinstatement and decontamination’ works.

This revised the £430,000 budget that was originally allocated to develop a riverside park at New Road, in favour of a reduced ‘initial’ scheme.

The initial scheme will form groundwork for the final long-term design and use of the New Road common, which will be subject to further public engagement and debate. The money will be used to ensure the site can be better used for its currently designated purpose as common land.

The initial measures will include decontamination of the site and creating safe access points from the two pedestrian crossings and from the footbridge from Gooseholme, with partial landscaping works so it can be enjoyed for open air recreation.

The initial design will enable the site’s continued use by the fair.

The initial works are to make the common safer and more enjoyable for its designated use. The decontamination work would need to be carried out in any event, ahead of any development as public open space - or for some form of car parking if the land was de-registered - so this is money that would have to be invested whatever the outcome of the consultation on the long-term options.

It is expected that the initial works will start in February 2018 and be completed by the end of March 2018

Q: Is Beezon Fields a viable long-term option for another car park?

A: Following investigations it was decided to make the site a suitable for parking it would be too costly and problematic.

Q: Are any other sites being looked at for a new car park?

A: We have identified two sites in Kendal which will provide additional town centre parking provision. The sites, located at Canal Head and off Parkside Road, would be available to all drivers and create up to 86 extra spaces. 

Q: Is this the council just wanting to get on with the masterplan?

A: No, this is a safety and legal issue that needs to be addressed.

Q: Isn’t it true that parking is allowed on common land within 15 yards of the highway?

A: There are circumstances when parking on common land is permitted within 15 yards of the highway. The issue in this case, however, was that the extent and intensity of the car parking that took place at New Road was a nuisance and, therefore, was not lawful activity.

Q: Won’t this affect trade in the town?

A: We want to do all we can to ensure there is no economic impact. We are working with the BID and other businesses to see how we can ensure no detrimental effect on the local economy.

Q: Won’t this badly affect lower paid workers in town?

A: We are very aware of the plight of those who are struggling financially. Councillors have made it one of our priorities to help. But the decision to close New Road to vehicles was one of safety. We have put in place a range of parking offers, including the cheapest all-day parking on any council-operated car park in Cumbria, to help mitigate any impact.

Q: It is understood there is an insurance issue, but could you not have found another insurer?

A: It was made clear to us by the insurer that if we were subject to a claim we would not be covered for incidents caused by the unlawful use of the land. This is because we have not taken, and for the reasons set out above, cannot take measures to ensure safety despite being made aware of the safety issues. It is highly doubtful any insurer would take on a risk in this area for an unregulated car parking situation with identified safety risks.

Q: If it is developed as green space, won’t that still be unsafe if it is next to a busy road?

A: When detailed designs are prepared, it is intended to incorporate landscaping and design features to ensure the safety of users of the area.

Q: Why couldn't a permanent new car park be put in place before closing New Road?

A: The parking on New Road was considered unsafe and uninsured and therefore the safety of the public at that site was of paramount importance. A 2014 court case concerning the death in Kendal Station House car park, clearly showed that the courts have little tolerance for owners of property who ignore safety warnings.

Q: How long will the discounted parking at Westmorland Shopping Centre last?

A: Our leader, Councillor Giles Archibald, has stated that it is his intention for the reduced fees to be in place until a replacement affordable car park is available.

Q: Will the footbridge be repaired?

A: Cumbria County Council, which has responsibility for the footbridge, was due to commence work to re-open the footbridge this year, but that work has now been delayed until the new year.

Q: Is the Westmorland Shopping Centre car park subject to safety inspections?

A: The car park has a formalised parking arrangement and the car park is inspected every three months by our property service provider to meet with our insurance requirements. Following an inspection, any issues are dealt with promptly.

In addition, the structure is inspected by a structural engineer every 12 months and any defects rectified accordingly. In common with all our car parks, a risk assessment is completed annually and as part of this risk assessment, we look at potential conflict between pedestrians and vehicle movement on site. The risk assessments also detail the control measures required to mitigate these risks.

Q: Should there not be a public inquiry into this decision?

A: We believe we have dealt with this complex decision in an open, transparent and democratic way and 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 public, 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 many requests from individuals for information.

Public Inquiries are governed by the Inquiries Act 2005 under which a Minister may cause an inquiry to be held if there is sufficient concern about the way a decision has been handled. We do not believe that this decision would raise such a concern.

Q: Can you give details of the contamination tests on the common land and if any contamination was found?

A: An intrusive site investigation comprising of four cable percussive boreholes was undertaken to assess both the presence of any potential contaminants within the underlying soil and groundwater and to assess the geotechnical properties of the shallow superficial deposits.

The assessment for the protection of human health indicates localised impact with inorganic and organic determinands that could pose a risk through dermal contact and ingestion to future end users and grounds maintenance workers. Whilst this impact might suggest the requirement for further assessment and/ or remediation, given the physical unsuitability of the made ground as a growing medium, it is likely that a cover system will be required across the entire site in any event. None of the impact identified is considered to be significantly mobile within the environment and is not considered to be a significant risk to controlled waters.

Prior to works starting on site, a further detailed site investigation report will be commissioned to ensure that workers and end-users are protected during and following completion of the works and to ensure that the Environment Agency is satisfied as part of the permit to work approval system.

Q: What works are being undertaken under the ‘interim’ scheme at New Road, and how will the contaminants be dealt with?

A: The interim works that commenced on 26 February 2018 involve removing the surface and sub base to a depth of 390mm from the proposed finished ground level.

When considering works to the land it is necessary to test for the presence of contaminants. The phase I and phase II geo-environmental site investigation report highlighted the presence of contaminants in the ground beneath the surface (see question above for details on test results).

We are undertaking an interim scheme which will lay out paths and create grassed areas so that the common can be more safely accessed for its currently designated use for air and recreation, pending the outcome of a consultation to determine its eventual long-term use.

Whether the eventual long-term use of the land is as a green space or includes a car park (the latter requiring a de-registration of the Common Land), the existing surface and sub-base materials would need to be addressed.

For example the sub-base for a car park would require excavation and formation of 300mm sub base and 90mm combined tarmac base and wearing course.

In other words, whichever scenario emerges as the preferred option following consultation – green space or car parking - the land and its contaminants would need addressing.

The contractors working on the site started by removing only the tarmac surface. 

The planing machine was programmed to a specified depth to ensure that it removed only the tarmac and not the ground beneath. 

As set out in our contamination report, the only concern in relation to the tarmac was whether or not there was any presence of tar within it. 

This was tested on site and produced a negative result. Consequently, the tarmac could be removed as inert waste.

The contaminants in the sub base below the 390mm excavation will be capped by the import of clean material. This capping will remove any risk of linkage between the identified contaminant (as per the site investigation report), a pathway (risk of ingestion/direct contact) and receptor (human health). This is in accordance with the Contaminated Land Strategy.

We are not undertaking testing on any other of our open air car parks as the risk comes from excavating ground which has known contaminants.

Our Contaminated Land Strategy identifies that it is the responsibility of the landowner or the body undertaking works that the land is suitable for its use.

We, as landowner, are aware of contaminants in the ground beneath the land. By undertaking the work we are meeting our landowning responsibility by removing the risk of contaminants and finding a pathway to a receptor. In our regulatory role, we have not determined the land as contaminated land.

We have secured the necessary permits from the Environment Agency, which includes consultation with Natural England, for carrying out the works and in proximity to the River Kent.

Q: How much have the boulders and planters cost?

A: The cost for the supply and installation of the boulders was £7,528.48, and the cost for the supply and installation of planters including top soil was £4,590.92. It is intended that these features will be re-used as part of the interim or long-term design for the common.

Q: Can the public see the safety reports?

A: A New Road Information Pack (PDF 3MB / 57 pages) was made available at public meetings in September and includes the report which went to Cabinet in August, the safety report and some FAQs. The information pack is also available in hard copy from our offices.

Related documents

Full Cabinet report (PDF/10.7MB/188 pages)

Overview and Scrutiny Committee report (PDF/2.5MB/40 pages)

1910 Management Scheme of New Road Common (PDF/2MB/3 pages)

1951 Byelaw (PDF/1.23MB/3 pages)

Land Registry Register of Title for New Road Common, July 2006 edition (PDF/1MB/3 pages)

Land Register Title Plan entry for New Road Common (PDF/1.4MB/1 page)

Statement from Chief Executive, Lawrence Conway, on New Road