Public Open Space - Statutory Trust - St. Dunstan's Gardens
Please see below a comment from Gerald Moran re. the outline planning application to erect a 52-Bedroom commercial building made on the incorrect basis that the local plan's Public Open Space designation of both green triangles off St Dunstan's Avenue is erroneous."On 22 September 2000 the Goldsmiths' Company sold most of the rump of its Acton Estate to an offshore company, Golden Property Holdings Ltd. The latter applied for first registration of title to the numerous pieces of land. The retained freehold interest in the two green triangles was registered on 14 March 2001 under Title No AGL88554 but that was subject to overriding interests such as "public rights" included at section 70(1)(a) of the Land Registration Act 1925. Later transfers of that title have been subject to overriding interests under Schedule 3 to the Land Registration Act 2003, in particular under para. 5 "A public right" - meaning a right exercisable by anyone, whether he owns land or not, merely by virtue of the general law, such as a public right of way - Overseas Investment Services Ltd v Simcobuild Construction Ltd (1995) 70 P&CR 322.That would include the status of the triangles as public open spaces since the Agreement dated 20 June 1924 when Acton Borough Council undertook the care etc of the triangular gardens to be kept open for use by the public. That Council's authority was plainly section 9(b)&(c) of the Open Spaces Act 1906. Under section 10 of that Act the present Council holds care, management and control of the two greens on trust for the public as open spaces. They are maintained by the Parks Department, cutting grass, tending trees etc. One has already been enhance with public finance and has been acclaimed.Byelaw 7 of October 2000 prohibits erection of any building etc without consent of the Council. The Council would be in breach of trust if it purported to sanction the proposed development changing the use and nature of either of these public open spaces.The local plan (in its various parts and read with other documents such as on green space strategy) designates the triangles as public open spaces. These triangles operate as local parks giving valued benefits such as opportunities for recreation and so on as well as visually and environmentally. See also policies 2.18H and 5.5(a). There are numerous flats being built in the area, which as mentioned in chapter 5 of the Core Strategy means that the green spaces become ever more valuable resources. The March 2021 London Plan has for instance policy G4B. See also chapter 8 of the National Planning Policy Framework, revised 20 July 2021.Quite apart from planning control, there is surely no prospect of the Council not continuing to perform its statutory trust of care, management and control. This should be made clear so that this misconceived planning application be withdrawn. The analogy is not exact but the owner of underlying soil has no more right to develop the public open spaces than would an owner of sub-soil below a public road be entitled to build on the road."[Gerald Moran lives in Acton W3 and recently retired at Xmas 2021 from Hunters, Lincoln's Inn following some 40 years experience in property law]
Victor Mishiku ● 1704d7 Comments ● 1689d