Moorlands and City Railway

I managed to download some of the smaller docs but didn't try the large one as I'm on a mobile data connection. The counsel's opinion is worth reading if you want to get a feel for the whole thing in 15 minutes or so. In short it fails on various points, most of which have been discussed here. The one that surprised me was that the no trespassing sign does not have to be displayed at Endon, but at the nearest station, which is Stoke (and helpfully it is.)

 

Thanks for that Steve. I have taken to looking at the individual docs. It will be interesting to see if Ms. Birks sticks to her statement on the Facebook group that she will accept the panel's decision if it goes against the application.

 

Can I suggest we keep our power dry, don't count chickens etc until after Tuesday's meeting, both on here and elsewhere, until the cat's hopefully in the bag and the string double-knotted. Assuming we get the result, then after that all's fair in love and war

 

Whilst applications for village green registration can be made with virtually no risk of cost to the applicant, once one goes to the High Court for judicial review the issue of costs against the claimant arises. Also, the judge who makes the initial decision as to whether the matter should go forward will be looking very carefully for applications which not only have a poor chance of success but also would frustrate business activity for the duration of the case. Put simply, if a claimant is asked to indemnify a defendant against loss of business they tend to withdraw rapidly.

 

I am very pleased to announce that the Endon Village Green application was today rejected unanimously in less than an hour by Staffs County Council.

 

I wasn't there Ralph, but reading the masses of documentation beforehand (available via SCC website), it failed on several tests, including the land not being suitable for 'Sports and Pastimes' (one small path through the undergrowth and insitu rail track) and access being illegal due to the posting of No Trespassing notices at the nearest open station (Stoke).

Read all about it ...... Report of Director of Law and Governance .... http://moderngov.staffordshire.gov.uk/documents/s32531/Report - Endon.pdf

 

What a relief!

I assume that work had been suspended on the Endon line (seeing as we have not been enjoying working party reports on this part of the line for some time). Do we expect work to restart in the near future?

I'm sure this has been a massive waste of time and money for all involved, MCR in particular. Here's hoping that this ruling is the end of it, and that there are no more of these legal setbacks.

 

Good to see NR putting their full weight against this application (rather than just leaving it to MCR), I'm sure that made it much easier to get the rejection in such clear terms. I hope this is the end of it.

However, this affair does seem to show a clear danger to other reopening plans where the line *has* been formally closed for 20 years or more.

 

Indeed, and it begs the question as to just what the bill for all this is. 12 months inc a QC etc doesn't come cheap for Staffs council, ( or the NR or the MCR). AFAIK there is no mechanism for awarding costs against the applicant - not they could fund them anyway, but if your house was on the line (so to speak) you might think twice before scribbling on a simple A4 form and setting all this in motion.

 

According to posts on the 'Support MCR' facebook page and a recent article in the local press the delay is down to paperwork issues with Network Rail, not the village green application.

Chris

 

It is gratifying to see in the documents submitted by interested parties how much support there is for reinstatement of the line from Leekbrook through to Stoke, particularly at parish council level. Also good to see that the County Council have come to what must have been the obvious decision so quickly.

 

Moorlands and City Railway - Endon Village Green

Did the council meeting go ahead yesterday?

If so does anyone know the outcome?

 

Re: Moorlands and City Railway - Endon Village Green

See #1365

 

If I might be forgiven a little self-publicity, my posts 1359 and 1364 comment on the recent situation here and in general in relation to Commons Registration. Also, if anyone searches under my name on this subject they will find masses of earlier material.

It is just so maddening that a well-meant legal reform to codify various claims to right of common has been hijacked by single-interest groups as a handy tool to try to prevent something they don't like rather than use the proper channels such as planning control or TWA applications. Early on in this matter, and bearing in mind the characteristics of the land, I wondered why they had not tried to prove the establishment of a public footpath under the Highways Act. Then I remembered that even if that were successful, diversion orders are not hard to come by if the alternative is reasonable whereas the proceedure for de-registering village greens is a nightmare.

 

Pity the Council couldn't highlight this expense in next year's Council Tax analysis pointing out that the self interest of those at Endon - particularly those who express support for "green" measures - has had a consequence of expenditure which requires an increase in the charges to be levied; I'm sure the local taxpayers would like to know WHY their taxes are going up.

 

If Staffordshire County Council took the expenses from its Countryside Budget instead of from general contingencies people might not be so tempted to make applications of this sort.

 

Of interest here is the Counsel's opinion to Staffs and the less useful additional opinion. Usual flowery legal wordage.

http://moderngov.staffordshire.gov....43864 - AW411E Appendix K Counsel Opinion.pdf
http://moderngov.staffordshire.gov....AW411E Appendix K Counsel Further Opinion.pdf

Of interest to me was that in this debate we had commented on the trespass aspect and the offence of Trespass being summarised as "trespass on the operational railway". The argument had two camps those who were in the "its always a railway" school and those (inc me) in the "it was used in 1994 so 20 years doesn't work". The legal analysis is clearly in the "its always a railway" camp with the trespass requirement not relying on any "operational" requirement.

BTCA 1949 s55
(1) Any person who shall trespass upon any of the lines of railway or sidings or in
any tunnel or upon any railway embankment cutting or similar work now or
hereafter belonging or leased to or worked by the Commission or who shall
trespass upon other lands of the Commission in dangerous proximity to any
such lines of railway or other works or to any electrical apparatus used for or
in connection with the working of the railway shall on summary conviction be
liable to a penalty not exceeding forty shillings."

However, I am far from convinced that the Counsel will have picked up every bit of case law and it may well be that some criminal law precedents have introduced an "operational" requirement.

It is also worth remembering that this is the view of one lawyer.

Can someone send Mrs Birks his bill please.

 

As I expected much of the argument turns on the distinction beyween something being unlawful and its being illegal, a matter that is commonly misunderstood. In the opinion of Counsel (whom I have come across in the past and have respected his approach), it states:

"I can see an argument that, even if a notice has not been exhibited and affixed at the nearest station, trespass on the railway is still criminal - it is just that no penalty can be recovered under section 55 (3). I have some doubt as to whether this argument is correct since, if a penalty could not be recovered under section 55 (3), I doubt whether any other sanction (eg a discharge, absolute or conditional) could be imposed under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000."

With respect, I do not think that this is put as well for non-specialists as it might be, so I will try!
(1) It is an offence to trespass on a railway so it is impossible to enjoy lawful sport or recreation thereon because it involves an act which is illegal.
(2) A person cannot successfully be convicted of an offence unless the relevant signs are in place. The act remains illegal - it is just that there is effectively immunity from conviction - but de facto immunity does not make the actions lawful.
I feel that Mr Petchey concentrated on possible penalties rather than on possible conviction. If conviction is impossible then the matter of penalties does not arise.

It's just fortunate that, on this occasion, the railway community has managed to beat off the problems that have afflicted land owned by local authorities, educational institutions and statutory undertakers. Village green registration is not all about defending the peasants' rights to play cricket on the squire's land!

 

The locals of Endon and region already have a superb set of local walks and recreational areas including the towpath on the adjacent Caldon Canal.