Moorlands and City Railway

Has all activity stopped on the line from Leekbrook to Endon? Haven't seen anything reported of late.

 

With 15 miles of line already to maintain the p/way gang is stretched already, but I think more help from the MPD will be forthcoming when the S160 has proved herself. I'm sure things are going on with MCR behind the scenes but would you commit money working on the line when it takes so long to make a decision on something as stupid as the village green application.

 

Its my extensive experience that Staffordshire County Council are not fit for purpose especially if they have to actually do or decide anything. The legal services in local governmemnt are petrified of a legal challenge to their due process especially in these cases. So they take forever and in the meanwhile the project momentum is lost and significant amounts of money are lost paying for assets which are stood idle. This all benefits the objectors.
I think some concerted pressure is needed on the leaders of the local councils to pressure them as to why they are allowing it to take so long. if the project fails just watch them wring their hands and say "what a shame we did what we could but its out of our hands".
The leader of the Council is Philip Atkins and this is his email. Why not send him an email asking why its taking so long and what has he done about it?. philip.atkins@staffordshire.gov.uk

 

The original application went to the Moorlands Council, who after due deliberation passed it to the County, who in turn passed it on the the Govt (I believe) for review by a QC. So 12 months so far and counting ..... (not only the time but the ££££££££££££££££££££££££s).

 

I thought I posted the following information some time ago but just for the record here it is again, as received from Michael Murphy, Legal Officer, Staffordshire County Council:

"It is our intention at present to take the matter for a decision to the Panel on the 09 November unless there is a fresh development. Our reference number is AW411E

The agenda will be published on line and all the material to be considered by the members, that is the application, the evidence, comments and so forth along with my report will be on the website at that time. The address for the Panel is Committee details - Countryside and Rights of Way Panel"

Hope this helps!

 

While the village green application doesn't help, a recent press article has a quote from David Kemp suggesting its up to Network Rail when the extension will open. "We we have various agreements with Network Rail so in terms of when we can start running heritage trains down there, it's in their hands...but I would say that within six to nine months there will be some initial services running."

Chris

 

I have commented previously on this matter on the basis that I have been involved in the determination of this type of application. Very often they are complicated because of the paucity of evidence. An applicant has to show that the land subject of the application has been used without challenge for the purposes of lawful sport or recreation by a siginificant number of persons of a neighbourhood for a period of 20 years up to the date of the application. The problems are:
(1) What is "without challenge"? A conspicuous notice prohibiting access is just as much a challenge as shouted orders from a belligerent farmer. Conversely, a notice from the owner saying that the public may use the land with his permission indicates that it is not being used as of right or custom but only with permission.
(2) What is "lawful sport or recreation"? I was involved in a case where it was held that reclining on the grass drinking super-strength lager was not such; neither was use as a dogs' lavatory. However, in the Endon case, I just cannot see why the County Council did not swiftly take the view that no recreational or sporting use could ever be lawful because entry onto the land constituted a statutory criminal offence.
(3) What is a "significant" number of persons? It is not defined but as the minimum number of persons (plural) must be two, then significant must be somewhere well above two!
(4) What is a neighbourhood? Again, there is no definition but the general approach is that it is the area from within which an ordinary person could casually walk from. In a rural area it will often be the parish; in cities definition can defy all logic.
(5) Twenty years? Well, of course no-one making an application in 2011 would have started making a comprehensive diary of users' names, addresses, dates and duration of presence on the land in 1991, so one is faced with vague and conflicting memories. One shouldn't laugh but I recall where an applicant (in a planning case) swore that a named officer had inspected a site on a certain date four years earlier; unfortunately the officer had died six weeks before that date.

It is now some five years since I had an informal chat with a barrister who opined that the then relatively recent Commons Act (2006) was being hi-jacked for quite inappropriate purposes and that it would all end in tears. We have already seen bodies such as universities lose the ability to carry out some of their activities on land because their long indulgence of public access was turned against them to create registered greens.

Despite all this we must bear in mind that the existence of an application does not prevent the railway from pressing on with restoration, although it may make investors wary if they have no knowledge of the inanities that can be pursued under the Commons Act. This is why I have constantly pressed the railway to clear the route to Stoke and operate at least some sort of train.

As for contacting elected members, this may bring about swifter decision but these are cases where councillors really do not have much choice but to accept the conclusions of the legal examination of the application.

 

Having seen the condition of the line, the trees that have to be removed, doing the trackbed, replacing rails and sleepers, rebuilding embankments, dealing with level crossings, miles of fencing, replacing the drains, a few millions there just to get the train to Stoke and then you are depending on a decision of some offical as to wether to let you run or make a village green part way down the route. As a well known tennis player once said "You cannot be serious man."

 

I know that P/wayman has put, and continues to put, enormous personal effort into the CVR/MCR project but I am afraid that, like many, he misunderstands the operation of the village/town green registration process under the Commons Act 2006. These applications have to take absolutely no account of the merit of any existing activity or proposal that would be in conflict with the exercise of rights over common land. It is always a matter of reaching a conclusion as to whether such rights have been established. In the current case that means reviewing the evidence over the 20-year period up to the date of the application. My reference to councillors having little choice but to accept such legal advice as they get is because these types of applications are essentially legal matters, there is not the degree of discretion for elected members that exists, for example, in determining a planning application. It is not helpful to denigrate either councillors or officers for working according to how the law requires; don't shoot the messenger just because you're frustrated at the way some people try to use the law.

I restricted my comments on trespass yesterday to avoid an unduly long post, but will expand a little here. As we all know, it is a statutory offence to trespass on a railway (but not necessarily on property owned by a railway company such as offices or a warehouse on a site independent of railway tracks). It may be that the County Council feels it necessary to seek expert advice on the question of whether the statutory offence still exists when a railway is unusable through neglect. Courts will often say that whether something is the case is a matter of "fact and degree". My own approach (and I am no lawyer) would be that the railway may no longer exist if all of the essential components, that is rails, chairs, fastenings, sleepers, were all so ruinous that total replacement was needed to operate a train. That is not so here; as has been demonstrated trains can be run with little more than spot renewal of sleepers. Such track would not stand up to regular use by heavy freight trains is not the point. Even if a lawyer came to the conclusion that the unusable nature of the railway in October 2011 probably meant that no-one could be prosecuted for trespass, the fact that trains used the line until 1994 (I photographed one!) proves that such conditions did not then prevail. As 1994 is within the 20-year qualifying period then lawful use for that time cannot be demonstrated.

I believe that the Courts have already indicated that the ancient principle of adverse possession (commonly called squatters' rights) in English common law may be inconsistent with the principle of peaceful enjoyment of one's property in Human Rights legislation. It is only a short step to recognise that the same doubts must apply to registration of rights of way across land and of town and village greens. The Commons Act 2006 (which replaced the 1995 Act) was a brave attempt to regularise claims of rights of common but it was written in such a way as to open the door to abuses as we can see at Endon.

 

What I fail to understand is why the application has got this far. As JS says, the line was in use in 1994 and photographic evidence exists. So clearly the application fails the 20 year test and should have been rejected on day one?

 

Quite.
Its inexcusable to have taken so long. Take a look at MCR's accounts to see the scale of the financial pressure that Staffordshire County Council's prevarication is causing . In my experience lawyers will use any excuse for delay like a drowning man reaches for a lifebelt.
Its to be hoped the technical expertise that is beyond the comprehension of mere councillors is a lot better than that in the Department of Transport!

 

Please tell me where I can readily take a look at said accounts.

Just dreaming here, but if the country was at war and we needed limestone from the quarry, how long would it take
to start moving the goods by rail?

 

I believe that in the war short, but entirely new, railway links were built in around three months. The administration took about a month and this included a design to feasibility level and a Requisition Order which was a sort of instant Compulsory Purchase Order. That would leave two months for construction.

 

Anyone can pay a fee of £1 on the companies house website and download a copy of any companies accounts. Or you can join a number of credit companies such as duedil.com for free and get information on companies including their financial accounts.

 

Another fine day on the railway today, had a taxi up the line (33012) there and back and as a nice change did some thinning out of trees that were forming a canopy over the track. We felt like lumberjacks with our saws and axes and at one time sung Monty Pythons I'm a lumberjack song.Thanks for all the humour and tales guys. I reckon that there was a few hot baths and soaking of aching bodies tonight ready for next week.

 

I doubt that you mean to accuse Staffordshire County Council of lying. I think you mean procrastination.

 

Quite so chaps, now back to your desks and swot up the difference betweem praevaricare and procrastinare or there will be no tomorrow!

 

Driving to the Cauldon line today fearing the worst with the rain pouring down, was pleasantly surprised with the sun coming out and a warm breeze gently blowing. Did some adjustments on the top points at Cauldon which some kind person had painted blue just in case our aging eyes might not have found it. Then went to Blackbrook to remove the rotting cow trespass boards on the 2 crossings which had been an eyesore since the reopening of the line. The second crew were walking the line from Cauldon to Ipstones and we met up to have lunch together in the lovely sunshine for a change. After lunch the crossings were measured up for new boards and some of the crossing timbers repacked.

 

I don't think Staffordshire County Council have been slacking as far as the village green application is concerned. It has to follow a process laid down by law and it is a nightmare! Every time someone objects to the village green application the objection has to be sent to the applicant and the applicant has a period in which to respond, i.e. find a way to get round the objection. It is also possible in some circumstances for the applicant to change their application in the light of objections received.

Over the past year I have read the statute governing village green applications, read the material at the DEFRA site on making applications, read the railway byelaws and had dialogue with Network Rail and the ORR. I am sure that if the application had been a non-starter it would have been thrown out.

Some have posted that making use of the railway land could not possibly have been "as of right" because it is a criminal offence to trespass on the railway and the line has never been closed - just mothballed. Network Rail have advised me that "In legal terms a mothballed line is treated exactly the same as an operational line, as it is still under the original statutory authority afforded when the line was constructed."

Wendy Birks (applicant) has posted elsewhere -

"Regarding disused, mothballed designations for the railway line. It seems this is semantics. It has all been debated at length during the legal to-ing and fro-ing during my Village Green application. The barrister who has advised the Staffs CC is of the opinion that the designation is not relevant to the activites we were doing on the line. However the issue of criminal trespass is. But whether this applies in this case seems to depend on whether Network Rail have given potential criminals sufficient notice."

She goes on to say there haven't been any signs in the area for over twenty years.

and another quote -

"...the barrister advising Staffs CC agrees that my application meets the three "as of right" criteria ... for an unbroken twenty year period."

This is a tickbox legal exercise. There is no scope for taking local considerations into account. Even if MCR ran a train from Leekbrook to Endon tomorrow it wouldn't have any effect on the decision because either the conditions were met in the twenty year period covered by the application or they weren't. I don't think anyone foresaw that the legislation would be used in the way it has been over and over again to try to stop planning applications.

I believe the Oswestry project also had problems with a village green application (back in 2008) which was granted. At the time, as I recall, the point was made that it would seriously compromise the reinstatement of Oswestry station to its full potential (see http://www.shropshire.gov.uk/committee.nsf/0/603D35D27C48B413802574EA004F46FC/$file/SCC.pdf). A request was made for the boundary of the "village green" to be moved slightly. The inspector refused to do so. You can read the planning committee report (see http://www.shropshire.gov.uk/committee.nsf/0/603D35D27C48B413802574EA004F46FC/$file/Report 23.7.pdf) to get an idea of how the decision is made. There are clear parallels to the Endon situation. To find out more about the Oswestry situation just google for oswestry village green.

 

Taking the above quotations in order:
(1) There is no "prescribed frequency" of trespass notices. Whilst I have no doubt that many will have been stolen and not replaced over the years, some must remain, although not necessarliy in the length of railway subject to the application. Also, one can be certain that no-one has ever catalogued the "rate of disappearance" of trespass signs so claiming that there have been none for over 20 years is unprovable. There must be hundreds of offences where no signage is expected. For example, it is an offence to drive on a footway. Footways are not signed, road users are expected to know the law and to recognise them.

(2) As I have posted before, the use "as of right" has to be for lawful sport or recreation. If it is an offence to be on the land, there can be no lawful use shown. If, as is alleged, the advising barrister considers that lawful use as of right has been established for a 20-year period, not only must he or she have set aside the statutory offence of trespass but must also have taken the view that such use co-existed with the passage of trains.

(3) The ironic point in this case is of course that it is not to stop a planning application. There is no application because no development is taking place.