Dear David
1. I am writing to you with the BHS’ comments on the proposal for a concert on the Downs. Just before writing to you, I received and opened the papers for next week’s meeting of the Conservators, but, as we will be departing on holiday shortly (and cannot attend the meeting), I have not had time to take account of those papers, nor especially counsel’s opinion on the powers to stage the concert. Suffice to say, from a quick scan of his opinion, that I do not agree with everything that he says!
2. Our starting position is that we would be opposed to a lengthy occupation of one of the most important hack areas on the Downs, comprised in the Hill, implied by this proposal. There is continuing uncertainty about just how long this occupation would last, but we would regard the occupation as enduring from the erection of fencing until the fencing is fully removed and all litter and detritus is removed from the Downs. Our expectation is that this would last for a period of around five days, the maximum allowed for in the Epsom and Walton Downs Regulation Act 1984 (‘the 1984 Act’), and that this is simply too much for too long.
3. We would have some sympathy with the proposal if it were clear that the Downs, and users of the Downs were to receive some continuing benefit from it. However, the ‘gift’ of £50,000 which has been offered by the racecourse (referred to below as ‘the Company’, in accordance with the 1984 Act) appears to have been plucked out of thin air, without any explanation of how this relates to the present or future profitability of the event to the organisers or the racecourse. In our view, the Conservators should not accept the gift without a much more detailed financial analysis of the proposal, and if the Company is unwilling to allow full disclosure, it should refuse consent. Moreover, the Conservators have not explained how they would apply this substantial additional income, recurring annually. We would expect to see it put towards capital expenditure items, and would suggest, among other things, that installing proper drainage and rehabilitation of the sand track (at its eastern end) would be a worthwhile investment to partly compensate hack riders for temporary loss of use of the Hill.
4. We are also concerned that use for the concert may increase compaction of the soil, beyond that engendered by the Derby racing period, on which ground the site of the proposed concert has been adjusted so as to minimise impact on the training areas. We think that the impact is equally unacceptable whether it affects the training grounds or the hack areas.
5. We also wish to draw to your attention the requirements of the 1984 Act in relation to special events of this kind.
6. Section 10(2) of the 1984 Act enables the Conservators, “with the consent of the Council and the Company or the Owner or the Levy Board, as the case may require, permit the Downs to be used for the holding of such events other than horse races as they think fit.” Although there is some grammatical ambiguity in the construction of that subsection, it is clear from the context of the Act that any such event would require the consent of the Council (in addition to the consent of the Company, or the Owner or the Levy Board, as the case may be: we assume that, having regard to the proposed location for the concert, only the Company’s consent would be needed), but at no point in its public deliberations has the Conservators acknowledged that the Council’s consent must be obtained.
7. Moreover, the proviso to section 10(2) (‘the proviso’) requires that: “in the case of such events which, in the opinion of the Conservators involve a significant degree of interference with the rights of the public of access for air and exercise under section 4 (Rights of public over Downs) or section 15 (Rights of horse riders on Downs) of this Act
a. the Downs shall not be so used for such events for more than five days in any one year; and
b. not more than 25 hectares of the Downs shall be set apart for the holding of any such event.”
8. On the one hand, we do not necessarily consider that the proviso restricts the Conservators’ determination of this proposal. Most of the events held on the Downs such as fun races or Horseman’s Sunday do not, in our opinion involve a ‘significant degree of interference’ with public access, and therefore, do not fall within the scope of the proviso. That is because such events do not, to any significant extent, exclude the public from any part of the Downs to which they have a right of access. However, the proposed concert very clearly does fall within the proviso, since, among other things, it involves the erection of temporary fencing around the ‘back-stage’ and audience arenas, which will have a very substantial effect on public access.
9. We were concerned that, at the last Conservators’ meeting, you reserved a view as to whether, with regard to a proposal of this kind, the number of days on which the Downs is ‘used’ for the event is the number of days on which the event takes place (i.e. the two days on which a concert performance is scheduled), or the number of days spanned by both the performance, and the preparation and dismantling of structures necessary to the performance. In our view, the answer is very clear. Section 4 confers on the public a right of access to the Downs, “provided that nothing …shall authorise any interference…with the use of the Downs for events permitted by the Conservators [under section 10(2)].”
10. The public right of access can only be curtailed in accordance with the 1984 Act. Insofar as the Company is entitled to interfere with those rights, its powers are set out in section 17. Section 17 makes specific provision not only as to the exclusion of the public during the racing period (i.e. the days on which racing takes place), but also during the preparatory period (i.e. the 14 or 21 days leading up to days on which racing takes place), the preliminary period (i.e. the 3 days leading up to racing days) and during the subsequent period of 10 days after racing. See, for example, the powers conferred in section 17(1)(b), 17(4), the specific demarcation on the deposited map of the lands on which those powers may be exercised, and the requirement in the proviso to section 17(4)(d) that certain temporary fencing must be removed within 10 days of any meeting. Taking account of the careful enunciation of the Company’s powers set out in section 17 to interfere with the rights of public access not only during the racing period, but before and after that period, we believe that it is inconceivable that the intention rooted in section 10(2) is to enable the Conservators to authorise interference with public access on more than five days each year, whether the interference arises from the event itself, or from the preparation and dismantling of structures necessary to the event, and that each day on which preparatory or consequential measures must be taken in connection with the event which ‘involve a significant degree of interference with the rights of the public‘ will require authorisation under section 10(2) and will count toward the five day quota.
11. Moreover, while section 17(4) confers powers on the Company to make temporary enclosures during the preparatory period, the racing period and the intervening period (where relevant), these powers are conferred for the sole purpose that the Company may ‘hold and conduct horse races at authorised meetings on the Downs’ (section 17, opening words). The Company has no power under section 17(4) to make temporary enclosures for the purposes of staging a concert, and the Conservators have no power to authorise such enclosures for that purpose. Moreover, any temporary enclosure erected under section 17(4)(a)(i) must be removed ‘as soon as practicable (and in any case within 10 days) after the end of each authorised meeting’. Such temporary enclosures as may be erected lawfully for the purposes of racing cannot be allowed to endure for one week after the end of the racing period for the purpose of a concert, because that would fly in the face of the requirement to remove the enclosures ‘as soon as practicable’. The ten day period is a maximum period, a ‘long stop’, allowed to the Company to comply with the requirement to remove the enclosures as soon as practicable, not a concession to allow the enclosures to remain in place for that time whatever the circumstances.
12. Section 17(4)(c)(ii) confers a further power to erect “temporary stands and such additional stalls, booths, fairs, canteens, public conveniences, ambulance stations, and enclosures or any of them” with the permission of the Conservators, but such powers again may only be exercised in furtherance of racing. While, for example, the practice is to allow the fairground to endure after the end of the racing period, that is a matter of tradition which is clearly contemplated by the specific reference in the provision to ‘fairs’, to the area designated on the signed map for the use of the fairground, and to an absolute period of 10 days allowed under this provision for dismantling the temporary stands etc. without any requirement for the dismantling to be completed as soon as practicable. In our view, the structures which may be authorised under section 17(4)(c)(ii) are ones which are necessarily or traditionally ancillary to the racing, and a concert enclosure is not within scope.
13. Section 17(4)(a)(i) confers powers on the Company to set out temporary parking places on the Downs, and section 17(12) confers a power to charge for parking, but only in connection with horse racing. Even if such temporary parking places are in place for racing in the days preceding the concert, the Company is required to remove them ‘as soon as practicable’ after the end of each authorised meeting, and in any event, within 10 days. The Company cannot comply with this requirement if the temporary parking places are intentionally retained for use for some other purpose. Nor can section 17(12) be interpreted as conferring a power to charge for parking for other events, if, at the very time the Company is charging for that parking, Company is under a duty to remove the temporary parking places for which it is levying the charge!
14. We also take the view that the Company has no power to charge for entry to any part of the Downs, at any time, other than for the purposes of racing. Specific powers are conferred to charge for entry in section 17(1)(b) and (12), but only in connection with the Company’s power to ‘hold and conduct horse races at authorised meetings on the Downs’ (section 17, opening words). It is simply not possible to conjure from the words ‘a significant degree of interference with the rights of the public of access’ a power to exclude the public altogether, and to charge for public admission, without the express words found elsewhere in the 1984 Act. So how does the Company claim to be able to exercise such powers, and under what provision do the Conservators claim to be able to authorise it to do so?
15. In our view, the entire event is based on a misconception that the Company may use the Downs for non-racing events on the same basis that it may use the Downs for racing events. It may not, and the limited power in section 10(2) amounts only to the authorisation of a ‘significant degree of interference’ with public access. It is not a power to exclude public access (as is found elsewhere in the 1984 Act), and it is not a power to charge for admission to the Downs to which the public has a right of access. In our view, ‘interference’ is consistent with events of such a scale attracting such numbers of people that the public might be inclined to keep away, or which require part of the Downs to be marked, roped or informally fenced off such that the public can only use the area so enclosed if they are rather determined to do so. If the intention was to enable the exclusion of public access, then the 1984 Act itself uses the expression to ‘exclude’ public access elsewhere.
16. The concert proposal has nothing to do with the racing, and merely follows it, because the Company appears to mistakenly believe that it can employ its powers to host racing for other purposes. It cannot. In effect, we believe that the Conservators may be able to authorise the event, but cannot authorise the elements necessary to make it profitable, such as parking, charging and exclusion of the public.
17. Finally, no consideration appears to have been given as to how use of public bridleway 127 along Old London Road will be excluded during the concert? In our view, an order cannot be made under section 21 of the Town Police Clauses Act 1847, because the event will be a private event not open to the public, and such an order cannot be made “for preventing obstruction of the streets” if the very cause of the obstruction is an event from which the public is itself excluded. See Brownsea Haven Properties Ltd v Poole Corporation [1958] 1 All ER 205, in which the court held that an order can only be made in case of “public processions, rejoicings, or illuminations” or other cases in a class of exceptional events. Lord Evershed MR said, obiter, that he would “if necessary, … treat the word “public” as applicable to all three”, and Romer LJ tended to agree. Moreover, it seems likely that the bridleway itself will not be ‘thronged’ during the event, but kept open for emergency access.
18. We would also question how use of the public highway on the inside of the racetrack between the Old London Road crossing and the half mile post car park will be regulated during the preparation for the concert (other than during the hours when the traffic regulation order is effective)?
Regards
Hugh Craddock
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Hugh Craddock
BHS Assistant Access and Bridleways Officer
Epsom and Walton Downs
e-mail: ewd@craddocks.co.uk
website: www.craddocks.co.uk
(h) 01372 729793