From: Hugh Craddock (BHS/EWD)
Sent: 14 April 2009 21:59
To: Tim Richardson
Subject: RE: Special meeting of the Conservators - CONCERTS ON THE DOWNS
Dear Tim
1. Thank you for your email advising me of the racecourse's application to stage a concert on the downs in 2010, and of the timetable for determination of the application by the board of conservators and the council. I am responding to you today, in advance of the circulation of the agenda and papers, partly because I am unlikely to have much time to prepare further comments on these documents between now and the scheduled meeting date, and partly because the rapid timetable for preparation of these papers implies that the arrangements are likely to be very similar to those proposed for the cancelled 2009 concert. However, I may still want to write to you again with some possibly brief further comments once I have seen the agenda and papers.
2. The conservators have already seen the BHS' comments on the original application: these were contained in my email to David Smith dated 30 August 2009. Further questions were raised for the consultative committee meeting on 18 November 2008, and the chairman's response is printed in minute 291 of that meeting.
3. In view of the impending meeting to determine the application for the concert in 2010, and the likelihood that the conservators may be minded to approve the application subject to the imposition of conditions similar to those imposed in 2008 ('the 2008 conditions', as regards the 2009 concert), it may be helpful if I now set out how we would like to see the 2008 conditions modified to meet the concerns previously raised. References to conditions below are references to the 2008 conditions as numbered in minute 2967 of the conservators' meeting of 3 September 2008.
4. Condition 1: "There should be no significant interference with the rights of the public for longer then the period permitted under the Epsom and Walton Downs Regulation Act 1984."
5. This condition refers to the power of the conservators to "permit the Downs to be used for the holding of such events other than horse races as they think fit" in section 10(2) of the 1984 Act. The proviso to section 10(2) ('the proviso') states "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 ... (a) the Downs shall not be so used for such events for more than five days in any one year... ."
6. But the effect of condition 1 is to transfer from the conservators to the promoters the responsibility for ensuring compliance with the proviso. Condition 1 does not specify what period of interference might be permitted, yet the conservators may wish to retain control of how the five days might be expended (in 2009, the intention was to allocate one of the five days to another event, leaving just four for the concert). Nor does the condition explain what might constitute a 'significant degree of interference'. The effect of the condition is to leave quite uncertain what is permitted, and within what thresholds the promoters might operate: it is, in short, unenforceable for want of certainty. It is rather like the council giving planning permission for 'a house which doesn't spoil the amenities of the neighbourhood', and leaving it up to the developer to decide just what kind of house might comply with that requirement. What is the mechanism for enforcement of such a condition?
7. We would like to see a condition imposed which specifies:
a) the number of days (not more than five) on which there may be 'significant interference';
b) the threshold above which a significant interference will be judged to have occurred (e.g. fencing excluding the public from a portion of the downs, other than in a de minimis case).
8. If, and we do not accept the premise, the power of the conservators to permit events under section 10(2) includes a power to suspend the use by the public of their right of access to the downs for air and exercise, and to suspend the use by hack riders of hack areas and hack rides, then any such suspension (other than in a de minimis case) will, by definition, amount to a 'significant degree of interference' for the purposes of the proviso, and each day on which the suspension is in force will count towards one of the five days. The condition should therefore be clear that there should be no interference with the public right of access other than on the number of days designated as proposed at 7a) above.
9. Condition 8: "All Public Rights of Way across the Downs to remain open, and arrangements for temporary diversions to be made where necessary."
10. The details for the 2009 concert circulated as annexe 4 to the papers for the meeting on 3 September 2008 suggest a significant period of closure for the access road to the milepost car park (New Road Work No.1), and for public bridleway 127 within the bounds of the racecourse. The exact period during which closure is required is unclear, but, in respect of both routes, appears to extend to the entire set up and breakdown periods. Both these routes are public highways: the access road is understood to be a public road. Any closure of either highway will require a traffic regulation order made under section 16A of the Road Traffic Regulation Act 1984, to be made by the traffic authority, Surrey County Council. Moreover, such an order is made at the discretion of the traffic authority, can only be made if the authority is satisfied "that it is not reasonably practicable for the event to be held otherwise than on a road", and can only be made for a period of no more than three days unless that period is extended by the Secretary of State.
11. It may be possible for the promoters to reduce the number of days on which the use of either route by the public requires to be restricted. However, it is difficult to see that bridleway 127 can be kept open throughout the set up and breakdown periods, other than for the duration of the concert itself, without the works amounting to a nuisance to highway users which would render the promoters liable to prosecution: so it is far from clear that a traffic regulation order for a period of three days would be sufficient for the promoters' purposes. Moreover, hack rides are designated on both verges of the access road, and in our view, neither the conservators nor the traffic authority has any relevant power to suspend use of these hack rides at any time. If, however, the conservators take the view that they may suspend the use by hack riders of hack areas and hack rides under section 10(2) (see paragraph 8 above), then each day on which such suspension occurs will, again, need to be counted towards one of the five days.
12. In our view, the promoters are unaware of the status of the access road and bridleway 127 as public highways, and have failed to develop plans for the concerts which take account of their status, and the limited opportunities for their closure.
13. We would therefore like to see a condition imposed which specifies:
a) that the temporary closure (whether or not a diversion is available) of any public highway across the downs will require the authorisation of the traffic authority and, if appropriate, the Secretary of State;
b) that the alignment of any temporary diversion will also require to be approved by the conservators (or by delegation to an appropriate person on their behalf);
c) that any day on which the closure of a hack ride (other than bridleway 127) or hack area is required will be treated as a 'significant degree of interference' and count towards the number of days designated as proposed at 7a) above.
I hope these comments enable the conservators to impose more meaningful and enforceable conditions in relation to the 2010 concert. Please would you confirm that these comments will be circulated to conservators in advance of the meeting scheduled for 23 April?
Regards
Hugh
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