,. PG5

BICKLEY PARK LIMITED

LONDON BOROUGH OF BROMLEY

17 JAN 2011

,---pLAD'S OFFICE

A Tompkins Esq.

"The Pentlands" Woodlands Road, Bromley, Kent. BR12AE

13" January 20 II

Legal, Democratic and Customer Services London Borough of Bromley, Civic Centre, Stockwell Close, BROMLEY. SRI 3UH

Your ref: L910/13/3/404

Dear Mr. Tompkins,

"OPEN ON APPROACH" GATES AT ST, GEORGES ROAD, BICKLEY,

I am replying to your letter of 9 December 2010 to Mr Tiley which would seem to refer to correspondence between yourself and Comptons solicitors who were instructed on behalf of the Bickley Park Estate in which you refer to the effect of the gates on "public usage" of St. Georges Road. Given that the gates are installed so as to "open on approach" then the .. exercising of any vehicular rights of access as mayor may not exist, are not thus curtailed. I take this opportunity however to remind you that in our solicitors letter of the 14" December 2006, it was made very clear in qualifying that it is only certain pedestrian rights which were (and are) conceded and that these rights have not been impeded at this time, nor at any time since that date.

You say that it's the council's belief that St Georges Road is a highway. However, despite numerous requests during more than a decade from various residents and their representative bodies you do not offer any evidence in support of tbis claim, It therefore seems that the stance you have taken stems merely from the road being on a non-statutory list of un-adopted roads which was inherited from a former local authority when the L.B.Bromley was formed in 1964/5.

On the 23 October 1990, a part I( report was on the agenda of the Council's Technical Service s Committee. This report dealt with, inter-alia, "unauthorized signs" in un-adopted roads. An appendix to the report, which was repeated in another part I( agenda, item 2, dated 10 December 1991, listed SO roads in which it"vI",s alleged that "un-authorized" private road signage was displayed. St. Georges Road was included but was not among the 31 recommended by officers for action to remove the signs. Such signage and their replacements remained, and still do to this date throughAW all of the Bickley Park Estate.

You will doubtless recall that you arranged the conference held on 22 Novemberl996 which was attend~ by fellow officers' together with a leading Counsel, Mr. George Lawrence

Q.c. You will also recall that at the conference Mr. Lawrence 'urged caution' as to the value of the non-statutory list and that 'other evidence' (apart from simply being on the list) would be required in order to validate highway status of roads shown on the list. Have you any such 'other evidence'? I should be grateful for your early response on this vital point.

Of more recent date are letters written by you on 27 January 2005 and 18 April 2005. For ease of reference I enclose copies of these.

In your letter of 27 January 2005 to Mr. Hucklesby, Chairman of Camden Park Estate, you state "Advice has been obtainedfrom Leading Counsel that private road notices have the effect of preventing the establishment of public vehicular rights even though such vehicles may have used the road".

You went on to say "The statutory duty (of the Council) to assert and protect public vehicular rights under the Highways Act only arises if it is beyond serious doubt that the road is a highway with such rights",

In your letter of 18 April 2005 to Mr. Barnes you strengthened this by saying ""The duty only arises where there is NO doubt that the road is a highway" (presumably you had in mind the earlier legal advice referred to above which also threw doubt on the validity of the non-statutory list). This was prefaced in your letter with "In essence, the fact that motor vehicles owned by the general public have used a road does not mean that the road is a public highway".

Given that the present PRIVATE ROAD signs in St Georges Road and other roads within the Estate are replacements of earlier long-standing signs, and that the above quoted extracts from your letters will not be refuted, then St Georges Road cannot be held to be a vehicular highway. It is also seen as significant that you have not heeded the Rule of Law which says that " the onus ofproof that a way is a highway is on the person alleging the way is a highway - a maxim which the former Head of Highway Planning, Mr. P. Garrett, has cited on a number of occasions in Council Agenda reports (see enclosed example). Apart from expressing a belief that St Georges Road is a highway, have you any probative evidence in support of this claim? If so please forward it to me in order that it may be evaluated.

Failure to offer any proof makes your proposed action to determine the status of St Georges Road by way of a Court Declaration appear perverse and contrary to natural justice. It would also be a misuse of public money, particularly in the light of severe cuts in Government funding for local Authorities.

In actual fact, because this is a non-statutory issue it is clearly possible to change the local authorities record of the status of these roads from the Non-Statutory list of unadopted highways to the Non-Statutory list of Private roads without fuss or reference to a Court or legal procedure as has been done by Mr Garrett with regard to a number of roads without reference to other authority.

Our right to gate the road is unassailable given its private status. The self-help carried out by the residents as street managers of the roads of Bickley Park Estate is a good example of 'Localism' now being strongly promoted by the Government. The gates serve toassist the residents of the Bickley Park Estate in maintaining their independence and stalldards of care for their local environment by reducing traffic flows and speed and thus reducing u.!lli.ue wear and tear of the road surfaces, for which they and they alone by way of covenants~und

v

to repair at their expense. St Georges Road is within 10 minutes walk from Bickley Railway Station and is being increasingly used as a car-parking area for commuters. This has the effect of increasing wear and tear on the centre portion of the road. The gates discourage commuter parking and therefore go some way towards countering the concern regarding commuter parking as expressed in paragraph 5.24 of the Policy T3 of the Council's Unitary Plan.

Whilst it may be considered irrelevant because it is not accepted that any part of the Bickley Park Estate can be considered, nor will be deemed by legal test to be a highway, you may be aware that even if it were a highway your officers instruction to you would appear to be ultra vires where it would seem to be outside of his delegated powers to act as it would appear he seeks to do because such delegated powers are restricted to maintained highways; If you would care to clarify on which parts of the Highway Act the officers and yourself intend to rely we would be obliged to respond more fully if appropriate, but to re-iterate, as it is not a highway, this may be outside of the point.

In your interim response letter of the 14'h December 2010, you state that your instructing officer for the purpose of legal action mentioned in your earlier letter is Mr Nigel Davies, Director of Environmental Services (DES). 1 should be grateful if you would let me know from whom this authority derives as I can find nothing to support this in the powers delegated to the DES as described in the Councils scheme of Delegation to Officers. Could it be that such power is solely in the hands of the Executive Member of the Council who holds the Portfolio for the Environment? It is hard to believe that action seeking an injunction and a Court declaration would be possible before being sanctioned by the Portfolio Holder ­especially in view of its serious nature and cost to taxpayers - and before any evidence of highway status has been shown to residents.

I look forward to receiving your response.

Yours sincerely,

. ~\ l~ fU c;U,vU: eM '-­

~arrison Director

V' Cc: Cllr Colin Smith, Ward Councillor and Portfolio Holder for the Environment Ward Councillors Catherine Rideout & Kate Lymer

v· Cllr Stephen Carr, Leader of the Council V· Bob Neill, MP for Bromley & Chislehurst

Doug Patterson, Chief Executive LBB Mark Bowen, Dir. Legal & Democratic Services LBB Nigel Davies, Director of Environmental Services LBB MrN Goldreich, Comptons Solicitors _

Registered in England No . 5960434

r~·!E LONDON 8Op.oUGH

Legal and Democratic Services . . CiVIC Centre. Stockwell Close. Bromley BH.I JUH

Telephone: 020-8464 3D] Fax: 020·8290 0608 Direct Line: 020-8313 4369 lntcrnet: wwwbromley.go'l.uk Emaih:>ny.tompkin3@bromley.gov.uk O><S7!7 Bromley

Your ref:

Our ref: L910/7/2/14/1

Mr J Barnes 'Finchwood'

181h April 2005 18 Edgeborough Way Bromley Kent BR1 2UA

Dear Mr Barnes

CAMDEN PARK ROAD, CHISLEHURST

Thank you for your letter of 15th April and I am sorry for the delay in sending a reply to your earlier letter addressed to Peter Garrett.

I think the simplest way to address the points you have raised is to let you have a copy of my opinion as to the legal status of Camden Park Road as set out in my letter of zz" January to the Chairman of Camden Park Estate Limited.

RO.~\l,

In essence, the fact that m..gto,r vehicles owned by the general public have used a-ftighway does not mean that thei1igh~aY'4s a public highway. A considerable amount of background research was carried out by my colleague, Jon Channon together with Peter Garrett, and this was the subject of a conference with Mr George Lawrence QC whose advice was that the Council had insufficient evidence. to establish that Camden Park Road is a highway open to vehicular use by the general public. Equally, that does not mean that it has been shown beyond any doubt that it is a private road. However, thwe is not enough evidence to trigger action by the Council to assert and protect claimed public rights of way with vehicles in accordance with the Council's duty under the Highways Act 1980. The dUty only arlses where there is no doubt that a road is public highway and thatis not thec3se here ,'---"------""'-""";z::-;::-.;.-'--" .... __._.....-......_. -_.......-...­

As you will see from the enclosed letter, there is considered to be pedestrian usage by the general public and the Council's Rights of Way Sub·Committee will consider a report later this month for an amendment to be made to the Definitive Map as set out in the final paragraph of my letter.

Yours sincer Iy

~ Tony Tompkins Solicitor Team Leader (Litigation)

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THt: LONDON 8O I\OUGH

Legal and Democratic Services c.·" c Cen tre. Sto ckwell 0 05<:' , Brumley BRI 3UH

Telephor>e: 020-8464 3333 Fax: 0 20 -8290 0608 O , 'en Ur>c: 020-8313 4369 Intemel: www.bromlcy.gov.uk Emailtony.tompkinS@bromley.gov.uk DXS717 Bromley

Your ref:

Our ref: L9 1017/2114 Mr W H Hucklesby Chainnan Camden Park Estate Limited 27 111 January2005

TinkersHill " 23 Camden Park Road ChisJehurst Kent BR7 5HE

Dear Mr HUcldesby

REVIEW OF THE STATUSOF CAMDEN PARK ROAD

As you are aware. J was asked to review the status of camden Park Road (CPR) in the light of an ongoing dispute between Camden Park Estate Limited and the Council as to whetheror not CPR is a highway and jf so what public rights exist over it.

As you can imagine, I spent some considerable time reading through the extensive documentation which is held on the Legal and DemocraticServices departmental file which was originally opened in 1996 by my colleague, Jon Channon. I also reviewed the Environmental Services Department file which largely mirrors the LADSfile and I had brief discussions with Jon Channon and Peter Garrett purely for clarification as certain points occurred to me, Nevertheless, the purposeof my review was to bring, as it were, a fresh mindto the matter and Ihe conclusions which I have reached and which I set out below are solely my own.

The Council's non-statutoryRecord of Highwaysshows CPR as being a highway. It does not however indicate whether rights over it are limited in some way or another and, therefore the past assumption has been that it is a highway open to aU traffic. This record was inherited by Bromley from one of its constituent authorities, ChlsJehurst and Sideup UDC, and there is no surviving evidence as to the reason or reasonswhy the previous

, authoritycame 10 that decision. Although this does not necessarilymean the record was wrong or based on inadequate infonnatlon, It is now impossible to fonn a clear viuw one way or the other as to the correctness of that record.

There is other evidence on file which suggests that Camden ParX Road is a highway and not a private road but with public rights of way limited to pedestrian access. I believe this

/ to be the case because there is some evidence that ·Private Road" notices have been in place from at least the 19305 and that prior to that as the road crossed a common the 1925Law of Property Act would have prevented vehicular rights arising; that is unless these can be shown to have existed for at least the twenty years prior to 1925, being the period for prescriptive rights to become established. There is no evidence that I could see

Cont'd...

-2­

about such usage and with motoring in its infancy prior to 1925 it is unlikely that there would have been sufficient usage of vehicles to establish public vehicular rights.

'AdVicle-has been ubbIitwdfJ..nl.eedlngCounseIIhat pridteroed notice_ have.tt.efr.t 'flrP*'""itll'9thlnatlt~I"'illle"tof public WlhIcuIar rightt'even theuDhsuch ~ ITlaYf~~'tlll d II I !. There is, in my view, sufficient evidence here to support" I'C VIeW 0 Camden Park Estate Limited that the road is notavailable for useby vehicular traffic or. looking at it in the alternative. insufficient evidence to the contrary for the Council to take action to assert and protect public vehicular rights over the road. The statutory duty to assert and protect public vehicular rights under the Highways Act only arises if it is beyond serious doubt that the road is a highwaywith such rights. There is no evid~nce on file that I can see that public use of the road by vehicles has ever taken plaee without the presence of private road notices for the requisite twenty year prescnptlon period.

My belief that pedestrian rights have become established is based on the following:­

(I) the evidence about signage only relates to CPR being a private road and there is case Jaw precedent to show that this does not effectively prevent pedestrian

. rights being established; ': '.~,.

(ii) Ptiblic'Footpath-41 enters CPR at a midway point without any restriction and It must folrowthat walkers have either gained access to Footpath 41 from CPR on foot or continued along CPR haVing walked to it from the other direction along the footpath. It is inconceivablethat walkers reaching CPR from FOOlpl!th, !1.1 would not then continue in most cases along CPR in either direction;

, ,

(ill) supporting user evidence has been obtained from the RamblerS Association and I encJose copies of these for your information. , ..

In conclusion. on the basis of all the documentaryevidence I have seen, I,~Iieve that CPR is a highway limited to a pedestrian right of way in eachdirection. to and from the point where Footpath 41 joins CPR. Because there is no such right currently recorded on the Definitive Map and the Council has a duty under the Wildlife and CountrysideAct 1981 to keep Ihe Definitive Map and Statement up to date, I have recommended that a report be sUbm~.t9a futu~,meetlng of the Rights,of Way Sub-Committee for a resolution that the Definitive Map be amended to show a'foOtpath over the width of the road and that signage for apUblic footpath be placeoat the appropriate points. On the assumption that authority is given for t~~ making of:suCh Order, there will then be a sta!Utory process to foflow which will i~clude widespread publicity for the Order and giving , notice to Camden Park'Estate Limited lind Individualowner occupiers and other inter!"ted parties, ea?~ bt'whomwill hm an opportunity to object. If objections are recel~d ~d are not Withdrawn, then the matter will be referr~to the ~retary of State who WIll e~er arrange a PUb!ic IrlqOli"y"or give anybody objeetint/br.l'naking other representations, an opportunity to be heard by a person appointed"by·the Secretaryof

• , •. 1 Cont'd

.-.,­.e GARI<'£T'T""'S SrA , 7"t1FM £ I"4 T

9.3 ]le onus is upon the Council to establi§.h whether ahihwaor rivate street 0 n . to the pUblic ~l\;Jsts . This involves reference (0 the Council's ownhighway records,

•minutes cifCommittee meetings, tax and revenue records ; maps; historical 'and other records as wellas verba! and other anecdotal evldence.i.Ultlmatelyv.ifthe Council and the residents remain in dispute as to the status of away. it might be necessary to seek a declaration from the Court before ' the Council determined to take direct action for the removal of signs or ' prosecuting ;,the ,residents for erecting any obstruction such as gates: ' ,

.~:.'. ,. . _i. .". . ­

9.4 , " Whilst theC;o,uncilis notresponsible for the maintenaneeof'unadopted highways, it \ ' , is .ui)der a duty to assert and protectthe rights of the public:to t1l!:use and enjoyment

i:' ;A' '" of <inY·highway for which .itts, the highway authority, by ,yirtue 'of S .130(i) of the !~~/~ if : Highways Act 1980, Accordingly, the Council should takeaction whenever an \ ~ ,A /1/1f~: " IIlIlIMPted hig~way isphy~ica~y :obsl\1Jcted andsigl\Swhicb)nform the public that " , ; \ , they have 'DO right of passageover-the-roe! should also be removed ; , .

9.5 The wording on the signs erected by LondonBorcughCoritrolled -Parking,Ltd. was speclfically chosen to offer a defense against any .claims against the Company resulting from 'the clamplngofvehicles on privateJand. , Therefore, if the Council was to make clear the status of all unadopted highways, by adding this description to

, ",' the sueet:iwile plates, this .would be an effective means of,negating any 'other signs ',' ,;, in.alegal.sense.

10. " CONCLUSION . .,. ."

10.1 , " Further difficulties have arisen and are continuing to arise due to unauthorised signs ', ' ; in ro~dS;whicb.<the ,Counci1 consider to be udadoptedhighy.'aj's;;.but whichthe signs

, clliim lQ be private rQads;; " ,·~.:JL~(.:;'Y ' . , \. ­

10.2 In 1992, the TectuiicalServices Conunittee decided .not to take action to remove • unauthorisedsigns that are prohibitory (and are notmerely informative) but in view

••,,>Qf \becurreDtsituation.' thisdecision .should nowbereconsideiJ:d~ ' , .; : . , , .. :;..;; ',." ', :. \

10.3'J]JeCouncil couldnegate;othersi@S,)na ,legalsense.lf.tbe status of a street as , , ~uruidopted , highway " was confirmed by a sign added to the~

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