Dear Simon, Councillors,
I understand that you have sought legal advice. I have seen a summary of it that says we have to read all relevant clauses. I write this on the assumption that Oxborough Farms Limited (“OFL”) are still requiring of Oxborough Parish Council (“OPC”) that they can decide, at some point in the future, whether the play equipment can remain on the village green.
The proposed location for the equipment, behind the bus stop, not only agrees with Plan 2 but also appears to be the only sensible location given current guidance regarding minimum distances from properties. You will need a path I would imagine, given RoSPA guidance regarding access by emergency services. As a minimum they state that an ambulance trolley should be able to reach the activity zone, which requires as a minimum a 1m wide, properly constructed path.
You do not, however, need to agree to any additional conditions required by OFL. Without providing any criteria by which they would allow the play equipment to remain after 5 years, the stipulation that OFL will be able to decide whether the play equipment can remain after that time is, without any indication as to what circumstances would lead to a later approval being denied, unjustified and should be removed from the letter of approval OFL should provide.
It is OPC who should make the decision as to whether, after some time, the equipment remains.
If you are minded to agree to this additional condition then it must be modified such that it is clear under what circumstances OFL could deny a future approval for the equipment to remain. If the condition is not modified then, perhaps, you might consider budgeting for a plaque to go at the end of what will then be a path to nowhere. Suitable wording might be, “Here stood the Oxborough Folly”.
The village has expressed a desire to see some play equipment on the village green on more than one occasion. It is, therefore, unfortunate that covenants attached to the deed of transfer appear to be being used to attempt to prevent that.
The covenants in the original deed of transfer appear to be poorly drafted. How else can one explain 4.1.1 and its burden on the Oxborough Parish Council (“OPC”) to ensure that only residents of Oxborough can use the village green except, presumably, at the public events OPC organise, where even people from Gooderstone are welcomed on to our hallowed turf.
It can only be surmised that OPC at the time were so keen to seal the deal that they were prepared to sign agreement to apparently impossible to comply with such apparent Monsense in order to make it happen. You do not need to make the same mistake now.
Untangling the mess created by clauses 4.1.2 and 4.1.3 appears to be the sticking point upon which Oxborough Farms Limited (“OFL”) wish to hang their five-year plan. I understand that OPC’s interpretation of the legal advice they have received is that they still have to seek approval from OFL for anything included on Plan 2.
But surely the very existence of Clause 4.1.3 is the prior written approval required by clause 4.1.2 for any development of the village green in accordance with Plan 2. What else is clause 4.1.3 for?
As the suggestion now is that the play equipment is to be sited in accordance with Plan 2 then no further approval need be sought from OFL. I appreciate that that viewpoint conflicts with the legal advice you obtained but it seems such common sense that it has to be said.
However, accepting that you are reluctant to interpret the covenants in that manner then perhaps the alternative way of looking at the same thing will reassure you that there is no need to entertain the idea of additional conditions being imposed by OFL.
Given the existence and wording of clause 4.1.3, and the contents of Plan 2, can it be said to be anything other than unreasonable for OFL to withhold approval for anything covered by clause 4.1.3? That engages the wording of clause 4.1.2 which covenants that “such approval not to be unreasonably withheld”.
I urge you not to accept any time limitation imposed by OFL and to request written approval for the installation of the play equipment in accordance with Plan 2 that cannot be reasonably withheld. Should such written approval not be forthcoming then it will not be OPC who are in breach of 4.1.2.
Andrew Le Clercq