EPSOM AND WALTON DOWNS CONSERVATORS
3 SEPTEMBER 2008
ITEM 01
ANNEXE 1
EPSOM & WALTON DOWNS
PROPOSED TWO DAY CONCERT
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ADVICE
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1.
I am asked to advise on a number of questions and issues relating to the
possible holding of two days of concerts on Epsom Downs – anticipated to
be about a week after the well-known Derby race meeting. I have already
given some preliminary advice on the telephone.
2.
Epsom and Walton Downs (which I understand to be contiguous parts of the
same overall area) are governed by their own specific local Act of
Parliament, the Epsom and Walton Downs Regulation Act 1984, under
which provision is made for the Downs to be controlled by the ‘Epsom and
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Walton Downs Conservators’, the body who are my clients for the purpose
of these instructions. Under the Act the majority of the Conservators (6 out
of 10) are to be members of Epsom & Ewell Borough Council. Section 11
of the Act also provides for the Conservators to make Byelaws, and I have
seen what I understand to be the current set of such byelaws as confirmed by
the Secretary of State in 2005.
3.
The key statutory provision is Section 10(2) of the 1984 Act, which allows
the Conservators (subject to relevant landowner consent) to “permit the
Downs to be used for the holding of such events other than horse racing as
they think fit”. There is however a significant proviso for events which
would (in the Conservators’ opinion) involve a “significant degree of
interference with the rights of the public” on foot and horseback. There can
be little doubt that the double concert envisaged would involve such
interference. Where the proviso is triggered (and thus in this case) the Act
says:
"(a) the Downs shall not be 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.”
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Power to authorise
4.
In my Opinion the Conservators clearly have (in principle) powers to
authorise such a 2 day concert on part of the Downs under Section 10(2) of
the Act, as long as it does not take up more than 25 hectares.
5.
This clearly would in my view cover the setting up of the stage and secure
backstage area, as well as the area to be occupied by the audience.
6.
As for fencing, I have noted that there are specific powers in the Act, ‘for
the protection’ of the (racecourse) Company for the erection of fencing on
and in the run-up to race days – section 17(4)(d). No such specific powers
are provided in association with Section 10(2).
7.
Nevertheless in my view it is clear that Section 10(2) does allow the
Conservators to authorise fencing.
What is being contemplated in the
subsection is specifically a “significant degree of interference” with public
access rights. Also, proviso (b) in the subsection envisages that some of the
downs will be “set apart” for the event. In my view those words clearly
envisage the erection of fencing to keep the public out, and/or to define the
space where the event takes place. Thus in my opinion both the secure
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backstage area and the ‘audience’ area may be fenced off, with the
Conservators approval.
8.
It also follows, in my opinion, that charging for admission to the relevant
fenced off part of the Downs may be allowed. Otherwise this makes a
nonsense of the provision allowing the pubic to be excluded by fencing from
the area where the authorised ‘event’ is to be held.
The “5 day” rule
9.
In my view, looking at Section 10(2) as a whole, and considering its
purpose, I have to say that I believe the 5 days are intended to cover the
whole time during which public access to the relevant parts is ‘significantly
interfered with’, not just the days on which the events (in this case concerts)
have their public manifestation. In other words, in my view, it would not be
permissible, for example, to have five days of concerts or other
performances, with the relevant part of the Downs being fenced off for
several weeks on either side.
10.
That was an extreme example, but I do not believe the Act allows more than
5 days of ‘significant interference’ or exclusion of the public.
Ideally
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therefore the setting up, holding of the concerts, and then dismantling and
clearing should all be done within a five day period.
11.
However it seems to me that the real test is ‘significant interference’ with
public access rights. As long as the large fenced ‘area of exclusion’ is only
effective for 5 days, it seems to me that certain of the construction or
dismantling activities might be allowed to take place outside that time period
(on either side) as long as they affect an area so much smaller that they
would not amount to ‘significant interference’. I have in mind, for example,
the actual setting up or dismantling of the stage itself, which the plans
suggest would only occupy a fairly minimal area.
12.
However if the fenced ‘area of exclusion’ (as I have called it) planned for
the events is large enough to amount to a significant interference with public
access rights during the events themselves (as in my view of the plans it
inevitably must be), then that exclusion must not last longer than 5 days.
There is no element of ‘fact and degree’ in this. Where such a concept
might be relevant would be the possible exclusion of the public for a longer
time from much smaller areas, e.g. the stage itself, on the basis that this
might not represent a ‘significant degree of interference’ with the public’s
rights.
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13.
The other possibility which occurs to me, from what I have read in the
accompanying papers, is to ask whether any of the setting up period for the
concerts might ‘take advantage’ of all or part of a period when the
Racecourse Company is entitled (e.g. under Section 17) to exclude members
of the public from parts of the Downs in the period preparatory to and during
an actual race meeting. I am not sufficiently familiar with the detailed
arrangements for race-meetings to know whether this is feasible or not, and
nor are the plans with my papers of a scale or sufficiency of annotation for it
to be possible to work this out from them.
I am sure the Racecourse
Company would be able to advise as to this.
The Byelaws
14.
I have considered the Byelaws, and the points in relation to them made by
Mr Gee, a former Chairman of the Conservators. Mr Gee has correctly
noted that there seems to be a distinction between the two parts of Byelaw 2.
Byelaw 2(1) prohibits various actions/activities “without the consent of the
Conservators”. Byelaw 2(2) makes no such provision for consent, and so is
the part Mr Gee has concentrated on.
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15.
The most problematic part of Byelaw 2(2) is sub-paragraph (a), which
prohibits the operation of an “amplifier ... or similar instrument” so as to
cause “any noise which is so loud or so continuous or repeated as to give
reasonable cause for annoyance to other persons on the Downs”. It is
immediately apparent however that this is not a total prohibition on the use
of amplifiers etc on the Downs, but embodies an element of subjective (‘fact
and degree’) type judgment as to whether there is ‘reasonable cause for
annoyance’.
16.
Thus it cannot in my opinion be argued, for example, that the Conservators
may not allow a concert on the Downs because it must inevitably involve a
breach of Byelaw 2(2)(a), which the Conservators would thus be inciting or
conniving at. It would be more a question of seeing whether the actual
concert itself was in reality so loud (etc) as to give “reasonable cause for
annoyance” to people on the Downs, before anyone could decide that the
Byelaw had been breached.
17.
Having said that, however, the Byelaw wording is undoubtedly a little
problematical, and one might reasonably expect the Conservators in the light
of it to try to ensure that any concert they were minded to permit was not,
taking a reasonable overall view of all the considerations likely to be
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involved, going to cause justifiable annoyance to other persons on the
Downs.
18.
The more general wording of sub-paragraph 2(2)(e) gives rise to broadly
similar considerations. The only additional point I would make is that I do
not believe that the prohibition on intentionally ‘obstructing’ people’s use of
the Downs would apply to enclosing an area for an event authorised under
Section 10(2) of the 1984 Act.
Parking Areas
19.
Undoubtedly if the areas proposed for parking were themselves to be fenced
and enclosed, they would have to come within the maximum area of 25
hectares under proviso (b) to Section 10(2). If unfenced areas of the Downs
are to be used, one is in much more of a ‘grey area’. The Conservators do
have some powers in relation to the provision of parking places under
Section 25 of the 1984 Act. I believe it is arguable that these powers could
be used to allow public parking on the concert days on an area extending
beyond the 25 hectare maximum under Section 10(2). However it would
have to be ‘public’ parking, not just for concert-goers with tickets (for
example), and I do not believe there would be any power to prevent or
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discourage members of the public from wandering among the parked cars,
for example.
20.
I have to say that in my view it would be markedly preferable (if practicable)
for any concert-related parking to be contained within the 25 hectare
maximum limit.
Reducing the risk of challenge, etc
21.
I have indicated that in my view a concert can in principle be allowed, in
what is in effect a fenced enclosure, as long as the total period of
“significant degree of interference” with access does not exceed 5 days.
Arranging affairs to meet that test (as discussed above) is in my view the
best way of avoiding legal challenge. I do not believe the possibility of
Byelaw 2(2)(a) being breached is a ground for saying consent for a concert
must be refused.
Other statutory requirements
22.
Apart from Licensing (which I am told is covered), I am not aware of other
statutory requirements which the Conservators need to consider when
determining the concert application.
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Composition of the Conservators
23.
The Conservators are a body whose composition is statutorily prescribed.
They are not a local authority, even though 60% of their members will be
local councillors. My view, and advice, is that local government rules as to
declarations of interest etc do not apply in the context under discussion here.
In other words I do not believe there is any principle which says that the
Racecourse representatives on the Conservators should be disallowed from
participating and voting, just because the Racecourse are in effect joint
promoters of the proposed concert. Indeed it would be absurd, given the
context and purpose for which the Conservators are provided, and given
their powers, if they were to be excluded from decisions which in any way
affected the interests of the Racecourse.
Concluding remarks
24.
I believe I have covered all the questions raised in my Instructions. I should
be happy to clarify any points, or to advise further, as appropriate.
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ALUN ALESBURY
28th August 2008
2-3 Gray's Inn Square
London WC1R 5JH
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EPSOM AND WALTON DOWNS CONSERVATORS
3 SEPTEMBER 2008
ITEM 01
ANNEXE 1
EPSOM & WALTON DOWNS
PROPOSED TWO DAY
CONCERT
_____________________________
ADVICE
_____________________________
Kirsty Fishpool/Danny Surowiak
Solicitors
Epsom & Ewell Borough Council
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