ADOPTION OF OPEN SPACES AT THE

Report of
Meeting
Date
Director of People and Places
(Introduced by the Executive
Member for Places
Councillor Adrian Lowe)
Executive Member Decision
February 2014
ADOPTION OF OPEN SPACES AT THE CHERRIES, EUXTON
PURPOSE OF REPORT
1.
To request Executive Member approval to enter into a ‘Model D Agreement’ with Taylor
Wimpey UK Limited and Lancashire County Council with regard to the ongoing
maintenance of a retaining wall bounding the public open space.
2.
To request Executive Member approval for the adoption of a pond on The Cherries which
Chorley Council are not legally obliged to accept under the existing s106 agreement.
3.
To request delegated authority to negotiate an appropriate maintenance contribution for the
pond with Taylor Wimpey, including authority to negotiate a lesser sum than the
maintenance sum set out in paragraph 27, should subsequent negotiations with Taylor
Wimpey necessitate this.
4.
To request Executive Member approval to enter into a Deed of Covenant with Network Rail
Limited regarding maintenance of a section of trespass proof fence along the railway
running alongside the open space and play area.
RECOMMENDATION(S)
1.
To authorise Parks and Open Spaces and Legal Teams to progress with the adoption of the
public open spaces including the retaining wall ‘Model D Agreement’ and the deed of
covenant with Network Rail.
2.
The inclusion within the adoption, subject to agreement with Taylor Wimpey, of a pond
which Chorley Council are not legally obliged to accept and subject to payment by Taylor
Wimpey to the Council of an appropriate maintenance contribution.
3.
To approve delegated authority for the Director of People and Places to negotiate an
appropriate maintenance contribution with Taylor Wimpey.
EXECUTIVE SUMMARY OF REPORT
5.
Under an existing Section 106 agreement, Chorley Council are contractually obliged to adopt
the public open spaces shown on the attached Plan 1.
6.
There is a retaining wall within the public open space and LCC as Highway Authority require
Chorley Council to enter into a ‘Model D Agreement’ which obliges Taylor Wimpey to pay
Chorley Council a maintenance contribution of £4,549 to offset the future maintenance costs
of the retaining wall. Parks and Open Spaces Officers are satisfied with LCC’s position that
the retaining wall benefits the open space more than the highway and as such should be the
responsibility of the owner of the open space. The location of the Model D Agreement
retaining wall is shown on Plan 2.
7.
A trespass proof fence runs in a north-south direction between the railway line and the rear
gardens of the residential properties on the estate and the open space and play area to the
south. There is a requirement affecting the registered freehold title obliging Taylor Wimpey to
require subsequent owners (in this case the Council) to enter into a deed of covenant with
Network Rail to maintain the trespass proof fence.
8.
It is recommended that Chorley Council enter into the ‘Model D Agreement and a direct deed
of covenant with Network Rail Limited to maintain the trespass proof fence insofar as it runs
alongside the open space and play area. A section of the fence runs along the boundary of
the railway line and the rear gardens of residential properties on the estate. As the Council
will not be able to gain access to this part of the fence the Council will not accept
responsibility for this section. .
9.
The Developer (Taylor Wimpey) has not identified a transferee for the pond area shown on
the attached Plan 3.
10.
Chorley Council are not legally obliged to accept the pond area under the existing Section
106 Agreement and Taylor Wimpey have not asked the Council to adopt the pond.
11.
It is recommended that Chorley Council adopt the pond.
Confidential report
Please bold as appropriate
Yes
No
REASONS FOR RECOMMENDATION(S)
(If the recommendations are accepted)
12.
In order to take the public open space adoption through to completion, it is necessary for
Chorley to enter into the ‘Model D Agreement’ and a deed of covenant with Network Rail to
maintain a section of the trespass proof fence separating the railway line from the open
space and play area. Chorley Council is legally obliged to accept a transfer of the open
space and play area under a s.106 agreement affecting the site dated 24 August 2000
between the Council (1) Wainhomes Limited (2) and Lancashire County Council (3). The
requirement for subsequent owners of the land to enter into a Deed of Covenant with
Network Rail burdens the registered freehold title to the site so it is not something the Council
can reasonably refuse.
13.
Taylor Wimpey have provided an e-mail from Network Rail dated 22 August 2011 confirming
that the fence is in a satisfactory condition.
14.
It is in the residents’ interests for Chorley Council to adopt the pond although such adoption
is voluntary on the part of Chorley Borough Council as it is not legally obliged to accept the
pond under the s.106 agreement.
15.
The decision will assist in taking the public open space adoptions through to completion.
ALTERNATIVE OPTIONS CONSIDERED AND REJECTED
16.
Retaining Wall and Model D Agreement – None.
17.
Deed of Covenant with Network Rail Limited regarding that section of the trespass proof
fence alongside the open space and play area – None
18.
Pond - Leave the pond in the ownership and responsibility of Taylor Wimpey when the other
areas of POS are adopted.
BACKGROUND
19.
The Cherries is a development site completed over 10 years ago. The public open spaces
illustrated on the attached Plan 1 comprises an equipped play area (yellow) and an extensive
wetland/pond area in a naturalistic woodland and scrubland setting (green).
20.
Under the existing Section 106 agreement, Chorley Council is contractually obliged to adopt
the public open spaces shown on the attached Plan 1.
21.
The adoption of public open spaces at The Cherries has been ongoing for several years due
to the complex side agreements that have been necessary involving LCC, Network Rail and
Taylor Wimpey.
RETAINING WALL AND ‘MODEL D AGREEMENT’
22.
LCC have refused to take full responsibility for the retaining wall as its function is to support
the public open space rather than the highway structure. In order to take the public open
space adoption through to completion, it is necessary for Chorley to enter into the ‘Model D
Agreement’.
23.
The Model D Agreement is required to ensure the structural integrity of the Highway
Retaining Structure (retaining wall) remains intact to the satisfaction of LCC whilst remaining
the responsibility and ownership of Chorley Council. The payment of £4,549 has been
agreed by LCC as being necessary for the future maintenance operations.
POND
24.
From a strictly financial point of view and with consideration of unnecessary liabilities it
makes sense for the pond to remain in Taylor Wimpey’s ownership. However, this would
result in Taylor Wimpey being responsible for residual pieces of open space on The
Cherries. It is considered that in the wider interests of residents, Chorley Council should
adopt the pond to ensure that is maintained appropriately and the residents have clarity over
who is responsible for all their open spaces.
25.
It is recommended that a suitable maintenance contribution is negotiated with Taylor Wimpey
to cover 10 years maintenance of the pond. The payment of a maintenance contribution
would mitigate the burden to the Council of accepting the liability associated with the pond
and the associated landscaping and railings. Based on previous experience, this
maintenance sum would include the following. It presumes that grass cutting, strimming etc.
is included as part of the area maintenance.
•
•
•
•
•
•
•
Deal with drainage issues – jetting – usually a couple of times a year taking two hours
at £60 per hour = £240.
Litter picking – 1 hours’ work at £25 per hour x 26 weeks = £650.
Litter removal from the pond 1 hours’ work £25 for 2 men on 4 occasions = £200.
Re enforcing banking’s and repairs to railings – approx. £260 for man hours and
materials per year.
Tree work – approximately £150 per year.
Average cost per year for small pond = £1,500 per year.
10 year maintenance contribution = £15,000.
CORPORATE PRIORITIES
26.
This report relates to the following Strategic Objectives:
Involving residents in improving their
local area and equality of access for all
A strong local economy
Clean, safe and healthy communities
~I
An ambitious council that does more to
meet the needs of residents and the local
area
~
IMPLICATIONS OF REPORT
27. This report has implications in the following areas and the relevant Directors' comments are
included:
Finance
Human Resources
Legal
No si nificant implications in this area
~1
~
Customer Services
E ualit and Diversit
Integrated Impact Assessment required?
Polic and Communications
COMMENTS OF THE STATUTORY FINANCE OFFICER
28. The Council is contractually obliged to adopt the public open spaces in plan 1. It is in
residents' interests for the Council to adopt the pond, which if successful, would cost in the
region of £1,500 per annum to maintain. As part negotiations the Council aims to secure
external funding to cover the maintenance costs for a period of ten years.
COMMENTS OF THE MONITORING OFFICER
29.
The requirement for subsequent owners of the land to enter into a Deed of Covenant with
Network Rail burdens the registered freehold title to the land. Given that the Council is
legally obliged under the s.~106 agreement dated 24 August 2000 to accept a transfer of the
play area and the open space land once it has been satisfactorily laid out it is not something
that the Council can reasonably refuse to enter into. In addition given that the retaining wall
benefits the open space it is not reasonable for the Council as future owner of the open
space to refuse to enter into the Model D Agreement with the developer and LCC.
30.
The adoption by the Council of the pond in contrast is entirely voluntary but reasonable
from an estate management perspective given that"the Council will maintain open space
elsewhere on the estate. The developer may refuse to transfer the pond at all or agreement
may not be reached on any maintenance contribution. In either scenario the adoption of the
play area and the open space land may still proceed and the developer will remain liable far
the pond until it makes alternative arrangements.
JAMIE CARSON
DIRECTOR OF PEOPLE AND PLACES
There are no background papers to this report.
Ext
5574
Report Author
Simon Forster
Date
17/02/2014
Doc ID
Following careful consideration and assessment of the contents of this report, I approve the
recommendations) contained in Paragraph 2 of the report in accordance with my delegated power
to make executive decisions.
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Councillor Adrian Lowe
Executive Member for Places
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© Crown copyright. All rights reserved 100018509 2008/01.
The Cherries,
Euxton.
1:1,250
HP
June 2011
Drai
Pipe Line
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EARLS WA
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Proposed Pond Adopon
The Cherries Retaining Wall, Euxton, no 30438R1, Grid ref 355725 418990
This map is reproduced from Ordnance Survey material with the Permission of Ordnance Survey on behalf of the Controller
Date: 03/10/2013
of Her Majesty's Stationery Office (C) Crown Copyright.
Unauthorised reproduction may lead to prosecution or civil proceedings.
Lancashire County Council - OS Licence 100023320 (C)
Centre of map: 355720:418989

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