Fencegate: the facts

This article is about the dispute that has become known in Hanwell as ‘Fencegate’. There are lots of rumours doing the rounds. Here are the facts.

Most of the documents referred to in this piece are either in the public domain or have been distributed to local residents. It is a long and fairly complex story. There is a summary at the end for those short of time.

Fencegate started when the Hobbayne Trust fenced off part of St Margaret’s Open Space between Billets Hart Close and the Grand Union Canal on 25 April 2019. This annotated section of the Ealing Parks map shows the piece of the park which was fenced off.

Section of Ealing Parks Map showing the fenced off land

In enclosing this land, the Hobbayne Trust effectively extended the boundary of the neigbouring William Hobbayne Community Gardens, which it has owned since 2014, to incorporate part of St Margaret’s Open Space.

Although Ealing Council owns most of St Margaret’s Open Space, the ownership of this small piece of land is unknown. It is unregistered land, which means that no-one has ever provided evidence of ownership to the Land Registry. However, it has been designated as Public Open Space by Ealing Council and been freely accessible to the public since the mid 1990s. Ealing council has treated it as part of the neighbouring park and has maintained it since the early 2000s. It is clearly marked as part of Ealing Parks on the council’s parks map. It is also designated as a Grade 1 Site of Importance for Nature Conservation (SINC).

The Hobbayne Trust’s attempt to claim ownership of the land was rejected by the Land Registry.

That, then, is the basis of the dispute but to fully understand it we need to go back a bit and fill in some of the background. Here is what happened.

13 October 2006

The land on which the William Hobbayne Community Gardens now stand was owned by British Waterways.

British Waterways registered the land on 13 October 2006.

A copy of the registration document is available from HM Land Registry, AGL159276.

2008

The lease on the land which became the William Hobbayne Community Gardens was gifted to the Hobbayne Trust by British Waterways in 2008.

17 October 2014

The Hobbayne Trust bought the land from the Canal and River Trust, the successor body to British Waterways, for £80,000. In the sale documents the boundary of the land is clearly marked. It does not include the land fenced off on 25 April 2019.

A copy of the transfer document is available from HM Land Registry, AGL326320, Note A4, Transfer dated 17.10.2014.

20 July 2017

The Hobbayne Trust signed an agreement with Laing Homes, the company which which built Billets Hart Close and which still owns the freehold of the land under the road. This agreement gave the Hobbayne Trust vehicle access across Billets Hart Close. The Hobbayne Trust paid Laing Homes £3,500 for this access. None of the residents on Billets Hart Close were informed of this transaction.

A copy of the agreement is available from HM Land Registry, AGL326320, Note A6, Deed dated 20.07.2017.

25 April 2019

The Hobbayne Trust fenced off the piece of St Margarets Open Space. To see the extent of the new enclosure, compare this Google street view photo from summer 2018 with the one taken a year later. The orange bag caught in the tree makes it easy to do a before and after comparison.

August 2018

August 2019

The Hobbayne Trust’s fence was thus extended upstream, beyond the boundary of its land, to enclose part of St Margaret’s Open Space.

According to Ealing Council’s Local Plan, this land is designated as Public Open Space. It is listed as such on council documents available online dating from 2010. These, in turn, refer to plans dating from 2004. Residents have copies of conveyancing documents which list it as Public Open Space in 1996. It has therefore been Public Open Space and freely accessible to the public for almost a quarter of a century.

This annotated screen shot of the Local Plan shows the area fenced off and its designation as Public Open Space and a Site of Importance for Nature Conservation.

Section of Ealing Local Plan

May 2019

A number of residents contacted the Hobbayne Trust and Ealing Council challenging the enclosure of the land and asking the Trust and the Council to remove the fence.

27 June 2019

On 27 June 2019 the Hobbayne Trust issued a statement which it distributed to nearby households and posted by the Grand Union towpath. It said:

“You may be aware that the Hobbayne Charity has recently fenced a small section of land to the north of the Community Gardens bordering the canal.

“This action was taken so as to rectify a drafting error dating from 2006.”

2006 was the year in which British Waterways registered the land on which the Community Gardens now stand (see section 13 October 2006 above).

The Hobbayne Trust’s assertion that British Waterways made a mistake in drawing the boundary when it regstered the land runs counter to the available evidence. The north-western boundary of the land which now forms the community gardens has been there since 1996 according to the conveyancing documents (and memories) of those who have lived on Billets Hart Close since it was built. Furthermore, there is an Ordnance Survey map from 1960 which shows the boundary in exactly the same place as it was before the Hobbayne Trust moved its fence.

Section of Ordnance Survey map 1960

There is no evidence of any mistake being made here. When British Waterways registered the land that now forms the Community Gardens, its plan of the area reflected the boundaries that had existed for decades.

In the same statement, the Hobbayne Trust also said that it intended to put a gateway onto Billets Hart Close to provide a second access to the Community Gardens, in addition to the main one on St Margaret’s Road. This access would go from Billets Hart Close to the Community Gardens via the newly enclosed land. This would necessitate the removal of the railings and hawthorn hedge on St Margaret’s Open Space at the end of Billets Hart Close.

Illustration of new access point proposed by the Hobbayne Trust

29 July 2019

On 29 July 2019 the Hobbayne Trust applied to register its ownership of the fenced off land, claiming that it had been in possession of the land since 2008. The Land Registry rejected this application on 1 August 2019.

Copies of these documents are available from HM Land Registry, AGL486355, Application (FR1) dated 29.07.2019, Statement of Truth (ST1) dated 26.07.2019 and Rejection of Application dated 01.08.2019.

Late August 2019

Sometime around the late August bank holiday weekend, part of the fence was broken down.

29 August 2019

Sixteen households on Billets Hart Close wrote a joint letter to the Hobbayne Trust’s chairman challenging the enclosure of the land and asking that the fence be removed. The letter was copied to Ealing Council.

The letter made the following points:

  • Before the Trust fenced it off, the land had been freely accessible to the public since 1996.
  • It is designated as Public Open Space in Ealing Council’s Local Plan and has been described as such in numerous council documents. There are also documents from Laing Homes dated 1996 showing it as Public Open Space.
  • The land had been been maintained by Ealing Council, at public expense, since at least 2004.
  • The Hobbayne Trust had not provided residents with any evidence of its ownership of the fenced off land. It had not registered as the proprietor of the land at the Land Registry.
  • The north-western boundary of the Hobbayne Trust’s land is clearly marked on the transfer documents from when it bought the land from the Canal and River Trust in 2014. The same boundary is also marked on residents’ conveyancing documents from when Billets Hart Close was built in 1996-97.
  • The residents of Billets Hart Close were not informed about the erecting of the fence. The Hobbayne Trust made no attempt to consult or engage with local residents before erecting the fence.

The letter concluded:

“We call on the trustees to remove the fence around the piece of the park they have enclosed without further delay. This land is public space and the public would like it back.”

14 October 2019

In response to the residents’ letter, the Hobbayne Trust called a meeting. Its representatives met with 20 local residents on 14 October 2019, saying that they wanted to rebuild trust with the local community.

At the meeting the Hobbayne Trust’s representatives confirmed that they did not own the land and had fenced it off without having any legal title to it. They said that they were in ‘a legal process’ to acquire the land and that the Canal and River Trust was in the process of establishing its ownership in order to transfer the land to the Trust. They omitted to mention that their application to claim ownership of the land had been rejected by the Land Registry two months earlier.

To date, the Canal and River Trust has not made any attempt to register the land.

At the same meeting, the Hobbayne Trust’s representatives also re-stated their intention to put a gateway onto the disputed land to give access to the Community Gardens from Billets Hart Close. They were unclear about whether this was to be for pedestrians only or for vehicles. They said they were unaware of the agreement signed on 20 July 2017 by the Hobbayne Trust, together with the payment of £3,500, for vehicle access to Billets Hart Close. (See section above marked 20 July 2017.)

In a written statement presented at the meeting, the Hobbayne Trust said that it had informed the residents at the end of Billets Hart Close of its proposed action to enclose the land. However, no residents on Billets Hart Close received any such communication from the Hobbayne Trust.

November 2019

After a number of residents wrote to Ealing Council over the summer, the Council responded in separate letters and emails to local residents. It stated that:

  • The council did not believe the Hobbayne Trust had a legal entitlement to the land it had fenced off;
  • The fence had been construced by the Hobbayne Trust without the council’s consent;
  • The Council believes that it has a greater claim to ownership of the land than any other party and is preparing to register its ownership of the land through adverse posession, on the grounds that it has occupied and maintained the land for the required period;
  • The council expects the Hobbayne Trust to remove its fence.

February 2020

That brings us up to date.

At the time of writing, the remnants of the fence and fenceposts are still standing. The removal of some of the panels has enabled the public to reclaim its right of way across the land. Judging by the faint reappearance of the footpath, this right is being regularly exercised.

The council has not issued any enforcement notice (or, if it has, it hasn’t said so publicly) and the Hobbayne Trust has not removed its fence. Local residents have received no further communication from Ealing Council or the Hobbayne Trust.

Summary

  • The Hobbayne Trust has put a fence around an area St Margaret’s Open Space between the Grand Union Canal and Billets Hart Close.
  • This land is designated as Public Open Space and is a Grade 1 Site of Importance for Nature Conservation (SINC).
  • The Hobbayne Trust does not own this land. Some of the statements it has made to justify its action are not supported by the available evidence.
  • The Land Registry rejected the Hobbayne Trust’s application to register its ownership of the land on 1 August 2019.
  • The Hobbayne Trust made no attempt to inform or consult or otherwise engage with local residents until people complained.
  • The Hobbayne Trust has stated its intention to use the land to gain access to its allotments from Billets Hart Close. It has been unclear about whether this access is to be for vehicles or pedestrians only, though the agreement it signed on 20 July 2017 allows for vehicle access.
  • Residents have asked the Hobbayne Trust to remove its fence and return the land to public access.
  • Ealing Council has said that it will claim the land itself and ask the Hobbayne Trust to remove its fence. It has not yet made any public statment or issued an enforcement notice.

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