Update: Since this article was written, the Council have announced that they intend to retain ownership of Castle Mound and the Civil War earthworks, in which case public access would continue under the 1979 Act. However, members of the public accessing the Castle Mound would still need to cross the part of the site which will be on a long lease to the new occupiers of Shire Hall, so we still need to see the detail of how this will work. But in principle this sounds like good news.
With the controversy about future public access to Castle Mound and the Shire Hall site still unresolved, the meeting of Cambridgeshire County Council on Tuesday (March 19th) will debate two motions on the issue. You can see them both on the agenda here under item 10. The second motion, from Market Ward councillor Nichola Harrison, seeks to ensure continued free public access. The first motion, from councillor Josh Schumann, chairman of the Council’s Commercial and Investment Committee, seeks to defend the Council’s current approach. However, councillor Schumann’s motion risks seriously misleading councillors about the public’s right of access.
Here’s what the motion says. After noting the pressures on Council resources, and further noting that the Council has asked bidders to propose plans on access, it adds,
The Council also notes that the Ancient Monuments and Archaeological Areas Act 1979 provides a public right of access. This is not the same as a right of way and can, on occasion, be restricted. Examples of when this may be necessary include for the purposes of maintaining and preserving the site or in the interests of public safety.
Now, reading this part of the motion, you might very well wonder what all the fuss is about. If the law already provides a public right of access to Castle Mound because it is a scheduled monument, even subject to perfectly reasonable restrictions, then surely there isn’t a problem. However, the motion completely fails to mention that this public right of access only applies while the site is in public hands.
The Ancient Monuments and Archaeological Areas Act 1979 is a long and complex piece of legislation – you can read it here – but the section dealing with public access is quite clear. Section 19(1) provides,
Subject to sections 13(2A) and 15(3A) of this Act and to the following provisions of this section, the public shall have access to any monument under the ownership or guardianship of the Secretary of State or the Commission or any local authority by virtue of this Act. (Emphasis added.)
“The Commission” here means the Historic Buildings and Monuments Commission for England, better known by its short title, Historic England. It is a Government body that deals with preserving and listing historic buildings and ancient monuments. So the public access provided by the Act only applies to monuments in the hands of central or local government. It does not apply to monuments in private hands, and it is seriously misleading for this motion to imply that the Act would protect access to Castle Mound once the site is sold. It would not. Here is what Historic England’s Guide for Owners and Occupiers of Scheduled Monuments has to say about access:
Scheduling does not affect your freehold title or other legal interests in the land. The inclusion of a monument in the Schedule does not give members of the general public any rights of access. It does give us [i.e., Historic England] some legal powers of entry but, in practice, we will make every attempt to obtain the owner’s or occupiers’ permission to inspect a monument. (Emphasis added.)
That seems pretty clear to me. And it seems equally clear that the motion’s claim that the Act “provides a public right of access” is seriously misleading, because it fails to say that this right of access depends on Castle Mound being in public hands. Once the site is in private hands the right of access in the Act no longer applies, and continued access will then require permissive rights. Since these depend on the permission of the landowner, there is no guarantee that they will not be curtailed, subjected to an admission charge, or even withdrawn completely at some point in the future.
The rest of the motion defends the Landowner Deposit (which I have written about previously) and invites the Council to endorse the approach that the Commercial and Investment Committee has taken. Reading the motion as it stands, councillors might well be inclined to support it on the basis that the 1979 Act guarantees continued public access to Castle Mound after the site is sold. But, as the wording of the Act shows, this is entirely wrong. Once the site is in private hands, the Act makes no such guarantee.
It is unlikely that free public access to Castle Mound will end on the day that the Shire Hall site is transferred to its new owners. It is quite probable that the successful bidders for the site will indeed have some sort of plan for permissive access. The danger is more likely to come when the site is sold again in the future, perhaps five or ten years down the road, when the Council would not be a party to the transaction. The future sellers of the site will likely want to maximise the sale value by not imposing access conditions. A future purchaser may well want to maximise their revenue by charging admission to Castle Mound, or alternatively minimise maintenance costs by limiting or preventing access. By then, it will be too late to guarantee free public access to this unique piece of Cambridge heritage. The Council needs act now to show how access will be guaranteed in perpetuity. Until it does that, this issue is not going to go away.
One possible solution is a “guardianship” arrangement. Under this arrangement a public body such as the Council agrees to accept responsibility for the management and maintenance of a site, and in return acquires rights over it. In this situation the 1979 Act does give a right of public access. The Historic England website has more details about guardianship here. However, there has so far been no mention of this from the Council, and the motion says nothing about it. I hope councillors will consider the future of Castle Mound carefully at Tuesday’s meeting, and not be misled by this motion into thinking that future public access is guaranteed.