Cabinet Sub-Committee (Council Charities) Minutes

Wednesday, 23rd March, 2016
Council Chamber, Council Offices, Gernon Road, Letchworth Garden City

Attendance Details

Councillor Bernard Lovewell (Chairman), Councillor P.C.W. Burt and Councillor Julian Cunningham.
In attendance:
Strategic Director of Customer Services, Service Manager - Grounds Maintenance, Parks & Countryside Development Manager, Trust Lawyer and Committee & Member Services Manager.
Item Description/Decision
RESOLVED: That the Minutes of the meeting of the Sub-Committee held on 8 December 2015 be taken as read, approved and signed by the Chairman as a correct record.
There was no notification of other business.
The Chairman reminded Members that, in line with the Code of Conduct, any Declarations of Interest needed to be declared immediately prior to the item in question.
There was no public participation.
The Sub-Committee considered a report of the Parks and Countryside Development Manager in respect of proposed improvements to Smithson’s Recreation Ground, Hitchin. The following appendix was submitted with the report:

Appendix A - Proposals for Smithson’s Recreation Ground, Hitchin.

The Parks and Countryside Manager reminded the Sub-Committee that, at its previous meeting held on 8 December 2016, it had resolved to defer consideration of the proposed improvements to Smithson’s Recreation Ground, pending a site visit and a further report being brought back to the Sub-Committee once the consultation period had expired and a design for the improvements had been put forward.

The Parks and Countryside Manager explained that, between 16 and 30 November 2015, Groundwork Hertfordshire undertook the first phase of public consultation in respect of the proposed improvement scheme. The Members’ site visit took place on 27 January 2016. Proposals were developed based on the results of the public consultation and these were consulted on between 15 February and 4 March 2016.

The Parks and Countryside Manager advised that 11 consultation responses had been received (8 in favour of the new proposals and 3 disliking the new proposals). The 3 dislikes referred to not enough seating/litter bins, but the Parks and Countryside Manager commented that he would be prepared to accommodate these in the final scheme.

The Sub-Committee was broadly supportive of the proposed improvement scheme.

In response to a Member’s question, the Trust Lawyer stated that under the Constitution the Sub-Committee had traditionally had a high level involvement in decision-making (some operational, some strategic). Essentially, as trustees, the Sub-Committee was making virtually all the decisions, except on minor matters which were generally approved in consultation with the Chairman.

In response to a further question, the Parks and Countryside Manager stated that the intention would be to receive quotations for the work as soon as possible, and to carry out and complete the work before the School Summer holidays. If this was not possible, then the works would be carried out after the School Summer holidays.

RESOLVED: That the proposed improvements to Smithson’s Recreation Ground, Hitchin, as set out in Appendix A to the report, be agreed.

REASON FOR DECISION: To allow the Council to provide improved facilities in accordance with the Council’s adopted Green Space Management Strategy.
The Trust Lawyer presented a report in respect of proposed consultation on changes to one of the Smithson Recreation Ground Trust’s (“The Charity’s”) charitable objects.

The Trust Lawyer advised the land for the Smithson Recreation Ground had been conveyed to the Council by Sarah Smithson on 5 May 1926 pursuant to the Open Spaces Act 1906 (for the use and enjoyment of the public). The conveyance was subject to the following restrictions and conditions (agreed by the then Urban District Council of Hitchin at a meeting held on 18 November 1925):

- To be maintained by the Council as a recreation ground for the parish of Hitchin, shall be *limited in its user to women, girls and children - children to include boys user 5 but not later;
- No playing of football;
- No bands of music without the expressed written consent of the owner or occupier by the house owned or occupied by the grantor opposite the premises;
- such restrictions to be embodied by byelaws as the Council thinks necessary.

The Trust was registered in 1972, with the objects as set out in the conveyance.

The Trust Lawyer explained that the objects of the Trust would not be contravened by the proposed improvement renovation works, although, it was clear that the object in bold* above sought to restrict the use of the Recreation Ground to girls and boys up to 5 and to girls above 5 and women. This object would therefore appear to be discriminatory/in breach of equality legislation. However, the Equality and Human Rights Commission indicated that it was possible for a charity to provide services for a particular group under organisational exceptions and some specific exemptions that applied to charities, without contravening equality legislation.

The Trust Lawyer commented that it would nonetheless be difficult to justify a specific exemption, as it was understood that this object had not been applied at the Recreation Ground for practicality reasons for some time. There was also no evidence that such a restriction was required to meet a specific unmet need.

In the circumstances, the Trust Lawyer advised that there were two issues the Trustees must consider. Firstly, if there was no specific exemption then this object had become potentially discriminatory and unlawful. This potentially opened the Trustees to legal action (whilst noting that discriminatory action had not followed as the object had not been enforced). Secondly, having liaised with the Charity Commission, it would appear that as a general charitable law issue, this object had potentially ‘failed’ (under section 62 of the Charity Act 2011) and as Trustees, the Sub-Committee was required (under section 61 of the Charity Act 2011) to consider that object and make an application for a scheme/change. It was recommended that the Trustees considered changing the first object to the more generic “for the use and enjoyment of the public” to marry up with the Open Spaces Act 1906 requirement.

The Sub-Committee noted that, before applying for a change, however, the Charity Commission expected Trustees to carry out a consultation exercise. This enabled the Trustees to identify any potential issues, gauge public opinion or (unlikely here, but nevertheless a possibility) identify reversionary beneficiaries who may challenge the change. This was because following an application/and before making an order, the Charity Commission must comply with requirements in section 88(2) of Charity Act 2011 giving details of the proposals, inviting representations (usually within 28 days) by public notice. Any person who was or may be affected by a scheme may appeal against an order of the Commission making a scheme (to the General Regulatory Chamber (First-tier Tribunal)).

The Sub-Committee further noted that any change of the Charity’s objects would also potentially mean that the restriction on the registered title would have to be changed/ or indemnity insurance sought, as the requirement effectively created a restrictive covenant. This covenant could be enforced against the Council by the original transferor/or her successors in title. Given the nature of the restriction it was arguable that enforcement would fail (as it could be argued that it was in breach of modern equality law). The risk of enforcement was therefore significantly reduced, although the Trustees would be advised to consider (a) obtaining indemnity insurance against enforcement costs; or (b) applying to the Upper Tribunal to have the restriction discharged from the land registry on the basis that it was obsolete. The latter would offer more certainty, but the former would be an effective method, given that any potential beneficiaries/or challenges were likely to have been identified already, via the consultation and public notice route. A view on this and costs associated therewith could be taken by the Trustees once any application process had been progressed.

Additionally, under the Council’s Consultation Strategy, consultation would not normally be undertaken in an election period. Whilst this related to a Trust issue, it was wise to follow the Strategy. If the recommended course of action was approved, the consultation would therefore commence after the District Elections, in May or June 2016 (at the site/with relevant groups/Ward Councillors and on the Council’s website) and the outcome reported back to the Sub-Committee in either July or August 2016.

The Sub-Committee supported the course of action outlined above and detailed in the report.

In response to a Member’s question regarding costs, the Trust Lawyer confirmed that, should there be no challenge, there would be minimal costs for the consultation; no charge for making an application to the Charity Commission; a set cost for any public notice; and whilst no quote for indemnity insurance had been obtained at this stage, this should be approximately £300-£400 for that requirement if the Trustees decided following the consultation to apply to change the aforementioned objects.

RESOLVED: That the Trust Lawyer and Lead Officer:

(1) prepare consultation documentation/and consider medium and consultees (in consultation with the Sub-Committee Chairman);

(2) undertake the consultation for a minimum of 4 weeks following the May 2016 District Election; and

(3) report any consultation responses back to the Sub-Committee, prior to further action.

REASON FOR DECISION: To ensure the provisions/restrictions within the Charity’s objects do not potentially contravene equality legislation.
The Strategic Director of Community Services gave an oral update regarding the North Hertfordshire Museum and Community Facility at Hitchin Town Hall.

The Strategic Director of Community Services advised that the Council had formally agreed to acquire 14 and 15 Brand Street and had set limits on the price it would be willing to pay. This would at some point require the re-consideration of the Management Agreement between the Council and the Trust (which would need to be re-written as Hitchin Town Hall Ltd was no longer operational).

The Strategic Director of Community Services was currently awaiting the approval of a Licence to occupy the site from the Receiver. The Council had also agreed to a three phase opening of the facility - the first phase would be (following testing) to open the Town Hall in May 2016; the second phase would be the fitting out of the kitchen/foyer/café; and the third phase would be the opening of the District Museum.

The Strategic Director of Community Services advised that the Museum fit out contractor had been subject to a creditors’ winding up order and that a Receiver had been appointed. The Council was in dialogue with the receiver and the principal sub-contractor to endeavour to find a mutually agreeable way forward. This would all be subject to a further report to Council, possibly as early as the 12 April 2016 meeting.

As mentioned earlier in the meeting, the Strategic Director of Community Services confirmed that he would be reporting to a future Sub-Committee meeting on proposed changes to the Management Agreement.

RESOLVED: That the oral update report be noted.

REASON FOR DECISION: To ensure that Members of the Sub-Committee are kept advised of matters relating to the Hitchin Town Hall development which may have implications for the Trust.
Published on Monday, 11th April, 2016