Cabinet Sub-Committee (Council Charities) Minutes

Monday, 22nd August, 2016
Committee Room 3, 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, Head of Revenue, Benefits and IT, Parks & Countryside Development Manager, Trust Lawyer and Committee & Member Services Manager.
Also Present:
Councillors Ian Albert, Judi Billing and Paul Clark.
8 members of the public.
Item Description/Decision
RESOLVED: That Councillor Bernard Lovewell be elected as Chairman of the Sub-Committee for the remainder of the 2016/17 Civic Year.

As it was unusual for the Sub-Committee being attended by members of the public, the newly-elected Chairman advised those present that the role of the Sub-Committee was to act as the corporate trustee for any Council Trusts (currently the Hitchin Town Hall Gymnasium and Workman’s Hall Trust; the King George V Playing Field Trust; the Smithson Recreation Ground Trust; and the Hertfordshire Yeomanry and Artillery Collection Trust). Hence, the Sub-Committee made decisions on behalf of those Trusts, but did not make decisions for the Council. The only decision to be made by the Sub-Committee at this meeting related to the Smithson Recreation Ground Trust.
RESOLVED: That the Minutes of the meeting of the Sub-Committee held on 23 March 2016 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.
Mr Chris Parker (Keep Hitchin Special) addressed the Sub-Committee with regard to the North Hertfordshire Museum and Community Facility at Hitchin Town Hall.

Mr Parker advised that, over the past 10 years, Keep Hitchin Special and local community groups had fought to save Hitchin Town Hall from developers for the benefit of the community. However, currently it appeared that utter confusion reigned in respect of the Town Hall.

Mr Parker stated that a considerable amount of time and money appeared to have gone to waste. Hitchin Town Hall Limited, along with Hitchin Initiative, was acting on behalf of the local community groups to manage and run the Town Hall. However, it appeared that the situation had reverted to the position of 10 years ago, with the Council running the venue, but with smaller and inadequate facilities to cater for large and mixed groups.

Mr Parker commented that it seemed the questions being asked by the public were:

• Why did the Trustees agree to incorporate 14 and 15 Brand Street to improve the entrance to the Museum and now Councillor Hone states that it is no longer needed? At a meeting of the Trustees on 23 March 2016, the Strategic Director of Customer Services advised that the Council had formally agreed to acquire this and had set limits on the price it was willing to pay.

• Why was the offer by the Council for 14 and 15 Brand Street of £217,000 so derisory i.e. less than the cost of a 1 bedroomed flat in Hitchin Town Centre, what went wrong when up to £1million was authorised by councillors?

• NHDC state that the development agreement between HTH Limited and them is still in place, but HTH Limited say it is not, why not? We understand there are breaches with items like the exclusion of the roof replacement, problems with acceptance of the certificate of practical completion etc. Surely there is a way forward?

• If, as NHDC state, the development agreement is in place then, as we understand it, the Council is responsible for HTH Limited’s debts. Is this correct? If so, why didn’t the Council meet the interest payments to SIB?

• What happened to the promise of the 125 year lease enabling the community to run the Town Hall. Is this lease still available or are the Council intending to run and manage the Town Hall long term?

• With shared toilets, reduced stage, children’s changing facilities, reduced cafeteria, no plating up area and lack of privacy, will the letting of the Town Hall be jeopardised?

• What facilities will there be for disabled access to the Museum and Lucas Room?

• What is the current timescale for opening of the Museum?

• How much public money has been spent so far, what liabilities do the Trust and NHDC have because of the delayed opening?

• We were amazed by the statement of the NHDC Chief executive, at a tribunal earlier in the year, when he stated “I have spent more time on this project than I should have done for a project of this size” - surely, £6million is a large project?

• A petition organised through the social media calls for a Public Independent Enquiry, which Keep Hitchin Special feels is absolutely vital to ensure this financial commitment has been spent wisely - would councillors accept this?

The Chairman thanked Mr Parker for his presentation.

The Chairman commented that many of the issues raised by Mr Parker related to the Council rather than the Trust. However, he asked officers to ensure that answers to the questions, insofar as they related to the Trust, were sent to Mr Parker and made available on the Council’s website, by no later than Friday, 26 August 2016, and made available on the Council’s website.
The Trust Lawyer presented a report reminding the Sub-Committee that, at its meeting held on 23 March 2016, it had agreed a process of public consultation in respect of proposed changes to one of the charitable objects of the Smithson Recreation Ground Trust which, as currently worded, restricted the use of the Recreation Ground to women and girls and boys (boys up to the age of 5 years). The fact that this restriction had not been enforced for some time, together with the equality duties of the trustees, had meant that a review of this charitable object was required.

The Trust Lawyer advised that, following the District Council Elections in May 2016, public consultation took place for 28 days between 17 May 2016 and 17 June 2016. 22 responses were received, as summarised in Appendix A to the report. 72.73% were in favour of the proposal to change the object to “the use and enjoyment of the general public”, and 27.27% did not agree with this proposal.

The Trust Lawyer commented that there was an ability under equality legislation to discriminate in favour of a particular group, but this must be supported by evidence that this could be justified in equality terms. In the case of the Smithson Recreation Ground, however, there was no evidence to suggest that the current restriction on use was required/or should remain in place.

The Trust Lawyer advised that, subject to the Sub-Committee supporting the removal of the current restriction, the next step would entail an application to the Charity Commission to change the charitable object. There would be a process to be followed by the Charity Commission (including a public notice and a potential appeal procedure).

The Trust Lawyer explained that there would be no direct financial consequences for the Trust in respect of the Charity Commission process, although should the change be accepted then the restriction on the registered title would need to be changed or an indemnity/insurance policy sought, as it effectively created a restrictive covenant against the land title. It was recommended that a decision on whether or not to take out an indemnity policy be delegated to the Chairman of the Sub-Committee, in consultation with the Trust Lawyer.

In response to a Member’s question, the Trust Lawyer advised that she was unable to provide a precise timescale for the whole process, although was hopeful that the Charity Commission would be in the position to publish a public notice by the end of 2016.

In reply to a further question regarding how long had the Recreation Ground been used by the general public, the Parks and Countryside Manager was of the view that the restrictive covenant had not been enforced for many years, due to it basically being impossible to enforce.

A Member asked if it was absolutely necessary for the Trust to follow the process outlined when, realistically, it was unlikely that there would be any change to what already happened ie. the Recreation Ground was already used by the general public. The Trust Lawyer replied that it was her duty to advise the trustees, and it was a matter for the Sub-Committee to weigh up this advice. However, she reminded the Trustees of their duty to review the charitable objects to make sure they were not failing under the Charities Act or, indeed, under equality legislation.

The Sub-Committee Chairman saw the process as regularising a restriction drawn up in a different age, which was clearly unenforceable in the modern age. Having commenced the process and highlighted the issue through public consultation, the Sub-Committee agreed that it would be appropriate to progress the matter and submit an application to the Charity Commission.


(1) That the consultation responses on proposed changes to the charitable objects of the Smithson’s Recreation Ground, Hitchin Trust, as attached at Appendix A to the report, be noted;

(2) That the Trust Lawyer be instructed to apply to the Charity Commission to change the charitable object for the Smithson Recreation Ground (from women, girls and boys up to the age of 5 years but not later to use by the general public); and

(3) That the decision to obtain an indemnity policy be delegated to the Chairman of the Sub-Committee, following consultation with the Trust Lawyer.

REASON FOR DECISION: To comply with a legal obligation to review the Trust’s charitable obligations, and to apply to the Charity Commission to effect a change to avoid a potential contravention of equality legislation.
The Strategic Director of Customer Services gave an oral update regarding the North Hertfordshire Museum and Community Facility at Hitchin Town Hall.

The Strategic Director of Customer Services advised that there existed between the Council and the Trust a management agreement, in which the Council operated the Museum element of the property in pursuance of the Trust’s objects. As part of the development agreement between Hitchin Town Hall Limited (HTHL) and the Council, it had been the intention that the properties of 14/15 Brand Street would ultimately be transferred to the Trust, in order to enhance the quality of the Museum offer, thereby enhancing the quality of the Trust’s operations.

The Strategic Director of Customer Services commented that, as Members would be aware through a series of Members’ Information Service updates, the above outcome was in jeopardy.

The Strategic Director of Customer Services outlined the broad recent history of the project. HTHL had sought to include 15 Brand Street in the project after the initial development agreement had been signed. Subsequently, HTHL’s funders (Social Investment Business - SIB) terminated their funding agreement because of multiple breaches of that agreement. Unfortunately, soon afterwards the Museum fit out contractor went into administration.

The Strategic Director of Customer Services stated that a Land and Property Act Receiver had been appointed to recover property assets for disposal from HTHL to cover their debts. However, following the appointment of the Receiver an arrangement was made between SIB and a newly formed company, HTH Finance Limited, whereby SIB’s debts were sold to HTH Finance Ltd, which meant that the property reverted to the ownership of HTHL.

The Strategic Director of Customer Services advised that, as owners of the property, HTHL subsequently served notice of the Council to vacate the 14/15 Brand Street element of the property. The Council has now vacated 14/15 Brand Street.

The Strategic Director of Customer Services reminded Members that he had reported to the previous Sub-Committee meeting on 23 March 2016 that the Council had agreed to acquire 14/15 Brand Street and had set limits on the price it would be willing to pay. Officers, in consultation with relevant Executive Members, went through due process to ensure that Council Tax payers achieved best value from that proposed transaction, which included taking into account professional valuation advice, and a bid was duly submitted.

The Strategic Director of Customer Services explained that the bidding process was terminated by the SIB, as a deal had been struck with HTH Finance Ltd.

The Strategic Director of Customer Services stated that he had reported to the previous Sub-Committee meeting that the building would be subject to a three phase opening process. The first of these, to open the Town Hall, had been carried out and the building was now operational (albeit subject to the limitations imposed due to the non-use of 14/15 Brand Street). An alternative Museum fit out contractor had been appointed, with contracts to be completed imminently for an approximate two month period for completing the fit out works.

The Strategic Director of Customer Services stressed that the Council was pressing HTHL to fully outline their costed and detailed proposals in respect of the Town Hall as, to date, only partial information had been received from various sources. Officers would continue to press HTHL to make its intentions clear so that the issue could be duly reported to Council in order that Members could take a decision on the matter.

In response to a Member’s question, the Strategic Director of Customer Services confirmed that there was no formal legal relationship between the Trust and either HTHL or HTH Finance Ltd, other than the Trust’s agreement with the Council in pursuance of the development agreement.

A Member commented that the defining documents were therefore the management agreement and the Trust’s objects relating to the Gymnasium and Workman’s Hall. He asked to what extent the Trust’s objects were likely to be frustrated by virtue of the current situation, and what would be the legal implications for the Sub-Committee were that to be the case.

The Strategic Director of Customer Services’ view was that the majority of the Trust’s property was available for use in line with its intended purpose. An element was currently not available, but could be with relatively minor building works. In the medium to long term the Trust’s objectives should not be frustrated, but may be impeded in terms of the quality it would be able to offer.

The Trust Lawyer added that the Trust’s objectives set out in the 2013 Management Agreement and in the original conveyance were for use of the Gymnasium for the benefits of the inhabitants of the Urban District Council of Hitchin, and for such other purposes as mentioned under sub-section 3 of the Museum and Gymnasium Act 1891, and for other purposes for the benefits of the inhabitants of the said District. Under the Management Agreement the Trust had agreed to allocate management of the premises to the Council. It had been envisaged that the Trust would use its best endeavours to work with the Council to resolve any disputes, such as the existing one between the Council and HTHL.

A Member stated that it was unfortunate that the Trust property had not been available for use for some time due to the building works, and that this could continue for a further period of time. He asked if there was any legal guidance as to how long that situation could pertain without it threatening the Trust.

In reply to a further Member’s question, the Strategic Director of Customer Services stated that the Museum fit out works were expected to take 8 weeks to complete. In addition, a certain amount of other preparatory tasks would need to be undertaken to ensure that the Museum could open in a reasonably configured manner. In part, it was dependent upon what HTHL intended to do with 14/15 Brand Street (which could impact on the Museum opening). From a technical view, it had been confirmed that it would be possible to open the Museum. He was unable to provide a precise timescale, although he did not think that it would be a long time. What he could not predict were the actions of HTHL.

The Sub-Committee considered that it should meet next in approximately two months’ time, with the proviso that if there should be significant progress in respect of 14/15 Brand Street, then a meeting could be convened at shorter notice.

RESOLVED: That the oral update report form the Strategic Director of Customer Services 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 Friday, 2nd September, 2016