Gaynor Lloyd challenges proposal to consider amending the restrictive covenant on development of 776/778 Harrow Road in Barham Park

Gaynor Lloyd sent this comment on my earlier post on the possible removal of the restrictive covenant on 776/778 Harrow Road, the houses in Barham Park that were the subject of a controverial planning application to demolish them and build a block of flats in their place. LINK

As ever, thank you for highlighting a point of great local interest. The Trust Committee  has commented in the past about how much of the Council’s resources in staff time is taken up administering the Barham Trust. Of course, the site is complex with various lettings and maintenance issues and a building crying out for repair. It is a pity the Trust was unsuccessful in its recent NCIL bid. Perhaps it was hoping for  a windfall from “developers” instead. 

 

I wonder, however,  what time (and possible expenditure on advice) will be given to consideration in principle of this application to the First Tier Tribunal to get the covenant lifted/modified. And then of course, independent advice on costs, valuation aspects, timing, overall negotiating position and even choice of “developers”.

 

Leaving aside whether this is appropriate, would such an application be fully funded by these “developers” ? How do you choose which? And  what are the prospects? It has now been many years since I was in practice but I can’t see a snowball in hell’s chance  of the Tribunal finding the covenant is obsolete  - even  just on the substantial evidence of the huge  and demonstrable level of opposition to the recent Planning application. Including, very vocally,  by local (& other)  Labour Councillors and our local MP. 

 

The most concerning point is that it appears to be a  proposal that the Barham Trust (or a developer with the approval of the Barham Trust) applies to lift the covenant the Trust imposed for the protection of the Park - and which the purchaser accepted, paying a price appropriate to the limited use. The only apparent "benefit for the Trust" being getting money in from this queue of developers. (I was only aware of the current landowner’s interest but you live and learn.) I wonder what consultation there has been with the local Councillors or even Park users. 

 

The Charity Commission provides a useful "Councillors' Guide :to a Council's role as Charity Trustee." https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/351608/council_as_charity_trustee_overview.pdf

 

This interesting publication outlines why Local Authorities make such eminently suitable trustees of gifted assets of land - "rooted in the local community; open and transparent in their dealings; highly accountable for their actions." 

 

The Guide also says: "Depending on the size and circumstances of the charity, it may make sense for a committee of councillors to be allocated this task. It must not be forgotten, however, that responsibility continues to rest with the whole council."

 

Planning (as a council function) is separate from the business of council as charitable trustee. Nonetheless, by way of background, the Trust Committee is referred to the withdrawn proposal to build a block of flats in the Park..The Committee is not, however,  referred to the large and sustained public objection from residents and statutory consultees alike. Bearing in mind that the charity's objects for Barham Park are "to preserve the same for the recreation of the public in such manner and subject to such regulations in all respects as the Council may from time to time think proper ", the Committee is asked  to "provide a steer as to how  such re-development proposals, which include seeking to amend the terms of the restrictive covenant, should be considered in the future as the site appears to be attracting the interest of developers".  

 

Last time I looked, Barham Park was not a "development site"; it is a charitable asset entrusted to the Council on particular trusts. The benefit of the restrictive covenant is an asset of the charity. If the Trust Committee is asked to consider that asset's disposal, shouldn't the guidance of the Charity Commission be considered first? The Charity Commission might suggest that the views of the beneficiaries be considered; even if the Charity Commission doesn't, wouldn't the "whole council" acting for their residents? If any of these considerations have been thought about, it's not on the face of the report.

 

Despite appearances to the contrary, I really don't want to spend my life moaning to public bodies. However, if the Trust Committee decides this is a good wheeze, I guess I'll just have to think about sharpening my quill and raising with the Charity Commission both the unpopular proposal to  lift the restrictive covenant to facilitate a development within Barham Park but, even more immediately, the suggestion of  the Committee delegating " a decision to officers in future as to whether to amend the restrictive covenant in respect of 776-778 Harrow Road and on what terms" . As the Charity Commission Councillors' Guide says: "While ongoing management may be delegated to officers, responsibility for  decision-making and oversight rests with the councillors". 

 

For me, this proposal goes to the heart of  the charity's objects. There is overwhelming and recent evidence of widespread, local opposition to the very idea of redevelopment on the Park - let alone that - borrowing words from the Report  " reaching agreement to amend the restricting covenants on that property" would be "for the benefit of the Trust".