Disputing the facts in the Kensal Rise Library case

There have now been 175 comments on the recent blog on the twists and turns of the Kensal Rise Library saga.  It has become increasingly hard to follow the discussion so I asked Meg Howarth to write a Guest Blog on the disputed facts of the matter and what she thinks are the repercussion stemming from this.  I will be happy to publish a similar Guest blog, preferably from a named person, who wishes to counter some of the factual evidence or interpretation.

As once again comments got heated I plead with people making comments to keep personal issues out of it and stick to the evidence and principles involved.

Thanks you

Martin Francis

GUEST BLOG BY MEG HOWARTH

Former Kensal Rise Library (KRL) is listed for auction in two days' time - Wednesday, 17 December. This blog is an attempt to respond to questions, misunderstandings and concerns which are again being raised about the Option Agreement (OA) document to purchase KRL:

- the OA allegedly came in to force on 26 November 2012 between KRL's then-owner, ASC, and property developer, Andrew Gilick; no-one other than the seller (ASC), the buyer (Andrew Gillick) and their lawyers has ever seen the original document. An OA is not a sale contract - it does what it says on the tin: it's an 'option' to buy;

- a contract for the sale of KRL was made only when Andrew Gillick exercised the option to buy contained in the OA; this appears to have been in January 2013, and was conditional on 'vacant possession' of KRL;

- vacant possession was secured by the seller, ASC, only this year, on 31 January 2014, with the demolition of the pop-up library early on the morning of 31 January; 

- the sale of KRL was completed on or immediately after that date;

- any statement that KRL was sold to Andrew Gillick before KRL was listed as an Asset of Community Value (ACV) on 11 December 2012 is untrue; 

- under ACV regulations, an OA carries the same weight as a sale, ie if an OA is made before a listing, then ACV regulations do not apply. This means that a listed 'asset' is exempt from the moratorium restrictions on its sale. 

Unresolved concerns about the Option Agreement (OA) are its date and whether it was signed off. The Information Commissioner ordered the release of the OA on 4 March 2014 after a successful appeal against then-owner All Souls College (ASC) refusal to publish the document. This was to be redacted for date, names and price only. I was sent a hard-copy redacted copy of the OA on 31 March 2014. There are two problems:

- there are no redactions for the date or the signing off of the document. Any redacted copy of the original OA  should, in my opinion and that of others, have shown clearly where those redactions have been made, just as  redactions for names and price are clear elsewhere in the document. This LINK  is to a scan of the document I was sent It has been posted on  previous WM blogs;

- if the OA was never signed off, then it has no legal status

A request for a meeting with Brent's CE Christine Gilbert has been made to try to resolve these matters. With KRL slated for auction in two days time, it's important that these doubts about the legality of the original sale be resolved. Only a viewing of the original Option Agreement can do this.

Footnote: 

There is no doubt in my mind that the OA was drawn up to bypass the application of the ACV moratorium regulations on ASC's sale of the library. Ironically - or not, depending on legal opinion - paras 6.1/6.2 of the OA state:

6.1 The Seller may not create any encumbrance over the Property at any time during the Option Period without the consent of the Buyer. 

6.2 An encumbrance includes, without limitation, any easement, restrictive covenant, lease or other right of occupation, use or enjoyment of the whole or part of the Property but for the avoidance of doubt any listing of the premises as an asset of community value under the Localism Act 2011 is excluded. 

LATE ADDITION - Letter from Farrers re signing of Option Agreement

Late addition. Brent Council Legal view on auction as sent to Friends of Kensal Rise Library on December 15th:

Stonebridge Adventure Playground gets Asset of Community Value listing but watch this space

Campaign on Facebook PleaseSupport

Campaigners for Stonebridge Adventures Playground are celebrating the granting of Asset of Community Value to the facility which has served local children and their parents seince the 1970s.

Brent Council plan to close the playground in order to extend Stonebridge Primary School and build housing. The full staffed and well-resourced playgtround which also runs special projects for children with special needs and disabilities would be replaced by a much smaller unstaffed 'kickabout' close to the main road.

As well as recognising the value of the playground to the community the listing also opens the way to a community bid for the site.

THIS DOES NOT MEAN THE PLAYGROUND IS SAVED AND RESIDENTS ARE URGED TO CONTINUE TO SUPPORT  THE CAMPAIGN,  SIGN THE PETITION AND ESPECIALLT TO COMPLETE THE ON-LINE CONSULTATION

However, this extract from the letter granting ACV status also indicates (last para) the possibility for an appeal which I would expect to come from the Planning Department - basically one part of Brent Council appealing to another part of Brent Council.  Something to carefully monitor.

A consultation process is currently underway on the Council plans with the latest meeting tonight at the The Hub in Stonebridge 7-9pm. Bonfire Night is perhaps not the best night of the year to consult with children and their parents!

Extract from Brent Council's letter signed by Cathy Tyson

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I am satisfied that the nomination made by the community body falls within Section 90(3) and under section 90(4) the Council is therefore required to enter the land as nominated on the Council’s list of assets of community value.

In accordance with Section 91 of the Act I hereby give notice of the inclusion of the Stonebridge Adventure Playground with the boundary shown on the maps provided by the nominee on 9^th September 2014 on the Local Authority’s list of Assets of Community Value.

The consequences for the land and for the London Borough of Brent as owners of the land of the inclusion of the land on the list of assets of community value are that

.        i)  The land will remain on the list of assets of community value for a period of 5 years unless the criteria for listing are found to no longer exist during an earlier review. 


.        ii)  It is open to the Council to remove the entry if for any reason the council no longer considers the land to be of community value. 


.        iii)  A restriction will be entered on the Land Registry and entry will be made on the Local Land Charges Register. 


iv)Under s95 of the Act the owner (London Borough of Brent) must not enter into a relevant disposal of the land unless certain conditions are met. These include notifying the Council in writing of the owner’s wish to enter into a relevant disposal of the land and complying with any moratorium periods on disposal.

v) A relevant disposal of listed land is ineffective if it is a disposal which contravenes S95. There is an exception to this in paragraph 21(2) of the Regulations.

The owner of the land (London Borough of Brent) has the right to ask for a review under S92 of the Act. A request for a review must be made in writing before the end of 8 weeks from the date of this notice. Such request should be addressed to the Assistant Chief Executive, Brent Council, Brent Civic Centre, Empire Way , Wembley, HA9 0FJ

ACV status for Stonebridge Adventure Playground to be decided next week

The Kilburn Times has been supporting the campaign since the start

The Brent Play Association's application for Stonebridge Adventure Playground to be made an asset of community value is due to get a response from Brent Council by November 5th.

ACV status gives some protection to such assets but does not prevent development.  However, it can be taken into account by the Planning Committee and clears the ground for a community bid. It makes a clear public statement that the facility is valued by the public.

Certainly the playground can easily demonstration that it has been a community asset for decades and many personal testimonials demonstrate its value to a community.

Front: Martin Francis (Green Party) and Dawn Butler (Labour) united in defence of the playground

The playground's fight for survival has received much support including that of Dawn Butler, Labour's parliamentary candidate for Brent Central, despite Brent Council leader Muhammed Butt insisting that he remains 'neutral'. I am supporting the fight both as a Tustree of the Brent Play Association and as Brent Green Party's spokesperson on children and families.

A community asset then...

and now

Final decision on Kensal Rise Library on hold while Department for Communites considers planning application

Brent Council has agreed with the Department for Communites and Local Government to put the final Kensal Rise Library planning application decision.

Responding to a member of the public who had requested a call-in to Eric Pickles, Secretary of state, 
The National Casework Planning Unit state:

Thank you for your email set out below addressed to the Secretary of State, your email will be passed to my colleague Fiona Hobbs who is already considering this application on behalf of the Secretary of State, and while she is working on the case the council have an agreement with us not issue a decision.  I understand from my colleague that Brent council are currently preparing a S106.

This is the content of the e-mail:
 

Dear Secretary of State,

PLANNING APPLICATION 14/0846: FORMER KENSAL RISE BRANCH LIBRARY, BATHURST GARDENS, LONDON, NW10 5JA - LONDON BOROUGH OF BRENT 

I believe the above application - granted planning consent on 16 July - should be called in because it raises issues of more than local importance: 

a) the Localism Act 2011, ACV listing and Community Right to Bid regulations appear to have been incorrectly and arbitrarily applied by LB Brent LPA:

i) inconsistent, arbitrary application of Localism Act 2011 to an Asset of Community Value (ASV): points 7 & 8 of the LB Brent LPA case-report (note 1) state unequivocally that 'the fact that the building is listed as a Asset of Community [ACV] value is...a material planning consideration' (7) and 'is also relevant...as a partial change of use to residential is proposed' (8); 

ii) so why did LB Brent LPA's legal advisor tell the 16 July planning committee that the 2011 Localism Act and ACV were 'separate legislation and not under the consideration of this committee' (note 2)? 

iii) LB Brent legal department's failure properly to apply the Community Right to Bid (CRB):

- Kensal Rise Library, subject of planning application 14/0846, was designated an Asset of Community Value (ACV) in December 2012;

- the sale contract for the building wasn't signed until January 2013, ie after ACV-listing, so the 6-month moratorium bidding process should have been enabled; but

- LB Brent LPA chose as the sale-date the earlier date of the Option Agreement (note 3) to purchase the property, signed in November 2012, ie before ACV-listing. Using this earlier date, LB Brent LPA argued that the 6-month moratorium on the sale did not apply.

b) I believe 14/0846 to be, therefore, a suitable test-case for the proper application of the Localism Act 2011 to ACV-listing:

i) it's widely believed that the Option Agreement was signed in order to bypass the provisions of the 2011 Localism Act for a moratorium on the sale of the property's ACV-listing (note 3, para 6.2). 

ii) this was, and remains a controversial sale and change-of-use planning application for one of Brent's few remaining historic buildings (note 4). The possibly deliberate attempt to bypass the ACV provisions of the 2011 Localism Act by then-owner All Souls College, Oxford requires investigation.

The Localism Act/ACV listing and Community Right to Bid is new legislation with little or no case-law to date. I urge you, therefore, to exercise your right to call in the application to ascertain whether correct procedures have been followed.

Notes: 

1 http://democracy.brent.gov.uk/documents/s25283/03 Former Kensal Rise Branch Library Bathurst Gardens London NW10 5JA.pdf

2 awaiting publication of minutes of meeting; 

3 https://www.dropbox.com/s/g20egs1atxoqogr/AS%20OA%202012%20Scan.pdf

4 http://wembleymatters.blogspot.co.uk/2014/07/brents-legal-flip-flopping-over-kensal.html

 

Round 3 of Kensal Rise Library planning debate tonight as FKRL negotiate named 'actual' tenancy

 

-->The controversial Kensal Rise Library planning application returns to the Planning Committee tonight, 7pm Conference Room, Brent Civic Centre LINK
Despite the further legal advice that fraudulent emails submitted in support of the developer's previous application for the site were 'not a material consideration', the application is still the subject of hot debate and there are likely to be further pubic representations tonight.

Yesterday Friends of Kensal Rise Library announced that: LINK

After months of negotiations, the Friends of Kensal Rise Library are to be named as the ‘Actual’ tenants of the new library and community space in the Kensal Rise Library building.

Previously the Friends were named only as the ‘preferred’ tenants, leading many to think that the agreement FKRL had signed with both All Souls College and the Developer was not watertight and carried no legal weight, and, that after years of campaigning there was a chance that other groups might be offered the space. 

Mandip Sahota, Associate planner for the developer stated:

Further to advice provided by the LPA in respect of the Assets of Community Value Regulations 2012, I am pleased to advise that the applicant has today confirmed that he is naming FKRL as the ‘actual’ tenant, as opposed to his ‘preferred’ tenant, subject of course to lease negotiations, management plan etc being satisfactory. 

We trust this goes some way to giving the Council, the FKRL and the local community the confidence to support this planning application. 

As comments on the previous posting on this issue demonstrate LINK there are still concerns about the trustworthiness of the developer.

Other issues relate to the significance of the Option Agreement signed by All Souls College and the fact that it is not referred to in the Officers' Report LINK and the granting of Asset of Community by Brent Council and its significance for the redevelopement LINK
I suggest readers check the comments column below before the meeting as this is very much an ongoing debate.

After months of negotiations, the Friends of Kensal Rise Library are to be named as the ‘Actual’ tenants of the new library and community space in the Kensal Rise Library building.

Previously the Friends were named only as the ‘preferred’ tenants, leading many to think that the agreement FKRL had signed with both All Souls College and the Developer was not watertight and carried no legal weight, and, that after years of campaigning there was a chance that other groups might be offered the space.

Mandip Sahota, Associate planner for the developer stated:

Further to advice provided by the LPA in respect of the Assets of Community Value Regulations 2012, I am pleased to advise that the applicant has today confirmed that he is naming FKRL as the ‘actual’ tenant, as opposed to his ‘preferred’ tenant, subject of course to lease negotiations, management plan etc being satisfactory. We trust this goes some way to giving the Council, the FKRL and the local community the confidence to support this planning application.

- See more at: http://www.savekensalriselibrary.org/2014/07/15/july-15th-update/#sthash.CzlLl6Rn.dpuf

After months of negotiations, the Friends of Kensal Rise Library are to be named as the ‘Actual’ tenants of the new library and community space in the Kensal Rise Library building.

Previously the Friends were named only as the ‘preferred’ tenants, leading many to think that the agreement FKRL had signed with both All Souls College and the Developer was not watertight and carried no legal weight, and, that after years of campaigning there was a chance that other groups might be offered the space.

Mandip Sahota, Associate planner for the developer stated:

Further to advice provided by the LPA in respect of the Assets of Community Value Regulations 2012, I am pleased to advise that the applicant has today confirmed that he is naming FKRL as the ‘actual’ tenant, as opposed to his ‘preferred’ tenant, subject of course to lease negotiations, management plan etc being satisfactory. We trust this goes some way to giving the Council, the FKRL and the local community the confidence to support this planning application.

- See more at: http://www.savekensalriselibrary.org/2014/07/15/july-15th-update/#sthash.CzlLl6Rn.dpuf

Why Friends of Kensal Rise Library accepted developer's offer of space

In this guest blog the Trustees of  Friends of Kensal Rise Library explain why they they decided to accept the developer's offer of space in the building.

Many of you know that the FKRL Trustees recently decided to support the community (D1) aspect of the library building's re-development. We signed an agreement in good faith with All Souls College and the developer to this effect, trusting this would strengthen our position as future operators of the library and community space.

The proposal provides approximately two thirds (186m2) of the ground floor for community use, with FKRL as the 'preferred' tenants. The London Evening Standard called this: 'a landmark agreement with developers that could save Kensal Rise Library' (25th March 2014).

We feel you should know how we came to make this momentous decision and the factors that we were obliged to take into account.

Throughout almost four years of campaigning and negotiating, initially with Brent Council, and more recently with All Souls College and the developer, FKRL's objectives has been, and will remain, to re-establish a library and community space in the building. We trust and hope that our decision offers the community the best chance of this.

The decision is not without risk. However, there were risks involved in the other options open to us which we ultimately rejected. These included the following:

1. HOLDING OUT FOR MORE SPACE

• The provision of rent-free space is an important factor for the sustainability of a community library. The current proposal is for rent-free community space, as this forms part of the agreement between All Souls College and the developer. Even if further space were to be available for community use, there is no guarantee that it would be rent-free.
• Although the upstairs parts of the library were used for archive and staff purposes until the library closed, the ground floor is the only part of the library that has been accessible to the public in recent years, and planning officers noted and remarked on this when we met them in October 2013.

2. TRUSTING IN ACV

• FKRL worked hard to persuade the Council to protect the entire building as an Asset of Community Value (ACV) in 2012. Just before the Council designated it as an ACV the College and the developer entered into a binding agreement that meant the moratorium period of six months that we might have used to prepare a bid for the building could not apply.
• We may have prepared a bid to buy the building, but there would have been no obligation on the College to accept our bid.
• If change of use from community to part-residential/part-community use was refused and the whole building remained in D1 (community) use as an ACV, the developer could rent it out for other community uses: for example, as a religious place of worship, doctor's surgery, or school. The planning process cannot dictate that the community space must be used as a library.
• There is no guarantee that any of the space will be used for a library or for anything that this community might want or need, nor who will be able to use the space.
• ACV does not determine ownership. The owner remains the same. The community does not own the building.

3.  HOPING THE PLANNING APPLICATION IS REJECTED

• If the most recent planning application is rejected, the developer could go to Appeal or submit another planning application. This could continue for years, during which there would probably not be any community access to the building.

4. HOPING THE DEVELOPER SELLS THE BUILDING

• If the developer decided to sell the building, substantial seven figure sums would be needed not only to purchase but also to refurbish. The developer would be under no obligation to sell it to FKRL or to the community.
• There is no guarantee that any new purchaser would be obliged to grant a rent free space space to the community.

FKRL made their decision after very carefully analysing the risk of losing the space proposed in the latest planning application, We have always endeavoured to act fairly, honestly and openly in our negotiations with the other parties and have entered into this agreement in good faith.

Kensal Rise Library's last librarian - before it was closed - said of FKRL's achievement and of the space currently on offer:

I'm sorry you weren't able to get as much space as you wanted, obviously the more the better. I think though that you've still got enough space to have a really good community library. There are certainly nice libraries that are smaller than the area you've got.

You have done a fantastic job in my opinion in saving the library. I really hope that as a group you don't let any disappointment about not getting everything you wanted overshadow what you have achieved. The odds were stacked against you and the people running Brent Libraries were determined Kensal should close. I'm sure that you will make a success of running the library. It really will be valued by local people after the fight that has been put up to save it.

Karl Hemsley (25 March 2014).

We are encouraged by the support of the Lead Member for Libraries at Brent Council, Cllr Roxanne Tessa Awe, Mashari, and by the present and future backing of Ms Tessa Awe, CEO of Brent CVS (Community, Voluntary Sector). There is tremendous community support for the library and the campaign to save it, and we know local people will embrace a new community library if, as we hope, we are given the opportunity to run it.

(FKRL have not been asked to comment on the whole of the planing application, only on the space proposed for D1 (community) use in the redevelopment. The Council is consulting the local community about the planning application in the usual way and everyone is free to comment on all aspects of the proposal.)

WE TRUST THAT THE ABOVE WILL GIVE ALL OUR SUPPORTERS AND THE PUBLIC AT LARGE, A CLEAR UNDERSTANDING OF THE REASONING BEHIND OUR ADOPTING THIS POSITION AND WE VERY MUCH LOOK FORWARD TO OPERATING A COMMUNITY LIBRARY FROM THE D1 SPACE IN DUE COURSE.

Trustees of Friends of Kensal Rise Library