BREAKING: Barham Park Trustees' £200,000 deal with George Irvin to enable him to build four 3 storey houses in Barham Park

 

The houses proposed for Barham Park

 

The long-running campaign by local residents in Sudbury to resist the building of houses  in Barham Park will come to a head at the Barham Park Trust Committee on February 24th 2025.

 A deal with funfair and property developer George Irvin will see him pay the Trust £200,000 for removal of the covenant that prevented building of four 3 storey houses on the site presently occupied by two modest 2 storey cottages at 776-778 Harrow Road.

The deal also involves vehicular access into the park and eretion of other facilities. Details are below:

 Recommendations:

The Barham Park Trust Committee RESOLVES to

2.1 Approve the modification of the restrictive covenants at 776 and 778 Harrow Road, as detailed in paragraphs 3.8-3.11 and delegate authority to the Director of Property and Assets to execute a deed with Zenaster Properties Ltd for the agreed sum of £200,000, subject to 2.2 below.

2.2 If required, approve seeking Charity Commission consideration of the Qualified Surveyor’s Report (Appendix 1) and authorisation under Section 105 of the Charities Act to modify or discharge the covenants.

 

Existing Covenants (extract from single plot):

 

*Not to use the Property otherwise than as a single private dwelling house and the garage for any purpose other than as an ancillary private garage.

*Not to divide the Property into two or more dwellings or residential units.

*Not to erect or cause to be erected on the Property any building or structure whatsoever except a greenhouse or shed of not greater length than 4 meters (sic) and of not greater height than 3 meters (sic) or permit or suffer any person under the Transferor’s control to do so.

*Not to stand or support any vehicle, commercial vehicle trailer, mobile home, caravan, trailer, cart or boat on any part of the Property.

*Not to carry out any development within the meaning of Section 55 of the Town and Country Planning Act 1990 in or upon the Property.

* Not to park any motor vehicle on or otherwise obstruct any part of the accessway hatched yellow and hatched green or any part of the Retained Land at any time.

 

Proposed Modification (combined plots):

 

3.9 The deed (to be prepared in accordance with the planning committee report dated 12 June 2023 and decision notice dated 13 June 2023—see Appendices 3 and 4) will amend these covenants to permit the development of four houses.

3.10 A revised version of the restrictive covenants that would enable the proposed redevelopment in accordance with the granted planning permission is set out below and may be subject to further refinement.

 

Permitted Use:

 

*The Property may be used for residential purposes, permitting the construction and occupation of up to four residential dwellings, together with any ancillary buildings, structures, and facilities required for their use in accordance with the planning permission granted under reference 22/4128.

 

 From Application 22/4128

 

Subdivision of the Property:

 

*The restriction on dividing the Property into multiple dwellings is removed, approved under planning permission 22/4128.

 

Construction of Buildings and Structures:

 

*The restriction on erecting buildings or structures is modified to permit the construction of four residential dwellings and any associated infrastructure, including garages, outbuildings, and landscaping, in accordance with planning permission 22/4128.

 

Vehicle and Storage Restrictions:

 

* The restriction on standing or supporting vehicles, commercial vehicle trailers, mobile homes, caravans, trailers, carts, or boats on the Property is modified to permit reasonable residential use, including the parking of vehicles by residents and visitors in designated parking areas as approved under planning permission 22/4128.

 

Permitted Development:

 

*The restriction on carrying out development within the meaning of Section 55 of the Town and Country Planning Act 1990 is removed to allow the construction and occupation of four residential dwellings in accordance with planning permission 22/4128.

 

Accessway and Parking Restrictions:

 

*The restriction on parking and obstruction of the accessway hatched yellow and hatched green or any part of the Retained Land is modified to allow vehicular and pedestrian access as required for the lawful residential use of the Property, ensuring that any access arrangements comply with planning permission 22/4128 and any subsequent highway or planning authority requirements.

 

3.11 These modifications preserve reasonable protections while enabling the approved redevelopment. The precise wording of the changes may be further refined or amended during the legal conveyancing process.

 

Timeline

 

3.12 The overall timeline for these steps is expected to span several months. Suppose the Trust Committee approves the restrictive covenants’ modification and/or discharge. In that case, completion may be subject to obtaining Charity Commission approval, if required, and the conclusion of legal formalities by the parties. This includes Zenaster applying to the Land Registry to register the Deed and effect the necessary changes.

 

3.13 The modification or discharge of the restrictive covenants is subject to the satisfactory reinstatement of the boundary in respect of 776 and 778 Harrow Road and return of the Barham Park Trust land to open space as agreed by way of surveyor’s aerial plan signed by George Irvin on behalf of Zenaster on 28th August 2024.

 

Zenastar Properties Ltd (previously Aventor) business is listed as

•      Buying and selling of own real estate
• Other letting and operating of own or leased real estate
• Management of real estate on a fee or contract basis  
  

Retained profits at January 2024: £3,781,976

Current officers

Campaigners will be looking for grounds on which to challenge to covenant deal. The report to Trustees discusses the role of the Charity Commission:

Compliance with the Charities Act 2011

 

3.4 The two key legal requirements under the Charities Act for land disposal have also been met:

 

*Independent advice: A report has been obtained from a qualified Designated Adviser acting solely in the interests of the Trust.

*Best terms achieved: The proposed transaction represents the best

financial terms reasonably obtainable by the Trust.

 

Requirement for Charity Commission Approval

 

3.5 Under the Charities Act 2011, charities do not typically require prior Charity Commission approval for land disposals where the two legal requirements above are satisfied. However, approval may be required in specific circumstances, including:

 

*Disposals to a "connected person" (as defined in the Charities Act).

*Disposals involving designated land in most cases

 The last two points regarding 'specific circumstances' may be considered grounds for challenge given previous allegations of a close relationship between Muhammed Butt, Chair of the Trustees and  George Irvin, Director of Zenastar, and argumets over designated land.

Muhammed Butt: You are not allowed to mention our plans to sell out the Barham Park covenant or proposals to destroy community facilities

 

Brent Council Leader Muhammed Butt made an unconvincing effort not to notice the large attendance at the Barham Park Trustees Meeeting this morning - there were more present than shown in this photograph and extra chairs had to be wheeled into the room.

Residents were there to protect their park and said afterwards they had not been impressed by the proceedings.

The meeting began with an announcement that the agenda item on the accounts was to be deferred to the next meeting. The whole meeting should have been deferred as Trustee activities and their plans hang on the financial viability of the Trust. That proposition was rejected and the meeting continued.

Users of the community facilities were only allowed to report on their activities and forbidden by Cllr Butt  (Chair of the Trustees)  to comment on the proposals that were on the Agenda.  Cllr Lorber appealed to legal officers to comment on this ruling as no such restriction had been communicated but no response was forthcoming. An ill-tempered Butt interrupted Francis Henry when he quietly and politely tried to raise concerns.

 

 Butt interrupted several times when Francis Henry wanted to talk about the items on the agenda that would impact on tenants and threaten the future of the Barham Library and its community activites:

 

Butt: I am going to stop you again. You are here, right, as I said the offer was made to the people within that building to come here and talk about the  work that they have done in the previous year leading up to today.

I am not talking about the meeting. I am not talking about the agenda. I am not talking about the report.  I am talking about the work you have done in the building as part of your trustee role.

This is what Francis would have said if he was not interrupted. They are questions he and other tenants of the community buildings would like answered:

Barham Park Trust Meeting, 5^th September 2023

Presentation by Friends of Barham Library

 

My name is Francis Henry, a resident of Wembley with a business in the area for over 30 years. I was the Chair of the Brent Sustainability Forum; I am currently the Chair of the Wembley Traders Association.

 

Today I am speaking as a Trustee of Friends of Barham Library who have been running a popular Community Library and Activity Centre in Barham Park since 2016 where hundreds of local people take part in a wide range of recreational activities.

 

In relation to Item 7, I wish to make the following points and raise some questions.

 

In my professional view as an local estate agent, no business person would contemplate making a decision involving around £4 million of public money on the inadequate information before Trustees today.

 

Can you please answer questions that any responsible Trustee would ask:

 

1. What alternative premises are being offered to all existing tenants?

 

2. Why were the tenants not consulted or involved?

 

3. Will the existing tenants be guaranteed same size space on affordable rents once completed?

 

4. Why do the officer recommended plans in the Silver Option not show a Community Library when the Library is shown in the Gold Option?

 

5. What is the earliest possible date you can obtain vacant possession of all the Units?

 

6. Is the £3.2 million cost estimate based on current year prices and what is the cost estimate in the earliest year the work can start.

 

7. Why has the bronze option not been presented to the Trustees?

 

8. The Report claims gross income of £300,000 to £400,000 from the completed development. What is the net income after interest and costs of managing the new facility.

 

9. Have the Brent Planners confirmed that shops, restaurants, hotels and offices comply with Planning Policies for green spaces and the Sudbury Neighbourhood Plan?

 

10. What sources of funding have been identified or been pursued to meet the expected costs?

 

11. You have spent £25,000 on Architects fees, unspecified costs on the windows survey. How much more in consultancy fees will be incurred before you know if this project is financially viable?

 

In my opinion no responsible Trustee would consider committing any more Charity or Public money to this idea before these questions are answered or recommendation 2.5 on the covenant is pursued.

 

Thank you for your time.

The Trustees decided to go ahead with further work on the development proposals that officers described as 'hypothetical' - having spent £25K on a hypothetical report they now committed to spending  more with an initial investigation into funding streams that would enable developments to take place. Only after that will tenants of the community buildings be consulted on proposals which does suggest they will be involved in shaping the proposals.

The plans to remove the covenant restricting development of the plot containg two small houses will also go ahead enabling fun fair owner George Irvin to build four 3 storey houses on the site are going ahead.

On Governance the Committee opted to continue the status quo, giving the Brent Cabinet sole control of the Trustees. Cllr Butt nodded along as an officer inaudibly went through the reasons why the alternatives would not be effective or efficient. A suggestion that a Friends of Barham Park should be set up was the only sop to local people and no actual representation (apart from the Buttocracy) on the Trustees was rejected.

There was a rare moment when Cllr Krupesh Sheth, who is lead members for the environment and thus of parks, actually spoke - but only to correct the title of one of the officers.

There was no mention of any submission by Barry Gardiner MP who had previously strongly opposed the removal of the covenant and Wembley Central ward councillors, the ward now includes Barham Park,  did not make any representations.

 

 

Barham Park Trust Accounts - Two questions that need answering

 I am publishing, with permission, the text of an email sent to Brent's Head of Internal Audit and Investigations:

 

 

Dear Mr Armstrong,

 

 

I am sorry for the short notice, but I have been reading the papers for the Barham Park Trust Committee meeting on Tuesday 5 September at 10am.

 

 

There are a couple of points arising from the Trust accounts for 2022/23 which I believe need to be explained to the Committee and the public at that meeting (even though I will only be able to watch it when the webcast is available to view online later in the week).

 

 

You were the Independent Examiner of those accounts, and at para. 4.2 of your Supplementary Audit Review, you have stated that:

 

 

'No matter has come to my attention, which gives me reasonable cause to believe that, in any material respect, the requirement:

...  To which, in my opinion, attention should be drawn in order to enable a proper understanding of the accounts to be reached.'

 

 

Although I have been accustomed to reading accounts for many years, there are two points with the 2022/23 Barham Park Trust accounts which I think are material for a proper understanding of them:

 

 

1.    Fun Fair Receipts - The 2022/23 accounts show no Fun Fair receipts (previous year £28,172), but the Trustee's Annual Report (6a Appendix 1) states that 'The park hosted a Fun Fair on two occasions.' 

The General Update Report to the September 2022 Trust Committee meeting gave these details: 'Irvin’s Fun Fair were at Barham Park: Operating days between the 20th May to 5th June 2022 (on site 12th May to 6th June); Operating days between the 19th August to 4th September 2022 (and will be on site until a few days later).'

How much was payable by Irvin's Fun Fair for its use of Barham Park for those two periods in 2022/23, and why does this amount not appear in the Trust's 2022/23 accounts?

 

2.    Consultancy Payments - The 2022/23 accounts show Consultancy payments of £21,244 out of the Trust's unrestricted funds. The Officer Report to the Committee on the Trust's Annual Report and Accounts refers to: 'additional one-off costs have been incurred associated with commissioning a Barham Park Feasibility study to consider the use of the Barham Park building and its condition in the long-term.'

It is clear from earlier meetings of the Barham Park Trust Committee, particularly that of 27 January 2022, that the Trust had agreed to appoint Rider Levett Bucknall ("RLB") architects to produce a feasibility study on the future of the Barham Park buildings. It was also clear that it had been agreed the £25,000 cost of this would be met as capital expenditure by Brent Council.

The results of the RLB report are to be considered at the Trust Committee meeting on 5 September, but to understand the 2022/23 accounts properly, more explanation is needed. The meeting on Tuesday should be told, and the answers minuted, on who the £21,244 was paid to, what services were provided to the Trust in return for that payment (and where is the evidence for those services?), who authorised this expenditure and where that authorisation is recorded.

 

 

Thank you, in advance, for your prompt attention to the points I have raised. I am copying this email to other Council Officers who may need to be involved in ensuring that these points are dealt with at Tuesday's meeting. 

 

 

Best wishes,

 

Philip Grant.

 

 

 

 

Trustees set to rubber stamp process to remove covenant restriction on building in Barham Park

The proposed George Irvin development of four 3 storey houses in Barham Park that would require the removal of the covenant

Trustees Meeting Agenda September 5th 2023

Reader will be familiar with the controversy over the proposal by funfair owner and property developer George Irvin to replace two  modest two storey park workers' houses  in Barham park with 4 three storey houses. At Planning Committee the elephant in the room was the restrictive covenant on developing the site, dismissed by officers as not a planning consideration. Planning permission was granted despite massive resident opposition.

Readers will also remember that the Trustees of Barham Park consist of Brent Council Cabinet members, chaired by Brent Council Leader, Muhammed Butt. Readers will also recall disquiet over Irvin giving free tickets away to councillors and concern over alleged social connections between Irvin and councillors, including Muhammed Butt.

Now the elephant in the room is due to make an appearance at the Barham Park Trustees meeting at the Civic Centre on Tuesday September 5th. 

The proposal by the existing owner, contrary to the terms of the restrictive covenants, is to seek consent from the Trust Committee to amend the restrictive covenants to enable him to demolish the existing buildings and erect 4 houses on the combined plot, whereas currently the restrictive covenants allow for only 2 dwellings on the combined plot.

However, the public and backbench councillors will not be allowed to know the size and value of the elephant/covenant as the result of an Independent Valuation has been 'restricted':

"Appendix 3 is not for publication as it contains the following category of exempt information as specified in Paragraph 3, Schedule 12A of the Local Government Act 1972, namely: “Information relating to the financial or business affairs of any particular person (including the authority holding that information."

There is a clue to how it could be worked out in the papers for the meeting:

The varying of the restrictive covenants is a matter for the Trust Committee and Charity Commission. As beneficiary of the restrictive covenants, the Trust Committee can negotiate a monetary consideration for varying the restrictive covenants. Simply put, the monetary consideration is usually determined by what the market value of the 2 additional completed properties might be and deduct from that the estimated development costs to arrive at a gross development value. This gross development value is then typically split 50/50 between the Covenantor and Covenantee by negotiation and is the formula used in the valuation for varying the restrictive covenant.

Developer, George Irvin,  will of course be a beneficiary as well but the report attempts to sweeten the pill by suggesting that the proceeds from varying the  covenant will be used to the benefit of the park, which as Trustees would have to do anyway, although they only refer to 'potential':

Officers will explore the potential to reinvest the proceeds from varying the restrictive covenants in respect of 776-778 Harrow Road back into the Estate as part of developing a multi-faceted investment strategy for the refurbishment project. Accordingly, the proceeds would count as permanent endowment funds (capital funds which are held in trust for the benefit of the charity over the long term and are subject to restrictions as regards how they may be used).

Those proposals on  refurbishment are a separate part of the agenda for the meeting and will be covered in a separate blog post.

So is there any mention of the 1,000 signatures plus petition calling for the covenants to be upheld? No - neither in the report or as as a Petition Presentaton Agenda item. A new elephant in the room!?

A key question is whether the Agenda or accompanying reports leave open the possibility of the Trustees deciding not to vary the covenants at all and thus fulfill their role in protecting the Tutus Barham legacy. The answer is already implied - they will protect the legacy by using the covenant variation monies to improve the park not by refusing to negotiate  a variation.

So what do officers' recommend to the Barham Park Trust Committee?

Recommendation(s)

 

That the Barham Park Trust Committee RESOLVES

 

Agree for the Director for Environmental and Leisure Services in consultation with the Chair of the Trust Committee to negotiate in principle the variation of the restrictive covenant in respect of 776 and 778 Harrow Road for the best terms that can reasonably be obtained, subject to final approval by the Trust Committee, and any approval required by the Charity Commission under the Charities Act 2022 and 201l.

 

So the Committee is asked to agree to hand over negotiation to Muhammed Butt and the Director and, subject to Charity Commission approval,  will then rubber stamp it. All done by a small group of cabinet members, albeit wearing trustee hats - with, as I said at the beginning no resident or backbencher input.

 

There is one other area that may be considered by supporters of the covenant and critics of the process regarding whether the owner/developer is a 'connected person' and thus a conflict of interest arises. This is the relevant section of the report:

5.7 Use of s117, pre-supposes that the owner of the cottages is not a “connected person” within the meaning of section 118. Connected persons2 includes:

 

“Who at the time of the disposition in question, or at the time of any contract for the disposition in question are, for example—

(a) a charity trustee or trustee for the charity…

(c) a child, parent, grandchild, grandparent, brother or sister of any such trustee or donor,

(d) an officer, agent or employee of the charity…

(f) a person carrying on business in partnership with any person falling within any of paragraphs (a) to (e)”

 

5.8 In accordance with s120, any disposal of Trust land over seven years to a third party is also subject to similar requirement imposed by s119 above.

 

Furthermore, the disposal of charity land, or letting for more than two years to a third party or connected person requires consultation in the form of being notified in the local press and onsite and providing for at least one calendar month, from the date of the notice, for members of the public to make representations.

 

5.9 Accordingly, if the owner of the cottages is a connected person, or a conflict of interest is deemed to exist in the decision making process re the disposal (for example, amongst other things because payment of a capital sum to the Council (as trustee) for releasing the covenant would reduce the contribution required to be made in practice by the Council (as local authority) to subsidise the running of the charity), the Trustees should request the Charity Commission consider the Qualified Surveyor’s Report (referred to under the 2022 Act as the Designated Advisor’s Report (DARs) (valuation) and release or varying the restrictive covenant pursuant to their s105 Charity Act powers, to authorise dealings with the charity property.

 

On the same Agenda there is an item on governance which proposes the first update since 2013. The item makes clear that Brent Council is the corporate Trustee of Barham Park but must ensure that the management of the Charity and its interests is separate from its responsibility as the Council and its interests Decisions have to be made solely on the basis of the former. What is in the interests of the  Charity may not be in the electoral interests of the Council. See 10a Appendix A for the changes.

Interesting...

Review of Barham Park Trust Governance Document PDF 137 KB

• View the background to item 10.

This report sets out for review proposed updates to the Barham Park Trust Governance and Guidance Document. Primarily designed to reflect changes following organisational restructures in the council and updated guidance issued by the Charity Commission.

Additional documents:

• 10a. Appendix A - Reviewed Governance and Guidance Document 2013 PDF 865 KB
• 10b. Appendix A(i) Cllrs Guide to a Councils Role as Charity Trustee (Appendix B Trust Governance Document) PDF 253 KB
• 10c. Appendix A(ii) Charity Commission Guidance Conflict of Interests (Appendix C Trust Governance Document) PDF 511 KB
• 10d. Appendix A(iii) Charity Commission Essential Trustee Guidance (Appendix D Trust Governance Document) PDF 943 KB

 

 

Brent Council challenged on apparent attempt to restrict public information on the Barham Park restrictive covenant

 

The elephant in the room at the Planning Committee that approved George Irvin's planning application to build 4 three storey houses in Barham Park was the restrictive covenant on the two small park workers' houses on the site.

'Not a planning issue' residents were told by officers as they consigned the poor elephant to invisibility.

Perhaps not but the elephant was perhaps a fly in George Irvin's or Muhammed Butt's ointment.

Now a Barham Park Strategic Property Review, including the covenant, is to take place with Muhammed Butt heading it up as Leader of Brent Council. He is also Chair of the Barham park Trustees charged with preserving and enhancing the park for the benefit of residents in the spirit of the Titus Barham bequest. 

Unfortunately residents who hoped to see the elephant properly dealt with in an open and accountable manner may be kept in the dark as a restriction has been placed on publication and thus public discussion of any proposal:

Barham Park Strategic Property Review

By virtue of paragraph(s) 3 of Part 1 of Schedule 12A of the Local Government Act 1972.

Explanation of Reasons

• By Virtue of Paragraph 3

  Information relating to the financial or business affairs of any particular person (including the authority holding that information)

  Condition:

  Information falling within paragraph 3 above is not exempt information by virtue of that paragraph if it is required to be registered under-(a)the Companies Acts (as defined in section 2 of the Companies Act 2006); (b)the Friendly Societies Act 1974; (c)the Friendly Societies Act 1992; (d)the Industrial and Provident Societies Acts 1965 to 1978; (e)the Building Societies Act 1986; or (f)the Charities Act 1993

  Information is not exempt information if it relates to proposed development for which the local planning authority may grant itself planning permission pursuant to regulation 3 of the Town and Country Planning General Regulations 1992

  Information which-(a)falls within any of paragraphs 1 to 7 above; and (b)is not prevented from being exempt by virtue of paragraph 8 or 9 above, is exempt information if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information

Cllr Paul Lorber is challening the claim in the restriction that:

....the public interest in maintaining the exemption outweighs the public interest in disclosing the information

In a letter to Brent Council officers he says:

I note the latest Forward Plan mentions a number of Reports coming to the above meeting including on issues of the Covenant, Architects Report and Governance.

There is a suggestion that some of the information may be exempt and not provided in the public reports. 

As you are aware there is a great deal of public interest and concern in relation to these matters. 

In relation to all the matters to be reported on it is clear that the Public Interest in disclosing the information outweighs any public interest in maintains the exemption.

In view of this I trust that you will ensure that all information is published in full in all the reports to be presented to the meeting (including any information & advice given in pre meetings) on which any recommendations or decisions will be based.

If any information is to be withheld please provide a list of this information and the grounds on which it is withheld and the justification why the public interest withholding it outweighs the public interest in disclosing it. 

Please confirm that this will be done.