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:

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

 

Kensal Rise Library planning application approved with new conditions

Brent Planning Committe tonight unanimously approved the planning application for Kensal Rise Library submitted by Andrew Gillick. The Committee attached new conditions to the application with an amendment on the marketing of the D1 space. Cllr Shafique Choudhary and Cllr Dan Filson declared that they had made previous statements  of opinion about the application and withdrew from the meeting.

Cllr Sarah Marquis, chair, in a statement said that on further legal advice, as requested by the commitee's previous meeting, that they would not take the ongoing police investigation into fraudulent emails into account.

A supplementary report by officers, tabled at the meeting, made several key points:

1. The Heads of Terms would be changed so that instead of saying that if the marketing campaign failed to prduce an occupier of the Kensal Rise Library D1 space Brent Council would be given first refusal, after 'internal discussion' this would now give CVS Brent first refusal to prepare a bid for the space.
2. The naming of Friends of Kensal Rise Library as the 'actual' tenant rather than 'preferred' tenant 'is not an issue the committee should purport to determine as part of the planning process.'
3. The applicant will provide the D1 space as a plastered shell with the main services capped off plus an earmarked sum of £3,000 for the teant to fit out the space.
4. A member of the public had asked that committee members be made aware of the Option Agreement to purchase Kensal Rise Library made between All Souls Collge and the developer when considering the current planning application.

Jodi Gramigni made a representation pointing the the importance of the Asset of Community Value status of the Kensal Rise building. She said that the commitee should take this into account as a material consideration  and called on Brent Council to exercise the political will to make this status mean something.

Stephanie Schonfield for Friends of Kensal Rise Library disputed the supllementary officer's report's comment on the naming of FKRL as 'actual tenant' and said FKRL were 'thrilled and relieved' at the agreement and loked forward to occupying the space and endsing four years of campaigning.

Councillors questions mainly centred around detailed issues arising from their site visit. The Committe eventually voted for a number of conditions including widening the chimney breast entrance space to admit buggies and wheelchairs, increased parking space for cycles, and waste storage space to be provided on the ground floor rather than the basement thus reducing the need to use the list and thus reducing the £2,500 service charge.

Steve Weeks of the Planning Department suggested that due to the 'actual' tenant agreement and the giving of CSV first refusal if marketing failed, that the requirement to market the space could be reduced to a fall-back if agreement was not reached on the initial occupier.

No refence was made during the meeting to the Option Agreement, although it may have been discussed at the pre-meeting.

The meeting was subdued with no triumphalism apparent, and several of the people involved on either aside of the battle made concilatory comments to each other after the meeting.

It appears that after a bruising controversey the community will now try and make the best of what some regard as a not very good deal, and others the best deal available in the circumstance.

Meanwhile the outcome of the police investigation into fraudulent emails is still awaited...

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

All Souls College ordered to disclose Kensal Rise 'binding agreement'

Guest blog by Meg Howarth

Protest outside All Souls College, Oxford

All Souls College, Oxford, has been ordered by the Information Commissioner to provide a copy of its Option Agreement - also known as the ‘binding agreement’ - for the sale of historic Kensal Rise Library (KRL) to developer Andrew Gillick. Only the date of completion, price and names/personal details of those involved in the transaction can be withheld.

The Commissioner made his decision on 4 March, in response to a Freedom of Information request by a supporter of the campaign to save the Mark Twain library from conversion to yet more unaffordable housing. The college authorities have 35 days in which to comply with the request. Failure to do so could result in the Commissioner writing to the High Court where lack of compliance may be treated as contempt of court. 

The grounds for the decision are that ‘The Commissioner considers that there is a legitimate public interest in disclosure of information surrounding the transaction, to which there is significant opposition, to promote openness, accountability and increase public understanding’.

Wealthy All Souls was until recently the owner of the site following the closure of the historic library by Brent Council in 2012. Its sale to Andrew Gillick was conditional on vacant possession. This was achieved when the college sent in its heavies to remove the pop-up library - built partly on the site, part on the public highway - at 6am on 31 February this year. Completion of sale occurred on or soon after that date. 

All Souls’ cowardly dawn-raid echoed Brent’s own barbarism of 29 May 2012 when council contractors entered the library building at 3am, stripping it of its books and Mark Twain commemorative plaque. The aim in both instances was the same - to pre-empt local opposition to the respective actions. The anti-democratic leading the greedy... 

Indeed, the college’s principal argument against disclosure of the Option Agreement was that public knowledge of the date(s) for vacant possession and completion-of-sale - together with the price - ‘would result in increased protest and activism to try to prevent completions’. It argued that should the sale of the property not be completed - for whatever reason - disclosure ‘would also make it more difficult for the college to find an alternative purchaser for the property’. It justified its line of reasoning as follows:

‘the college relies on its income from its property assets to conduct its research activities...prejudicing the college’s ability to generate such income from the sale of property would make it less able to conduct research of a similar standard and scale [something] which would not be in the public interest’. 

Proof, if any is needed, that irony is not yet dead, is the title of such a piece of research by one of All Souls’ senior fellows. It was listed on the college’s website in July 2012 as nearing completion and was published by the university later that year - Restatement of the English Law of Unjust Enrichment! 

You couldn’t make it up. Not only did All Souls pay nothing towards the building of the library - that was financed from a mixture of public taxation and a handsome donation by Andrew Carnegie. But the land on which KRL was built was more likely an act of tax-avoidance, aimed to bypass the land tax in operation at the time, rather than the philanthropic act its donation to the-then borough of Willesden, now Brent, is reputed to have been. Folklore over realpolitik...?

The real philanthropy would, of course, have been for the college elders to have returned KRL to the borough of Brent. Too late for that now. Andrew Gillick is the new owner. His original change-of-use scheme was unanimously rejected by Brent’s planning committee last September. It is currently enmeshed in a Kensington and Chelsea police-led inquiry into fraudulent online support - the headquarters of Mr Gillick’s property firms Platinum Revolver and Kensal Properties is sited in the royal borough (see Wembley Matters, 27 February 2014). The developer is intending to submit a revised change-of-use planning application for the site. 

Footnote: While disclosure of the Option Agreement for the sale of Kensal Rise Library is awaited, it’s worth remembering that the only third party to date to have seen the document is Brent’s legal counsel. He was forbidden to make a copy. Whether he shared the significant information it contained with council officers and/or elected members is unknown but a waiting-game certainly seems to have been played regarding the securing of vacant possession by 31 January.

Democracy, eh - and elections are coming...