LETTER: Barham Park new covenant mystery

 

Dear Editor.

 

This is very interesting and odd.

 

On the face of it while I was fighting for a covenant on Barham Park development through the meetings process, the idea was ultimately rejected.

 

So why did the Covenant still end up in the sales documentation?

 

Was it a rogue lawyer who inserted it?

 

Or was it just a cock up that no one noticed (it is normal when drafting a legal document to use a standard pro forma which includes everything under the sun and as part of the process the lawyer strikes out any paragraphs not required or requested).

 

The answer may be important especially if the Council was forced to include it by any of the outsiders?

 

The next meeting of the Trustees Committee to approve the corrected account sis on September 26^th.

 

I have written to Debra Norman seeking clarification before the meeting:

 

One key issue outstanding which requires a clear answer is the question as to why the Covenant was put in place.

 

If you review the Barham Park Trust Minutes when the decision to sell the two houses was made you will notice that I argued that a restriction on further development on the site should be out in place. The Trust Committee rejected my proposal.

 

That decision was called in went to Scrutiny. If you check the minutes of that meeting, you will note that I argued the case and that Scrutiny agreed that a restriction should be put in place.

 

The recommendation from Scrutiny then went back to Cabinet but the Scrutiny recommendation was not accepted.

 

On the face of it the proposal for a restriction or covenant was not to be pursued.

 

So how did it come about that such strongly worded restrictive covenant ended up in the sale document relation to 776/778 Harrow Road houses?

 

Approval for the sale was required from the Charity Commission. Did the Charity Commission insist on the restrictive covenant before approving the sale?

 

Did the District Valuer insist on this and approve the valuation on this basis?

 

Was there subsequent advice from the Brent solicitors?

 

Was there a political change if heart because of pressure from within the Labour Party?

 

I would like this to be fully investigated as the reason is crucial to understanding whether the covenant can now be negotiated away or whether there are compelling reasons why it needs to be retained.

 

I would appreciate your answer on this before 26 September.

 

Cllr Paul Lorber

 

 

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.

You have until May 9th to comment on George Irvin's plans to build 4 3-storey houses in Barham Park

 

The consultation period for  the planning application by developer and funfair owner George Irvin to replace two 2 storey houses in Barham park with four 3 storey houses has been extended to May 9th.

Brent Council has issued this notice:

Application Number: 22/4128
Location: 776 & 778, Harrow Road, Wembley, HA0 2HE
Proposal: Demolition of 2 existing dwellings and construction of 4x new three storey dwellinghouses, associated cycle and refuse storage, amenity space and boundary treatment.

View and track the application: Use the QR code or https://pa.brent.gov.uk
You can also use the computers at Brent's libraries.

Commenting on the application: 
You may comment on-line by using the 'make comments' tab or by e-mailing planning.comments@brent.gov.uk. Make sure you provide the application number, your name and postal address. Your comments and address will be publically available, although your name won't be. You may check what the final decision is by selecting "track application" on our website.

Comments should be made by: 09 May 2023.

This link should take you directly to the Comments page on the Planning Portal. LINK

Although Brent Council has said the existing Covenant on the houses is not a planning matter I have made an FoI request regarding the valuation of the Covenant which is pertinent to any arrangement between the Trustees of Barham Park (chaired by Brent Council leader Muhammed Butt) and the developer:

 1. Please confirm if you have acquired a professional valuation of the Covenant attached to the two properties at 776-778 Harrow Road, Barham Park that were sold to George Irwin.
2. If not, have Brent Council officers made their own valuation and informed the Trustees of Barham Park accordingly?
3. If either have been done, what is the valuation of the Covenant?

I understand that some councillors will not be taking up George Irvin's offer of free tickets for councillors' friends and families for entrance to his Roe Green Funfair.  It may be worth asking your local councillor if they received the offer and have accepted.

 

UPDATED with comment by George Irvin. Developer George Irvin offers Brent councillors all the fun of the fair

 

 

An email from Irvin Leisure to Brent councillors has been seen by Wembley Matters.It is not possible to tell if the email went to ALL councillors but it does suggest that many will be at the Funfair it invites councillors to attend.  It asks councillors to reply personally to George Irvin in response to an invitation to enjoy free admission to the upcoming Funfair at Roe Green for friends and family:

 

Hello Dear Councillor,

 

As I’m sure you realise, we have worked with your Borough for many generations staging the Annual Funfairs where we support many local charities including the Mayor’s charity which we are raising funds for at this year’s event.

 

The local community have an important day coming up soon at the local Fair, this being Eid al-Fitr on the 21^st and 22^nd April 2023 and regardless of your personal religion we would like to invite you along with family and friends to our Funfair free of charge as I will arrange tickets for you all.

 

Do confirm to George direct if you wish to attend as many other Councillors will be attending.

 

George Irvin's controversial application to redevelop a site in Barham Park LINK to build 4 houses is with the council and expires on Thursday April 20th. 

 

After publication I received the following emailed comment about the Barham Park development: 

 

Brent Council treated the Barham bequest as their own asset for a long time. They used buildings in Barham Park as offices for Parks Department and build the two cottages for parks staff in early 1970s without permission.

 

The park buildings and pathways have been neglected for years and rather than treating it just like any other Park, paid from the Council Tax the Council is insisting that Barham Park needs to generate its own income to fund improvements.

 

When the cottages became empty and needed substantial upgrading a decision was made some 14 years ago to sell them to generate money for repairs to the park.

 

George Irwin bought them at auction for £630,000.

 

The sale was subject to a covenant preventing further building. While this has nothing to do with planning - and any permission could be given or refused - the ‘restrictive’ covenant cannot be ignored.

 

As the Council sold the two cottages with the Covenant on basis that it was the two houses and not more. The value received was reasonable. If the houses and land were sold unrestricted than the value would have been much higher.

 

The Council Trustees have a fiduciary duty to maximise any income to the Trust. As the land from Titus Barham is a charitable endowment, they also have a duty to protect it. They could simply say 2 houses is enough and no more - irrespective of any decisions made by planning.

 

If the Trustees, following proper advice and probably clearance from the Charity Commission allowed the proposed 4 houses to be built - despite public opposition - they would have to extract a fair and substantial value for disposing of the protection given by the restrictive covenant.

 

George Irwin paid £630,000 for two cottages some years ago. He also incurred legal and other costs. Each of the 4 town houses, once built could be worth £700,000 each that is a total of £2,800,000. If demolition, rebuilding and other costs come to say £1,170,000 that would still leave a gain of £1 million.

 

The Brent property or Finance team can do this calculation for the Barham Trustees as a value needs to be placed on the covenant. An independent valuation officer from the Inland Revenue will probably need to be involved.

 

What is quite obvious is that George Irwin will not be allowed to go ahead without paying a very large price - even if the planning Committee caves in and allows more building inside an important Brent Park. Once Brent officers finally advise him of the price, he needs to pay he may simply give up on his plans and realise that he is wasting his time.

 

GEORGE IRVIN HAS SENT THIS COMMENT (00.15 APRIL 20TH)

 

I need to make everyone aware we have been asked to support Eid al-Fitr by many Mosque’s all over London that we do events with and because of this we have sent £10 of tokens to all the councillors that can be given to anyone including charities in Tower Hamlets, Lambeth, Brent and Southwark where funfairs are taking place over Eid as this has nothing to do with planning issues.

 
We support many non-political charities, like the mayors charities with our annual funfairs as we have donated more £500,000 over previous years.

 
So this is completely wrong to say this is connected to any planning, applications.

 

Wembley Matters readers make clear the Barham Park battle is not over yet

 The houses that could still be redeveloped

Sometimes comments are received on Wembley Matters stories some time after they have been published and I thought these two were worh publishing in their own right. They are reactions to the news that the Brent Cabinet, in the guise of their sole membership of the Barham Park Trust Committee, agreed to  a proposal to investigate the removal of the covenant on  776/778 Harrow Road so that development could take place LINK.

Anonymous wrote

I have found that there is a recording of the  Barham Park Trust Committee meeting on Brent's "livestreaming", which you can watch HERE:

I have watched it, and one of the most sensible things I heard said was a brief suggestion from Cllr Harbi Farah, asking if arrangements could be made for the committee members to visit Barham Park, and be shown round, and have the issues explained to them. [My observation: so that they might have some idea of what they were talking about!]

The main point that the members seemed to pick up on over the restrictive covenant was that their decision to let Officers negotiate over it was not a final one. Any recommendation to possibly amend it would have to come back to the Trust Committee for a decision.

Whether it was wise to even start on that road, because the restrictive covenant had been put in place to protect the park, was not considered.

The only reference to that aspect was Cllr. Butt saying that the Trust had to consider all options. This appeared to be on the basis that some money to fund the park could be raised by allowing a loosening of the restrictive covenant.

How much the process of actually trying to change the restrictive covenant would cost (whether "successful" or not), was not referred to in the Officer's Report, or by the Council Officers who advised the committee at the meeting. That question was not raised by Cllr. Butt, or any other members.

The terms of a restrictive covenant over 776/778 Harrow Road would not (legally) be a material consideration in any future planning application (although that wasn't mentioned either).

However, I can't imagine the current owner, or any other prospective developer, being willing to pay a significant sum to the Trust to get the terms of the restrictive covenant changed, if there wasn't a "side deal" over Brent Council being willing to accept a planning application that matched what the weakened covenant would allow them to build.

The Barham Park Trust Committee, now chaired by the Council Leader himself, have stepped onto a slippery slope. It could see them sliding down into conflict with the local community, and with the wishes of the benefactor who left his Sudbury Park estate for the benefit of the people of Wembley.

Paul Lorber said...

 

From the way the Trust Meeting was conducted it is clear that there was a pre meeting where they had detailed discussions and where they made their decisions in advance - in ignorance of all the facts.

The suggestion by one Trustee that they should inspect the buildings gives a clue as to how little they know. Anyone with any common sense would recognise that the site meeting should of course have taken before the decision making Trust meeting so that they could make decisions (rather than put them off) especially as the Trustees only meet once a year.

In terms of the issue of building on the Park and the covenant the comment by one of the Sudbury Councillors (at around 39 minutes into the recording) was also revealing of what residents can expect - he suggested that the two houses were outside of the Park. This is clearly NOT true.

The Covenant was put in place by Labour Councillors in 2011 when they made the decision to complete the sale of the two houses. One obvious question which should have been asked but was not was "why did we put the Covenant in place in the first place and why are we considering changing it just 10 years later?" The answer is simple - there was a recognition at the time that the houses should not have been there in the first place and that any enlargement or expansion should NOT be considered or allowed.

The two houses were built by Brent Council without permission some 50 years ago. For years the Council treated the Park and its buildings as its own forgetting their Charity obligations.

No one bothered to ask why the buildings were allowed to get into such a poor state of disrepair. The answer might have shocked them - as in 2011 the Trust paid £2,500 for a detailed condition survey into the state of the old buildings - some of which date back to 1780s - and yet 10 years later most of the priority repairs identified have still not been carried out.

Now we are also told that ACAVA, the tenant which Brent Council itself brought into most of the building after Labour Councillors closed the Council run Barham Library in 2011, in preference to Brent based organisations, have not paid their rent for almost 2 years and owed £76,000 as at 31 March 2021 - and presumably even more some 5 months later.

Brent Council does not bother to inform or consult local people about anything. There is no information about the closed Children Centre for example. It is hardly surprising that local residents feel ignored and have no confidence or trust in the Councillors in charge.

When I challenged and raised my concerns with the Brent Council's Chief Executive about the way the Council and its appointed Trustees were handling issues relating to the Park and its neglected buildings she told me that she would not discuss the issue any further. That is how Open Government works in Brent these days.

It is clearly down to local people to keep fighting for their Park. Our thanks need to go to Philip Grant for highlighting the issue, for Martin for publishing so as not to let Brent Councillors get away with things without proper scrutiny.

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".  

Nursery school accused of 'land grab' of covenanted open space

College Green Nursery School, Willesden, has been accused of a 'land grab' after local residents heard that a 6 feet high fence is to be installed around the College Green Open Space at the junction of College Road and Leighton Gardens.  The College Green Preservation Society claim that this is contravention of the protective covenant  granted by All Souls' College, Oxford in 1913.  It has been used by the 28th Willesden Scout Group since 1967 along with the nursery.

The Society claim that the open space has never been part of the nursery's property and that the predecessor nursery was only given permission to move on to College Green to protect the open space.

A petition is now being circulated (see below) asking Brent Council to stop the erection of the fence which they say will cut the open space in two blocking the view of an open field and have a detrimental impact on the character of the area. It is further feared that enclosing the land may give the Nursery School property rights over the space that could lead to them building on it.