Response to the article "PARISH COUNCIL VIEW ON DELAY” that appeared in the latest issue of the Parish Magazine
It is a pity that the writer of this article did not append their signature, if they had the residents of Willand would have a better idea as to why it was written, however, judging by the choice of wording, it doesn’t take many guesses to recognise the style. It is also difficult to understand why the author has not mentioned the major stumbling block that has created the ongoing delays and problems preventing the trustees agreeing to sign the lease.
The statement concerning the date when the lease was "Served” on the WH&CC Charity is correct. It does not however refer to the reason it was rejected by the trustees. The lease has had an exclusion clause added from the original lease, which under sections 24 – 28 of the Landlord & Tenants ACT 1954 does not give the WH&CC any legal rights to a renewable lease, which is unacceptable under Charity Commission law. If the trustees were to sign the lease they would be leaving themselves personally open to legal recourse from the Charities Commission. This was made known to the Parish Council shortly after the date the lease was served, however, the Parish Council have chosen to ignore the request by the trustees to have this clause removed. It should also be noted that two serving parish councillors who are also trustees of the WH&CC have registered that they will not sign the lease on the grounds that they as trustees could be personally involved in any litigation issues with the Charities Commission.
It is true that the WH&CC trustees did vote to sign the lease and the Statutory Notice was delivered to the WPC, the then sitting WH&CC chairman voted against signing the lease and the vice chairman abstained, the vote was however reluctantly carried by a majority of trustees. Further advice was solicited and four independent solicitors gave legal advice that it was most unusual for a long lease to have the exclusion clause, also, and perhaps more damaging, they gave advice to the trustees not to sign the lease as it would be illegal. This information was passed to the Parish Council but for whatever reason no action was considered.
One of the Parish Council apparent concerns is that if the exclusion clause is removed from the lease, the parish will lose the freehold to the land and buildings known as the Gables. The "Copy of Registered Title No DN645755” clearly states that Willand Parish Council is the legal freeholder of the title, in consequence, whatever happens to the development of the site the WPC will always own the land on behalf of the community, it should also be remembered that the land has planning restrictions under an S106, determining that the land can only be used for community purposes in perpetuity. The WH&CC vice chairman carried out a simple "risk assessment” to ascertain the risk to the WPC if the exclusion clause was removed, this was passed to the WPC Clerk, who circulated it to all Parish Councillors, the result of the risk assessment is:-
Risk Analysis of risk Risk factor 0 – 10
(0 = low risk, 10 = high risk)
|Parish Council solicitor advice is that if a 99 year lease without the exclusion act is given to the WH&CC, the PC will be forfeiting their freehold.
| The lease cannot be forfeited whilst the Parish Council is the registered freehold owner with the Land Registry.
||Risk factor = 0
|Disposal of the asset, (The Land known as The Gables.)
||The asset can only be disposed of if the WPC choose to do so
||Risk factor = 0
|What if the WH&CC fails to deliver the Willand Health & Community Centre, or cannot sustain the ongoing funding?
|| The lease allows for the landlord (The WPC) to take the asset back into their control.
||Risk factor = 0
|What if the current S106 reaches its expiry date, before the WH&CC can commence construction of the new building?
||The WPC and the WH&CC would have entered into discussion well before this date, to ensure this could not happen
||Risk factor = 0
The above clearly demonstrates that there is no risk to the WPC ownership of the land, and also underpins that the WH&CC will develop the land for the benefits of the community.
As there is an impasse on agreeing the lease, the WH&CC trustees at the charity cost instructed the solicitors Tozers to undertake a further review of the lease, to establish if there was some common ground which would assist in finding a suitable solution to the problem with the lease. The solicitor noted the following suggestion:-
If I were negotiating this Lease, I would be asking the Council for an Agreement for Lease instead. In this Agreement, we would be asking the Council to agree to enter a Lease with the Charity upon completion of the rebuild rather than before. This Agreement could also contain terms enabling either party to bring it to an end if the works were not started or completed by a specified date. This way if the Charity does not obtain the required funding for the rebuild it would not be tied in to an onerous 99 year Lease.
This was drawn up by a professional lease solicitor as possibly a way round of giving the WPC protection of the community asset and the WH&CC release from the exclusion clause, however, as can be seen the writer failed to mention that this was a legal "Agreement to Lease” which would be signed by both the WPC and the WH&CC to form a binding legal agreement.
It is somewhat disingenuous of the writer of the article to suggest that the WH&CC trustees infer that it is the WPC who have caused the delay to the project to build the new Willand Health & Community Centre. At all times the trustees have been open minded and the message from the trustees has been that there is a problem with signing the lease, they have never associated blame with either party.
Ken J Wood
Vice Chairman WH&CC