News from Willand
Get the latest news here

Speculation?  Rumour?  Misinformation? - Timeline 2
A tale of two leases

Continuing the timeline from the start of the project to date.  We are now in 2015 and the agreement had been made that the charity would develop the lease at it's own cost and prior to signing, the Parish Council would take legal advice if there was anything that concerned them.  MDDC legal department confirmed that our agreement was fine but recommended that the Parish Council in any case had a solicitor look over the lease before signing.

As with a house, there is a high level of agreement on the major areas such as price, what will be left, expected moving date etc.  In the same way a lease has what is known as heads or terms of agreement.  This is the agreement that the solicitors use to guide them in creating the lease.

I have inserted the summary of the purchase and the heads of agreement which were submitted to the Charity Commission at their specific request.

Summary of Costs 

The estimated purchase price of the land and buildings was set at £80,000.  The developer obligations under Section 106 of planning regulation for such things a open space, affordable housing were allowed under the S106 agreement to offset the costs of the site resulting in an offer which would cost the Parish Council just over £5,000.  However as part of the Discussions, Our County Councillor offered a grant of £15,000 to cover the cost of the purchase and the work required to get us to planning consent.  It can be seen therefore that the overall package did not cost the Parish Council anything.

HEADS OF TERMS FOR LEASE OF LAND BETWEEN WILLAND PARISH COUNCIL AND
THE WILLAND HEALTH AND COMMUNITY CENTRE TRUSTEES  GABLES ROAD, WILLAND, CULLOMPTON, EX15 2PL

Land Leased  - Land allocated for the Willand Health and Community Centre, Gables Road, Willand, Cullompton, EX15 2PL. [Land boundary marked on the attached plan in red.]

Term - A term of 99 years from the date that the lease is completed.

Ground Rent - Peppercorn

Planning - The Lessee shall comply with all planning obligations relating to the Land and any buildings thereon.

Legal Costs - Each party will be responsible for their own legal costs.

Permitted Use - The land may only be used for the provision of health and community services to further or benefit the health and wellbeing of the residents of Willand and the surrounding neighbourhood.

Termination of Lease - In the event that the land is no longer used for the provision of health and community services as described the lease will be terminated to allow Willand Parish Council to meets its obligations under legal agreement..

Landowner - Willand Parish Council

Change of Parish Council Chair

The Parish Council AGM on 14th May 2015 elected a new chair.  I was unable to attend.

2. Election of Chairman.
Cllr Grantham proposed Cllr Warren, Cllr Warren accepted the nomination having stated that he did not seek the position but would serve in whatever capacity members wished him to, seconded Cllr Wilcox, unanimously agreed.
Cllr Warren took the chair, thanked the Cllrs for their confidence in him and formally welcomed the MDDC and DCC Cllrs to the meeting.

Disappointing but that is democracy - until I found out what actually happened.  After I expressed my concerns I received an email from a Parish Councillor

Hi Ray,
I am sorry you are unhappy with the outcome of last weeks meeting.

I thought it would have been better to postpone the meeting, until both you and Tony could attend and voice you own comments.  We were told that there were enough councillors present to conduct business.  

We were informed that you would stand again, but if someone else wanted to be chairman, then it would be no problem.  This would then free you up to spend more time with your business and give you more time to concentrate on being chairman of trustees of the Willand Health and Community Centre.

Frances suggested Barry for chairman and, then with the information from the meeting, I proposed Barry. 

This was certainly not done with any malice towards you Ray, quite the opposite.  There seems to have been a great misinterpretation of your views.  Is there anything that can be done?  

I hope you will continue to give your full support to Willand United Charities, the Parish Council, as well as, Willand Health and Community Centre
 

I question whether rather more of the conversation should have been included in the minutes?  I had never said things attributed to me in the meeting.  

A tale of two leases - lease 1

As the charity would be dealing with sub leases, it was agreed that the charity would commission and fund the development of the lease.  Community sub committee 7th May 2015

8) Lease agreement – Commissioning of Solicitor by Charity to set out the lease
agreement. It was agreed that this would be put in progress. The Parish Council did not have a need to appoint a Solicitor at the moment but would do so if appropriate.
ACTION: Cllr Ursell

Following the first cold shower described in timeframe 1 the community sub committee had to consider the statements made by Cllr Warren 4th June 2015 which was the beginning of the Change in attitude of the Parish Council

The Chair brought forward a discussion on the overall Gables project and whether the Parish Council should continue to push forward the development of a Willand Health and Community Centre. Following a full discussion considering the possible costs and complications as outlined by the architect and possible ways forward, the following two proposals were made.
a) Cllr Warren proposed that for the time being the project should be continued Seconded Cllr Wilcox, unanimously agreed. AGREED
b) Cllr Grantham proposed that the Parish Council continue with the project for refurbishment Cllr Wilcox seconded, unanimously agreed.

 

 

 

The initial lease from the solicitor was a full commercial lease but as the buildings were to be transferred to the charity only a land lease was required.  These are the notes I proposed to the Parish Council to go to the solicitor.  it is dated 15th  November 2015

Dear all
 
The following notes are for the consideration of the solicitor.  Can you please check and confirm your agreement before Tony and I set up the meeting
Kind regards
Ray
 
1) Where we are
The lease seems to be a lease for a property.  This leaves the Parish Council with responsibilities eg insurance and therefore claims for repayment for costs incurred. The lease builds in limitations and controls which are not in our heads of agreement, eg alcohol. As a result, the lease is overly complex and leaves the Parish Council with on-going responsibilities
2) Where we need to be
We need a lease for the plot of land.  The buildings are irrelevant and should be considered as the property of the charity. If necessary they can be donated to the charity at the same time the lease is signed. The charity is responsible for all legal requirements related to owning a building such as public liability insurance  Only the controls in the heads of agreement should be included.  The lease may not be transferred to a third party. 
3) Benefits
The lease is smaller and simpler.  All references to payments (apart from the peppercorn), VAT etc can be removed.  All controls apart from those identified in the heads of agreement can be removed. The Parish Council has no on-going responsibilities other than the oversight of the lease  Hopefully this will involve removing items from the lease document
4) How we move forward
I do not envisage responding to a 44 page document.  We should meet with the solicitor and agree which sections should be removed consistent with the above statements.  We, the charity and the Parish Council can then review in detail the resulting much smaller document prior to signing.

Cllr Warren replied on the 17th November.

Dear Ray,
Apologies for not replying before but I have been marking time to see what the response of the other trustees might be.
I have seen no responses but knowing the need to move forward I will add my view for consideration at this stage.
1) Where we are – Your view is much as I see it and it is what I have always understood was intended.
2) Where we need to be –     Again we appear to be of a similar view.  I only envisaged the Parish Council retaining freehold ownership of the land.  That will more than cover the value involved.     Somewhere we need to ensure that there is a clause which recognises the ‘5 year’ commitment on the Parish Council as to use and so there must be a mechanism for the lease to be cancelled and everything handed back to the Parish Council in the unlikely event of no community use being achieved during the required period.
3) Benefits – I concur with the proviso I have included in 2) above re ‘use’ and the five year time scale.
4) How we move forward –    Once the solicitor has provided the ‘clean’ document as envisaged it can be reviewed and agreed by the Trustees and then presented to the Parish Council.  If there is any fine tuning needed it can be discussed and agreed quite quickly.  Hopefully it will be so simple and straightforward that there will be no need for the Parish Council to instruct a solicitor unless there is a legal requirement for it to do so. You may find it helpful to carry out work alongside this to firm up the final detail of use and also updating the Charity Business plan.
 
Regards.
Barry

The solicitor stated that as the buildings were on the land, they could not be ignored but that he could remove all of the commercial terms and make it as near to a land lease as possible.  This was agreed and a second version of the lease was agreed.  There were one or two small anomalies left such as how to charge 20% VAT on a peppercorn (I wonder who came up with that one?). Tony Mander and myself were charged with meeting the solicitor and resolving any remaining issues.  The lease was then reviewed by the Trustees (who were the Parish Councillors except Cllr Warren who somehow managed not to become a trustee). The completed lease was circulated again to the Parish Councillors in December 2015 and nothing has been heard of it since apart from the fact that a solicitor was commissioned by the parish Council.

Following the extremely high tenders received by developers for the refurbishment, a meeting was held to work out the way forward.  The decision was that a new build would be the most cost effective and allow us to not be constrained by the limitations of the existing buildings.  A proposal was put to the Parish Council community meeting to move the project forward. .

a) Following discussion it was proposed by Councillor Wilcox that the Parish Council support the
project by commissioning the new round of design and planning directly with the existing architect.
Councillor Mander seconded this proposal. A vote was held and Councillor Grantham voted
against the proposal, Councillor Phare and Councillor Warren abstained. The vote was carried.

b) Following discussion it was proposed by Councillor Mander seconded by Councillor Grantham
and unanimously agreed that Councillor Warren and Ken Wood would manage the relationship
with the Architects. ACTION: Cllr Warren & Mr Wood

c) It was proposed by Councillor Wilcox that Ken Wood would contact MDDC planning to obtain
advice on behalf of the Parish Council on changing the current planning application. Cllr Mander
seconded the proposal and it was unanimously agreed. ACTION: Mr Wood

We have a recording of the meeting and Cllr Warren clearly stated that he could support this proposal and indeed initiated the discussion on item b) and agreed to manage the relationship with the architect.  Why would he give his support and then abstain in the vote?  What is not in the minutes was that he then stated that the decision although passed by the meeting would have to go to full council for ratification.  This was not necessary as the committee had been given authority to manage the project totally.

What happened in practice was that he then proposed in the Full Council to pass the decision to a different meeting and we have never heard of it since.

b) Ratification of decisions made at Community Sub Committee 7 April 2016
Councillor Warren proposed that item 7b) also be deferred to be dealt with at the meeting on 15 April, Councillor Grantham seconded the proposal and all were in agreement.

This is called kicking it into the long grass.

A tale of 2 leases - lease 2

As stated earlier, the heads of agreement is an instrument to allow solicitors to communicate to meet an achieved goal whilst providing as much protection as possible for their clients.  Once the lease is signed, the heads of agreement become obsolete.

On (date) the Trustees were served with a new lease.  On examination, it was found to be a full commercial lease full of controls and with a demand that the Trustees sign away their Tenant rights. This was a complete U turn and had a large number of concerns for the Trustees.

  • There was no discussion with the Trustees.
  • The word "served" does not speak of an agreement - the word is normally used for legal notices such as County Court Judgements.
  • It did not match in any way the heads of agreement which had been used to in the application to set up the charity.
  • It was obvious that the Parish Council Solicitor had been given a different set of instructions.
  • The lease was full of controls.
  • There was a legal notice enclosed with the lease which was required to be signed so that the tenants rights would be removed and the lease would become non-renewable.
  • On checking, the Trustees were advised by several legal people - two solicitors, one Barrister and a specialist legal advisor to the supreme court with extensive trust and charity law knowledge. Their advice was that they would be in breach of charity law if they signed the lease and that some of the clauses would put the Trustees at personal risk
  • There are no references in Council minutes about the change of mind apart from some obscure references to changes to clauses.

The standoff

Despite all the requests to remove these clauses, the Parish Council have refused to change the lease.  There were some suggestions that the trustees paid a market ground rent rather than a peppercorn, the Parish Council might be able to "see it's way" to removing the non renewal clause.  It seems that the Parish Council has hijacked the project to turn it into a business opportunity for themselves. 

The trustees meeting with the Parish Council  9th January 2017

The following are commented extracts from the transcripted recording.  The full transcript will be made available

The partners of the Willand Pharmacy have clearly stated that they will require a renewable lease with an agreed term, and will not accept the exclusion clause.

Bramblehaies Surgery Practice has also informed the WH&CC that they will require a renewable lease with an agreed term, the details would be as advised by their legal advisor.

Ken Wood (KW) felt keeping the lease as it is could put the charity at odds with the charities commission and could be breaking the rule which in chapter 2 due diligence and verifying the end user. The Charity must not put their assets under any due risk. KW felt by signing the lease it would effectively signing the charity’s assets over to the PC at the end of the lease in 100 years. He felt this is out of scope with the charity’s rules and regulations. KW asked why the clause included.

(RU) so what is the problem with the lease?

The intent was to transfer the buildings to the charity and have a land lease only as seen above.  What has been provided is a draconian (Solicitor’s words not mine) full commercial lease  with tenant rights removed which means that the lease cannot be renewed.  A new lease could be drawn up to follow on from the first one but the termination of the old lease means that anything on the land would be transferred to the Parish Council even though it was an asset paid for by the charity. A renewable lease does not have this requirement and the assets revert to the Parish Council when the Charity has no further use for them and terminates the lease.
 .
It presents a number of problems

  • It attempts to control the trustees by removing every possible decision they can make.  Compare with independence of trustees statement sent to the charity commission assuring them that the trustees would be truly independent and the control statement which follows further down
  • If the charity needed to take out a mortgage, the requirements of lenders is that there must be between 75 and 85 years remaining on the lease with around 30  years remaining at the end of the mortgage.
  • Conflict with Charity Law.  There are strong restrictions on charities transferring assets.  The transfer has to be to another charity and normally needs the written approval of the charity commission. 
    If the charity signed  a 5 year non-renewable lease with the Parish council, built a health and community centre, at the end of the 5 years, the building, erected using charity raised funds would become the property of the Parish Council.  This would not be allowed under charity law as the Parish Council is not a charity.  There is no difference in law between 5 years and 99 years.  Some Parish Councillors/Trustees took the view that we should sign the lease because "they would have to dig me up to prosecute me”.   This is hardly the moral high ground!


(Asked why the Parish Council had inserted the clause) Barry Warren(BW) advised it was because of legal advice. BW reminded everyone that we are a local authority so different to business. The constitution that was written for the charity means they are have no legal responsibility however Parish Councillors do have a legal responsibility. When dealing with a public property you must retain public ownership of it at all times.

(RU)  It would have been useful to know what the advice was and which of the heads of agreement it responded to. BW managed the charity application on behalf of the Parish Council and made the declarations he did so how can the above be true?
Trustees answer to the Charity Commission and there are well defined responsibilities and severe penalties for not following them.  If Trustees make decisions in good faith and things go wrong, there is some protection in the limited liabilities.  Additionally, the charity has the full business responsibilities defined for a Limited Company.  
BW and his solicitor need to understand the difference between legal ownership and beneficial ownership, the former being on the legal entry in the land registry and the latter the rights to enjoy benefit from the property.  The land is and was always intended to be legally owned by the Parish Council and no lease can remove the ownership of the landowner.

All the clause does it not allow an automatic right to renew. None of the comments received have said it is wrong they have all said it is unusual. It was even agreed that the PC solicitor acknowledged it was unusual.
   
(RU) The removal of tenant rights is intended for the temporary leasing of property  when there is a plan for the premises in the short term future.  This could include demolition and redevelopment of a site..  The charity spoke to a number solicitors who confirmed that this clause is very unusual in long leases.

BW expressed concerns of the current proposals of government funding for pharmacy’s how far this will go and if the NHS will continue to support the funding for a pharmacy in Willand. However the local plan clearly shows the shortage of doctors surgery’s in the area already adding in the proposed development of 259 houses in the village will increase the need. The freehold now belongs to the community of Willand and the PC have been advised to look after the asset. The lease provided by the pharmacy is a commercial property lease which is not what we are entering into.

(RU)  The asset has been given to the village not the Parish Council.  If the charity had been in existence, they would have purchased the site and got on with the building of these facilities long ago.

Nick Bartlett(NB) questioned transfer of assets KW clarified that the buildings the charity and built and managed at the end of 99 years would transfer back to the PC.

BW said the PC went to great lengths to make sure that the lease was right, because the PC want to see it go ahead. In March 2016 BW sent out a document headed reality check time. Stating what should be done since then not much has happened except we have spent £27,000 of public money got a lot of architect’s drawings and then the realisation that the figures that had been put around were unachievable. BW said on information the PC has received there is no reason for the trustees not to sign the lease.

(RU)This is a flippant piece of misinformation.  I don't recognise these numbers but for what we spent we purchased the site, designed the buildings, submitted an application for planning consent which was approved and then gained building regulations consent.  Only then could we go out to tender.  Yes, the quotations shocked us and that is because there were many new build activities in the area and developers did not want to take the risks associated with refurbishment.  You could infer from the comment that the money was frittered away – if that were so, then the Parish Council failed badly in managing the process.  In reality,  the parish council reviewed carefully every expense and Cllr Warren was part of it.  Why therefore is he trying to ridicule a Council of which he was a key part? 

There was a clause in the constitution keeping the PC in control overall. There is nothing wrong with PC being charities and BW has several documents as evidence of this. If someone left the PC then after 6 months they ceased to be a trustee unless they were voted back on for expertise etc. BW has been told that this clause has been removed even though WPC was not consulted on it.

(RU) This is untrue - there is no such clause in the constitution. Comparing the statement by Cllr Warren to the Charity Commission with the statement above, I believe that he knowingly provided false information to the Charity Commission on behalf of the Parish Council..  He knows that the Parish Council is not allowed to control the Charity but states above that he built the control into the constitution.

BW said we must do what we think is right for the community. Things need to be done right. He expressed concerns that if things are not done right then MDDC, DCC and Westhaven homes who entered into the S106 agreement would not go after the charity but they would go after the PC and we are therefore in the firing line for any breaches. It was always the wish that the PC would have an office in the new building.

(RU) Had the lease been signed as planned, the trustees would be liable if things had gone wrong as it was stated in the legal paperwork that all the conditions in the S106 agreement would be passed to the Charity.  Interesting that there appears to be great fear about being "gone after"
I don't know where the comment about the parish office came from!  In the new much reduced community centre which  we have had no sight of, I suspect that it will be a meeting room for the Parish Council.

BW questioned why the trustees moved the meetings away from the hall when they could be using the hall annex under the halls arrangement with the PC. FW said she did not think the hall would consider the charity to be the PC and the only reason it was moved was to save money as the Methodist church had agreed to let the charity use the facility free for a period of time.

(RU) What does it matter where the Trustees meet?  Are they not independent? 

KW said he would not like the charity to be a majority of trustees. KW read part of an email which was sent to the charity commission. BW said had been taken out of context and has since sent the whole email. The email was sent by BW on the instructions of the trustees he was only the scribe.

(RU)  This is a very serious comment - "I was only the scribe!  BW prepared all the documents including the charity submissions and the constitution which he claims to have added control clauses. Hardly the action if a scribe.  They were approved by the Parish Council, including BW, who made the application.

Just a few questions now...

  • Why did the Parish Council change its mind on the project without consultation and without informing the Charity Commission who approved the application based on information received?
  • The application stated clearly that on approval, the buildings would be immediately transferred to the charity together with the various monies set aside for the project.  This never happened.  Why?
  • Why did the Parish Council hold the Charity to ransom for two years knowing that they had been advised not to sign the lease?
  • Why was a full commercial lease with added controls and tenant rights removed "served" on the Trustees when he had agreed the way forward with a simple lease?  Just saying "advice" hardly answers the question.
  • As solicitors respond to client instructions, what were they and where were they approved in the Parish Council minutes.  I can find no reference!
  • Why has the Parish Council totally ignored the recent survey of the village which was presented to them two days before they voted to move in an alterative direction. The survey indicated that with a 10% return considered good in this kind of survey 94% of the residents said thy wanted and would use the Health and Community Centre?  Why has there been no consultation on the alternative proposal (an extension of the Pre-School)?
  • Why is the Parish Council using funds set aside for the project and which should have been transferred to pay their not inconsiderable legal costs?  The heads of agreement clearly state that each party will pay its own legal costs

As I stated at the beginning of these documents.  This is not a "have a go at the Parish Council" in the way that they carry out the tremendous work they do on a voluntary basis. 

This issue is of fundamental importance to the village and a recurring theme has been the desire of the Parish Council to closely control all aspects of the project.  Considering the spirit in which the land and initial finance was presented to the village for this venture, the changes in attitude have resulted in this once in a lifetime opportunity being lost - just for the sake of control!

I have only commented on this web site and the associated Facebook page in response to adverse comments and misinformation on this subject mainly in the village magazine which then denies the right of reply for two months..  These document spell out the truth using unedited material in emails and documents.  I have made observations but you, the residents will judge at the appropriate time.

This is my last word on the subject unless there are further adverse comments made or misinformation (lies) used in the "State of the Village" articles.. 

The links will be made available to the Charity Commission as in my opinion and the opinion of my legal advisors, Charity law has been broken in false information being provided to the Charity Commission and the attempts by the Parish Council to control the Trustees.

The original documents will be made available for download to ensure that all statements are in context

In a short time, this information will be moved to the Heritage section of the web site.

Thank you for persevering with this

Ray Ursell
Past Parish Council Chair.  



Comments submitted - 1 Add your comment

On 08 Aug 2018, Ken Wood wrote:

Following on from my recent posting, I felt that the residents of Willand should see the note I sent to the WPC clerk. Dear Kate Thanks for copying me in to the note you sent to Frances, like yourself, the following are only my personal thoughts as to where we are with the current situation. The only problem relating to the signing of the lease is the exclusion clause, this again is my own thinking, but perhaps the advice given by Ashfords was not correct for the type of lease the WPC have offered to the WH&CC. Four independent solicitors think so, and also one professional charted surveyor with considerable experience in negotiating leases for the medical profession, also gives advice confirming this. Never the less we are at this stalemate position, I just feel that if the Parish councillors could relax their position and agree to have the exclusion clause deleted, it would immediately remove all obstacles, allowing the lease to be signed. Concerning rent, I would say that this