The covenants protecting the Clitterhouse Playing Fields should be restored.

I repeat the undertaking given at the meeting on November 12th - If the Council can produce any document that disproves any of the charges contained in the following speech I will retract the point and notify all readers in a subsequent blog.

Here is the text of the Speech:

Mr Grant, my dear friends Dorothy, Morton and Robert, Ladies and Gentlemen, thank you for inviting me to address you tonight.

1. Introduction. The loss of community recreation and sports facilities is a widespread concern.

It is a concern that has attracted the attention of the press, community groups, and notably the Conservative Party who have vowed to reverse the trend. Study after study is published emphasising the importance of retaining such facilities.

The loss of these facilities weakens communities. Young and old alike have less social interaction, fewer opportunities to enjoy a calming walk in an urban park, less opportunity to work off steam.

I confess to an addiction to saving these facilities but recognise that others are entitled to disagree. I speak to you today not to preach about the importance of recreation grounds, but to set out a particularly egregious example of what is surely a universal concern of far greater importance than the simple question of whether we should have more or less recreation facilities. We are here to describe and solicit your views on a matter of far greater importance: the corruption of rules, local government procedures and national laws evident in the case of the Hendon FC site a few hundred yards south of this splendid hall. Rules designed to protect communities’ access to facilities such as this prove ineffective when a local authority landowner working in partnership with a property developer owns the land. Conflicts of interest abound, conflicts which councils seem rarely capable of managing, recognising, or respecting. The local authority’s function as scrutineer of the proposal becomes lost, only evident in box-ticking minutes and wooden memoranda.

May I also say that this is not an isolated case. I run or advise about 40 similar such local campaigns. Some of the tactics used to strip communities of vital recreation facilities include: refusal to disclose documents, excessive secrecy, timetable manipulation, failing to appear to understand simple letters and requests, the assertion that consultation exercises can never override the elected councillors’ views since the election was Borough wide, and multiple errors and oversights which always work in the interests of the development transaction, never to the aid of the campaigner.

2. Ownership and the origin of the problem – the Lease. The now disused Hendon FC site is leased to a subsidiary of MontClare Developments Limited, a private property company.

MontClare is the successor to another private company, the Arbiter Group. The subsidiary is a company called Hendon Football Club Limited, which presently owns the football club.

Unfortunately the attempt, now described, to strip the community of the playing field has led to Hendon FC being forced to play elsewhere, at least for now. How did this come about? Let’s start with the Lease.

In 1997 the Arbiter Group persuaded Barnet Council to grant a 99 year lease over a piece of land housing the football pitch, a modest stadium, and an adjacent site later used for a banqueting suite and car park. The annual rent was fixed at £5000. In about 2003 it became clear that the stadium was falling into neglect. Local newspapers revealed that the property boom was going to ride to the salvation of the football team. Arbiter Group wanted to move Hendon FC to the very dilapidated athletics stadium at Copthall.

The Claremont Road site was to be developed into three five storey blocks of flats and a care home, and the estimated potential £10 - 20 million profit was to be split according to an undisclosed formula between Arbiter Group and Barnet Council. The proposals gravely disturbed the four of us and no doubt many present here tonight for three reasons: a) the land involved was on the very edge of land designated as Metropolitan Open Land, one rung below Green Belt for planning purposes; b) the land was protected by two sets of restrictive covenants dating back to 1925 and 1927 intended to ensure that the land would either be used for the playing of football or for community recreation for ever; and c) unattractive though the development would have been for the above two reasons, if it were to occur why on earth should Arbiter earn a substantial slice of the £20mm development value? The land belonged to the community, the entire sale proceeds, less only a standard advisory fee/ relocation allowance, should have flowed into the local authority’s coffers.

The last of these points was softened in the press by the suggestion that Arbiter Group would invest some or all of this windfall in improvements at Copthall, yet no firm arrangements were ever disclosed even when the planning application for Claremont Road was submitted.

3. Impropriety of proposed deal and the Role of the District Auditor.

The tenant should have been asked to forfeit the lease on agreed and sensible terms. Reasonable terms would be a similar £5k lease at Copthall.

Surely the broad commercial terms of the tenant’s departure from Claremont Road should have been agreed before the planning application was submitted? No landlord in their right mind would apply for planning permission with a sitting tenant; this would serve only to increase the value of the tenant’s interest in the land. Yet Barnet Council did precisely that. This was a mistake and a mistake which I believe constitutes impropriety on the specific count that Barnet Council should have reached an agreement with the tenant as to the terms on which the tenant would give up his lease BEFORE applying for planning permission. I approached District Auditor Robson Rhodes in 2004. To my dismay the District Auditor saw nothing wrong in this arrangement. It rather meekly went along with Barnet Council’s explanation, concluding : a) "the Council had no information to substantiate potential land values at that time; b) the Council was concerned at the time of balancing the benefits of a binding agreement versus the risk that planning permission wasn’t granted and the covenant might not be lifted."

The first explanation offered was not credible – how does the Council go about its routine activity of buying and selling land if it has insufficient information about land values? Don’t be fooled by the adjective “potential”; commercial land transactions are always valued and agreed in advance of the actual date upon which property transfer occurs.

The second explanation was disingenuous. Your top table cannot believe that any property professional could genuinely hold this view – all property transactions are agreed first on a “subject to contract” basis. It is a bread and butter matter to insert a condition in pre-contract correspondence to deal with the success or failure of a related planning application. A first year trainee at one of the many property advisors vying for Barnet Council’s business would have drafted a sufficiently protective clause into such an agreement had our Council the will so to do.

At that point we gave up on the District Auditor. What is the point of an audit process if softballs like the above two points are nodded through as confirmation of the probity of the Council’s stewardship of our money?

So, with the grant of planning permission on 18 October 2004 the value of the tenant’s stake was confirmed. Whilst some of you may consider it acceptable for councils to sell recreation land for public profit, these steps ensured a far worse position for Barnet. In return for receiving then 7 sets of £5000 in rent the tenant at this point had a multi-million pound asset, which it proceeded to monetise by mortgaging to the tune of £4.5mm. The granting of this loan by the bank concerned appears to have been not without risk, because there remained many legal impediments to the development outlined in the October 2004 planning consent.

These concerns involve: - the time limit on the planning application - two sets of restrictive covenants - three village green applications - four calling birds (no sorry, neither that nor a partridge in a pear tree) - oh yes and my blessed friend Morton’s mobilisation of Scotland Yard’s Wildlife crime unit which I understand has ordered the suspension of demolition works pending a bat roost survey in May 2010.

4. Restrictive Covenants protecting the land and how they have been removed (temporarily we hope) The land was bought with public funds in 1925 subject to two restrictive covenants limiting its use to football and public recreation. 1) 1925 Covenant. This was discharged in September 2006. This was a controversial, unpleasant and frankly offensive process. Barnet Council asked a court, The Lands Tribunal, for an order denying the residents any rights to object, effectively silencing all objection. Armed with this dubious judgment, Barnet Council’s highly misleading application to delete the actual covenant at a subsequent Lands Tribunal was allowed to proceed unchallenged. Examples of the misleading nature of this document were the following false claims: i) Axiomatic to a grand plan to “regenerate” a much larger area involving the development of 7,500 housing units was the discharge of the 1925 covenant from this football pitch on which only 200 homes could be built; ii) The nature of the use of the land has changed significantly since 1925; the stark factual reality is that there has been no change in use at all; iii) The land has already experienced “substantial development”. This claim is also false because the only buildings or structures erected have been modest and ancillary to the playing of football, precisely as expected by, and in keeping with, the 1927 funding agreement. The court order to silence objection to the discharge of the 1925 covenant allowed no appeal. Moreover, The Council then sued the objectors for its costs.

I’m pleased to report that this suit was unsuccessful – the Lands Tribunal ruled that such suit was wrong in law and had no foundation in legal practice.) However, this attack emphasises the intensity of Barnet Council’s determination to silence 1000 community objectors. Remember that your Council has only ever cited the existence of 1 letter as supporting this development.

2) 1927 Covenant In 2007 it appears that LB Barnet finally realised that there was a second protective covenant deriving from a 1927 bilateral agreement. The Council decided to tear up the agreement and to seek to delete the covenant. Contrary to many letters received from the Council by Robert and me, we believe that the decision to delete this covenant was taken in secret. This decision was not referred to in any publicly minuted Council meeting prior to the 19th July 2007 letter to the Land Registry. All that the Council’s legal officer said by way of explaining her case for deletion was this: “We…have been advised that following merger, the benefit and burden would have vested in one person, in this case Barnet”

This matter was only disclosed to the public in February 2008. The process comprised a simple letter to the Land Registry containing the absurd statement that the covenant should be deleted because Parliament had in effect extinguished all such covenants from every piece of public recreation land in London in 1965 when the existing 32 London Boroughs were created. Their argument was this. Because the Council own the land and are burdened by the covenant – (we agree with this), AND because they are the elected local authority, they are the beneficiary of the covenant (we disagree); therefore both sides of the covenant have come together and by virtue of the legal doctrine of “seisin” it can be discharged.

Robert Goymour has outlined four flaws in this argument, each of which would individually be sufficient to defeat Barnet’s claim:

1) Seisin requires at least two parcels of land to come into common ownership; here there is only one;

2) Seisin requires unity not merely of ownership but also of possession; here Barnet Council’s own argument against our VG applications is that they do not occupy the land, it is leased to the tenant who has exclusive occupation;

3) Barnet owns the benefit as trustee for the community, not absolutely. Seisin requires the common ownership to be in the same legal right, so again that test is not satisfied;

4) Local authorities cannot make unilateral changes to property rights without, as a minimum, community consultation and approval. If Barnet Council is correct in asserting that Parliament effectively extinguished all restrictive covenants (binding on local authorities) upon the formation of the London Boroughs, many thousands of our recreation spaces are under serious threat. The same point applies to all other local authorities in England and Wales by virtue of the Local Government Act 1972. The correct interpretation of the statutes is that Parliament did exactly the opposite by giving all Local Authorities special powers to enforce the covenants and covenants enforceable against them.

5. Appeals to Law Enforcement Authorities.

The Attorney General, claims to have no authority in the matter of the deletion of the 1925 covenant – you will remember that was the decision of the Lands Tribunal based on an unopposed application containing demonstrable material inaccuracies as to the land, its character and use, and the status of the covenant.

Secret Legal Argument.

The Council has refused to reveal its QC’s opinion about the case for discharge of the 1927 covenant. After a two-year process The Information Commissioner has decided not to compel the Council to disclose this legal argument. His written decision suggests that Barnet has a reasonable argument that it may request the extinguishment of the 1927 covenant protecting the land. Despite failing to order its disclosure the Commissioner states that the advice shows both “strengths and weaknesses” of Barnet’s argument. What entitles a local authority to express such a legal argument as a dispositive proof that the Land Registry has no option but to discharge the covenant? Further, not even elected Councillors have been permitted to see Barnet’s argument. Cllr Brian Salinger has twice been told that the advice is for the eyes of the salaried legal officers only. We believe the withholding of this advice is based on an interpretation of the Freedom of Information Act 2000, which, if correct, has made it more difficult to obtain information on how our taxpayers’ money and public land and facilities are being utilised. It conflicts with earlier statute law, which has not been repealed, relevant case law and offends the European Convention of Human Rights, Article 10. Prior to the FOI Act 2000 the Council would have been compelled to disclose the information we have failed to obtain there under, because any information relating to a planning application in which the local authority has an interest is expressly stated to be available to the public under the Local Government Act 1972.

Land Registry.

Regarding the 1927 Agreement and covenant, the Land Registry have never seen Barnet’s argument, just the bland statement quoted earlier suggesting that Barnet owns both the benefit and the burden and can demand deletion under the rule of “seisin”. We believe Barnet owns the benefit only in trust for the community and that seisin does not apply. The Land Registry have failed to explain their response to our argument and state that they are powerless to restore the covenant unless asked by Barnet Council, even if they have made a manifest error. The Land Registry reports to the Ministry of Justice, and yet the Ministry of Justice’s Adjudicator for such matters simply replied to our appeal by stating that she had no authority to intervene.

Village Green Applications.

Three applications to protect the site under village green laws have been submitted to Barnet since 2006. The first two have been rejected because Barnet Council claim that public land bought for recreation is deemed to be used by implied licence, i.e. with permission. Interestingly the House of Lords (recently renamed the Supreme Court) will not rule on this point for now. If Barnet Council are correct, then the 2006 Commons Act is useless for most, but not all, of our public open space despite Parliament’s claim that the justification for the Commons Act 2006 is: “To preserve open space in the public interest”.

Despite the above concern as to the scope of the 2006 Act, owing to the tenant’s failure to fence part of the land, a third and unquestionably valid application has been submitted relating to the car park.

Barnet Council has refused multiple written requests to even acknowledge, let alone process this application, and a formal complaint has been filed with the Chief Executive in October 2009.

Planning.

In 2004, when Barnet Council granted itself planning permission, the legal expiry date of such consents was 5 years. Development had to be started within this timeframe.

Parliament considered that timescale undesirably long; planning permissions should be prosecuted with more urgency and so the period was shortened to three years. Barnet Council’s consent is under the old rules and therefore should have lapsed on 17 October 2009. However the Council inserted a clause in the original consent letter with the intention of ensuring that this consent could in fact run forever. The Council claim that the development must start not later than the later of a) 5 years hence and b) 2 years from the date of determination of a ‘reserved matters’ application. A ‘reserved matters’ application was duly submitted in September 2007 but has not been determined. A decision on the reserved matters should be made within 56 days of the submission of the application.

The residents of Barnet are to be denied the benefit of any expiry date because the Council simply submitted a Reserved Matters application to itself and deliberately refused to deal with it. What a miraculously robust Chinese Wall it must have erected between its internal departments now, one the applicant, the other the adjudicator.

What a contrast between this impregnable barrier and the wafer thin cigaretter paper barely visible between the Council when it responds to our Village Green applications as both objector and adjudicator in the very same letter.

The failure to process its own ancillary application within 56 days, let alone two years, is a transparent process trick to attempt to preserve the life of the consent. Why should the Council’s commercial partner, Montclare, be the beneficiary of this largesse? All the neighbouring property owners must continue to endure the disadvantage of planning blight lingering indefinitely.

Conclusion.

Barnet’s refusal over the last five years to disclose the opinion of their Queen’s Counsel and other requested documents has cost the taxpayer dear and accounts for much of the unnecessary local authority staff time and time spent by those who oppose a development for which Barnet can provide no evidence of any material local support.

The Council’s financial incentive and its political determination to carry out a proposal so unwelcome to the community appears to have led it to confer upon this site an extraordinary planning benefit – a perpetual consent. This practice is a straightforward abuse of a legal process that was not drafted with this particular mischief in mind. The Council should be the community’s planning scrutineer, not its process manipulator.

I have sent the text of this talk to the Council’s Leader. I have said that if he thinks we are wrong, prove us wrong, send us documentary evidence contradicting any of the points made to you tonight.

What would we like you to do? If you are satisfied with the accuracy of the position we have set out, and I assure you that we are willing to back up all these points with documentary proof, then I ask you to consider lending your support to one simple request.

We ask that you sign a petition now available in this hall requesting Barnet Council to write to the Land Registry requesting the reinstatement of the 1927 d(ii) land charge, and accepting that their July 07 removal request was an error. Please also write your address or email address, this is necessary for petition signatures to count.

Mr Grant, Morton, Ladies and Gentlemen, I thank you for your time.

End Gordon Kerr 26 November 2009