Why the Council gave away land worth million of pounds

20 June 2022

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I keep coming back in my blogs to the transfer of land from Hughenden Parish Council to a small charity called Hughenden Community Support Trust. The land consists of 4 allotments and land at Great Kingshill worth at least £100,000 and perhaps £15 million if sold for development.

Here’s an update – and I would like you to help with the answer to my question at the end.

I explained in my blog on 13 December that a number of residents, including myself, had applied to the Land Registry to object to the transfer.

Well, we objected. It was a long process, which involved a lot of work.

And we failed. It was enormously disappointing.

However, it is important for residents to know why we failed.

HCST has asserted for years that it had owned this land since the 19th century. However, it failed to provide any legal case for that assertion. Our objections set out a substantive legal case showing how the land came into HPC’s ownership under the Local Government Act 1894 and has never been owned by the charity.

We pointed out that the Land Registry had reviewed its decision to register the title to the land to HPC in 2012. It had decided then that HPC was the owner and the land correctly registered.

We also pointed out that any transfer of the land would be unlawful as it breached Section 32 of the Small Holdings and Allotments Act 1908 and Section 127 of the Local Government Act 1972 (amongst other Acts).

In February, the Land Registry issued its decision.

The Registry said a Scheme made in 2015 by the Charity Commission “transfers the properties to the Official Custodian for Charities in trust for the Trust. As this is a vesting under the Charities Act 2011 and the Commons Act 1899, HM Land Registry must give effect to it. We do not need the applicant to provide any legal case in circumstances where the Charity Commission has made such an Order.”

The Registry added that it was not for the Land Registry to consider whether the transfer was lawful.

We appealed against this decision on the grounds that the Scheme made by the Charity Commission was invalid – and again presented a substantive legal case. The Land Registry said it was not for the Registry to question the validity of the Scheme.

The Registry went on to say that HCST had incorrectly applied to transfer the titles; the Scheme had already done this. HCST’s application needed to be withdrawn and then the Land Registry would simply register the titles to the Official Custodian.

And I believe that is what the Land Registry did.

In other words, to the Land Registry, legal arguments about ownership of the land prior to the 2015 Scheme were irrelevant. Whether the transfer was lawful was irrelevant. Whether the Scheme itself was valid was irrelevant.

HPC applied for the Scheme to be made in August 2015; the Scheme was made on 7 October 2015; and that was that – the land had been transferred.

And this is where we get to the crux of the matter.

The Council decided to apply for the Scheme at its meeting in July 2015. If you look to that meeting to find any explanation for their decision, you will be disappointed.

All the minutes say is that Council accepted “the recommendations of the AfLP Working Group” and then resolved to apply for the Scheme.

There are no papers and no explanation. No transparency and no accountability.

The AfLP was a charity called the Allotments for the Labouring Poor. It was replaced by the Scheme with HCST. The AfLP Working Group was set up by HPC with members from HPC and AfLP.

I found it astonishing that the only written advice Council had on the transfer of some of its most valuable assets was from a working group which included trustees of the organisation to which it proposed to transfer the assets.

I found it astonishing that Council took no independent legal advice. It took no legal advice on the ownership of the land. It took no legal advice on making the application for the Scheme and the consequences. It took no legal advice on the legality of the transfer.

I also found it astonishing there was no mention of HPC’s need to comply with its Financial Regulations in disposing of land. Paragraph 14.3 of the Regulations says: -

14.3. No real property (interests in land) shall be sold, leased or otherwise disposed of without the authority of the council, together with any other consents required by law. In each case a report in writing shall be provided to council in respect of valuation and surveyed condition of the property (including matters such as planning permissions and covenants) together with a proper business case (including an adequate level of consultation with the electorate).”

HPC’s ex- deputy Clerk confirmed in February this year that Council holds no such report. Neither did HPC consult its electorate.

So you might well ask what were the recommendations of the AfLP working Group.

I have copies of the written advice given to Council before the July 2015 meeting. The recommendations were:-

- that there was a “very small and very unlikely possibility” that, if the Scheme was made and it went to court, Council would find itself in breach of S127 of the Local Government Act 1972 because Council had disposed of the land for no value and had not obtained the consent of the Secretary of State;

- that Council should go for the Scheme “while there is a deal to be had and before terms can be changed”; and

- not to get independent advice on the Scheme on the grounds that at a cost of £3000- £5000 it would be much more likely “to incur fierce public criticism then doing the deal” and because “the Council was likely to be seen as pedantic”.

The then Clerk also advised Council to follow “the firm directives of the Charity Commission”. This advice is incorrect. The Commission has no power to direct a local council, nor issue it with directives.

Rather than getting independent legal advice, Council relied on advice largely provided by the other party to the transfer which was obviously conflicted.

Rather than complying with the law and protecting public assets, Council was more concerned with “doing a deal” with HCST and more concerned with its public reputation and the chances of getting caught.

So where do we go from here?

Well, John Russell, the Chairman of HCST came to the last Council meeting on 14 June and asked, during the public participation session, why the Council had failed to pay the rent for the land to HCST, back-dated to 2015.

Later on the agenda, the Chairperson of the Council’s Working Group on the Transfer of Land was asked to provide an oral report and answer Mr. Russell’s question. I can’t give justice to what he said (you had to be there). However, I think I can safely say he wasn’t exactly happy about the Council giving away the land to HCST.

And for all the lawyers out there, perhaps you can answer my question:

- given that the Land Registry has decided the land transferred from HPC to HCST on 7 October 2015; and

- given that the commencement date of the leases between HCST (as landlord) and HPC (as tenant) is 1 January 2015;

are the leases valid?

The “old” Council reputedly obtained legal advice on this question in January this year but refused to give it to me.

So what’s the answer?