A barrack room lawyer speaks
The Tribunal, yesterday
By Stuart Anderton
August 2 2015
So progress, or so it seems. But what did the Upper Tribunal actually decide? And does it have wider implications?
The full text of the Upper Tribunal's decision has now been published. You can find it here.
It's naturally quite dense and legal, but I thought I'd give my take on what it says. Coochie and others can then tell me where I've got it wrong.
Background
To understand the judgement, you need a bit of background. As we know, The Rec was sold to Bath City Council in 1956, and in that sale there were some covenants attached. As Bath Rugby fans I'm sure you can repeat them from memory:
“TO HOLD the same unto the Corporation in fee simple upon trust that the Corporation for ever hereafter shall manage let or allow the use with or without charge of the whole or any part or parts thereof for the purpose of or in connection with games and sports of all kinds tournaments fetes shows exhibitions displays amusements entertainments or other activities of a like character and for no other purpose and shall maintain equip or lay out the same for or in connection with the purposes aforesaid as they shall think fit but so nevertheless that the Corporation shall not use the property hereby conveyed otherwise than as an open space and shall so manage let or allow the use of the property for the purposes aforesaid as shall secure its use principally for or in connection with the carrying on of games and sports of all kinds and will not show any undue preference to or in favour of any particular game or sport or any particular person, club body or organisation.”
In 2002, the High Court judged that the wording of the covenant in effect created a charitable trust, and The Rec was then transferred to a new charity accordingly.
In 2013 the Charity Commission agreed a scheme to allow The Rec Trust to lease Bath Rugby some extra land to build the stadium. Last year that was challenged in the Lower Tribunal, and that Tribunal ruled that The Rec Trust could not lease any extra land, as it would be against the purposes of the charity as set out in the covenants to do so, specifically the charity's purpose to maintain The Rec as "open space".
The Rec Trust appealed this decision to the Upper Tribunal, and the Upper Tribunal has upheld the appeal.
So what was their ruling
The original Tribunal ruled that the protection of The Rec as open space was clearly intended to be part of the purpose of the charitable status.
The Upper Tribunal ruled that there was no evidence of the intention, and even if there was, in law you could only look at the actual wording.
They ruled that the part of the coveneant which defined the purpose was:
for the purpose of or in connection with games and sports of all kinds tournaments fetes shows exhibitions displays amusements entertainments or other activities of a like character and for no other purpose
The parts of the covenant which come after that are not part of the purpose definition but are practical restrictions on Bath City Council, and therefore are not part of the charitable definition of The Rec Trust. They pointed out that it would have been simple to have worded the purpose to have included the maintainance of The Rec as open space, but the sellers didn't. The open space part is a restiction of the use of the land, but not part of the charitable purposes of The Rec Trust.
As the open space element is not a purpose of the charity, leasing more to Bath Rugby is not in and of itself a charitable problem, so the lower Tribunal should not have ruled against the scheme on those grounds.
And now?
As for what happens next, they are taking submissions on what they should do.
There are three options I can see:
-- Pass the whole thing back to the lower Tribunal to do over, this time bearing in mind the ruling on the "open space" provisions and other criticisms of how they made the original decison
-- Strike the lower Tribunal's rulings in toto and so allow the original Charity Commission schem
-- Keep the rulings of the lower Tribunal, but strike out the one restriction the lease of the extra land.
Common sense says the last one, but this is the law so maybe the first - which would add another year or so to the process...
As for a wider implication, it does not open up the possibility of a permanent East Stand, because the Charity Commission Scheme specifically has it as condition that the East Stand is temporary and must be taken down for three months a year (not the summer months specifically, interestingly). So we'd have to go back two stages to the CC scheme to change that.
Did I get it right CC?
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Edited 1 time(s). Last edit at 2015:08:25:23:02:40 by Stuart Anderton.
That could be very important if/when we move the season.
So here are some comments/questions for discussion and debate?
It would seem that the simplest outcome might be that the Upper Tribunal ruling to be accepted by all and that we quickly revert to where we were in the spring of 2014. Plans for a stadium on a larger footprint but retaining a temporary East stand can therefore be submitted etc,etc. I think this os your third option.
However...
Why has the Upper Tribunal felt the need to comment on the "Open Space" issue?
Was it a necessity in order to question the "legality" of the lower tribunal ruling or does it in fact allow the use of the Rec, in effect, be planned again from a blank sheet?
Stuart's last point regarding the Charity Commission's specific requirement of a temporary East Stand was surely only included to address the stipulation in the 1956 conveyance. If the Upper Tribunal have ruled that the open space is in effect not necessary then the charity commission scheme will not necessarily have to specify this?
It has always seemed a great shame to me that if a major redevelopment of the rugby ground is going to go ahead then a simultaneous redevelopment of the sports centre, car park, riverside walkway and, dare I say it, the unsightly lock and weir construction should be done as well?
Could the ruling possibly reflect this as a long lasting solution??
Poulteney Weir
I wonder if there’s a cohesive plan being drummed up? Somehow, though, I doubt it...
Quote:BathMan in Oxford
Why has the Upper Tribunal felt the need to comment on the "Open Space" issue?
Was it a necessity in order to question the "legality" of the lower tribunal ruling or does it in fact allow the use of the Rec, in effect, be planned again from a blank sheet?
Because that was the basis of the Lower Tribunal's ruling that we could't have any more of The Rec than we currently have.
Quote:Stuart's last point regarding the Charity Commission's specific requirement of a temporary East Stand was surely only included to address the stipulation in the 1956 conveyance. If the Upper Tribunal have ruled that the open space is in effect not necessary then the charity commission scheme will not necessarily have to specify this?
It has always seemed a great shame to me that if a major redevelopment of the rugby ground is going to go ahead then a simultaneous redevelopment of the sports centre, car park, riverside walkway and, dare I say it, the unsightly lock and weir construction should be done as well?
Could the ruling possibly reflect this as a long lasting solution??
Yes, the ruling on open space does mean that the Charity Commission could be asked to come up with a new scheme without that clause. But to do that we'd have to go back several stages in the procedure, renegotiate another set of leases and doubtless go though another couple of years of redoing consultations etc.
Not handing back our bit for three months would shift the balance of benefits of the scheme, so something else would have to be be given in return.
If the option to carry on under the current CC scheme exists, in my view we should get on.
Stuart
Former ed.
Edited 1 time(s). Last edit at 2015:08:02:16:45:59 by Stuart Anderton.
Quote:Stuart Anderton
As for a wider implication, it does not open up the possibility of a permanent East Stand[/quote
I disagree, it does open up that possibility. The necessity of dismantling the East stand could be removed if a 'much' larger area was considered to make a truly multi-sport stadium. Whether that would be a prudent option because, as you say, it would set the process back several stages is difficult to say. If the Club, the Trust and BANES want to produce a truly lasting legacy they should, as has been suggested, try to produce an integrated plan for the whole of the east riverside between Pulteney Bridge and North Parade.
Quote:BathMan in Oxford
It would seem that the simplest outcome might be that the Upper Tribunal ruling to be accepted by all and that we quickly revert to where we were in the spring of 2014.
Ha! You really think the fiends will let it lie. I think Captain Jack and Rosemary Carne's 'arguments' have completely failed judging by the comments by the UT at the end of the Decision, but as it costs them nothing to make an appeal they may do so again when the revised Scheme is produced. Websper's 'brief' puts forward more reasoned arguments but we can hope his advice to his client is that he is flogging a dead horse and Websper gives up trying to counter the Scheme and moves on to trying to disrupt things at 'planning'.
My view is that this now returns to the lower court to revise their ruling to the original CC scheme with the temporary stand. What will happen in the future who knows but the door is open!
"Finally, we note that Mr Sparrow and Miss Carne were critical of the Trustees in a number of respects. We do not consider that these criticisms, even if they are justified, as having any bearing on our decision. For our part we see no basis on
the evidence before us for concluding that the Trustees are acting other than as public-spirited individuals, taking prudent decisions on the basis of legal advice."
Miss Carne has lived in Bath for a few years only. Her views are bordering on hysterical.