  |
|
| About the Bath Sport Group | News & Press | Bath Rugby Club | Bath Cricket Club | Team Bath | B&NES GET ACTIVE | |
 |
|
|
|||||||||||||
Legal status of the Bath Rec. Background In 1922 the Company acquired the title to the Rec. but by 1956 it had concluded that the maintenance costs were beyond the potential revenue (it was ever thus?) and the land was purchased by the City of Bath Corporation. At that time, the land was subject to various covenants and leases, including a 50 year lease from 1933 to Bath Football Club (now Bath Rugby), although their use of a small part of the Rec. pre-dated the lease by many years; this lease was replaced in 1995 for a 75 year period. For over 100 years, the Rec. has been used mainly for organised sporting activities and events within the context of increasing the attractiveness of Bath as a city. The Rec. has hosted not just rugby but many sports including cricket, football, tennis, croquet, lacrosse, rounders, volleyball, running and even ice skating. So the intention has been always to provide the citizens of Bath with an opportunity for playing sport and for spectating to take place in an open space constructed in such a way as to add to Bath’s appeal as a city. (See the Timeline for more detail.) In 2000 Bath Rugby published an outline proposal to build a new stadium on the southern part of the Rec. in an initiative designed to meet modern professional rugby needs and thereby secure a permanent home in the city. This raised the public profile of the future of the Rec. after many years of disinterest and apathy, and prompted Bath & North East Somerset (B&NES) Council to seek a legal ruling on the Rec.’s status. More precisely, the High Court was asked whether the Rec. was charitable land or was it vested beneficially in the Council under its’ statutory powers and purposes, and was the original purchase lawful. High Court deliberations It is probable that the Corporation did conceive that it was acquiring the land for its statutory purposes as the various acts empowering the local authority do not authorise acquisition of land on charitable trusts. But the conveyance contained the words “on trust” and also an elaborate formula which tried to have regard to existing covenants and to balance use for games and sport without undue preference to any organisation or person, and retention of open space; this suggested to the judge that the purchase of the land was trying to achieve more than just an acquisition for statutory purposes. The judge accepted that there is no express reference in the conveyance to the charitable imperative of public utility or benefit, but considered that it is implied that the public in general, or that section of the public that want to avail themselves of the facilities, has to be considered when the Corporation or its successors are considering how to exercise its powers. He concluded that “ the fact that the powers conferred on the Corporation were (and remain) capable of being exercised so as to restrict actual enjoyment of the facilities to persons identified by their membership of particular clubs organisations or bodies does not mean that the trust necessarily and automatically fails this aspect of the public benefit requirement.” In considering the issue of whether the purposes of the trust are wholly and exclusively charitable, Mr. Justice Hart addressed whether the dominant intention of the trust was the maintenance of a public recreation ground. In favour, was the fact that the Corporation (and its successors) are public authorities, but there is nothing in the conveyance which expressly dedicates the land to public use. Nor is there anything in the history of the Rec, which points to such a dedication; indeed it had been owned for many years by a prima facie commercial concern. Furthermore, the judge considered that the letting powers, together with no expressed requirement for letting income to be committed to the trust, suggest that the lettings themselves do not have to be part of some overriding purpose beneficial to the public. In conclusion the judge stated “there seems to me nothing in the express wording of the 1956 conveyance which would prevent the whole of the Recreation Ground from being let on a commercial basis to a variety of clubs bodies or organisations in such a way as to wholly exclude the wider public for the duration of such lettings.” The judge also concluded that the acquisition of the land by the Corporation as a charitable trustee was incidental to the discharge of its statutory function and was lawful. Mr. Justice Hart was “finally, and narrowly, persuaded” that the trusts were valid and the dominant intention of the trusts was to provide a recreational facility for the public. What next? Where there’s a will there’s a way By far the majority of the recreational area of the city is now charitable land – the Rec. and the ground owned by Bath Cricket Club. Bath Sport has proposed a community sporting vision to drive the regeneration of the recreational heart of the city. It has the potential to be a powerful and cohesive force to help mobilise and direct the efforts of those with a legitimate role in determining the future. Without a broad vision of community benefit it is all too easy to get bogged down in a legal quagmire of technicalities with a consequent inertia. In the first instance the Charity Commission has to attach a priority to resolving the technical issues related to the status of the land on which the Sports and Leisure Centre stands so the Rec. trust can be discharged from receivership – what is the plausible reason for this to have taken three years so far? The Charity Commission has a duty to overcome promptly these technical impediments and pass fully the custodianship of the charity to the Trustees. Future regulation of the charity world has been subject to considerable review over the past few years; this has no doubt deflected the attention of many at the Charity Commission from attending promptly to more immediate and practical issues. The Queen’s Speech of 17 May 2005 contained the welcome news that the Government will re-introduce the new Charities Bill after it was timed-out when the General Election was called in April. The Bill was published on 21 December 2004 after extensive consultation and expert review, and has already been subject to debate in the House of Lords and Grand Committee. The Bill promises to help equip all those involved in running and regulating charities to move forward in a changing world. The Charities Bill, when it becomes law, will be vital to both the Charities Commission and the Trustees in deciding the future of the Rec. On the reasonable assumption that the bill will become law (and it is likely during 2005/06) guidance has already been produced by the Charity Commission on the reinforcement of public benefit which is at the heart of charity and charitable action in society. So deliberation can proceed before the new bill is enacted. In the new legislation there will be a statutory “public benefit requirement” and the Charity Commission will be charged with interpreting what is meant by public benefit in the light of case law and modern conditions based on established legal principles. The courts develop charity law to take account of modern needs and circumstances as the perceptions of public benefit change over time. In relation to the Rec. public benefit embraces both direct (e.g. those persons participating in recreational activities) and indirect (e.g. spectators, visitors and the public generally) benefit. In recent years the promotion of urban regeneration, community capacity building and sustainable development have also been increasingly recognised by the Charity Commission. These aspects may also be relevant given the unique position of the Rec. in a World Heritage Site. The proposed new state-of-the-art community arena, together with other facilities, in harmony with the built and natural environment will itself occupy around three acres of the total fifteen acre area, will increase the area of the open space of the Rec. and enhance spectator and visitor appeal – all within the context of the promotion of community development. It will also retain Bath Rugby in the city – a permanent home at the Rec. is essential to the economic, social and emotional welfare of the city. Bath Rugby is itself a vehicle for community benefit – and a potentially valuable source of funds to help achieve the purposes of the Rec. charity. Bath Rugby needs primacy of tenure at an open-sided community arena (which encompasses about 20% of the area of the Rec.) on around 20 days each year over the winter period – no reasonable person might consider that this access to a public recreation facility constitutes undue (i.e. excessive) preference to one organisation. An important principle relevant to the Rec. is that of private benefit which must be incidental to achieving the charitable purposes. Such private benefit is acceptable if it arises as a necessary, but incidental, consequence of pursuing charitable purpose (e.g. generating income to meet objects) and the amount of benefit is reasonable in the circumstances. Bath Rugby is perceived by a few as simply a commercial company reaping profit for private shareholders. But any objective appraisal of the financial model for a professional rugby club and the corporate governance and motives of Bath Rugby shows this is a myth. Government has recently legislated to recognise that many companies are social enterprises. From July 2005 a new type of limited company – Community Interest Company (CIC) - can be incorporated. To register as a CIC a company must pass a “community interest test” by showing that a reasonable person might consider that the purpose towards which its activities are ultimately directed is the provision of benefits for the community. This core principle has to be supported by “asset lock” provisions to give the public confidence that the assets and profits will primarily be devoted to the benefit of the community. A potential opportunity now exists for Bath Rugby to demonstrate unequivocally to the vociferous anti-minority that it exists for the good of the community. The three Trustees appointed at this time are clearly mindful that the Rec. is not just any piece of charitable land and wish to progress a strategic review of the future policies and practices of the charity. So far at several public meetings the Trustees have been subject to a disproportionate (and often abusive) representation by the so-called ‘Friends of the Rec.’ The Trustees need active and constructive support from the silent majority in the city. The location of the Rec. and its future use are of critical importance to the strategic development and direction of the city itself. The Trustees are to be presented with a once-in-a-lifetime opportunity to respond to the challenge of ensuring a unique and lasting legacy of public benefit. We await developments!
|
