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The wpcc Draw A Line Board Report....

Committee(s):Wimbledon and Putney Commons ConservatorsDate(s):8111 June 2015Item no.09.15.9Subject:Update on the Putney Hospital Site Report of: Chief Executive of Wimbledon and Putney CommonsFor DecisionNOT FOR PUBLICATIONSummaryThis report provides an update and proposed ways forward regarding the Putney Hospitaltransactions, following further advice from BWB in their most recent letter of the 7th August2015.Recommendations:1. Given the advice from BWB on the 15th July 2015 and subsequent advice on i h August2015 in relation to:a) access to legally privileged information, all trustees agree to sign a declaration asset out in paragraph 2.4 of this report;b) confirming their trust and confidence in BWB, all trustees sign a declaration as setout in 2.6 of this report;2. If the Board are unable to agree the above, it is recommended that the Board draw aline under the current investigation into the former Putney Hospital transactions on thebasis that to pursue the issue further is not in the best interests of the charity.1. Introduction1.1 On the 15th July 2015 the Board received advice of BWB in respect of their furtherconsideration of Conflicts of Interest and specifically the potential issues of Public Lawof which they had become aware and they had been obliged to draw the attention ofthe Board (see Appendix 1). In summary, that advice, based on their consideration ofthe significant amount of documentation requested by BWB, was that all Trusteescould still partake in the decision to appoint an independent surveyor and to make afurther report to the Charity Commission. The position was finely balanced in relationto the involvement of two Trustees, which BWB advised might need to be revisited inlight of further developments.1.2 The advice confirmed that the Resolution of the Board of the 11th May 2015 tocommission an independent review of the circumstances surrounding the sale ofaccess rights at Putney Lower Common in 2012 was legitimate.1.3 In preparing instructions for the appointment of an independent valuer, BWB advisedthat there were likely to be documents that were legally privileged in relation to thelitigation brought against the charity in earlier years. At that stage they had not been1instructed to advise whether it was advisable for the charity to waive the privilege andallow all Trustees access to the documents.1.4 The Chairman, in consultation with the Finance and Investment Committee, agreedthat BWB be instructed to determine which, if any, documents are legally privileged,but based on a fee ceiling of a further £3,000.2. Advice from BWB2.1 In their further advice of the 7'h August 2015 (see Appendix 2) BWB made it clear that,under the 1871 Act, the Conservators have a duty to act collectively. Where a meetingcannot reach unanimous agreement, under case law relating to public and charitableTrusts, it can come to a majority decision.2.2 In respect of privilege and rights to inspect documents, having analysed thedocumentation provided they identified a number of documents which containedprivileged information. BWB explained that the privilege contained in any advice givento WPCC, either now or in the past, is owned by the body corporate. It is not specific toany individual, whether a member of the previous or current Board.2.3 BWB's advice at Paragraph 13 starts:"If there was ever a doubt as to whether any particular Conservator might use materialfor an improper use, we suggest that he or she should be asked to agree expressly inwriting to what is no doubt implied in any event (namely, that confidential materialwould be kept confidential to the charity, that the Conservator in question will not seekto re-open any concluded litigation and that the material in question would not be usedfor any purpose contrary to the best interests of the charity) ...". It then concludes"If any Conservator refused to sign a document confirming those matters, the charitywould be entitled (unless there was some very good explanation for the refusal) todraw an inference that the Conservator in question was seeking to exercise the right ofinspection for an improper purpose ..."2.4 Given the issues above, and in the spirit of the Nolan Principles of public life, it isrecommended that all Conservators be asked to sign a declaration on the charity'sheaded paper stating:"I confirm that, in accordance with the WPCC Confidentiality Policy, I will respectthe confidentiality to the charity of any information to which I have access, includingany which might contain Legally Privileged material, in respect of the former PutneyHospital site and will not use it to seek to reopen any concluded litigation or for anypurpose contrary to the best interests of the charity. "2.5 BWB have also expressed concerns about the basis of their continued professionalrelationship with WPCC. BWB are prepared to continue to act for the Conservators, onthe basis of the existing Letter of Engagement, but only if they receive a letter signedby all Conservators confirming that they retain our trust and confidence.2.6 It is also proposed that on the same headed paper as the declaration above, allConservators be asked to sign the undertaking set out below:"Having read BWB's letter of i h August, I confirm that I have trust and confidence inBWB continuing to represent Wimbledon and Putney Commons ("the Charity'). "3. Implications3.1 The Board reached a unanimous decision at its meeting on the 11 th May 2015 tocommission an independent review of the circumstances surrounding the sale ofaccess rights at Putney Lower Common in 2012.3.2 In terms of proceeding, having already expended £41,000 of the charity's resources toobtain the advice of one of the country's leading charity law firms, the test for theBoard, in acting collectively, is to sign the above declarations, giving a clear statementof its intent, to proceed on the above agreed course of action.3.3 Although the Vice Chairman and Chairman of Governance Committee has suggestedthat there be a pause in the efforts to reach a consensus on Putney Hospital, thedevelopments of the past month have not unfortunately given any indication thatpositions held will materially alter.3.4 Failure to achieve a collective view on the way forward is only likely to result in moredivisions, incurring the charity in further legal costs - particularly if new lawyers are tobe appointed to start afresh - without any assurance that they would not come to thesame recommendations as BWB. The time taken by the Putney Hospital issues hasdiverted the attention of officers and trustees from focusing on the work required toimplement the recommendations of the Governance Review and necessary to put thecharity on a more sure footing. It was also apparent from the recent Open Meeting,there is a substantial body of external opinion that Levy-payers money is not beingappropriately used, damaging the reputation of the charity and diverting funds from thecore business of managing the Commons. In these circumstances the Board may wishto draw a line under the further investigations into the former Putney Hospitaltransactions.3.5 If the Board considers drawing a line under this issue, it is still considered essential toundertake facilitated mediation, as recommended by the Charity Commission enablingthe Board to endeavour to work effectively together in the future.4. Conclusion4.1 To demonstrate clearly and unequivocally that information will only be used in the bestinterests of the charity and to reaffirm trust and confidence in BWB all Trustees areasked to sign the declarations set out in this report. If this cannot be achieved then theBoard should consider drawing a line under further investigations into the formerPutney Hospital transactions

John Cameron ● 2767d7 Comments

The complaint below was sent to the Charity Commission some 5 years agoI am still waiting for the Charity Commission to reply to it...-------------------------------------The complaint covers a number of concerns including; transparency, breach of fiduciary duty by theTrustees, repeated breaches of the 1871 Act which created the Commons (that the Wimbledon andPutney Commons (WPCC) Charity owns and manages) and maladministration.1. Transparency1.1.Scrutiny of board meetingsA now resolved legal dispute over access to Putney Hospital revealed that the Charity Trusteesmanage their decisions in an unusually secretive fashion. The Conservators hold monthly boardmeetings, which the public can attend, but not participate. The agenda and eventually minutes of theboard meetings are published on their website. However it is now evident that much of the decisionmaking is not made at the “public” board meeting, but in a separate and entirely private (ie no publicaccess) board meeting, which follows on from the public element. There is no public record of thesecond meeting in terms of agenda or published minutes.It is apparent that the public meetings are a window dressing, only discussing matters of day to daymanagement; any important or controversial decisions are made “in camera”, well away from any publicscrutiny.The WPCC website, its main method of communication, makes no mention of these private meetingsnor are they mentioned at the Annual Meetings.In essence the private meetings, in terms of oversight or scrutiny, simply don’t exist. As a charityfunded largely by statutory tax paid by local residents (through a levy on their Council Tax) theConservators appear to deliberately suppress their decision making processes, particularly on areas ofconsiderable controversy and which many residents feel strongly.The policy of having a “public board meeting” (to try and promote confidence in transparentgovernance), is entirely undermined by the reality that the board actually operate “below the radar”, afact that has only recently become to light.The policy does nothing to reassure stakeholders that the Conservators are committed to thenecessary standards of good governance / best practice.1.2. Freedom of Information ActThe Conservators do not accept that they are subject to FOI regulations, but as a “public body” claim toact “within the spirit of the Act”. They provide guidance notes (a Publication Scheme) which refers toFOI as if they covered on their website. The publication scheme outlines the Conservators’ Freedom ofInformation Act policy to ensure compliance, despite the fact they claim they are exempt. Howeverhaving made multiple FOI equivalent requests over the past 5 months I have been rebuffed repeatedly,and the requests have been handled in an unprofessional and non-compliant manner.Given the current level of distrust over the Conservators’ management by stakeholders this “two tier”approach to transparency / freedom of information is unacceptable. It is also at fundamental odds withthe Conservators statement that they are transparent and open; it is now evident that they are anythingbut. 1.3.Communication with stakeholdersThe communications policy for keeping stakeholders (40,000+ levy paying households) informed abouthow the Commons are run and managed is far from acceptable. The Conservators provide a 4-pageprinted newsletter once a year, which is delivered to local houses. Delivery of the newsletter isunreliable, with many homes never receiving it as delivery is outsourced to leafleting contractors whoare unreliable.The Conservators’ website is dated in terms of design, and lacks the most basic information in a formatthat is easy to navigate. The Conservators have spent thousands of pounds with externalcommunication consultants to improve their communication with stakeholders and commons users, butto little effect. The lack of a comprehensive communications strategy is regularly discussed at a“communications sub-committee” but has yet to lead any positive change in improved communication.The annual “Open” meeting held for levy payers are poorly attended and badly publicised.2. Fiduciary DutyThe Conservators own a strip of land at Putney Common, leading to a landlocked site of the formerPutney NHS hospital. This is normally described as a “ransom strip’ in development terms. Anagreement was needed from the Conservators for access over the land in order for the former hospitalsite to be developed. This agreement was made by way of a legal easement for which financialcompensation was to be made. In July 2008, David Devons, Chair of the Charity met with a seniorpartner of Drivers Jonas to discuss specifically the value of the easement. A record of the meeting waskept and the (name redacted) Drivers Jonas Partner stated, in respect of the value:“(Name redacted) explained that the usual starting point for an easement figure would be 50%of the development value. Development value depended on the freehold value of the land, thenumber of units being built and location.”The site had a value of several million pounds and eventually, Wandsworth Council purchased the site,without the benefit of planning consent, for £4.5m. It therefore follows that the value of an “easementfigure” to access the site would also run to £millions. The site today now has the benefit of planningconsent for a 420 place primary school Academy and a block of luxury flats and is worth not less than£8m, which suggests that the easement figure would be around £4m. The Conservators howeversettled for a total of £350,000 as an access fee; apportioning £1 to the school access and £349,999 forthe vehicular access to a block of 24 luxury flats.There is ample evidence that the value of ransom strips varies between 30% and 50% of the underlyingland value to which the access is required. The Driver Jonas valuer evidently saw a considerable valuein the land; however the Drivers Jonas advice was swept aside at the July 2008 meeting as the notesconfirm the following statements by the Conservators“It was proposed that the financial consideration for the easement to the PCC [Primary CareCentre] would be nominal and limited to public health use”... (there is no mention of the luxuryflats adjacent)And“DD (David Devons, Chair of the Charity) explained the importance of the political aspect. TheConservators were something of an anachronism being funded by local people. If the proposedscheme was seen to fail because of the Conservators, the political repercussions could beserious, if not disastrous.”It is evident that David Devons, the only Trustee to attend the meeting, was under pressure politicallyand was simply not willing to negotiate the most favourable financial outcome that he could. Heappeared to wish to appease the then NHS and later Wandsworth Council by selling the easement,(which was an absolute ransom strip) for a de minimus amount, to avoid the “disastrous” “politicalrepercussions” that would follow, if he was to attempt otherwise.The legal documents for the sale of the easement were eventually entered in around February 2012.The Conservators cannot provide any board reports or minutes to indicate that they debated thecontroversial decision to sell the access for a development. The Conservators cannot provide anyboard reports or minutes to indicate that they carefully considered the issue of the under sale of theeasement. Nor did they appear to understand or discuss the consequences to the Charity of acceptinga payment that was substantially less than they were advised, had they followed the initial advice ofDrivers Jonas.In effect Devons refused to listen to Drivers Jonas advice and hence deprived the Charity of a paymentthat would have amounted to potentially millions of pounds, or at the very least a receipt that wouldhave been many times what the Conservators actually accepted.The Conservators as Trustees have a fiduciary duty to the Charity, and only the Charity. It is not theirrole to financially support or to subsidise the building of schools or luxury flats, which is in effect whatthey agreed to. The aims and objectives of the charity are clearly set out in the 1871 WPC Act. Thesedo not include any requirement to support educational facilities, public or private, or other residentialdevelopment adjacent to their land. The Trustees had an obligation to the stakeholders – the residentswho pay a levy to support the upkeep of the Commons - to maximise receipts for the benefit of thecharity. Instead, under political duress from the owners of the Putney Hospital site, they agreed toeffectively waive the access payment for the school and accept c10% of the true value for the access tothe luxury flats. The development of both the school and apartments could only proceed if the accessacross Common land was granted by the Conservators, but they acquiesced to political pressure ratherthan their duty to the Charity.The Trustees did not act responsibly in the best interests of the Charity. There appears to be no writtenrecord of the Trustees discussions that led to the decision or the approval of the Trustees decision tothe substantial undersale. They appear to have completely disregarded the professional advice theyreceived in respect of the value. The easement agreements signed in February 2012 were agreed andsigned in absolute secrecy, with no consultation or information provided to stakeholders and residents.No mention was made of the £1 access fee agreed for the school. The independent valuation of theaccess and the WPCC’s letter of instruction requested under FoI terms has been refused by theConservators, on the grounds of confidentiality.It is apparent the Conservators took these inappropriate decisions under duress; the charity waseffectively under the threat of “political repercussions”, which presumably could threaten the existence of the charity. Previous threats to the Conservators have never amounted to much, but in this case theysimply “rolled over”.The Conservators’ claim “The Conservators are an independent body and have no party-politicalaffiliations”, appears at odds with what happened, political influence was evidently the reason behindthe undersale. The Conservators did not act as an independent body; they were coerced into sellingthe access for a very significant discount to its open market value of several million pounds, to thesignificant detriment of the Charity.Ironically, the Conservators formally objected to the development during the planning process, theyconfirmed at their annual meeting that they considered the proposals over intensive and haveconfirmed that Putney Common will suffer as a result of the proposal.3. Breach of 1871 Act of ParliamentThe Conservators and the Commons which they own and run them were created under the Wimbledonand Putney Commons Act 1871.In the FOI Publication Scheme, published by the Conservators, they state;6. Our Statement of PurposeTo maintain the Commons in as natural a state as possible and to ensure the Commonsremain open and unenclosed and to preserve the same for public and local use, for purposesof exercise and recreation.In the Conservators most recent annual return to the Charity Commission they state;The Conservators administer the land under their jurisdiction with a view to its preservation asan open space for the purposes of exercise and recreation. This is the principal object set outin the Wimbledon and Putney Commons Act 1871 and includes the management of the landand its flora and fauna and the preservation of its natural state.And they measure their success thus, again from the most recent Charity Commission annual returnBy ensuring that the principal requirement of the 1871 Act are upheld and that the Commonsare protected from any kind of encroachment and kept open, unenclosed and unbuilt on for thepurposes of exercise and recreation.The 1871 Act states, under the two relevant sections the following;s34. The Conservators shall at all times keep the commons open, uninclosed, and unbuilt on,except as regards such parts thereof as are at the passing of this Act inclosed or built on, andexcept as otherwise in this Act expressed, and shall by all lawful means prevent, resist andabate all encroachments and attempted encroachments on the commons, and protect thecommons and preserve them as open spaces, and resist all proceedings tending to theinclosure, or appropriation for any purpose of any part thereof. s35. It shall not be lawful for the Conservators, except as in this Act expressed, to sell, lease,grant, or in any manner dispose of any part of the commons.Today the Conservators routinely ignore both their own statements and the 1871 Act that they areelected and appointed to uphold.This can be illustrated by the following examples;a) Some 5,000 sq m of common land at Putney Common has been enclosed by a 7 foot highwood hoarding for the past 8 years, preventing levy payers and residents from having accessto the common enclosed therein.b) A further area of land at Putney Common, over which the easement has been granted, will bepaved with a 110 metre long tarmacked road, enclosed with bollards, ditches and mounds,electronic barriers and street lighting imposed. Local residents objected strongly to thearrangements made by the Conservators and took the granting of the easement for the accessroads to Judicial Review. The Lord Justice at that review decided that the sub-clause in the Actwhich states that the Conservators may “make and maintain such roads and ways as may be intheir judgement necessary or proper” did allow them to grant the rights over the Common, andthis was confirmed in a subsequent Appeal hearing. However this narrow legal approvaldepends on the initial decision made by the Conservators that the access was “necessary andproper” even though the result is the encroachment of the Commons the Act clearly states theyshould prevent. That decision was made under duress from powerful local political interests.c) The Conservators enthusiasm for allowing common land to be effectively encroached by theLocal Authority is at odds with their duties to uphold the 1871 Act. Some 1,100 local residents(who pay the Commons Levy) objected to the scheme and the Conservators’ agreement thatallowed it to proceed. The Conservators took no notice of the objections, fighting strenuouslyin the Courts that they had the right to allow the private road to be built. By doing so, theyappear to care more about money and appeasing the Local Authority than protecting theCommon from encroachment or preserving its natural state. The Conservators claim to resistencroachment by Local Authorities, but do anything but.d) In addition a further area of common land at Wimbledon Common has been designated as aprivate car park for the members of the Royal Wimbledon Golf Club, in contravention of the Act.This land was a former curling rink in the 19th century, and the freehold is part of the HMLRregistered title owned by the Conservators. There is now an electronic entrance gate and brickwall around the land, which is both under tarmac and landscaped as a car park for a privategolf club. There is also a substantial area of land adjacent to the car park which is Commonand effectively forms part of the golf club’s land. When questioned the Conservators claim theland is “still common” and that the “arrangements are temporary”. Neither is true, the land isself evidently the private car park of the private club, not common and it is clearly a permanentarrangement. A notice at the entrance says it is private and for the use of members only, thereis no indication that it is common land. The loss of the land is defended by the Conservators who, a number of years ago, leased landfrom the RWGC as the site for maintenance sheds, and in return the RWGC was gifted theland for the car park. The Conservators are not allowed to exchange land, and the 1871 Actstates that the Conservators will “resist all proceedings tending to the inclosure, orappropriation for any purpose of any part thereof.”The Conservators, by allowing the RWGC car park to be created have knowingly disregardedthe Act in a number of fundamental aspects.The Conservators refuse to release the agreement between themselves and the private golfclub, citing confidentiality.4. Maladministration4.1.Collusion and entering into sham legal agreementsThere are other examples of the Conservators management that do not stand scrutiny. In 2009they entered into a S106 legal agreements in respect of easements with the NHS (WandsworthPrimary Care Trust) at Putney Hospital. These agreements could never be completed as thedevelopment to which they refer had already been cancelled by the Trust which was publicknowledge. At the time Wandsworth Primary Care Trust had already discussed the sale of thePutney Hospital site to Wandsworth Council who in turn had commissioned a valuation of theland and advice on the most advantageous method of transferring ownership at the lowestpossible price. By obtaining the “sham” S106 agreement signed by the Conservators theCouncil could grant planning approval for the long-delayed WPCT scheme to build a healthclinic complete with the necessary access roads, so that these rights would be transferred tothe Council, when purchased the site and applied to build a school rather than a clinic. Thiswould then underpin a new planning application by the Council, to itself for a double form entryprimary school and block of 24 luxury apartments.This collusion between the Conservators and the Council allowed Wandsworth to purchase thesite for its own development purposes with the risk of issue over access effectively removed, apre-existing access arrangement with the Conservators, for a scheme that would nevermaterialise. The Chair of the Conservators, David Devons, subsequently stated at a publicmeeting that he was unaware that the health clinic had been cancelled. This is simplyimpossible, as the fact that the health clinic had been cancelled had been widely reported aswell as the fact that the Council had expressed their intention interest in acquiring the site. Thepossibility that Devons did not know can be ruled out, given his close involvement over manyyears with the site and it’s complicated access. Devons was ducking the question, as byadmitting that he knew would lead to his being criticised for collusion between the Conservatorsand the Council. The S106 was been signed and the health clinic planning approval after manyyears of delay, despite the fact that it was “dead in the water”. The Conservators cooperated with the charade, by entering into worthless agreements.

John Cameron ● 2766d