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The Rec

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The 2011 Consultation 2013 events
Bath Rugby's 2013 Proposals Recreation Ground Trustees 2013
The 2014 Hearing  
   

The Recreation Ground 2014 Hearing

This was an appeal hearing on 27 March 2014 by the First-Tier Tribunal (Charity) Under the power given in the Charities Act 2011 considering the appeals by three Bath residents against the Trustees being able to consider a land swap for part of the Rec.  This resulted in an Order dated 24 April 2014 defining a Scheme on how the charity named Bath Recreation Ground Trust would be run.  The Objects of the scheme, aside from the financial objectives, states:


The objects of the charity are the provision, with or without charge, of land in or near Bath, including but not limited to the Bath Recreation Ground, for use as outdoor recreational facilities for the benefit of the public at large and in particular for use for games and sports of all kinds, tournaments, fetes, shows, exhibitions, displays, amusements, entertainments or other activities of a like character and the maintenance, equipment or lay out as the trustees shall think fit of such land and always provided that
(i) the charity shall not show any undue preference to or in favour of any particular game or sport or any particular person, club, body or organisation, and
(ii) the charity shall not use the Bath Recreation Ground otherwise than as an open space.


In layman's terms, the Scheme as described by the Tribunal is a bit of a change from the expectations when the land was first conveyed to the (then) council.  The words "but not limited to the Bath Recreation Ground" shows that the appeal against the possibility of a land swap was lost.  However, the words "always provided that" introduces conditions that are non-negotiable, which includes "the charity shall not use the Bath Recreation Ground otherwise than as an open space".  Further down the clauses it is clarified that land swaps are limited to the land covered by the 1995 lease (which is effectively the land currently occupied by Bath Rugby and not the additional land Bath Rugby is exhibiting plans for) and are leased swaps because they cannot exceed the end date of the 1995 lease.  There is also an exclusion to the open space requirement for the existing Bath Sports and Leisure Centre with its parking provision, until such time as it ceases to be fit for its current purpose at which point it must be reverted to open space.  Thus the building cannot be demolished and replaced with another.

Bath and North East Somerset Council is identified as the "Custodian Trustee" of the land conveyed to the council in 1956.  This is a specific role defined in the Public Trustee Act 1906 that identifies the council as the permanent holder of the Trust land but without the authority to manage it and thus unable to be held liable for the action of the Trustees committing a breach of trust unless the Custodian Trustee has concurred with the breach of trust.  Apart from the custodian trustee, there is a requirement (defined in the Operational Guide of the Charity Commission) for one or more managing trustees.

That role goes to the Trustees appointed as part of the Scheme, and at the time of the hearing one of these was a councillor nominated by the council for a fixed term of 3 years, so that expired in 2017.  Thereafter, the trustees cannot appoint "members of the council" though one of the should be "nominated by the council".  These terms are undefined;  though by convention a "member of the council" is an elected person, and thus a councillor.  There doesn't seem to be any bar to the person nominated by the council being one of the council's permanent staff.  However, no Trustee can serve for more than two 3-year terms.

The Trustees may make rules and regulations for the administration and management of the charity, which must be consistent with the provisions of the existing trusts and this scheme.  This requires the Trustees to pursue the objective of the Charity without obligations to pursue the policies or directions of the council or any other body.  Also, part of the rules in the Scheme is an obligation that the tenant (ie Bath Rugby) shall make the space they occupy by the 1995 lease available for the uses chosen by the Trustees in a state suitable for leisure purposes for at least 3 consecutive summer months each year.  Thus the Charity Commission has endorsed the Condition attached to the temporary permission for the East Stand.

 


The Recreation Ground 2013 events

Several news items appeared in the press at this time, all relating to The Rec.

First there was the news of an application for Town Green status.  Given that the Recreation Ground was last conveyed in 1956 for the benefit of the citizens of Bath, and because the 1922 covenant was expressly added to the 1956 conveyance of that land forming an unbroken chain of assignments, then the current owner, B&NES, and therefore the Trustees are obliged to both enforce the 1922 covenant and to protect its applicability, and that in 2002 the High Court upheld the conditions of the 1956 conveyance, Mr Sparrow who lives in Bathwick in the neighbourhood of the Rec is entitled by the 1922 covenant to enforce a restriction "that nothing shall be hereafter erected placed built or done upon the said hereditaments and premises ... which may be or grow to be a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood".  A Public Inquiry into a Town Green must be cheaper for the Trustees to service than another High Court case which would arrive at the same conclusion as the 2002 hearing, and which remains an option if the Town Green application fails.  For a Trustee to dismiss this action as "a stalling tactic" simply demonstrates that he has not properly understood his role as Trustee as distinct from councillor, has not studied the legal judgements, and has not complied with the instructions of the Charity Commission:  "The Commission directs that ... BANES demonstrate that it has discharged its responsibilities as charity trustee in respect of any decision relating to the current and future uses of the Rec and the resolution of issues arising from the Recís current occupants".  Despite this reasonable argument (put forward by 18 supporters), on Friday 15 November 2013, Bath and North East Somerset Council's Regulatory (Access) Committee resolved to refuse the Application to register Bath Recreation Ground as a Town or Village Green pursuant to section 15 of the Commons Act 2006.

The second Chronicle Item is the news of the Charity Commission consultation.  The problem is that the consultation is not a popularity contest, and the size of the majority is irrelevant.  The 1922 covenant is binding and it places conditions on a specific piece of land, not any mixture of sites as suggested in the consultation.  The Charity Commission will be acutely aware that if they vary the Trust and place it in conflict with the 2002 High Court Judgement, they can be accused of maladministration, or even contempt of court, as indeed can the Trustees.  They will also be aware if they study the documentation, that the neighbourhood has a legitimate expectation that the trustees should protect their rights and "no workshops warehouses factories or other buildings for the purpose of any trade or business" is part of that collection of rights.  While Bath Rugby was an amateur club, the erection of clubhouse and stands were not forbidden as the amateur club was not a trade or business;  but the current privately owned professional club is a business and is excluded from further construction by the covenant. If this is ignored, then each and every household in the vicinity of the Rec can sue for damages if they feel they are, or even could be, prejudicially affected.

The third Chronicle item is a letter from The Bath Society, effectively accusing the council of misleading the public by only advertising that opposition to the Town Green is possible without also informing that support comments for the application is also possible.  The sheer scale of 25,000 spectators (Bath Rugby's original target, and probably still the ultimate goal) as described at the end of the letter, is an eye-opener.

We have gone into some detail here to emphasise that although the Rec is held in trust by the council, it is and must remain completely separate from the council's own plans and aspirations.  To do otherwise risks significant court costs in the future, and a council already struggling with a tight budget would be acting recklessly if taking any path that could lead back to the High Court.  It may not be to their liking, but the council is bound by the signature that was placed on the 1956 conveyance, to which they are successors in title.  They should be vociferously trying to enforce the covenant in the manner that the 2002 court ruling interpreted it.  So should the Trustees.

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Bath Rugby's 2013 Proposed Development

On 27th and 28th September 2013, Bath Rugby held a public exhibition to show the results of the first thoughts on how the Rec could accommodate 18,000 spectators rather than the current 12,000 capacity. This exhibition was at the concept level, in that it showed where the seating would be, but there were no design proposals showing what the structures holding the seating would look like.  In a nutshell the exhibition showed that the South Stand would remain, but alongside it some additional seating is proposed. The temporary East Stand remains. The North Terrace (with its back towards Johnstone Street) and the West Stand (with its back towards the river) would be replaced with new facilities with more seats, and the current Club House is to be demolished and replaced.  There was a stated wish to improve how spectators get into and out of the ground, but there were no details of how that was to be achieved.

There were feedback forms at the exhibition and the exhibition material was put on-line with an on-line feedback form.  The aim of this exercise was to gauge public opinion and to seek suggestions and ideas about the refinements the public would like to see.

This was followed by a second public exhibition on 15th, 16th and 17th November 2013, with additional information on the exhibition boards including some artist's impressions. It was noted that the capacity was stated to be 16,500 this time.

View of modelView of modelThe greatest help given to visualising what was proposed came in the form of a scale model, showing the development in the context of the surrounding area.  This model was not perfect in that the slopes of the land were not able to be properly reflected in the model in the time available to prepare it, but it did allow the appearance of the development to be assessed from a variety of viewpoints.  Out photos of the model used here (looking towards the Empire on the left and looking from the Johnson Street direction on the right) are helpful, but are no real substitute for viewing it and walking around it.

Grand Parade viewGrand Parade viewThe Chronicle published some of the artist's impressions and we have attempted to match one of the views with a current photograph so that a direct comparison can be made.

We were informed that what we were seeing is still work in progress, and there would almost certainly be further alterations as a result of the feedback collected from the visitors to the exhibition and from those who viewed the exhibition material on-line.

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Recreation Ground Trustees

On 12 June 2013 David Dixon, the Chairman of the Recreation Ground Trust, announced that the Charity Commission had agreed the "land swap" by a scheme allowing the Rugby Club to develop the rugby ground on the Rec and that the Trust will have use of land previously used for training by the Rugby Club at Lambridge for charitable use.  The Scheme was made by the Charity Commission, and effectively it left the Sports Centre in the control of the council's Trustees and required additional Trustees to manage the remainder of the Rec. and also authorised the Trustees to take on additional land either in addition to or instead of some of the land which forms the Rec as conveyed to the council.  It should be noted that at the time that scheme was proposed, "instead of" puts the council as owner in contempt of the Court Judgment of 2002. 

At the end of October 2013, the 3-person Board of Trustees who were all Councillors, met to appoint additional Trustees.  This follows an agreement by the Charity Commission that the number of Trustees could be increased.

The following now manage the Bath Recreation Ground Trust:

Councillor David Dixon  [Cabinet Member for Neighbourhoods] (Chair)
David Durdan  [Somerset County Playing Fields Association]  (Vice-Chair)
Councillor Tim Ball  [Cabinet Member for Homes and Planning]
Don Earley  [Fields in Trust]
Stephen Baddeley  [Director of Sport,  University of Bath]
Elizabeth Bloor  [Netball South West & Chair WESPORT]
Derwent Campbell  [Mogers solicitors]
Simon Emery  [Emerys of Bath Ltd]
Geoffrey Fairclough  [Chartered Accountant]
Michael Laughton  [Registered Auditor and Chartered Accountant]

These 10 Trustees bring a variety of backgrounds and skills rather than being wholly made up of councillors as the original Board was.

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The Recreation Ground 2011 Consultation

Amid much press speculation about what will happen to The Rec and in the light of a so-called public consultation that failed to ask the right questions and invited contributions from those who are not actually the intended beneficiaries of the transfer of The Rec in Trust to the council, we did our own research.  As is common in these cases the further we dug, the more we unearthed.  And as news spread that we were digging, things that we might not have discovered for ourselves were brought to our attention.  This is how the research evolved.

8th May 2011

Our interest was sparked by the "consultation" of the Recreation Ground, where we expressed our doubts about the true significance of the outcome (hence the quotes around "consultation" above) because the covenant of 1956 transferring the Rec was for the benefit of "the Mayor, Aldermen and Citizens of the city of Bath" and yet nowhere in the questions asked is there a requirement to say whether the respondent falls into any of those categories.

We maintained our view that the consultation document arguing that the Sports Centre breaks the covenant so an extension to the Bath Rugby area can be made acceptable is not a sound position to take.  It is rather like saying because a road through Bath has been wrongly marked with a 40mph sign instead of a 30mph sign, by arranging to have the speed camera turned off it would then be acceptable to drive along it at 60mph.  Like the arguments being put forward in the Rec consultation document, it is absurd.  The legal ruling interpreting the Rec Covenant referred to that specific area of land as conveyed, making any proposals for land swaps ineffective.  If the trustees cannot understand that, then arguably they are not fit to be trustees.  They should be vociferously trying to enforce the covenant in the manner that the 2002 court ruling interpreted it.  That is what trustees are for.  Why are they not doing that?

15th May 2011

An Acre = 4840 Sq Yd
A Rood = 1210 Sq Yd
A Perch = 90.75 Sq Yd
Thus the Rec is defined as 80858.25 Sq Yd or thereabouts, thus 67607.8 Sq M,  approximately 6.76 Hectare

In the intervening week we informed that there is a second covenant dated 1922 which binds the owner of "All that piece or parcel of ground situate in the City of Bath and containing an area of Sixteen acres two roods and eleven perches or thereabouts and known as The Bath and County Recreation Ground ... " and anybody else the land is subsequently sold, assigned or otherwise transferred to, in perpetuity, to a restriction "that nothing shall be hereafter erected placed built or done upon the said hereditaments and premises ... which may be or grow to be a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood".  We have also been informed that there are moves afoot to try to revoke this covenant but we have not been able to confirm or deny that by the time this was written.

What this covenant apparently means is that the description used (an area of Sixteen acres etc) removes any possibility of a land swap (whether with the Lambridge site mentioned in the consultation or any other location) being used as a mechanism to get round the restrictions on developing the Rec, and that "the neighbourhood", which the dictionary defines as "the immediate environment" and would normally be interpreted as all buildings closely surrounding the Rec plus any others in line of sight or within earshot, have a legal veto on any development for business purposes that could be (there is no obligation to prove that it will be) a nuisance annoyance or disturbance or prejudicially affect (which would include affecting the property value) themselves or their premises.

It seems unlikely that everybody in "the neighbourhood" will willingly surrender their protection under this covenant;  and nowhere in the document is there a suggestion that "the neighbourhood" has to defend its rights (or even know about them) in order to retain them.  If any reader regards themselves as being covered by the words "the neighbourhood" and has not been asked for their opinion on surrendering their rights, we suggest that they contact the Trustees of the Recreation Ground (who are the currently assigned guardians) and ask what the Trustees are doing to ensure that the neighbourhood's rights remain in place and can be enforced.

We have seen a copy of the covenant document and have checked that our quotes above are accurate.  We will attempt to get the full text of the covenant into a form that can be reproduced on-line so that the quotes can eventually be read in their full context.  Meanwhile, if anybody does get a statement from The Trustees and wishes to inform us of what was said, please use the details on our Contact Us page.

29th May 2011

A week later and there are further developments.  The Recreation Ground has new Trustees.  The Chronicle has announced that Cllrs David Dixon, Tim Ball and Nathan Hartley have taken over from Cllrs Chris Watt, David Hawkins and Vic Pritchard, the trustees under the previous administration.  We were also contacted to say that some letters had been received about plans for the Rec, and asked if we wanted to see them (which of course we did).

We were shown two pieces of correspondence, one on Bath Rugby headed paper and the other on paper carrying the name of a local solicitors practice.  Both are similarly worded, and try to pretend that the people who benefit from the 1922 covenant need to have had the benefit expressly conveyed in any sale since 1922.  It also claims that anybody attempting to retain the protection of the 1922 covenant would be a defendant, and by implication  liable to costs if the defendant loses.

Protective Costs Order

It is UK (and EU) policy that if a case should be heard in the public interest, the public should not be deterred from lodging the case by the fear of having to meet all the costs if the case is lost.  A judge can grant grant a Protected Costs Order which limits the exposure to costs if the case is lost (if the case is won, the costs are met by the other side).

These letters look like an attempt to browbeat the opposition with false claims.  Any individual taking court action to protect the covenanted rights of the neighbourhood would have an obvious claim to be acting in the public interest and so should automatically qualify for a Protective Costs Order (see box, right), leaving Bath Rugby to bear all their own legal costs even if they win.   However, they are not likely to win:

Firstly, the covenant is not attached directly to the surrounding properties as the correspondence suggests, it is attached to the land known as the Recreation Ground.  The Recreation Ground was last conveyed in 1956 for the benefit of the citizens of Bath, and because the 1922 covenant was expressly added to the 1956 conveyance of that land forming an unbroken chain of assignments, then the current owner, B&NES, and therefore the Trustees are obliged to both enforce the 1922 covenant and to protect its applicability:
"The Purchasers for themselves their successors and assigns hereby covenant with the Vendor his successors in title and assigns and to the intent and so that this covenant shall run with and be binding on such portions of the hereditaments and premises hereby conveyed as are respectively affected thereby into whosoever hands the same may come ..."
A 2002 High Court judgement (BATH AND NORTH EAST SOMERSET COUNCIL v HM ATTORNEY GENERAL) clarified the status of the Recreation Ground, so the current situation has recently been tested in a court, and that case will have tested claims and counterclaims against all relevant legislation prior to that date.  The text of that judgement is evidence that the court recognised the existence and relevance of the 1922 covenant.  The threatened Declaration is to claim that the covenant is unenforceable, but The Recreation Ground Trust, Bath is able, and duty bound, to enforce it.  It only requires them to refuse permission for unpermitted buildings.  The ability to enforce was evaluated in the 2002 court judgement, and that must be taken into account in any future proceedings.  However that judgement made no ruling regarding the current use of the Rec: "That conclusion in no way pre-empts the question whether the actual uses to which the claimant has put the Recreation Ground, in particular the most recent letting of the football ground, are compatible with the charitable trusts. That is a question which this judgment does not seek to answer."  The existing use cannot therefore claim any legitimacy from this judgement.

Secondly, the surrounding premises who wish to protect their rights under the covenant are witnesses not defendants, because their premises are "the neighbourhood" which is protected by the conveyance, and not part of the conveyed land.  The neighbourhood has a legitimate expectation that the trustees should protect their rights and "no workshops warehouses factories or other buildings for the purpose of any trade or business" is part of that collection of rights.  While Bath Rugby was an amateur club, the erection of clubhouse and stands were not forbidden as part of a business;  but a privately owned professional club is a business and is excluded from further construction by the covenant.  If the Council or its Trustees does not oppose the Declaration, then each and every household in the neighbourhood is entitled to claim damages from them for maladministration if the rights given them in the 1922 covenant are not used and any subsequent development for business purposes which the Trustees do not oppose creates "a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood".

Thirdly, the correspondence we saw claims that the council have raised no objection.  But of course that was when the former Trustees were in office, and probably they were not made aware of the possible penalties for inaction.

It is likely that the new Trustees, if they are made aware of the risks they run (as outlined above) should they raise no objection, might take a different view.  They should also bear in mind that the Charity Commission has only reviewed the presence of Bath Rugby in the context of the 1956 covenant, because the 1922 covenant was not mentioned in that paperwork and yet even so that review resulted in a directive from the Charity Commission which is still extant:  "The Commission directs that ... BANES demonstrate that it has discharged its responsibilities as charity trustee in respect of any decision relating to the current and future uses of the Rec and the resolution of issues arising from the Recís current occupants and that such decision was properly taken by BANES in the best interests of the Charity".  Council Tax payers must hope that they do make responsible decisions.  The risk of numerous damages claims from "the neighbourhood" (probably each covered by a Protective Costs Order) cannot possibly be in the best interests of the charity, regardless of how beneficial they regard Bath Rugby as a tenant, particularly when the council's annual financial statement admits "The Council as Trustee is ultimately responsible for any liabilities or deficits incurred by the Trust".

The new Trustees appear to have inherited a real hot potato, thanks to the failure of the outgoing Trustees to operate the charity independently of the interests of others.  It is an unfortunate fact of life for Bath Rugby that although they can't be arbitrarily removed from that part of the Rec for which they have a lease and they would not have been in their current position regarding additional facilities on the Rec if they had remained an amateur club, nevertheless such sentiments do not override the council's need to now administer the charity in the way that the High Court ruled that it should be administered.  Our expectation, from our researches to date, is that neither the courts nor the Charity Commission are likely to support the Council and its Trustees if they take any action other than opposing the aspirations of Bath Rugby on the heavily covenanted Recreation Ground.  The Charity Commission has ordered B&NES to (among other things) "act in good faith", and to do that the Trustees must remember that the beneficiaries of the Trust are "the Mayor, Aldermen and Citizens of the city of Bath" and those covered by the description "the adjoining premises or the neighbourhood" of the Recreation Ground, and not Bath Rugby or its supporters from other parts of the country.