DRAFT CHARITIES BILL (CM 6199)

HOUSES OF PARLIAMENT JOINT COMMITTEE

RESPONSE FROM THE OPEN SPACES SOCIETY
JUNE 2004



Introduction
1.1 The Open Spaces Society is the informal name of the Commons, Open Spaces and Footpaths Preservation Society. It was founded in 1865 as the Commons Preservation Society and is the oldest national body concerned with the conservation of the environment for the benefit of the public. It is an unincorporated association with some 2,400 members consisting of local authorities, national and local organisations of varying sizes, and individuals. It is governed by an annual general meeting which elects an executive committee – the trustees – who manage its affairs and appoint long-term trustees who hold its investments. Its few properties are held by the Official Custodian.
   
.1.2 Its constitutional objects, approved by the Charity Commissioners, are:-

(a) To protect common land, open spaces and town and village greens from encroachment and, subject to the rights of commoners, to secure their use by the general public.

(b) To protect and preserve existing public paths and carriageways used mainly as public paths, and to secure their proper recording, maintenance and signposting for the benefit of the public.

(c) To secure the creation and preservation of new public paths, open spaces and access to and over open country for the benefit of the public.

(d) To protect the beauty of the countryside and to promote its fullest enjoyment by the public.

And in pursuance of these objects (but without prejudice to the generality thereof)

(i) to create and maintain public interest and advise and assist any person or body on any matter relating thereto and

(ii) to acquire, manage and preserve land or rights or to transfer (as a gift or for nominal consideration) to a public authority or charitable trust such land or rights, to be held in trust for the benefit of the public subject to such consents as required by law.
 
2. Relevance of draft clause 2 (Meaning of ‘charitable purpose’)
   
2.1 The society’s objects can be said to be for purposes within subclauses (2)(b), (d), (e), (f), (g), (i), and (4). But the fact that it is necessary to mention subclause (4) draws attention to deficiencies or ambiguities in the purposes defined in subclause (2).
   
2.2 While paragraph (g) covers amateur sport – a competitive physical activity – it ought to be recognised that most recreational activity is uncompetitive, such as walking, cycling and horseriding. Much of the society’s work is protecting the rights of way necessary for those activities. They might be covered by paragraph (d), the advancement of health, but it is considered that it would be better to amend paragraph (g) to be:-

(g) the advancement of physical recreation or amateur sport;
   
2.3 The human purposes of environmental protection or improvement are partly for a sustainable future but also for more immediate recreational and visual enjoyment. They may not always be considered compatible and arguments for conservation can sometimes seek to exclude the recreational aspect. It is necessary to make clear that the latter is an acceptable charitable objective. Paragraph (i) should, therefore be:-

(i) the advancement of environmental protection, improvement or enjoyment;
   
3.  Environmental protection, improvement and enjoyment
   
3.1  This topic already leads to differences between the society (and local charities) and the Charity Commissioners, and the Joint Committee is asked to consider how these may be resolved under the proposed legislation.
   
3.2  A particular habitat may need to be preserved by positive management rather than just restricting particular practices. This is especially so in the case of commons, heathlands, or ancient pastures, woodlands and hedgerows. It can often best be done by granting licences or tenancies to farmers or graziers subject to their paying fees or rents which take into account the extra work or costs that may be involved. Sometimes it may be necessary to pay for the work to be carried out. If a site is important enough, English Nature or the Countryside Council for Wales have appropriate powers of agreement and enforcement. But there are many cases of lesser importance but still significant for the local natural heritage which it is desirable to reserve. However, when this society and local bodies have tried to obtain approval for constitutional objectives which would allow appropriate controls or lettings, the Charity Commissioners have refused permission, insisting that agriculture or animal husbandry cannot be charitable.
 
3.3  The Society would like added to draft clause 2(3) a further paragraph which would confirm the right to manage land in a manner appropriate for the protection of a particular environment.
   
3.4 Problems can arise if land used for local recreation is owned by a charity which has other non-open space purposes for the benefit of the locality.
   
3.5  Under section 18 of the Commons Act 1899, recreation grounds that were allotted under an inclosure act are deemed to be subject to charity law on the application of an interested parish or district council, and such a council may also have been appointed a charity trustee of the land by a donor. (While recreational allotments ought to have been registered as town or village greens under the Commons Registration Act 1965, many were not but, nevertheless, still remain subject to the earlier legislation.)
   
3.6  The difficulties arise when someone wishes to acquire all or part of the recreation land for development and this is not prevented by the local planning authority or, on appeal or call in, by the Secretary of State. A tempting offer is made which has to be referred to the Charity Commissioners. They will insist on testing the market for the highest offer and that the proceeds are used for the trustees’ charitable purposes or an amended cy-près scheme but they will not take steps to protect the land from disposal or ensure that, at least, equivalent land is given or acquired in exchange; and the trustees are normally left with full discretion to use the proceeds for any of their trust purposes if these need no amendment.
   
3.7 This is very unsatisfactory but, probably, the Commissioners at present have no powers or expertise to deal properly with such a situation. While draft clause 15 (cy-près schemes), and particularly the proposed section 14B(3)(b) of the 1993 Act, may be useful if such a scheme is required, no application is likely to be practicable before the original land has been disposed of and the new financial assets are established. This is far too late and action is necessary before a disposal is agreed.
   
3.8 A possible solution would be not to allow the use or disposal for any other purpose of recreational land held under a charitable trust except with the consent of the Secretary of State for the Environment, Food and Rural Affairs under a procedure analogous to section 194 of the Law of Property Act 1925 (restrictions on inclosures of commons).
   
3.9  If the Joint Committee agrees to the principle of this, the society wishes to be consulted on the drafting of an appropriate clause.
   
4.  Draft clause 26 and Schedule 6 (Charitable incorporated organisations)
 
4.1  If this chapter is passed, the Society will need to consider whether it should seek to incorporate under it or whether it would be better to incorporate under the Companies Acts. The complications of the schedule and, apparently, the continued unlimited liability of trustees, are not encouraging and the Joint Committee is asked to consider whether the procedure can be simplified and more positive advantages be offered.
   
5.  Conclusion
   
5.1

 

 

  The society does not wish to comment on other parts of the draft bill but, if invited, it will be pleased to give oral evidence on the clauses which particularly concern it.