Memorandum from Open Spaces Society (DCH
98)
1. 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-pre"s 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-pre"s
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.
June 2004
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