Agenda item

The Executive Shareholder and TrusteeCommittee gave approval to undertaking a public consultation regarding the modification or removal of the restrictive user covenants in respect of the Foxenden Deep Shelter.

A report concerning the future use of Foxenden Deep Shelter was before the Committee for consideration.  The Shelter, which was constructed in 1941 and consisted of approximately 230 metres of 2½ - 3 metre high tunnels located 15 metres beneath Allen House Grounds, was formerly opened to the public on heritage days but closed in 2010 on safety grounds.  There were various works required to make the Shelter suitable for public access and the cost of the works combined with management costs could not be justified to allow infrequent public access.

Allen House Grounds were gifted to the Council in 1914 and the Shelter was subject to the same restrictive legal covenants and charitable status as the Grounds.  These restrictions included sole use as public gardens and pleasure grounds and also a prohibition on the sale, production and consumption of alcohol and could only be modified or removed if the Charity Commission approved an application for this purpose.  The Charity Commission’s approval would also need to be obtained for the grant of a lease of the Shelter.  Any disposal must achieve best consideration and be in the best interests of the Charity.  Prior to submitting the application to the Charity Commission, a 4 week public consultation in respect of the proposals must be undertaken.

The Council was the sole charitable trustee of the Shelter and Grounds and the Executive had delegated related decision-making to the Executive Shareholder and Trustee Committee.  Following completion of the public consultation, the outcome of the consultation must be reported to the Committee and a decision must be taken by the Committee as to whether to proceed with the application to the Charity Commission.  The process was likely to be lengthy.

If the Trust proceeded with an application to the Charity Commission then the application would be either to remove the restrictions on alcohol and use entirely or amend them so they did not apply to the Shelter.  The Council’s Parks and Leisure Services favoured the removal of the restrictions to enable events to take place on the Grounds.

Regardless of whether the Trust proceeded with a disposal of the Shelter, it may be necessary to address the structural issues.  Any expenditure incurred by the Council on the Shelter must be treated as charity expenditure on behalf of the Trust and accounted for accordingly.  Equally, any income received from leasing the Shelter must be used for the benefit of the Trust.  An incoming tenant may agree to undertake the required works in return for a rent free period and there may be grant funding available from external funders to cover or contribute to the cost of works.  If the Trust proceeded with an application to the Charity Commission and this application was successful then the likelihood of being able to obtain a tenant increased, thereby creating a potential income stream for the Trust.

The future use of the Shelter had been discussed by the Place-making and Innovation Executive Advisory Board on 10 September 2018 and the Board had indicated its support for this Committee to authorise the undertaking of a public consultation concerning the removal of the restrictive covenants and the grant of a lease of the Shelter.

The Committee acknowledged that the Shelter was popular with the public who would appreciate access to it.  As Allen House Grounds were also popular it would be advantageous to lift the restrictive covenants relating to both to enable the sale, production and consumption of alcohol.

RESOLVED:

That a public consultation regarding the modification or removal of the restrictive user covenants in respect of the Foxenden Deep Shelter be undertaken.

Reason(s) for Recommendation:

The Shelter is currently disused and may require expenditure to avoid structural failure.  If the Trust proceeds with an application to the Charity Commission and this application is successful, the likelihood of being able to obtain a tenant increases, thereby creating a potential income stream for the Trust.