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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 07/12/2004
Farnham Youth Project



Summary & Purpose
The Trust of the Farnham Youth Project has made changes to the way in which the Trust is constituted. This report sets out for Members the reason for the changes, the nature of the proposed changes and seeks approval to sign the Deed of Substitution required by the Charity Commissioner.

Quality of Life Implications
Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe Communities
Local Economy
Natural
Resource Use
Pollution
Prevention and Control
Biodiversity
and Nature
Local
Environment
Social
Inclusion
Safe, Healthy
and Active
Communities
Local
Economy
N/A
N/A
N/A
N/A
Positive
Positive
N/A


APPENDIX EE
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 7TH DECEMBER 2004

Title:
Farnham Youth Project
[Wards Affected: All Farnham Wards]

Summary and purpose:

The Trust of the Farnham Youth Project has made changes to the way in which the Trust is constituted. This report sets out for Members the reason for the changes, the nature of the proposed changes and seeks approval to sign the Deed of Substitution required by the Charity Commissioner.

Quality of life implications – social, environmental & economic (sustainable development):

The provision of facilities for young people contributes to the development of safe, healthy and active communities. The Youth Project deals with social inclusion by providing accessible activities for all young people within the Farnham locality.

E-Government implications:

There are no e-government implications arising from this report.

Resource and legal implications:

There are no immediate resource implications arising from this report. The legal and property implications are set out below.

Background

1. The Farnham Youth Project is an independent external organisation that was established by a Trust Deed in September 1990 to provide facilities for young people in the Farnham area. The original Trust was made up of three Holding Trustees, which were: The Foundation Trustee, a Waverley Borough Council Trustee and a Surrey County Council Trustee. In addition, a management committee was established to deal with the day-to-day activities of the Trust.

2. The Farnham Youth Project occupies premises at Dogflud Way, Farnham, under the terms of a lease dated 23rd March 2000 from this Council to the Trustees for a term expiring on 20th June 2087 at a peppercorn rent. The Trust is permitted to use the premises as a Youth Project to help young people living in the area, particularly those aged between 15 and 25 through leisure activities. The Council retains ownership of the freehold interest in the Trust's leasehold property.

3. The Trust has informed officers that over time it has become apparent that the Trust Deed, as initially established, requires alteration to enable a greater number of stakeholders to have a direct involvement in and responsibility for the running of the facility. The original Foundation Trustee has also retired due to ill health leaving only two remaining holding trustees nominated by Waverley Borough Council and Surrey County Council. Given the nature of local authority procedures in nominating trustees to external organisations, there have also been periods when changes in administration has led to the Trust being without an appointed trustee from the local authority. Therefore, it was decided that in order to maintain continuity and to benefit the organisation in terms of stability, the responsibility for holding the Trust property should be transferred from the current holding Trustees to the Official Custodian of the Charity Commission.

4. General information about the role of the Official Custodian is set out under the Legal Implications heading below but transfer to the Official Custodian would not alter the powers and duties of the other trustees who would continue to manage the Trust property nor would it change the position of the Council as the freeholder of the Trust property.

5. Under the proposed changes, once responsibility has been transferred to the Official Custodian, the two local authority Trustees and the representatives on the existing management committee would become equal managing trustees and function as a Management Committee.

6. Another key proposed change to the deed includes the widening of the management committee to take into account a greater range of representatives from stakeholder organisations involved in the delivery of services to young people. The appointed managing trustees who would form the Management Committee would include:-

q One Trustee nominated by Surrey County Council
q One Trustee nominated by Waverley Borough Council
q One Trustee nominated by Farnham Town Council
q One trustee from the Farnham business and professional community nominated by the Farnham Chamber of Commerce
q Five Trustees, of whom three at least are people actively involved in youth work and including at least one directly involved in the project
q The existing Trustees may co-opt up to a maximum of three other persons during the course of the twelve months following the Annual General Meeting. Co-opted Trustees shall be appointed to serve until the next Annual General Meeting and shall have the same rights and obligations as the other Trustees.

7. The management of the Charity would then be carried out by the Management Committee comprising of the Trustees.

8. Other than the changes outlined above to the holding Trustees and the management committee, the objects and powers of the Trust have not altered.

Legal and Property Implications

9. The Official Custodian for Charities is a member of the Charity Commission’s staff who is appointed by the Commissioners to hold charitable land on behalf of charities. He is effectively a custodian of the land and his trusteeship serves a practical purpose in cases where the identities of trustees of a charity keep changing. Having the Official Custodian as trustee of land means that the land remains vested in him, regardless of any other changes in the identity or number of other trustees. This removes the risk of leaving land vested in trustees who have retired or who cannot be traced and saves the charities the expense of having to amend documentation.

10. Vesting charitable land in the Official Custodian simplifies ownership issues but the Official Custodian does not take any part in managing the charity or its land. The managing trustees retain all the powers and duties of management and make all decisions regarding the use, management and maintenance of the charitable land. The charity will still retain control of its deeds to the land.

11. Land is vested in the Official Custodian by virtue of an order of the Charity Commissioner. The process does not prevent a Trust from later dealing with its land (subject to the usual compliance with legal requirements). If the land is later disposed of to another party, it is necessary for the Official Custodian to be made a party to the relevant deeds but the Official Custodian would be unlikely to express an opinion if the managing trustees were in agreement and acting lawfully.

Conclusion

12. The Trust has taken the matter up with the Charity Commission, has discussed the vesting of the Trust property in the Official Custodian and has submitted the Deed of substitution setting out the proposed changes to the management of the Trust (as mentioned above). The Charity Commissioners have said that they are satisfied that the changes are acceptable and in the interests of the Charity. In order to complete the changes, the Council, in its capacity as a holding Trustee, is required to execute the Deed of Substitution. The Deed can then be submitted to the Charity Commission who can formally approve the changes and order the vesting of the Trust’s leasehold property in the Official Custodian. This Council, as local authority, will still own the freehold interest in the Trust property.

13. The Executive is therefore asked to consider the changes proposed, having regard to the Council’s capacity as Trustee in respect of the Trust and as the owner of the freehold reversionary interest in the land in its capacity as local authority. The Executive is recommended to agree to the Council entering into the Deed of Substitution and the vesting of the Trust property in the Official Custodian.

Recommendation

The Executive is recommended to approve the changes proposed to the Trust Deed of the Farnham Youth Project and the vesting of the Trust property in the Official Custodian.

Background Papers (DoE&L)

FYP Trust Deed 1990
Deed of Substitution 2004

CONTACT OFFICER:

Name: Julie Maskery Telephone: 01483 523432

E-mail: jmaskery@waverley.gov.uk

comms/executive/20004-05/299