Lynton and Barnstaple - Operations and Development

My reading of Clause 27 is that the 'default' applies merely to the fact that the 'instrument of proxy' did not arrive at the right place within the right timescale. In other words, 'default' in its meaning of "failure to meet an obligation/requirement" as opposed to a "preselected option". Nothing to do with the format of the 'instrument of proxy' IMHO, which is covered - rather vaguely - in Clause 28.

 

You may be right. Which rather reinforces my concern - this is a situation in which the rules of conduct need to be absolutely clear and incapable of confusion.

 

I agree. One might have hoped that "lessons would have been learnt" from past experiences - given how recently there were 'voting issues' at General Meetings, there seems little or no excuse for it (apparently) to have happened again so soon.

 

Has anyone heard on what basis the Chairman has apparently vetoed Anne Belsey's nomination for membership of the Board of Trustees?

 

If you appoint the Chair of the meeting to act as proxy and complete the voting form then he/she has to vote in accord with your voting instructions. This is the case with Limited companies, professional Bodies and Building Societies. So I am unclear if there is problem not not.

I am somewhat surprised that ENPA took the view they did over the S73 application - I saw a legal opinion from the Trust on the ENPA website dated [I believe] after the email from ENPA posted above. This contradicted ENPA's view if I remember correctly.

The fact that RVR sucessfully obtained a S73 to phase their development from RDC - I am somewhat puzzelled by ENPA's view.

 

@35B @RailWest I dont know, I was just making a suggestion...

 

And it seems like a good idea. The problem lies in the lack of clarity in the rules, and hence the doubts that arise over how a close decision would be adjudicated.

 

You are correct of course.

However experience from elsewhere would suggest that, in the absence of any independent scrutiny, there will be those who will question how it can be proven that the Chairman has in fact acted correctly in that matter. Equally, if something comes up that leads to a vote for which no prior 'direction' has been given, then what? We can not escape the fact that, particularly in the light of recent 'revelations', there will be those who - rightly or wrongly - may prefer to have their own like-minded proxy rather than rely on a member of the Board to exercise that role.

 

Thanks - I've just checked my scan of the voting forms for previous years and the wording appoints the Chairman as proxy and states 'Unless otherwise instructed as shown below, the proxy may vote as he sees fit or abstain'. Do the rules allow for matters other than those on the voting form to be voted on.

 

Sorry to be a pedant - but Anne was a director of the CIC rather than a Trustee.

 

Anne resigned as a director of the CIC, but was proposing to stand as a Trustee. On what basis her nomination was vetoed is, so far, anyone's guess, but it was vetoed by the chairman.

 

Thanks that wasn't clear from the posts above.

 

The ENPA took the view it did, because it consulted its own legal counsel, who basically took the same view as the objectors counsel.
They really didn't have much choice from then on.
See post #7995 above for the full response from ENPA, and their counsel.

 

Its actually quite a bit more complex than many realise. After looking into Section 73s for some planning applications nearer to home it led me into delving into Planning Law quite a bit and I found it actually quite interesting, especially the case law running in the background.

As far as I can see, since the introduction of the Planning Practice Guidance (PPG) in 2016 along with the "Minor Material Amendments" for Section 73s it's become a bit of a nightmare for planners and applicants alike with the case law evolving quite rapidly at times with complete reversals in the findings. We have also seen changes in Oct 2018 to the application of Grampian Conditions.

The problem arises where the wording of the statutes and PPG do not agree, this has led to confusion and indeed even as Judge Strachan noted in Armstrong vs SoS, Jan 2023, that it could lead to many being "misdirected" as the Inspector was in that case.

Another problem arises on what is negotiated is mostly private and confidential, it does appear the Planning Officer quoted in the post above waived legal privilege in this instance, but we do not see the other parties legal opinions and negotiations due to privilege. As such, it is difficult to make any judgement on the issue if indeed we can even with the additional evidence, we are after all not judge and jury.

So, to obtain context to at least find some understanding we need to note that the Section 73 was submitted in May 2022, the legal challenge was somewhere around the beginning of August and quite late in the determination period, the official notification to the Trust by the ENPA was the 15th August, this was around the date where determination should have been if going by the Planning Performance Agreement put in place.

Legal consultations were still ongoing by the time we had the Members Forum in November and and subsequently an amended Section 73 was submitted in December.

The Armstrong vs Sos case was in Jan 2023 which changed case law once again with the finding that nowhere in the statutes does it define what a "Minor Material Amendment" is, as a result the appeal was upheld and a previous refused application was deemed legal and should be accepted and determined, this will quite possibly have caused ripples in planning departments and prospective applicant offices too.

Currently after being passed in the Commons there is a proposal being out forward in the Lord's (I believe now at the third reading) to introduce a Section 73b which will hopefully clarify and resolve some of the issues we have seen in the last few years.

Its all rather complex, with varying opinions, which after all are only opinions and to be honest, anyone involved in planning, the applications, etc etc are damn well welcome to it lol

 

A possible "woolly area" here is the final Clause 69 of the M&AoA, which in effect allows the Trustees to make up such rules or bye-laws as they see fit for the operation of the Charity. To some extent therefore it might be the case that the Chairman could get a new rule/bye-law agreed by the Board that would (say) enable him to veto a Trustee nomination for some reason.

However, having said that, Clause 69(2) says inter alia that ".........the trustees shall adopt such means as they think sufficient to bring to the notice of members of the Charity all such rules or bye laws.....", so it would seem outwith the scope of the Chairman to try to exercise any new power not yet promulgated to the membership as a whole. Further the same sub-clause also states "........no rule or bylaw shall be inconsistent with, or shall effect or repeal anything contained in, the memorandum or the articles...." and IMHO trying to veto a Trustee nomination for any reason not explicitly covered in the M&AoA would be a contravention of that requirement.

But then, I'm not a lawyer....I just read what the M&AoA says and note what they do not say...

 

Well guys if all of you are confused and both the Chairman of the Trust and the Trust Secretary are also confused over what the M&A say, well you are going to have a wonderful meeting, good luck.

 

I am reminded of a situation a few years ago (in another context which ironically may become relevant to the Trust in due course) in which a legal action was launched under a provision which permitted such things in 'exceptional circumstances'. (In this particular case the 'exceptional circumstances' were considered to be that the 'usual procedure' would not be quick enough to bring a halt to another action already underway before it was too late.) The judge dismissed the case - not on its merits or demerits - but on the simple basis that, as no official guidance existed as to what constituted 'exceptional circumstances', then he could not rule that exceptional circumstances existed to enable the case to be heard.

 

I would suggest that any such action by the Chairman under clause 69 has to be submitted to the Charity Commission in written format for approval before it can be used.

So technically he could have over stepped his powers of being the Chairman. The other thing is of course that while it may not be in the M&As you have to remember that anything not written in the M&A's will be covered by the last Act of Company Law 2016 I think it was.

 

A chairman cannot veto an application to be a trustee

 

Its a veritable minefield to be honest.

Here is one page from the threads that I followed regarding Arrowcroft. Very interesting reading if law is your thing.

https://www.freeths.co.uk/2023/02/07/the-scope-of-section-73-planning-applications-and-recent-cases/

Edit:I see that it also mentions the Armstrong case too.