Lynton and Barnstaple - Operations and Development

If I have understood some of the previous posts, a vote to change the M&A also has to be approved by the Charity Commission. How long does this take? It would seem unlikely that that approval would happen before the normal AGM. Does this not slow down the possible wishes of the "six" to make unwanted changes?

 

It would appear to. Especially if the intent is to make nominations to the board subject to filtering - I've seen a suggestion elsewhere that the deadline for candidacies would be before the EGM

 

I don't believe that Charity Commission approval is required in this case. There are a number of specific changes which require approval. If approval is needed this is done BEFORE the resoultion is presented.

 

Thank you. If so, it seems premature to book the meeting when the permission is not yet in place and may not be.

However, when the NYMR articles were changed a couple of years ago, my recollection was that the decision went to a General Meeting and was then subject to Charity Commission approval.

The difference there was that the management of the charity were not under investigation for their conduct in the management of the charity.

 

Not knowing what changes are proposed - we cannot speculate as to whether advance permission is required or not. I am involved with a small charity and when we changed the rules we notified the Commission of the changes AFTER the General Meeting which adopted the changes had taken place. This is a notification rather than seeking approval.

 

IANAL - but perusing this: https://assets.publishing.service.gov.uk/media/5a7f922aed915d74e622b457/CC36.pdf says:

Unless the articles of association say that the commission’s consent is required for all proposed changes, charitable companies are free, in most cases, to make any changes which are not regulated alterations.

(An exception to this is where the effect of the alteration is to remove an express prohibition for paying a trustee so that the charity can use the statutory powers in the Charities Act. Although such a change is not a regulated alteration, it will in certain circumstances need separate authority from the commission.)

‘Regulated alterations’ refers to changes to the articles of association in areas of fundamental importance which require the commission’s prior consent. These fall into three broad categories:

1. Any change to the statement of the objects of the charity.
2. Any change to what happens to the charity’s property on winding up.
3. Any change which authorises the charity’s funds or property to be used to benefit the directors or members, or people or organisations connected with them.
​

That suggests to me that a change in how Trustees are appointed does not require prior approval; though there is a requirement that the Charity Commission is informed of any such changes after they are made. (Subject of course to what the current articles say about how they may be emended).

Tom

 

It is reported - but not yet confirmed - that the AGM will be held on the 11th May.

On that basis therefore, from the current M&AoA, I calculate as follows allowing for 'clear days' and postal periods :-

1. The earliest date for nominations for Trustees to arrive with the Trust will be 22nd March
2. The latest date for nominations for Trustees to arrive with the Trust will be April 5th
3. The latest date for posting the AGM calling notice etc will be April 17th.

So - what happens if Trustee nominations are received at WB on 22nd March under the old M&AoA procedures, which are then replaced by new M&AoA (with different arrangements) following an EGM vote on the next day? As the nominations would have been valid at the time of receipt by the Trust, I don't see how they could legally be rejected by the Trust retrospectively.

 

The date of 11th May was announced at the 2023 meeting, and is the basis on which peoples' diaries will have been planned. One of the defences for late notice last year was that the announcement at the 2022 meeting qualified as notice. It was a pretty thin argument but it would be hard for the board to argue that the new M&AoA should apply for a meeting that, by their approach in 2023, has already been called.

 

My understanding is that the changes are further reaching than that. We also need to consider that the governance of the Trust is under examination by the Charity Commission following a complaint, and that a move by that part of the board whose conduct has given rise to that complaint raises significant questions about whether a change can be legitimate. IANAL but the entrenchment of those individuals feels to me dangerously close to meeting the test in item 3 of your list.

 

Item 3 specifically refers to changing the rules to allow the directors [the trustees] or Members [anyone who is a member] to benefit financially from the Charity. For example the award of contracts to provide services for payment. Has a complaint been raised with the Charity Commission then? Don't forget that the board of trustees is an entity so if the complaint is against the Trustees then [in my understanding] it is against all the trustees.

It does seem strange to me that this forum has been advocating change to the M and A's of the trust and now that this seems to be happening people are unhappy.

 

I was taking a broad reading of (3), where the behaviour of the board (well, the six) is increasingly closed and focused on their narrow view of how it should be run - I don't allege that they are seeking to benefit financially, although the interplay of Trust/CIC/OSHI does bring in the "organisations linked to them" aspect.

There is a complaint in with the CC, and it has been active to the best of my knowledge since the middle of last year. While I agree that any such complaint is about the board, the CC are able to distinguish between portions of a board where there is a dispute - and have accepted (see Actors Benevolent Fund) that their role is not just to support the majority.

 

Possibly, I was simply making the point that (contrary to what some seem to assert) there isn't an automatic presumption that the Charity Commission must approve changes to the articles, but rather only in certain circumstances. Whether the proposed changes meet that threshold I can't say.

More generally though, two thoughts come to mind, influenced by this saga, and also the somewhat similar one on the WSR.

The first is that when ordinary members (and non-members) start having arcane discussions about the precise wording of the M&A, company law, charity law etc. - then something has already gone very wrong with the governance. I'm certainly not suggesting that such discussions are improper, but rather than in a normal functional organisation, you basically expect the Company Secretary to get on with all the boring arcane business of ensuring the organisation is properly run; that meetings happen at the appointed time with the appointed notice; that validly-nominated candidates proceed to election carried out with any issue etc. It is only when trust breaks down that those processes are functioning normally that the ordinary member starts to have to scrutinise such processes. So such discussions - regardless of the rights and wrongs on either side - are an immediate red flag that trust has broken down; and for that the accountability has to lie primarily with the current Chairman and Secretary.

The second point (also a feeling I had in the WSR saga) is - where are the grown ups? By which I mean - at some point there will have to be some compromise, and probably one in which none of the major protagonists form a part of the future. To achieve that, I'd be looking for one or a few "wise old hands", probably not closely connected to any of the main parties, but who carry the unimpeachable trust of those directly involved ion the ground (i.e. primarily the volunteers). The kind of person who, were you to cut them open, has L&B running through their insides. Ultimately, their role is to act in the wider interest of the L&B society, even if that means taking certain people into a room and handing out metaphorical revolvers. Done well, honour can be preserved - "I have been your chairman for 20 years, and in that time we have made great strides to go from a bare field to a flourishing railway operating over more than a mile with replicas of the original locomotives and carriages and a beautifully restored station at Woody Bay. Now, as we look forward to the next phase of development towards our vision of a twenty mile journey across the magical landscapes of Exmoor, I have decided to stand down so as to allow a new board with renewed energy and fresh ideas to lead us in the next phase of this great project. I will not be seeking re-election when my current term comes to an end, and I encourage those amongst the membership with the vision and drive to come forward to help us in this great endeavour ... [ etc etc]".

The alternative is a continued power struggle, but the outcome of that is likely to be that neither side is strong enough to land a knockout blow, so instead money, time, energy and enthusiasm will just leach away, possibly for years to come.

Tom

 

I think there's another parallel with the WSR, in particular the WSRA. The issues are primarily at the governance level, and have limited impact at the operational level.

My concern, as an armchair member with strong views that things should be done and be seen to be done well, is that the governance level matters much more than it did with the WSRA. There, we were dealing with a charitable arm of the railway, with limited influence and control. Here, we are dealing with the core organisation within the L&B structures*, in which governance is not "just" about keeping the show on the road, but also the aspirations of members to reopen far more of the railway.

Trust is required for many things - to buy land, obtain grants, get permissions, you name it. Events of the last couple of years have called that trust into serious question. For me, it is not that the planning application lapsed, but the circumstances in which it did so, and how the trust board reacted - and continue to react.

We are seeing a lot of arcane discussion about legal documents which, by and large, should be able to be left unread in the bottom of desk drawers. These are proxies for what is really a debate about who can best secure the future of the L&B, and make it what it can and should be. Speaking personally, I am unable to trust trustees who repeatedly look for procedural tricks, permissible or not, to protect their position rather than focus on the way ahead.

I don't, by and large, sense that personalities at Woody Bay are focused on these arguments for their own sake, but as conflicting visions of how the best future can be secured. On one hand, there is an existing trust board who have achieved a significant amount, but seem to be struggling to make the next step. On the other hand, there are people who want clear answers, and to be able to trust what they are being told. Our tragedy, as members, is that we're being forced into an either/or choice, rather than allowed to see a gentle changing of the guard.

If a wholesale change is required, with old names on both sides stepping back, then that may be a price worth paying. Unfortunately, I do not see any "grown ups" who are also neutral; matters seem to be deeply polarised. I will be glad to be proved wrong.

* - I refer to the organisations centred on Woody Bay. They are distinct from Exmoor Associates and the Yeo Valley Trust, but have significant overlap in their membership and support base. With a foot on each rail, my wish is that they can combine to greatest effect, rather than be made into

 

Has a (E)GM actually been called yet? We hear rumours of one, but I havent actually seen a formal notice advertising it yet. If the trustees are still assembling the agenda for the GM, then they can add whatever resoluitons they like.
Once the calling notice and voting forms have been issued, then its difficult (but not impossible) to change the agenda.

 

I have not received any paperwork yet. You could be right that the Agenda is still being finalised.

 

As far as I know:- A board cannot be forced to fall below the mandated minimum. Trustees/directors are prohibited from resigning etc if their leaving would cause the number to fall thus. If the board only has the mandated minimum number and, for example, one member dies then the board is below the minimum and it cannot make any rulings or decisions other than to arrange the appointment of more directors/trustees to bring the number up above the minimum. I'm not sure if they are allowed to co-opt onto the board or if they have to arrange a general meeting to vote on any replacements. no doubt someone on here will tell us.

 

I've not seen any formal calling notice yet, @ikcdab.

Either there will be a single motion on the M&As or there needs to be reasonable notice for motions, which, if duly proposed and seconded, should be put to the meeting.

 

What should happen and what sometimes does happen on the L&B can be very different.

 

Well @MellishR , here's our chance to move the needle by rejecting M&A changes that remove our democratic rights as Members to select who we want on the Board.

 

Anne Belsey provided this colour on Exmoor.NG yesterday. Cross posted with her permission.

Hi all,

Regarding the matter of the timing of the EGM, and its added expense, just a few weeks before the AGM, it may well be that the 'six' wish to ensure that the AGM elections are run according to the new Articles (which will exclude anyone who has not submitted themselves to the as yet non-existent Nominations Panel by the 11th March), but there may be another reason for their haste.

Progress on the rebuilding of Sir George Newnes (formerly Charles Wytock) has been such of late that the engine should be in steam later this year, possibly even by the time of the AGM (but no promises!). I understand that its availability cannot come soon enough for the locomotive department.

Should this come to pass, then it will be rather embarrassing to the 'six' that just as this refurbished engine enters service to ensure Steam Trains at Woody Bay, the instigator of the project, who bought the engine in 2019 to stop it moving to Statfold Barn, and now the Chairman of the owning company - the Bagnall 2819 Co Ltd - is being ousted by the 'six' as both a Trustee and a member of the Trust! They might even lose the vote, so far better to remove me before the engine appears.

Incidentally, shares in the Bagnall 2819 Co are still available. They cost £1000 each. Email me if you are interested or would like further details. Once we finish rebuilding the engine, the plan is to buy a new set of tyres as the lead time on these is quite long.

Regards,

Anne Belsey

Chairman
Bagnall 2819 Co Ltd