Lynton and Barnstaple - Operations and Development

Forgive me not getting into this earlier - I've been away with work.

I've just seen the Newsletter and the legal advice. Firstly, well done to the Trust for publishing it, this is a welcome step forwards.

However, the legal advice begs more questions than it answers. The two motions to remove Anne Belsey and Chris Duffell were motions from ordinary members, which were never voted on by the Board at the February meeting. This means that according to the Board's own legal advice they were illegitimate as they were not signed by 5% of the Members.

What actually happened is that the Secretary allowed these two motions signed by six ordinary members onto the Agenda of an existng meeting, where they were narrowly passed. Fair enough.

But when the identical situation occured, the Secretary decided to exclude a motion to remove Peter Miles, citing this legal advice.

This is discrinatory, and clearly one rule for one and one rule for another. This is absolutely no way to run a membership organisation, and even if it is strictly legal, it is dreadful practice.

After all, if Mr Miles expected to win, he'd have ensured that there was a vote.

Disgraceful.

 

Herewith the relevant section of the board minutes from 10/02/24. Vote on Articles special resolution. No vote on ordinary resolutions. Just noted, right at the bottom of AoB.

Some are more equal than others.

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Note also from Newsletter 83 in the section about TWAO:-

"A TWAO is not required to cross under public roads if planning approval for the necessary bridges has been granted with the approval of the Highway Authority". {my emphasis}

That statement, if correct, would appear to explain therefore why it has been claimed previously that no TWAO would be necessary to run from KL to CFL (or PE). It would have saved a lot of concern/uncertainty if that explanation had been provided earlier.

Is it too much to hope that the full details of the proposed KL - CFL extension will be shared with the membership before the planning application is submitted to ENPA and put into the public domain?

 

I think that seperate legal advice was sought for the EGM and the AGM.

The AGM is later today and 4 trustees will be elected - at least 3 of these will be new. Hopefully the result will be published shortly after it is known.

 

Forgive me, @H Cloutt, I think you're missing my point. The point is that there are two exactly equivalent situations where two or more ordinary members submitted motions to remove Trustee Directors under s168 of the Companies Act 2006.

In neither case were they Board resolutions, and therefore according to the Trust's own legal advice they should have had to have called an EGM with 5% of the membership and borne the costs themselves.

In the case of the motions to remove Anne Belsey and Chris Duffell, these rules somehow didn't apply. And in the case of a motion to remove Peter Miles they do.

The Board can't have it both ways.

 

I understand your point but I don't agree with your conclusions.

 

What is stated in the newsletter was my understanding of the situation with regard to the TWAO which I must have read somewhere. However someone posted on here that a TWAO was required to pass under the road - I was sceptical about this statement at the time but they were adament and I don't know where they got the information from.

Whilst it would be great to see the full details of the planning application prior to submission I am not sure how this could be achieved. I am happy to be provided with the link to the application once it has been submitted.

 

Thanks. @H Cloutt - but why? The Board seems to think that they're allowed to discriminate between members. Why is this ok with you?

 

I don't see it as discrimination - clearly you do. We are both entitled to an opinion - I don't have to agree with you and you don't have to agree with me.

 

Perhaps it’s the distinction between compliance with the law and expectations of equality and fairness. I recall Tobbes insistence that the directors should comply with “the law of the land”. It seems that is now to be qualified by “ unless doing so is perceived as discriminating between members”?

 

That’s a bit of a straw man argument. No-one is saying that equality should be followed to the detriment of the law. But it should be perfectly possible to act in a lawful manner and also behave equitably. If accepting the motion to dismiss Belsey et al was lawful, then surely the motion to dismiss Miles was also lawful. So why allow one and not the other?

Tom

 

Of c

 

Of course you are entitled to your opinion (as is everyone else), but could you please explain why you think the two situations warrant different outcomes?

 

I find this all rather sterile. Just because the law allows people to get away with acting a certain way doesn’t make it right, particularly in the context of the membership body of a heritage railway.

 

I suggest You’re identifying the conflict between expectations that heritage railways will be governed like membership societies rather than the companies or incorporated charities that most have become.

 

And I suggest that you default to assume that because the law says X that a board can consider no other option. In the case of the motions, the board could say “we can put what we like on the agenda and stuff what the members think because the law says we’re right” OR they could say “we’re a membership organisation, let’s play fair and make the same rules apply to all our members (even though we legally don’t have to)”

 

Perhaps.
The issue as I see it is that we are not talking about “normal” companies and Boards need to have due regard to that fact.

 

But at the end of

That would be something of a minefield. Heritage railways have usually become incorporated following a decision of the members who may not have understood what that meant in terms of the imposition of company and in many cases charity law. It’s also not always understood that the Articles of an incorporated entity are binding on its lmembers.
Both directors/trustees and the members need the clarity of a set of rules and governance procedures that come from the relevant law as reflected in the articles. Take that framework away on the spurious notion that they are not proper companies of incorporated charities and they become potentially unmanageable.

 

I agree with @Jamessquared, @Lineisclear, but you may want to reflect on how this appalling behaviour with the fairness requriements on Directors under s172(1)(f) of Companies Act 2006?