Date: 23 November 2018 at 00:10:32 -00:00
Subject: RE: FW: Spectator stand removal from Newbury Football Ground
To: Nick Carter <Nick.Carter@westberks.gov.uk>
Cc: Graham Jones <Graham.Jones@westberks.gov.uk>, James Fredrickson <James.Fredrickson@westberks.gov.uk>, Bob.Sharples@sportengland.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com
Thank you for replying promptly. Having recently received further information and formal advice, I am able to respond without prejudice as follows:
As there is no proof of sale or transfer by West Berks Council to Newbury Football Club, Newbury Community Football Group’s solicitor has advised that the stand is a public asset owned by WBC. By stating that the legal position is open to interpretation, you appear to acknowledge our assessment. Your property colleagues and advisors will know that the provisions of the relevant legislation relating to assets left by former tenants are respected in the lease between WBC and NFC. The stand is identified in NFC’s 2006 and subsequent leases and there is a specific obligation imposed by the landlord on the tenant to keep erections, structures and buildings on the premises maintained (as owned by the landlord and marked on the lease plan which includes the stand).
You stated previously that the Asset of Community Value regulations are bypassed by NFC gifting the stand to Hungerford Town FC. This claim of gifting is at odds with the justification given by WBC's Bill Bagnell (Freedom of Information request email thread 17 July 2018 – to which you were copied – “The outgoing club have offered the demountable spectator stand [which doesn’t belong to WBC] to Hungerford Town Football Club who very much wish to purchase it from the club.”) for the Council to support the pecuniary disposal of the stand by NFC to HTFC. For your assertion to be correct, the circumstances must have changed, in which please state what part the council played in facilitating the transfer as a gift, particularly if the council requested the sale to be a gift and if so, why. In any event, supporting a sale or gift of the stand is inappropriate behaviour by the council. The purpose of the ACV legislation and regulations is that local authorities should play a positive and active role in protecting the assets in the public interest. It follows that an authority should not devise to undermine these rules. If the council has circumvented the ACV then there would be parallels with the recent judgement by the Court of Appeal in that the council unlawfully avoided public procurement regulations.
Clearly, it makes no sense whatsoever for NFC (who for the avoidance of doubt, we say do not own the stand) to attempt to gift the stand to HTFC. According to facts disclosed by WBC in the FOI, NFC’s purpose is to raise money from the sale for the benefit of their private club. The above FOI also includes this statement from an HTFC officer on 16 July 2018, “We have agreed with Newbury F.C to purchase the stand at Newbury football club.“ The council would have had to transfer the stand to NFC in order for NFC to be in a position to organise either a monetary or non-monetary disposal. As our request for confirmation and proof of any such transfer by the council has not been satisfied, we conclude therefore that a transfer has not occurred and the stand is a public asset. This being the case, then gifting it to HTFC (a members run club occupying a private ground) is not in the best interests of the public. Furthermore, such a transfer to a private commercial entity might be examinable under best consideration and/or state aid provisions. It might even also breach the human rights of the public users of Newbury Football Ground. Even if the Council were able to devise a technical method to gift or sell the stand to HTFC (to the detriment of public interest), it would then have to procure its replacement in accordance with reinstatement/reprovisioning obligations a defined by Core Strategy, Sport England and National Planning Policy Framework at a cost to public funds.
At the Vision conference WBC also proposed the Northcroft football initiative as a future facility for NFC and not as a like-for-like replacement of Newbury Football Ground. As you know Sport England policy, national planning policy and the council’s core strategy require a like-for-like or a better replacement facility. If the council is considering proposing Northcroft as a replacement community ground, then reinstatement/reprovisioning would come at a huge cost, including requiring the council to buy a new stand. This would be irrational in the extreme and very possibly fail a Wednesbury (unreasonable behaviour) Test. Clearly, advancing plans to create a football ground at Northcroft (which we doubt are genuine or practical) are unnecessary and will consume public funds that are sorely needed for frontline services as further cuts to council funding have just been announced. To place on record, as your colleagues must know, Northcroft has been previously discounted as an appropriate location for an organised higher league football ground and in any event the cost of relocating the existing and fit-for-purpose football ground would be very high. Northcroft suffers from poor ground conditions and flooding risk – it is in fact part of the active flood plain in Newbury’s flood alleviation scheme. By contrast, Faraday Road benefits from protection afforded by that scheme. This makes the council’s publically announced proposal all the more strange.
We need to know who is responsible for the partial removal of the stand. Enquires with the Council’s Building Control department suggest that the Council, as land owner, appears to have allowed demolition to start without ensuring compliance with the Building Act (particularly sections 80 and 81) and relevant Building Regulations.
In light of the above and particularly considering the Appeal Court’s quashing of WBC’s contract with St Modwen which must cause serious further delay to the council’s unjustified desire to redevelop the ground as private flats, we formally request that the Council:
Immediately halt the stand being removed.
Reinstate those parts of the stand already removed.
Drop the already overdue plans to develop the Faraday Road site into a multi-sports area (if they have been advanced) and reinstate the ground to its protected purpose of Newbury’s main football ground where organised league matches for the female and male, youth and adult member organisations of our group and other similar clubs can be played in front of seated, sheltered spectators in the stadium . I repeat NCFG’s offer to take on the running of the facility.
Support the community’s reasonable and positive initiative to improve Newbury Football Ground with third-generation ‘3G’ artificial pitches and new facilities (at no cost to the public purse), which as well as being at one with WBC’s Health & Wellbeing Strategy and its recently announced Leisure Strategy, will be in line with the forthcoming Playing Pitch Strategy. Such an approach would be received positively by the public at large, be self-evidently beneficial, vastly improve use by local football clubs, schools and academies of all ages and generate income for the council.
It is puzzling that the council persists in resisting proactive and positive consultation with the football community; private discussions with NFC and their Thames Valley League does not amount to engagement with the whole footballing community – that’s just the viewpoint for one men’s team.
We therefore propose an urgent in-good-faith meeting between the council, NCFG, the sporting bodies and all other relevant stakeholders. The purpose is to agree a positive way forward for improving secure, high-quality football facilities in the town for the health, wellbeing and benefit of its growing number of inhabitants.