Potential Changes to WPCC’s Constitution

In a media release following their 2nd December 2019 Board meeting, and at their General Open Meeting on 9th December 2019, the Board announced that they had been giving consideration to possible amendments to the charity's governing documents. 

The exploratory work in this area has been carried out by the charity’s Constitution Working Group, the terms of reference for which provide clarity of scope and purpose: “The purpose of the Group is to consider amendments necessary to WPCC’s constitutional framework that will enhance WPCC’s ability to achieve its fundamental  purpose of preserving, protecting and enhancing the Commons for the purposes of exercise and recreation as established by the Wimbledon and Putney Commons Act 1871.”

“Constitutional reform is not about introducing a more permissive regime or diluting the fundamental purposes of the charity, but about introducing a workable set of rules to enable the organisation to fulfil its core objectives.”
The exploratory work has helped identify the key areas requiring change and the procedures through which such change could potentially be effected. The Conservators therefore  resolved at their Board meeting of the 2nd December 2019 to commence a phased consultation to understand the views of stakeholders regarding potential amendments to WPCC’s constitutional framework"

In order to provide some clarity on these technical legal issues, the Board have now released the following Q & A:

 

Questions and Answers for

Potential Changes to WPCC’s Constitution

 

Background

Wimbledon and Putney Commons Conservators (WPCC) are custodians and owners of 1140 acres of public open space, made up of four main areas: Wimbledon Common, Putney Heath, Putney Lower Common and the Richardson Evans Memorial Playing Fields.

Much of the Commons are of national importance being designated a Site of Special Scientific Interest and a Special Area of Conservation for the rare lowland heathland habitat.

The Commons came into public ownership on the 16th August 1871 following Royal Assent of the Wimbledon and Putney Commons Act 1871 (‘the 1871 Act’). On the 14th April 1972 the organisation became a registered charity (charity number 303967).

Has the Wimbledon and Putney Commons Act 1871 ever been amended?

Amendment of the Wimbledon and Putney Commons Act 1871 (‘the 1871 Act’) is a matter that has been proactively considered by the Conservators on several occasions throughout WPCC’s history, including an attempt to alter the levy via a private parliamentary bill in 1976 as well as an initiative to clarify other matters some thirty years later, though neither of these efforts were successfully taken through to completion.

The 1871 Act has however been subject to numerous amendments that were necessitated by wider legislative developments including the Wimbledon and Putney Commons (Special Levies) Regulations of 1990 and Amendment Regulations of 1993, the Statute Law (Repeals) Acts of 1993 and 2004, the Transfers of Functions Orders of 2001 and 2005, the Criminal Law Act 1977, the Criminal Justice Act 1982 and the Value Added Tax (Refund of Tax to Charter Trustees and Conservators) Order of 2009.

Why are the Conservators developing a Masterplan for the Commons?

The ‘Commons for the Next Generation, Green Space for All’ project to develop a new Masterplan for the Commons was officially launched on the 1st November 2019. Funded by a grant from the National Lottery Heritage Fund, the project will enable work to be undertaken to better understand the challenges and requirements of the Commons as the 150th anniversary of the passing of the 1871 Act that brought the Commons into public ownership approaches.

Wimbledon and Putney Commons is one London’s most important and cherished open spaces. Serving residents and visitors alike the Commons offer opportunities to escape into a wild and natural landscape, it is not a designed park, but a relic of the former manorial lands owned by Earl Spencer.

The Commons provide a place for relaxation and enjoyment in an intrinsically beautiful natural environment close to the centre of the capital. We know that people care passionately about their Commons.

There is a clear mandate through our founding legislation, charitable objectives and the special designations of our sites for our duty to protect and preserve the Commons and making them available for the purposes of exercise and recreation. We are not looking to alter these.

Rather, we are focusing on securing the long-term future of the natural environment of the Commons and of their facilities, and on improving the understanding and identity of the Commons together with ways to balance competing demands for use and engagement by visitors. We need to be able respond to changing environments and demands on the use of the site, be these climate change or the need to be able to invest in infrastructure and buildings.

The creation of a Masterplan for the Commons will articulate how the landscape and built assets relate to one another looking at interpretation, education, volunteering, visitor facilities, perimeter conditions and landscape management.

The first stage of consultation on the development of a masterplan has been launched. Whether or not you visit Wimbledon Common, Putney Heath or Putney Lower Common, as the charity which manages Wimbledon and Putney Commons, we would like to hear your views on these green spaces and their current visitor offer. Your feedback will inform a new masterplan for Wimbledon and Putney Commons, ensuring they provide a sustainable, accessible and exciting resource for the whole community going forward. The survey is now closed.

Why are any changes required to the WPCC’s constitution?

Implementation of the masterplan will require sustainable financial capacity, operational clarity and effective governance. In pursuit of these objectives, the Conservators have over the course of the past 18 months, examined the constitutional amendments necessary to provide this resilience.

The Ten-Year Strategy for the Commons, adopted by the previous Board in June 2017, identified the need to review the constitution to address inter alia governance matters and the levy.

At the first meeting of the newly constituted Board on 12th April 2018, Conservators agreed to support this initiative, recognising the potential of constitutional reform to enhance the ability of the Conservators to carry out the duties of preserving, protecting and enhancing the Commons as articulated in the 1871 Act.

The relevant documentation that would be reviewed included the 1871 Act (as amended) as well as the Commissions Clauses Act of 1847 (as amended) and byelaws made under the 1871 Act, both of which are subordinate to the 1871 Act.

The review has been focused on identifying areas where amendments to the constitutional framework are potentially required in order to provide clarity, alignment, operational practicality and deliverability of WPCC’s powers and rights and in doing so, allow the organisation to consistently achieve high operational and strategic performance standards.

WPCC’s obligations as a charity under the Charities Act 2011 are also relevant, particularly in governance matters.

The Conservators agreed to progress this work through a Constitution Working Group, in accordance with terms of reference, which were subsequently developed and published in June 2018; a copy can be downloaded here.

Following eighteen months of exploratory work, the Conservators agreed at their 2nd December 2019 Board meeting to commence a phased consultation to understand the views of stakeholders regarding potential amendments to WPCC’s constitutional framework in the following three areas:

1.  Potential amendment of WPCC’s Special Levy, recognising that:

i.  a founding principle of the Wimbledon and Putney Commons Act 1871 Act is that the Levy is intended to serve  as the principal source of funding to maintain the Commons; and

ii   the Levy is currently insufficient to meet the long term maintenance and investment requirements for the Commons;

2. Regularisation and clarification of land and buildings - enabling WPCC to resolve a number of operational matters associated with managing the Commons, recognising that there is neither a desire nor intention of diluting or diminishing the very high level of protection that is afforded by the Wimbledon and Putney Commons Act 1871 to one of the most unique and precious resources in the country but simply a need to ensure that the Act provides a sound legal basis for future investment in all aspects of the Commons; amendments to address the issues in this area would neither impact WPCC’s charitable objects nor diminish the duties imposed upon the Conservators but regularise the current state of the estate and clarify the Conservators’ powers and prohibitions in this area;

3.  Modernisation of WPCC’s governance arrangements and election procedures - recognising the practical challenges of working under legislation dating back to the founding legislation of 1871.

The primary means of effecting changes to WPCC’s constitution will be through secondary legislation.  The House of Commons' Briefing Paper on Statutory Instruments provides further information on this procedure.  

Who sits on the Constitution Working Group?

The group is chaired by Colin Cooper, WPCC’s Chief Executive, and comprises five Conservators and two external representatives, both of whom are leading experts in their fields: Mrs Francesca Quint, a specialist charity barrister, and George Laurence QC, a leading expert in open spaces.

Both barristers have most generously given an enormous amount of their time in a voluntary capacity over the past 18 months and continue to make a significant and valuable contribution; we are most indebted to them for their support.

In the interests of transparency, we would like to clarify that any informal support provided to the working group by the external members has from the outset and continues to be made on the understanding that it does not constitute formal advice. If either barrister were engaged to provide formal advice, that would be done by solicitors instructing counsel in the normal way, if appropriate.

What won’t change?

Legal advice received in recent years has recognised that the constitution of the Charity needs reviewing. It is not however about introducing a more permissive regime or diluting the fundamental purposes of the charity, but about introducing a workable set of rules to enable the organisation to fulfil its core objectives.

The constitutional review has recognised the very unique and special character of WPCC as well as the independence that the organisation enjoys. The review process is not an attempt to standardise the organisation in line with other charities or other bodies with similar purposes.

The preamble to the 1871 Act sets out the principles that are not negotiable in terms of updating the Act to make it “fit for purpose” in the twentieth century. The Charity’s fundamental purpose is to protect the Commons and make it available for the purposes of exercise and recreation. The Act is supplemented by the Commissioners Clauses Act 1847 which deals with the constitution and regulation of Wimbledon and Putney Commons Conservators:

“And whereas it is expedient that provision be made for the transfer from Earl Spencer of his estate and interest in the commons to a body of Conservators to be constituted so as to represent both public and local interests.”

All Conservators have duties towards representing both local and public interests of the charity.
There is no special obligation on Elected Conservators to represent or give preference to the views
of the electors in the course of administering WPCC, although the holding of triennial elections is a
democratic non-negotiable process, or for Appointed Conservators to only represent or give
preference to the public interest.

“whose duty it shall be to keep the commons for ever open, unenclosed and unbuilt on their natural aspect and state being, as far as may be, preserved”

It is the responsibility of the Conservators to keep the commons open and unenclosed and unbuilt
on and to preserve their natural aspect.

“And, to protect the turf, gorse, timber, and underwood thereon, and to preserve the same for, public and local use, for purposes of exercise and recreation, and other purposes.”

WPCC’s underlying charitable principles are – protection of the environment, making the site
available for exercise and recreation, and other purposes.

“And where it is expedient that the body of Conservators to be constituted as aforesaid be empowered to raise a competent revenue principally by means of rates (special levy) to be levied upon such property as will primarily benefited the operation of this Act.”

The special levy raises funds to support the Wimbledon and Putney Commons Conservancy Fund.

“There shall be a body of Conservators for carrying this Act into execution, …, and who are hereby incorporated by the name of the Wimbledon and Putney Conservators, and by that name shall be one body corporate, with perpetual succession and a common seal, and with power to take and hold and to dispose of (by grant, demise, or otherwise) land and other property.”

The Conservators are a statutory corporation and charity. They must exercise their powers for proper and exclusively charitable purposes. They must also act reasonably, having regard to relevant matters and disregard matters that are irrelevant.

How can I contribute my views?

The Conservators have recognised that public support of any proposal seeking to reform the constitution is essential and are therefore keen to seek views from members of the public at the earliest opportunity.

The Board agreed that the consultation will be carried out on a phased basis, moving from preliminaries to concepts and principles before starting to formulate specific policies.

The first phase of the consultation process will commence in Spring 2020 and it is anticipated that the consultation process will last until at least Autumn 2020.

As we approach the 150th anniversary of the Commons, the Conservators, as stewards of this cherished open space, want to ensure that all those with a passion and interest in the Commons are able to contribute to not only the long-term vision and masterplan for the Commons but to the constitutional reforms necessary to deliver that vision. More information on the consultation and engagement work will be published as the project evolves. Please do sign up to the Commons e-newsletter to find out more.

The Conservators have agreed that any decision to make a formal application to amend the constitution to the relevant authorities will only be contemplated by the Board after the specific policies (including draft text) have undergone meaningful and proportionate public consultation.

What are the principles underpinning each of the proposed changes?

1.  Finance

• A founding principle of the 1871 Act is that the Levy is intended to serve as the principal source of funding to maintain the Commons
• The Levy currently generates £1.2 million of £1.8 million expenditure with balance provided by user fees, investment returns and leases on buildings; the aggregate levy is indexed annually to RPI
• Current revenue no longer meets WPCC’s requirements and both planned preventative maintenance and capital investment have suffered (particularly buildings)
• Fundraising activities make a contribution but they cannot provide a basis for long-term planning (though they do assist through one-off expenditure via capital campaigns)
• Any increase will be evidence based; research is being conducted to
  
  (a)  explain current position in the historical context and
  (b) determine future funding requirements based on independent assessment of future capital and operating costs reflecting expected visitor numbers (proper maintenance and capital investment)
  
  and as such, WPCC will not have a view on the potential quantum until this work is completed but as the evidence base develops, where appropriate, the research results will be shared as part of the consultation process (evolving but likely July 2020 for metrics work)
• Visitor numbers are a key cost driver and the last time any work was undertaken to understand visitor numbers was in 1976 at which time studies were undertaken on three days in each of April and July; visitor numbers at the time ranged from 1,600 to 10,600 (average of 5,200 visitors per day)
• The levy may potentially be amended either by Statutory Instrument or Private Bill; the Conservators’ preference at this stage is to proceed using a Statutory Instrument given the advantages in terms of costs, risks and timescales, but confirmation of the feasibility of doing so and the parliamentary procedure is outstanding
• Amendment by Statutory Instrument will almost certainly therefore be confined to rebasing the quantum; despite strong intellectual arguments for reviewing the levy boundary and amending the levy mechanism, such changes would require primary legislation in the form of a Private Bill and the Conservators’ duty to make best use of charity resources favours the use of secondary legislation if possible
• WPCC will continue to use other fundraising mechanisms (eg, Friends, voluntary parking scheme) as a way of engaging those outside the levy area

2.  Operations

• Both the natural and built landscapes of Commons have evolved since 1871 in accordance with powers and duties conferred and imposed on Conservators (eg, the Richardson Evans Playing Fields were added during the period 1908 to 1925 and as a result of the changes to the alignment of the A3 distributer road in the 1960s at Tibbets Corner, compensation land was provided at Putney lower Common)
• The 1871 Act provides a clear purpose and duties governing stewardship of the Commons with repeated references in preamble and act itself to preserving, protecting and enhancing the Commons, keeping the Commons open, unenclosed and unbuilt upon for the purposes of recreation and exercise
• There is neither a desire nor intention to dilute this very high level of protection that is afforded to one of the most precious resources in the country by altering the charitable purposes or diminishing the duties of the Conservators
• Despite this clarity of objectives and duties of the 1871 Act, specific provisions regarding certain powers and prohibitions are in some cases less clear, if not absent, particularly with respect to buildings (eg, demolition and relocation of buildings)
• This lack of clarity has led to uncertainties in the constitutional status in some of the buildings, necessitating endless legal opinions, which are occasionally contradictory and in any event not definitive – matters can only be settled by the courts
• The purpose of constitutional reform in this area is therefore to ensure that there is a sound legal basis for future investment in all aspects of the Commons, allowing the Conservators to carry out proper long-term planning of estate
• The process will be done through a mapping of the estate (1871 and 2019) identifying all changes since 1871 (natural and built environments) and the provisions through which such changes were made, with a view to agreeing the new baseline
• The process will also clarify the legislative framework, particularly in relation to buildings and access rights, reflecting court judgments that have been made (as far back as 1894) and reducing future time and expense seeking legal opinions before contemplating every investment decision
• The proposed parliamentary route is via a scheme under Section 73 of the Charities Act 2011; WPCC is fortunate to have the support in principle of the Charity Commission for a scheme, with whom the Conservators have met and shared their views on the broad areas requiring amendment
• The Conservators have also communicated to the Charity Commission that they want to consult on actual proposed policies before deliberating a decision to file an application with the Charity Commission to amend the constitution
• Having the support from the Charity Commission is essential and signals a positive endorsement of the organisation; it also reflects the efforts the Conservators have made in this area
• The consultation will involve agreeing principles before proposing specific policies; the mapping exercise is therefore critical and Conservators aim to complete this by February 2020

3.  Governance

• The governance arrangements for 1871 Act are primarily set out in Commissioners Clauses Act 1847, which is subordinate to 1871 Act
• The current arrangements present operational challenges for managing a charity in the 21st century in certain areas (eg, alignment between Commissioners Clauses and Charities Act in matters such as approving annual accounts)
• Updating the Commissioners Clauses Act 1847 is an important step in improving the effectiveness of WPCC’s governance arrangements
• In addition, there is a need to clarify a number of election procedures (eg, deadline to declare candidacy)
• As published in June 2018 and September 2018 resolutions, Board has agreed draft election guidelines which have been reviewed by independent body (Electoral Reform Services – now Civica Election Services); Conservators are awaiting report of the Charity Commission’s report on the Statutory Investigation, which is looking at election, before taking these further
• The Conservators aim to have these procedures in place before 2021 elections

if you require any further clarifications, do please contact the Ranger's Office