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Recreation Grounds and Village Halls -
Are they on Charity Land?

The Bath Recreation Ground Case

Baddeley v Sparrow and others [2015] UKUT 420 (TCC)

Baddeley v Sparrow (2015) was an appeal to the Upper Tribunal against the decision of the First-tier Tribunal in relation to a Charity known as The Bath Recreation Ground Trust.

The recreation ground in question was acquired by the Mayor, Aldermen and Citizens of the City of Bath (Bath City Council) in 1956. The Conveyance set out the trusts on which the land was to be held. In 2002, the High Court had determined that the trusts on which the land was held were charitable. Prior to that decision, Bath City Council, unaware that it held the land as the trustee of a charity, built a leisure centre and a car park on part of the land and leased another part to Bath (Rugby) Football Club. In 2013, the Charity Commission made a Scheme, which was intended to 'regularise the unsatisfactory position in which the Charity had found itself, by amending its purposes, its administrative powers and its governance arrangements'. The land held by the City Council and subsequently by Bath and North East Somerset Council (BANES) was thus vested in the Official Custodian for Charities and administered locally.

The Appellants in this appeal are individuals who have been appointed as managing trustees for the Charity. Three of the Respondents are people who live near the recreation ground. They objected to the 2013 Scheme and had taken their case to the First-tier Tribunal. The First-tier Tribunal had amended the 2013 Scheme in 2014, restricting the Trustees' ability to make any further agreements as to the use of the land. The fourth Respondent was the Charity Commission.

Permission to appeal was given to the Trustees on the basis of the following claimed errors of law:

  • (1)(a) The First-tier Tribunal did not have sufficient evidence of the original intention of the sellers of the land comprised in the 1956 conveyance, to justify the interpretation that the true charitable purpose was to preserve the land in specie (i.e. to preserve this particular plot of land and no other) as an open space.
  • (1)(b) The First-tier Tribunal was wrong to distinguish the trusts establishing The Recreation Ground from those considered in the 1956 Court of Appeal case, Oldham Metropolitan Council v Attorney General, and to treat them as within the type of case having a purpose rendered charitable 'by reason of the particular qualities of the land in question'.
  • (2) If the grounds of appeal in (1) do not succeed and the land held on the trusts of the Charity is held on trust to be preserved in specie as an open space, the First-tier Tribunal should not have regarded the provisions relating to the lease in the Scheme and any modification of it as being 'administrative' rather than cy-près provisions.' [Note: A cy-près provision is one where a charity cannot achieve its obvious objective and must therefore be diverted onto the next-best-thing.]

The Upper Tribunal decided in 2015 that the 1956 conveyance did not create a trust to preserve the Recreation Ground in specie as an open space. The trust actually created could not properly be distinguished from those in Oldham. Accordingly, the Trustees succeeded on Ground (1)(b). As to Ground (1)(a), the Upper Tribunal concluded that the subjective intention of the seller in 1956 was irrelevant to the issue of interpreting the conveyance. The Upper Tribunal held the First-tier Tribunal did not have sufficient evidence before it to find that the qualities of the recreation ground were factors which, of themselves, would make possible the creation of a charitable trust for its preservation in specie as a charitable trust. Therefore the appeal succeeded on Ground (1)(b), too.

What does Baddeley v Sparrow, the Bath Recreation Ground Case, mean for Local Councils?

Many parish and town councils (and community councils in Wales) hold land for public use. It is an important function of a local council to buy, or accept as a gift, land which can be used by the general public for recreation or for nature conservation or as a village hall. Some of this land is held under statutory powers (most often section 19 of the Local Government (Miscellaneous Provisions) Act 1976) and some of it is held on a charitable trust. What Baddeley v Sparrow reminds us is that there are three types of recreational land:

  1. charity trust land where the land itself is so important that it can never be sold;
  2. charity trust land where the charitable purpose (public recreation) is more important than the land. This land can be sold as long as the proceeds of sale are clearly used to provide more recreation on a different site.
  3. statutory recreation land, which can be sold for a capital receipt.

Whenever a charity trustee or a local council wants to sell public open space land, there are usually several hurdles to cross, including a public consultation phase. An experienced solicitor can guide the trustees or the council through the necessary process.