How can the Charity be protected?

At the time of writing, no signed lease has been published. It is therefore not possible to assess whether any draft protects the Charity's adequately.

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However, because the Trustee's duty is to act in the best interests of the Charity and its beneficiaries, certain questions naturally arise.

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The guiding principle

 

The purpose of a lease is not simply to transfer management to another organisation.

The Trustee should only grant a long-term lease if it leaves the Charity better protected than under the existing statutory arrangement.

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That is a demanding standard.

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Today, the Council has a statutory duty to maintain and manage the land. That duty exists regardless of changes in political priorities or financial pressures.

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If a lease replaces the Council's direct management with that of a third party, the Trustee should be satisfied that the Charity's position is strengthened rather than weakened.

Every provision of the lease should therefore be judged against one simple question:

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Does this leave the Charity better protected than before?

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Long-term security

A lease of up to 75 years is a major commitment.

Before granting such a lease, a prudent trustee would normally want to be satisfied that the promised investment, public benefits and ongoing management arrangements are not only desirable but also legally and financially secure.

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Delivering what is promised

The proposal includes significant investment in sporting facilities.

Important questions include:

• What exactly must the tenant deliver?

• By when?

• What happens if promised facilities are delayed, reduced or never completed?

• Are there legally enforceable milestones?

A lease should leave no doubt about these matters.

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Financial protection

The Trustee must also consider what happens if circumstances change.

For example:

• What if the tenant experiences financial difficulties?

• Are there parent company guarantees, bank guarantees or other forms of security?

• If major investment is promised, how is it secured?

• What happens if rent is not paid?

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A lease should anticipate these possibilities rather than assume everything will go according to plan.

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Maintaining effective control

The Trustee should retain sufficient powers to intervene whenever necessary.

For example:

• Can improvements be required?

• Can breaches of the lease be remedied?

• Can obligations be enforced within reasonable timescales?

• What happens if repeated shortcomings occur?

A long lease should not prevent the Trustee from fulfilling its continuing responsibility towards the Charity.

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Returning the land

Every lease eventually comes to an end, whether because it expires or because it is terminated early.

The Trustee should therefore consider not only how the land will be managed during the lease, but also in what condition it will be returned.

Questions include:

• What buildings and structures remain?

• What restoration obligations apply?

• How will the condition of sports facilities, landscaping and habitats be assessed?

• Who pays for reinstatement or remediation?

• If the lease is not renewed, can the Charity immediately resume providing sport and recreation from the returned land?

These matters should be clearly defined from the outset rather than left to future negotiation.

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Independent scrutiny

Ultimately, the Trustee must decide whether any proposed lease is in the best interests of the Charity.

That is a significant responsibility.

Before entering into a lease of this length and significance, the Trustee should be able to demonstrate, by reference to objective evidence, that the Charity would be better protected than under the existing statutory arrangement.

How that conclusion was reached should be transparent and capable of independent scrutiny.

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Why the details matter

A lease is not a simple "yes or no" proposition.

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Its effect depends entirely on its terms.

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A lease can be short or long. It can leave the Trustee with strong powers of control, or very few. It can contain robust financial safeguards, or weak ones. It can require substantial public benefits, or very little. It can include effective remedies if things go wrong, or make them difficult to enforce.

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In other words, there are countless different leases that could be agreed.

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Asking whether there should be a lease is therefore rather like asking:

"Would you like to go on a trip?"

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Without knowing the destination, duration, cost or conditions, the question cannot be answered sensibly.

 

The same applies here.

 

The important question is not whether the land should be leased. It is whether the proposed lease, with all its detailed provisions, genuinely serves the best interests of the Charity and its beneficiaries.

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Only when those terms are available can the public, the Trustee and independent observers properly assess whether the lease fulfils its purpose.