Agenda Item No______14______
Community Asset Transfer Policy
Summary:
A view was taken that the Council’s Acquisition and
Disposal Policy required supplementation in anticipation
of possible future requests from other public and third
sector / community groups wishing to take over the
Council’s assets with reference to the localism agenda.
The Asset Management Board considered an initial
report at its March 2012 meeting which referred to the
aspects of the then Localism Bill with recommendations
that a Policy be created to provide a framework for
asset transfer to community groups and the like.
A draft Community Asset Transfer Policy was submitted
to Cabinet on the 14 May 2012 with a recommendation
to issue the draft as a basis of consultation with relevant
community group, town and parish councils being
approved.
The matter was presented to the Overview and Scrutiny
Committee on the 23 May 2012, which agreed to
Cabinets resolution but in addition required
consideration to be given to support for capacity building
and post transfer care. The draft was amended to reflect
this observation. A consultation period closed on the 20
July 2012, eight returns being received although none
with any particular relevance to the draft policy.
The results and an amended draft policy were reported
to both the Asset Management Board in September
2012, being returned to the Overview and Scrutiny
Committee of the 25 September, with agreement for the
matter to be returned to Cabinet for approval to be given
for consideration to forward the matter to Full Council for
adoption.
The draft Policy was presented to Cabinet on the 12
November where approval was given for submission for
adoption by Full Council on the 19 December.
Options considered:
The Localism Act sets out guidance and parameters in
respect of Community Right to Bid/challenge. The
proposed policy is to assist these aspects in respect of
the property element as well as dealing with straight
forward approaches over acquisition by community
groups.
Conclusions:
The Policy has been amended to reflect observations
made by the Asset Management Board, the Overview
and Scrutiny Committee, the consultation together with
the Right to Bid and Challenge provisions under the
Localism Act 2011.
Recommendations:
For Full Council to adopt in order to provide the
Council with a clear framework and procedural
guide to assist in it achieving a Corporate Plan
ambition.
LIST OF BACKGROUND PAPERS AS REQUIRED BY LAW
(Papers relied on the write the report and which do not contain exempt information)
Localism Act, 2011
North Norfolk District Council Corporate Plan
North Norfolk District Council Acquisition and Disposal Policy
Cabinet Report 14.5.2012
Overview and Scrutiny Committee 23.5.2012
Overview and Scrutiny Committee 25.9.2012
Cabinet Report 12.11.2012
Cabinet Member(s)
Cllr. Rhodri Oliver
Ward(s) affected
All
Contact Officer, telephone number and email:
Martin Green x.6049 martin.green@north-norfolk.gov.uk
1.
Introduction
1.1
The Localism agenda has generated interest by Third Sector Organisations
(TSO’s) which may seek to succeed the management of community assets,
including land and buildings currently held in public ownership. This proposed
Policy is set to provide a framework to manage and enable the transfer of
Council assets to such groups, setting down criteria for doing so. The Policy
acknowledges the distinctions and specific criteria of the Community Right to
Buy and Right to Challenge Provisions as set out in regulations emanating
from the Localism Act 2011.
1.2
The Council’s Corporate Plan includes the priority “to embrace the
Government’s Localism agenda to empower individuals and communities to
take more responsibility for their own futures and to build a stronger civic
society.” The Annual Action Plan states that “we will establish a protocol and
put in place the means to respond positively to requests from Town and
Parish Councils to share in the benefits of growth” and “subject to guidance,
we will assess expressions of interest from voluntary or community groups
who wish to take over the running of a service and/or community asset, and
complete the initial assessment within three months of receiving the request.”
This policy provides an important means by which communities may take
over the running of services within their area/communities and to ensure that
in this process, address the property asset element of these actions.
2.
The Community Asset Transfer Policy
2.1
The proposed policy document can be found in Appendix A. It sets out a
procedure to follow in the determination of requests for the transfer of
NNDC’s assets.
2.2
The Asset Management Board considered a draft of this policy on the 12
March 2012, when it was proposed that a period of consultation take place
with community groups, parish and town councils. The policy was presented
before Cabinet on the 14 May 2012 and the Overview and Scrutiny
Committee on the 23 May 2012, with observations in respect of capacity
building and post transfer monitoring required to be taken into consideration.
The Policy was accordingly amended to reflect these desires.
2.3
An eight week consultation period, both web-based together with letters being
sent to interested community groups closed on the 20 July 2012 with eight
responses being received from a mix of Parish and Town Councils. Those
responses were considered at the Asset Management Board meeting of the
30 July 2012 where there was agreement to take the policy forward for
Cabinet and Full Council approval. The responses varied with enquiries being
made regarding a local list of the District Councils assets within individual
areas to that of welcoming the principle of the policy.
2.4
The Policy was presented to the Overview and Scrutiny Committee hearing of
the 25 September 2012 where it was recommended that it be forwarded to
Cabinet and then to Full Council for adoption. In turn, on the 12 November
2012 Cabinet approved that the policy be forwarded to Full Council for
adoption.
3.
Conclusion
3.1
A Corporate Plan aim is to support local communities in investing and
becoming stakeholders in their areas. The Localism Act 2011 provides tools
in this regard. The Council’s Annual Action Plan states that a protocol will be
established to respond positively to approaches it receives from both public
and third sector organisations wishing to take over the running of services
and / or a community asset. The Policy will address the property element of
these approaches.
4.
Implications and Risks
4.1
The adoption of a Community Asset Transfer policy with clear procedural
guidelines should reduce the council’s corporate risk, as greater clarity will be
provided to applicants, members and staff.
4.2
For those assets transferred, following this policy, the legal responsibility for
assets will become that of the transferee whether by freehold transfer or long
lease, in respect of maintenance and legislative responsibilities.
The majority of transfers will be on a leasehold basis where in essence there
will be “arms-length” control. Whilst post transfer support will be provided,
ultimately, in the case of failure the asset can be recovered.
5.
Financial Implications and Risks
5.1
The adoption of the policy should have no financial implications. The financial
implications of acquisitions or disposals will be considered on a case by case
basis with reference to the Asset Management Board at all stages and
Cabinet when making decisions on individual cases. There may be occasions
where the Council will need to recover lost income or be involved in
expenditure in respect of ongoing or agreed obligations. The policy does
relate to disposals at less than best consideration for which there will be
financial implications for the council.
6.
Sustainability
6.1
It is hoped that the transfer of buildings into community ownership and
management will ensure that buildings are used sustainably.
7.
Equality and Diversity
7.1
No equality and diversity implications have generally been identified in
adopting this policy although it is recognized that on occasions a diversity
impact assessment will need to be considered, particularly where premises
may be used by or for target groups which may have some impact.
8.
Section 17 Crime and Disorder considerations
8.1
No section 17 crime and disorder considerations have been identified in
adopting this policy.
Appendix A
North Norfolk District Council
Community Asset Transfer Policy
Contents
1. Background
2. Policy context
3. Policy statement.
4. Legal context
5. The Community Asset Transfer process.
Appendices
1. Background and Purpose
1.1. The purpose of this policy is to set a clear framework to enable asset transfer
from the Council to Third Sector Organisations (TSOs) and ensure transfers are
sustainable and successful in the long term. The policy recognises the Right to Bid
and Right to Challenge provisions under the terms of the Localism act 2011. Due
reference should be made to guidance available from both the Department for
Communities and Local Government (DCLG) and that of the Council’s relevant
Communities officers in respect of approaches received under those provisions. Also
see 1.5 and 1.6 below.
1.2. The “Third Sector” is the voluntary sector of the economy which is neither public
(such as central or local government) nor private sector (such as private individuals
or profit-making business). With the Big Society and Localism initiatives, it is the
Third Sector which is now being promoted as one of the most efficient and productive
elements of a dynamic and healthy society. However, lower tiers of local government
(parish and town councils) are included within this initiative.
1.3. For the purposes of this policy, a community asset is defined as an asset owned
by the District Council which is not held for investment reasons and not essential for
operational purposes. It may include operational assets such as Tourist Information
Centres, Public Conveniences, Community Centres, Theatres and Sports Clubs.
Asset transfer can relate to freehold transfer but, more commonly, a long-term (over
25 years) lease.
1.4. An asset transfer decision will usually be a choice between:
•
Maintaining the status quo;
•
Commercial disposal on the open market;
•
Seeking the service and community benefits generated by a decision to
transfer an asset to a TSO (Community Asset Transfer);
This policy relates to the situation when the last of these three choices is the
appropriate one.
1.5. It is important not to confuse Community Asset Transfer with the provisions of
the Localism Act relating to disposal of Assets of Community Value. Essentially, the
Localism Act has introduced a moratorium on sale of “Assets of Community Value” to
allow community groups a right to make a bid (at open market value). Registers of
Assets of Community Value will relating to both public and privately held assets are
to be compiled by relevant Local Authorities. The government has produced
appropriate guidance in this respect.
1.6. The Localism Act also provides the Community Right to Challenge which a right
is provided in the first instance to community or voluntary groups to request taking on
themselves the provision of services provided by the local authority. In some cases,
there may be a relationship between taking on a service and related local authority
assets. However, at this stage, this policy considers the process for discretionary
community asset transfer outside of the provisions of the Localism Act 2011.
1.7 The term ‘community asset transfer’ relates primarily to long leasehold or
freehold transfer in order that the asset may be used or managed by a TSO at less
than ‘open market value’ e.g. transferred as a gift or leased for a peppercorn or
below market rental.
2. Policy context
2.1. The 2006 Local Government White Paper confirmed the last Government’s
intention to increase opportunities for community asset ownership and management,
and promoted asset transfer as part of a local authority’s ‘place-shaping’ role. The
Secretary of State for Communities commissioned Barry Quirk, Chief Executive of
the London Borough of Lewisham to carry out a review into the barriers preventing
community asset transfer. It also indicated that a fund would be established to help
with this, later announced as the £30 million Community Assets Fund managed by
the Big Lottery Fund.
2.2. The ‘Quirk Review’s’ findings Making Assets Work were published in May 2007.
All the Review’s recommendations were accepted by the Government and published
a week later as an implementation plan in Opening the transfer window: the
government’s response to the Quirk Review. The Government’s plan for taking the
review forward included an asset transfer demonstration programme with local
authorities and their partners, a guide to managing risks in asset transfer and a
series of regional awareness-raising workshops.
2.3. The Quirk Review found that a careful increase in the community’s stake in an
asset can bring a wide range of additional benefits for the community, the
organisation receiving the asset and the local authority facilitating the transfer. The
benefits of community ownership and management can outweigh risks and
opportunity costs.
2.4. The Government’s Empowerment Action Plan published in 2007 included
actions relating to the transfer of assets and to a programme of support for
community anchors, including the availability of further funding to support the
development of anchors.
2.5. In July 2008 the Communities and Local Government White Paper “Communities
in Control: real people, real power” confirmed ongoing support for the Quirk review,
announced the establishment of a national Asset Transfer Unit, extended the
Advancing Assets programme by a further year and announced a £70m “Community
Builders” fund. The origins of this agenda go back to the ODPM’s 2003 Communities
Plan Sustainable Communities: Building for the future). This acknowledged that
sustainability is only possible where local communities play a leading role in
determining their own future development.
2.6. The Localism Act was given royal assent in November 2011. The Government’s
agenda is to continue and extend the previous government’s policy of asset transfer
for community benefit. The Council’s Asset Management Plan will ultimately be
adjusted to take account of the new Localism Act provisions (re Assets of Community
Value and the Community Right to Challenge mentioned above.)
2.7. As mentioned above, this policy does not concern “market value” transfers which
are dealt with as part of the Council’s Asset Management Plan.
2.8. The Council has a long record of commitment to supporting community groups
and the principles of Community Asset Transfer. The following local policy
documents cite asset management and transfer to the third sector/partners as central
objectives:
• The Corporate Plan
• The Asset Management Plan
3. Policy statement
3.1. The Council recognises that the way its physical assets are managed can have a
positive impact on the long-term strength of the third sector and local communities
more generally. Through asset ownership and management, TSOs can grow and
become more secure, gaining access to sources of additional investment that the
Council itself may not be able to access. The aim is to ensure that the way assets are
managed underpins the wider corporate aims and where appropriate, will use asset
transfer as a means of enabling TSOs to become sustainable on a long-term basis.
3.2. The Council’s existing assets include land, buildings and other structures used
for a variety of different social, community and public purposes. For some of these
assets community management and ownership could deliver:
•
benefits to the local community; e.g. closer association and influence over the
management of the facility making it more responsive to local needs with
reduced overhead running costs (enabling fees and charges to be kept
relatively low) ;
•
greater use of the facility with the potential to increase new social and
economic opportunities for communities that extend their capacity to support
localities and organisations where they live and improved health and other
well being outcomes for the community.
•
benefits to the Council and other public sector service providers; e.g.
improved levels of volunteering, civic participation, and engagement in
positive activities in the area; reduced financial implications for the Council,
including staff and asset overhead costs and business rates.
•
benefits for the organisation taking ownership; both financial and nonfinancial; e.g. charitable tax exemptions, improved access to funding
opportunities at local, regional and national levels for both capital and
revenue based support; accessible staff and/or volunteer learning and
development opportunities as part of a career path; building partnership with
other organizations and users to promote economic development and social
enterprise.
3.3. Public assets are rarely used by everyone, their ‘value’ being locked-in to a
particular use or a particular group of people. However, changing ownership or
management can offer such groups opportunities to capacity build in order to make
assets and their services more accessible, more innovative, more flexible and more
relevant to communities, increasing their value in relation to the numbers of people
that benefit and the range of opportunities offered. Community-lead ownership can
offer additional opportunities to secure resources within a local area and to empower
local citizens and communities.
4.
Legal Context
4.1. As Community Asset Transfers, under this policy, will be at under market value,
community benefit will have to be demonstrated pursuant to s123 Local Government
Act 1972 as further refined by Local Government Act 1972: General Disposal
Consent (England) 2003.
4.2. Under this statutory guidance, community benefit is judged in terms of whether
the disposal will secure the promotion or improvement of the economic, social and
environmental well being of the inhabitants of the district. In these respects an
assessment will be made of the TSO’s Business Plan, their experience/skills to
deliver the Plan and to complement the Council’s Corporate objectives such as
promoting tourism, environmentally sustainable economic growth and healthy
lifestyles.
4.3. Independence of the TSO from the Council will need to be demonstrated in order
to maintain clarity of roles and responsibilities in any partnership arrangements or
agreements.
4.4. It is important to note that Community Asset Transfer will not involve a freehold
transfer in most cases. Even in a situation where a TSO is a fully constituted charity
with corporate status, a long lease at peppercorn rental will, in general, be the
preferred option in relation to the use of valuable assets as a leasehold structure
provides legal mechanisms through which the Council’s interests of provision of
community benefit can be protected in the long term.
4.5. In cases where the organisation is an unincorporated association which is not
registered as a charity, it is likely that the only appropriate option will be a shorter
term lease (e.g. up to 15 years) but, again, with below market rental. The reason for
this is that the Council would always wish to avoid the intractable legal problems
which can occur when land is transferred into the name of private individuals on trust
for an unincorporated association. For example, if a property is held by a number of
individuals as trustees, then upon their retirements or deaths the property must be
formally assigned to new trustees. However, it is easy for small voluntary
organisations to omit to take on such an onerous task of formal legal transfer (which
can only take place by deed). This may ultimately lead to a situation in which all the
original trustees retire or die and the true legal owner is untraceable. For this reason
(inter alia), any TSO which seeks to take a long lease or freehold, must first gain
charitable status and/or incorporate as a not-for-profit company.
5
The Community Asset Transfer Process
The Council will consider requests for Community Asset Transfer in the following
manner, via the Asset Management Board which will be reported to after each stage
below;
•
Initial application and response (1&2)
•
Full application (3)
•
Agreement of Heads of Terms and Asset Management agreement
(4&5)
•
Cabinet Decision (6)
•
Legal Transaction (7)
There are seven key stages in this application process including the requirements on
an applicant together with an eighth stage which is in respect of post transfer, as set
out below:
Stage 1: Initial application
A TSO which believes it could successfully take over and run a Council-owned
property should submit an initial application and expression of interest to the Head of
Service for Assets. They should use the application form shown in Appendix 1 or
submit a more informal request. An informal request will probably be no more than 23 sides of A4 and it should contain the following information.
•
•
•
•
•
•
•
•
Name of Organisation
Contact details
Address for correspondence
Telephone number
Email address
Status of organisation (charity, club, new group)
Charity or Company registration number
Date when organisation established in present form
•
•
•
•
•
•
•
•
•
•
•
Governance arrangements (e.g. constitution set or rules etc.)
Proposals for incorporation, registration as CIC or application for charitable
status (if these have not yet been achieved).
Number of members
Number of members of management committee
Number of staff/volunteers
Insurance policy/public liability/professional indemnity levels of cover
Details of lease and name of current trustees (if currently a sitting tenant
holding as unincorporated association)
A short statement saying why the asset is needed
If the applicant is a sitting tenant, a statement saying why an extended lease
or freehold transfer is needed
Future objectives upon transfer
Details of indications of support from sponsors.
Stage 2: Initial response
All initial applications will be report to the Asset Management Board with a
recommendation to continue or to reject, providing reasons for rejection which will be
shared with the applicant.
If the Asset Management Board agrees that the proposal has merit, the applicant will
be asked to submit a full application.
Stage 3
Full application
A full application to be submitted by a TSO will include the following:1)
A statement of objectives (a mission statement for the organisation).
2)
Full details of legal form of the organisation (NB for consideration of a grant of
a long leasehold interest of over 15 years, it must have corporate or charitable status
or both).
3)
Details of the asset applied for and the holding sought with reasons including
details of funding and external funding commitments or opportunities.
4)
A business plan for the whole organisation (not just a specific project)
demonstrating the following:How asset will be used
•
A summary of wider benefits for the organisation, the public and the Council.
•
Stakeholders engaged in current and future management and use of the
asset
•
Core activities and services delivered currently
•
Proposed projects, activities and actions that will be developed through future
management of the asset
•
Organisational management (structure, number, posts both paid and
voluntary)
•
Experience and track record including experience/expertise of management
board etc.
•
Robustness of governance structure (in place or being developed)
•
Details of partnership working if any
•
Community involvement and engagement currently and in the future
•
User involvement (including membership information, age profile of users,
public use, educational use)
•
Financial projections including a three year cash-flow forecast, projected
income and investment (grants/loans) including any relating to development
of the asset and consideration of overheads such as utilities and business
rates
•
Analysis of funding opportunities with realistic assessment of risk
•
Projected facility user numbers and rates of use over three year period
•
Effective management of the asset (bookings, health and safety, repair and
maintenance)
•
Professional advice or details of advisers to be used and how this will be
funded
5) Sitting tenants should additionally demonstrate:
•
Effective management and maintenance of the asset to date
•
Last three years’ accounts
•
Sufficiently wide and diverse membership
•
Effective bookings system
•
Suitable occupancy agreements for any third party use
Stage 4: Consideration, valuation and negotiation
Following submission of a full application, the Head of Service for Assets will appoint
a member or members of his/her team to correspond with the TSO to consider
professional valuation of the asset (if that is deemed necessary and, if so, how the
valuation is to be funded) and to draft Heads of Terms. The Council will also arrange
for an internal title report to be produced to identify any legal issues such as
restrictive covenants which may affect the asset.
While stated briefly, this stage will probably be the longest in duration. It may take
several months to complete and involve significant, detailed work and
correspondence. If it is not possible to agree Heads of Terms, the reasons will be
given to the applicant and alternatives (such as short term lease or licence) will be
explored. By way of additional policy guidance, in assessing the merits of the
application and negotiating Heads of Terms, the Council will ask itself the questions
set out in the Appendix 2 below.
Stage 5: Report to AMB
If Heads of Terms are agreed, the Head of Service for Assets will submit a report to
the Asset Management Board containing the full application and the business plan
with recommendation as to the specific details of the proposed asset transfer which
have been provisionally agreed with the TSO i.e. heads of terms, leasehold
conditions, asset-lock proposals etc.
The Asset Management Board will consider the report and decide whether the
transfer should proceed and add further conditions, or not as it deems necessary.
In the event that the AMB recommend the proposed asset transfer, a report will be
submitted to Cabinet recommending that authorisation is granted to proceed.
The impact on Council resources needs to be assessed by the Asset Management
Board. This might include:
•
The level of initial and ongoing support/advice required from services e.g.
Property, Legal, Environmental, Planning
•
Any capital contribution, match funding or loans required
•
Initial involvement in setting up a legal trust body, social enterprise or legally
constituted community group
•
Ongoing obligations that may fall to the Council under the terms of a Lease
and associated costs that it incurs as a result of those obligations
•
Consideration of an exit strategy in the event that the asset transfer fails.
Stage 6: Report to Cabinet
Cabinet will consider the report and add any conditions they deem appropriate or not
and, should they agree with the recommendation will provide delegated authority to
the Council’s Legal and Democratic Services Manager to carry out the transaction.
Stage 7: Legal transaction
The applicant will be informed of the Cabinet’s decision and in the event that the
decision is to proceed with transfer, the legal process of Asset transfer will be carried
out between the Council’s lawyers and the applicant TSO’s lawyers. Again, while
simply stated, the legal process may take several months depending on the
complexity of the title or proposed lease and the readiness of the applicant to engage
in the legal process that is required for transfer of the asset to be completed.
Stage 8: Monitoring and Support
Once completed, the performance of the applicant TSO will be monitored with advice
and support provided when deemed necessary to assist and enhance its future and
viability.
Appendix1: Application form
COMMUNITY ASSET TRANSFER
APPLICATION FORM
Name of Community Group or Organisation
Contact address
Email
Telephone number (s)
Status of organisation
(charity, club, new group)
Charity and/or Company
registration number
Date when organisation
established
in present form
Governance arrangements
(e.g. constitution set or
rules etc.)
Proposals for
incorporation, registration
as CIC or application for
charitable status (if these
have not yet been
achieved)
Accounts available (Y/N)
How many years accounts?
Number of members
Number of members of
management committee
Number of staff/ volunteers
Insurance policy/public
liability/professional
indemnity levels of cover
Details of lease and name
of current trustees (if
currently a sitting tenant
holding as unincorporated
If the applicant is a sitting
tenant a statement saying
why an extended lease or
freehold transfer is needed
Future objectives upon
transfer
Details of indications of
support from sponsors
Any other relevant
supporting information
A short statement saying why the asset is being requested for transfer
Appendix 2
Assessment of application
•
Is it part of long-term support to / engagement and partnership with the
third sector?
•
Is it sustainable in the long term (for both the TSO and the Council) and
are the terms and conditions imposed upon the TSO not unduly onerous
but reasonable and affordable (TSO governance arrangements,
robustness of Business Plan and terms of any Service Level Agreement)?
•
Does it complement the Council’s corporate strategy and priorities,
allowing a comparison with open market disposal?
•
Does the assessment of the TSO’s Business Plan identify clear economic,
social or environmental outcomes and demonstrate the TSO’s ability and
experience to deliver these?
•
Can the community benefit be demonstrated under the Local Government
Act 1972: General Disposal Consent (England) 2003, if the Council is
considering disposal for less than open market value?
•
Does the TSO have policies and commitment towards actions on
staff/volunteer training and development, safeguarding children, equalities
and climate change, or is seeking to provide to meet the conditions of
asset transfer?
•
Has the proposed transfer been appraised alongside the options of - (i)
Maintaining the status quo; (ii) Expenditure on other services made
possible as a result of a decision for ‘commercial’ disposal?
•
What are the risks of service failure, TSO failure, misuse/disuse of assets,
premature changes to any proposed SLA and what is the exit strategy
that is in place and the best possible transfer type (leasehold, freehold), if
still appropriate?