Protecting the Land in Perpetuity: Frequently Asked Questions
These FAQs are designed to explain how Higher Newham Farm will be owned and operated, protecting the land from development. They provide basic information, sometimes about fairly complex topics. Links to more detailed information will be included as the consultation process proceeds.
- 2.1 Why this structure?
- 2.2 What is the Charity?
- 2.3 Who will control the Charity?
- 2.4 How will the Charity own the farmland?
- 2.5 Will the Charity own anything else?
- 2.6 How will the Charity be funded?
- 2.7 In what other ways will the community use of the farmland be protected?
- 2.8 Will Living Villages receive any material benefits from the Charity?
1 What is proposed?
A charity will be established to own, control and promote public access to the farmland (the “Charity”), with the land transferred to it on a 999 year lease. The Charity’s objectives, and a covenant against development of the land, will ensure that the ongoing use of this land as a community farm is protected in perpetuity.
The Charity will in turn grant leases in favour of Duchy College and Cornwall Food Foundation. They will be responsible for operating the Farm and Educational Facility and the Restaurant and Cookery School respectively.
Living Villages (which currently owns the whole site) will retain the underlying freehold interest in the land, but will not materially benefit from the activities of Higher Newham Farm in any way. The farm will at all times be operated by the Charity on a not-for-profit basis and for the public benefit, and it will not be possible to further develop it other than for the educational objectives in food and farming of the Charity.
1.2 Diagram of the Structure
2 The Charity
2.1 Why this structure?
This charitable structure has been created following advice from Macfarlanes LLP, a major UK law firm which advises many charitable organisations, on the best way to ensure that the ongoing use of this land as a community farm is protected in perpetuity. A charity can only apply its assets for charitable purposes, thereby ensuring that the land is fully utilised for the benefit of the community. This structure has been agreed with the two local charities partnering this project – Duchy College and Cornwall Food Foundation.
2.2 What is the Charity?
The Charity will be incorporated as a charitable company limited by guarantee. It will be regulated by the Charity Commission for England and Wales and its activities will also be governed by a written constitution. We will consult on the detailed terms of the written constitution with key stakeholders, together with the Charity Commission. It is proposed that the constitution limits the Charity’s activities to:
“The advancement of education for the public benefit, and in particular for the benefit of the inhabitants of Truro and its surrounding areas, in the subjects of agricultural, horticulture, sustainable food production, animal welfare, cookery and nutrition by the promotion and preservation of the area known as Higher Newham Community Farm for this purpose.”
2.3 Who will control the Charity?
A board of trustees will be established to manage the day to day operations of the Charity. The board will consist of representatives of the Charity’s five key stakeholders: (1) Truro City Council (subject to confirmation), (2) Living Villages, (3) Cornwall Food Foundation, (4) Duchy College and (5) the residents of Higher Newham. As a matter of charity law, the trustees will be required to act independently and in the best interests of the Charity.
A sixth, independent trustee will be appointed to act as chairman to the board of trustees. Decisions in respect of the day to day control of the Charity may only be made with the approval of at least five out of the six trustees.
Changes to the Charity’s permitted activities as described in its constitution will require unanimous approval of all key stakeholders as well as the consent of the Charity Commission.
2.4 How will the Charity own the farmland?
The farmland will be legally transferred to the Charity by way of a long lease which will last for 999 years (and could then be extended). The lease will be granted by Living Villages, which owns the freehold of the whole site. The extent of the farmland to be transferred to the Charity can be viewed by clicking on the following link - Click here. The freehold will be retained by Living Villages only to impose covenants on the lease against development in the highly unlikely event of the Charity failing or seeking permission from the Charity Commission to alter its objectives - so even were the Charity to change (which is highly unlikely), it could not develop the site further. Similarly, the farmland will be subject to covenants which bind the freehold so that were the lease to revert to Living Villages, it still could not be developed. This may sound complex, but it creates protection whereby neither Living Villages nor the Charity can legally develop the land (see 2.7 below for details).
2.5 Will the Charity own anything else?
In order to pass control of the restaurant and cookery school to the Charity, Living Villages will also grant a renewable 10 year lease to the Charity on these buildings. Living Villages will legally commit to renewing this lease at a nominal rent for so long as the Charity directs.
2.6 How will the Charity be funded?
Cornwall Food Foundation and Duchy College will pay a rent to the Charity. This rental income will cover the Charity’s ongoing expenses and outgoings.
In due course the Charity may conduct other fundraising initiatives in order to support the charitable use of the farmland. This will be a matter to be decided by the trustees.
2.7 In what other ways will the community use of the farmland be protected?
Restrictive covenants will be attached to the freehold of the farmland to ensure that if for whatever reason the Charity’s lease comes to an end the freeholder of the land would be prevented from using it for any purpose other than as a community based project. The community use of the farmland is therefore protected even in this very unlikely scenario. In addition, in the planning process the partnership will propose that the planning authority stipulate in the permission against any further housing development.
It is proposed that an option is granted to Cornwall Council giving it the right under property law to call for the grant of the least to the Charity. When combined with the section 106 obligations, this will give Cornwall Council comprehensive powers with which to ensure that the land is transferred to the Charitable Trust.
2.8 Will Living Villages receive any material benefits from the Charity?
No. Macfarlanes LLP has recommended that Living Villages remain as freeholder of the farmland in order to protect the community use of the land in the event that the Charity fails (see answer 2.7 above). This is the only reason for the freehold retention, and Living Villages will be legally unable to develop the land.
The leases which Living Villages grants to the Charity will provide for a nominal (peppercorn) rent to be payable only.
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