Sheffield Council questioned by Charity Commission over park nurseries row
Sheffield City Council has again been questioned by the Charity Commission over the future use of former park nurseries.
Graves Park is owned by a charitable trust, of which the council is sole trustee. All 41 charitable assets overseen by the council, which include parks, open spaces and buildings, must be run for the benefit of the charities, not the council.
An extraordinary meeting of the council’s charity trustee sub-committee on Wednesday (April 8) discussed its response to a letter from the Charity Commission over the use of Norton Nurseries in the park.
The Friends of Graves Park want to return the disused nurseries back to parkland, a project they have already started and raised money for.
They have previously successfully reported the council to the Charity Commission, which warned the council it could be in breach of the Charities Act 2011.
This is because the council is using part of the nurseries as a general parks vehicle and waste storage depot, not just for Graves Park. The council argues that the charitable trust could grant a five-year licence to the council for this use, until a new site can be found.
The commission has continued to question this and wrote to the council in February to see whether it is satisfied that its actions would be legal.
The council has taken advice from a specialist barrister about granting a licence to itself in its differing capacities as trustee of Graves Park and as the local authority.
The reply to the commission quotes the counsel’s opinion: “There are proper and respectable grounds to conclude that the council, acting as charity trustee, is able to grant a lease of the Norton Nurseries Depot to itself, subject to obtaining an order of the Charity Commission under section 117 of the 2011 Act.”
The letter adds: “The trustee therefore affirms its decision made on November 25, 2024 to grant the licence to the council for the shared use and occupation of the depot at Norton Nurseries was one that it could lawfully make and is in the best interests of the charity.
“The trustee recognises that any decision to enforce the terms of the licence may raise the issue of a conflict of interest arising. In those circumstances we will seek further guidance from the Commission if necessary.
“However, it may be of interest to note that the council has approved a conflicts of interest policy that deals specifically with its role as charity trustee. That was approved at its meeting on and now forms part of our constitution.”
Coun Douglas Johnson questioned the idea. He said: “If we’re serious about saying whether this is enforceable, are we saying that the council as charitable trust can seriously envisage taking itself to court?”
Council legal counsel David Hollis responded that the advice is clear that a person can be in contract with themselves in a different capacity. Being party to a contract gives both sides legal rights.
He added: “It would be a matter for this committee to determine that the council in a non-trustee capacity was failing to meet the terms of the licence and this committee would have its own advice on that and be able to do so.”
He pointed out the conflict of interests policy, which allows for separate legal advice to be sought in such a situation.
Coun Mike Chaplin said: “I disagree with Douglas. There are other situations in life where members of the same organisation can take different sides.
“I’ve seen it in trade unions where you get a different rep to represent someone where there is a dispute between members. That would be the same as Sheffield City Council.
“Someone would be appointed to represent Sheffield City Council and someone to represent the charity trustee’s side.
“I think you are making this so unfairly complicated when it’s really not.”
Coun Johnson responded: “It’s a different situation here – it’s actually the same person. This dispute has been going on with the Charity Commission for 10 years now, we’re not making enough progress on it.”
Committee chair Coun Richard Williams said: “A letter would be progress. We can’t double-guess the Charity Commission on how they’re going to respond to our letter.
“My personal view is that we should send the letter through and if they have a negative response to it, we would have to deal with it.”
He added: “The test is if something has enforceability and we’ve been told by David that once we’re parties to a contract there is a natural enforceability to the contract.”
Mr Hollis said it wasn’t something that had been forgotten or ignored, the council knew that would be the position when it was looking at a licence and obtained legal advice on it.
He said it was right that the Charity Commission have asked for clarification, which the council could provide.
Coun Fran Belbin said it hadn’t been entirely clear whether the legal advice had been given to the council, or the council as trustee.
Mr Hollis confirmed that it was provided to the council as trustee.
Councillors agreed that the draft response of a letter to the Charity Commission should be sent. It sets out the council’s position on the legal question and asks the commission to grant an order to enable the arrangement to continue until a five-year licence can be put in place.
Coun Johnson asked for his vote against the decision to be recorded. He said: “It’s a valid decision but I don’t agree with that.”