­Paper re: The Advisory Committee­

 

For consideration by:

The Board of Estates Governors;

The Dulwich Society;

The Dulwich Residents Association;

The Dulwich Village Preservation Society.

 

 

Clause 16 a) of the Scheme of Management states as follows:

 

"(a) The rights and powers conferred on the Managers by the Scheme are conferred on the Managers for the purpose of enabling them to preserve the amenities of the Estate for the common benefit.

 

(b) (i) The Managers shall form a consultative committee (to be known as "The Advisory Committee") of not less than 8 persons of whom half shall be representatives of the Managers and half shall be representatives of and nominated by such residents' or amenity societies as the Managers consider appropriate, the number of representatives of each such society being determined by the Managers;

 

(ii) the Managers shall convene meetings of The Advisory Committee not less than twice a year;

 

(iii) prompt notice of all applications made or notices served under clauses 3(a), 4 or 6(a) or (b) hereof shall be given by the Managers to every member of the Advisory Committee and the original applications or notices and any supporting documents shall be made available for their inspection.  The Managers shall have regard to any representations made to them by the members of The Advisory Committee concerning such applications or notices or otherwise concerning the amenities of the Estate."

 

The purposes of this paper are to attempt to clarify the meaning of this section, to examine the present structure, function and purpose of the Advisory Committee, and to suggest such changes (whether or not requiring alteration to the Scheme of Management) as would be beneficial both to the Managers and to those on whose behalf the Managers exercise the rights and powers conferred bythe Scheme.

 

­I. Interpretation of the Section­:

 

About the meaning of some terms there is no doubt: "the Managers", "the Scheme", and "the Estate" are terms defined respectively by clause 1(g), (f) and (a) of the Schedule to the Order of the High Court dated January 21st 1974.  It should be noted, incidentally, that "the Estate" does not refer only to properties which have been sold specifically subject to the Scheme of Management, but to the entire Dulwich estate (excluding "alien freeholds" previous sold to local authorities, the railways, etc.).  Other definitions are more troublesome.

 

The word "amenities" is nowhere defined in the Scheme, or in the Leasehold Reform Act, and we must therefore be guided by ordinary usage to interpret the term as meaning "attractive or useful features".  Questions relating to "the amenities of the Estate [as defined]" would therefore include, for example, the condition of the roads and the future of the woods, which are therefore proper subjects for discussion by the Advisory Committee, despite the latter in particular having been ruled 'out of order' at previous Advisory Committee meetings.

 

The expression "for the common benefit" may be thought to extend to the wider community of which Dulwich is a part (which would include the various beneficiaries of Alleyn's Foundation), but must primarily refer to the inhabitants of Dulwich, whether or not living on property specifically subject to the terms of the Scheme.

 

"... shall form ...": it is the Board of Estates Governors, as Managers, which is entitled to take the initiative in determining, within the parameters laid down by the Scheme, the size, membership, and frequency of meetings of the Advisory Committee.  This includes the right to decide which "residents' or amenity societies" it considers appropriate, but not the right to confirm or refuse any "representatives ..... nominated by such ..... societies", nor, once the Advisory Committee has been established, to determine how it conducts its business (except to convene meetings), which is for the Committee itself to decide.

 

"... a consultative committee... ":  it was clearly not envisaged by the Scheme that the Advisory Committee would have any right to make decisions binding on the Managers or anyone else.  That is not to say, however, that if the Managers choose, of their own volition, to treat "representations" made in the form of resolutions or decisions by the Advisory Committee as binding on the Managers, the implementation of such a policy (which the Managers would be free to rescind at any time) would require amendment of the Scheme of Management.

 

"... representatives of the Managers... ": it is submitted that, while the Estates Governors remain Managers, their representatives need not necessarily be from among their own number.  It may be, of course, that the Board has resolved that this should be so.  However, should the Board wish, for instance, to include the Secretary and General Manager and/or the Principal Surveyor (either or both of whom have habitually attended Advisory Committee meetings anyway, as 'briefers' to the Estates Governors present) among its nominated representatives, there is no reason why it should not do so.

 

­II. The present operation of the Advisory Committee­:

 

In the past "not less than" has apparently been interpreted by the Estates Governors as meaning "not more than", both in respect of the size and frequency of meetings of the Advisory Committee, the former because a Committee numbering more than eight persons was considered unmanageable (a view difficult to justify, bearing in mind that the Board itself, when at full strength, numbers twenty five), the latter, it must be admitted, being as much the fault of the amenity societies as of the Governors.  Happily, the last year or so has seen a new determination by the Board to comply more strictly with the provisions of clause 16(b) of the Scheme, and an apparent desire to be seen to be co-operating more fully with the representatives of local residents, by agreeing to an increase in the size of the Committee to twelve (to include two representatives of the Dulwich Village Preservation Society and two additional Governors), and to meetings being held on a quarterly basis.  However, it is submitted that there is further room for improvement.

 

Leaving aside the time and energy devoted (and, some might say, to a large extent wasted) over the last eighteen months in discussions relating to the size, constitution, and other aspects of the Advisory Committee itself, the subject matter with which the Committee has in the past been occupied does not seem to be the subject matter with which the devisers of the Scheme of Management envisaged it should be occupied.  Specifically, the Advisory Committee is meant to consider "all applications made or notices served" under the relevant clauses of the Scheme, generally referred to as Licence Applications and Notices of Breach.  Why else should the Scheme require that prompt notice of such applications and notices should be given to all members of the Advisory Committee?  In practice, this requirement is not strictly complied with, in that notice is given not to all amenity society representative members, but to one member of each of the three (formerly two) residents' or amenity societies represented on the Committee, normally the one most directly responsible to his or her society for planning matters generally.  Each society is then given the opportunity to make representations direct to the Secretary and General Manager, but without being made privy to any views or recommendations made by the Principal Surveyor (which might themselves beneficially influence the views or recommendations of that society).  The Licence Applications (and Notices of Breach, if any) are then considered by the Board of Estates Governors' own Trees and Surveys (Estate) Committee, and although representatives of at least two of the residents' and amenity societies have customarily, as a courtesy, been invited to accompany this Committee on its tour of inspection of the Estate prior to the Committee's meetings, they have not been invited to attend the actual meetings, or even that part of them at which these matters are discussed, let alone decided.  The Advisory Committee has therefore, as regards the consideration of Licence Applications and Notices of Breach, effectively been by-passed, but without any substitute acceptable to local residents (as evidenced by the resolution passed overwhelmingly at the Public Meeting held on February 29th 1988) being put in its stead.  As if to underline the point, the last two meetings of the Trees and Surveys Committee in 1989 have been timed to take place ten days or so ­before­ a scheduled meeting of the Advisory Committee, rather than the other way around (as would make more sense if the Advisory Committee were given the opportunity, as it should be, to make representations concerning matters which are to be referred to the Trees and Surveys Committee for decision.

 

What justification has been offered for this state of affairs?  Comments made by the Chairman of the Advisory Committee, Mr T. F. Howe, at its meeting held on September 26th, are enlightening.  Licence Applications, he maintained, are essentially private matters as far as the person lodging the application is concerned.  Where applications involve interior alterations to a property they should be of no concern to the applicant's neighbours.  There are two fundamental objections to this 'Englishman's-Home-is-his-Castle' line of thought.  In the first place, interior alterations do not, as a matter of fact, come within the province of the Scheme of Management; the approval of the Managers is only required, according to clause 3(a), for material alterations to the external appearance of any building or structure, or for new or additional buildings or structures visible at ground level from beyond the boundaries of the property in question.  Secondly, the whole raison d'etre of the Scheme was (as a Master of the College expressed it so admirably over 150 years ago) "to secure the Estate from being deteriorated and disfigured at the caprice of every tenant", and who are better qualified to decide what does or does not maintain or improve the character of the area than those who represent the area's inhabitants, i.e. those most directly affected by any proposed change?  While the Managers under the Scheme continue to be regarded as benign, informed and impartial, local residents are content to leave final decisions to them, but they are not satisfied with a paternalistic decision-making process which is seen deliberately to exclude their own representatives.

 

On the question of why he thought it unnecessary for the Advisory Committee's meetings to be timed in such a way as to precede meetings of the Trees and Surveys Committee, Mr Howe expressed the view that "We" (by which one assumes he means the Estates Governors) "don't want the Advisory Committee to be concerned with the minutiae of Licence Applications".  Unfortunately for this point of view, the Scheme of Management itself appears to indicate otherwise.  One wonders what role, if any, Mr Howe does see for the Advisory Committee.

 

­III. Proposals for Change­:

 

One avenue of reform appears to have been exhausted.  In October 1988 the Co-ordinating Committee of the three amenity societies passed two resolutions, the second of which related to the Advisory Committee, and was in two parts.  Resolution 2(1) proposed that the Advisory Committee should become a decision-making body, assuming the functions of the Board's Trees and Surveys (Estate) Committee insofar as such functions relate to the Scheme of Management.  Resolution 2(2) proposed, in five parts, ways in which the Advisory Committee could be made more publicly accountable, by publicising its agenda, proceedings and minutes.  As we know, the Board declined to accept Resolution 2(1) at its meeting in December 1988, and although no decision on Resolution 2(2) has yet been taken, the Trees and Surveys Committee has resolved that the adoption of the Resolution would be incompatible with the Estates Governors continuing as Managers under the Scheme, and this view seems likely to be accepted by the Board when it next meets.

 

Although the greater public accountability proposed by Resolution 2(2) was clearly intended to apply to a decision-making Advisory Committee envisaged by Resolution 2(1), the two parts of the Resolution were capable of being treated independently.  With the rejection of Resolution 2(1), and as a result of changes which have already been implemented, at least three of the five specific proposals contained in Resolution 2(2) may now be regarded as irrelevant - thus much was accepted by the amenity society representatives present at the Advisory Committee meeting on September 26th this year.  However, it is not clear why the implementation of the remaining proposals should be regarded as incompatible with the Estates Governors remaining as Managers, unless it is on the grounds of increased costs (an aspect which, it is submitted, has been exaggerated) or intrusion into privacy (which, as already indicated, is an argument which fails to convince).  All the more so if the Advisory Committee is to remain, as the Estates Governors seem to believe it should, a mere talking-shop with no power other than to make representations.

 

Bearing all these points in mind, we make the following specific proposals:

 

­A. The Trees and Surveys (Estate) Committee­:

 

1. A representative, nominated by such residents' or amenity societies as the Managers consider appropriate, be invited to attend and make representations during discussions of matters arising under clauses 3(a), 4 or 6(a) or (b) of the Scheme of Management at meetings of the Trees and Surveys (Estate) Committee, and hear (but not be party to) decisions relating to such matters.

 

2. Prompt notice of all applications made or notices served under clauses 3(a), 4 or 6(a) or (b) of the Scheme shall be given by the Managers to every such representative, and the original applications or notices and any supporting documents shall be made available for their inspection. The Managers shall have regard to any representations made to them by such representatives concerning such applications or notices.

 

3. Any representative unable to attend as above may, subject to any conditions previously communicated by the society which that representative represents to the Managers, appoint a proxy.

 

4. Such discussions and decisions are not to be regarded as confidential.

 

The following points should be noted in connection with these proposals.

(a)  Since the Committee deals with matters other than those arising under the Scheme of Management, which are the private concern of the Estates Governors, such attendance will be restricted to the part of each Trees and Surveys Committee meeting at which matters arising under the Scheme of Management are dealt with, and not otherwise. It should not be difficult to organise the agenda to facilitate this.

(b)  The absence of any rule of confidentiality, which would otherwise be required if (a) above did not apply, will enable the societies to publicize Licence Applications, and for that matter Notices of Breach, and the discussions and decisions relating thereto, to such an extent and in such manner as they shall deem appropriate.  It follows, incidentally, that caution will have to be observed by the Managers in serving Notices of Breach, to ensure that such Notices are not served lightly. unless it is certain that a breach has occurred.

(c)  The representatives would, in practice, be the representatives to whom such notice of Licence Applications and Notices of Breach are already sent, so there would be no additional work for the Estates Office.  In fact, there should be less work involved, both for the representatives - who would no longer have to submit representations to the Estates Office prior to meetings of the Committee, but could make them verbally at the meetings themselves - and for the Estates Office, which would no longer have to collate such representations (as presumably it does) for the benefit of the Committee.

(d)  In theory, the complaint that the Advisory Committee is not fulfilling its proper function would still stand, but in practice, if their aspirations were satisfied by the implementation of the above proposals, the amenity societies would have no cause for complaint, provided that the Advisory Committee were still treated as the proper forum for discussion of matters "otherwise affecting the amenities of the Estate".  It would then be possible for it to resume its role, as perceived prior to 1988, as a convenient point of contact for the Estates Governors and representatives of local residents to discuss matters of mutual concern and interest.  There would, in practice, be no pressure for clause 16 of the Scheme of Management to be amended, however redundant it might have become in theory.

 

­B. The Advisory Committee­:

 

1. If the above proposals in respect of the Trees and Surveys (Estate) Committee are adopted, no changes to the Advisory Committee are required.

 

2. If the above proposals are not adopted, then the amenity societies should seek to insist that clause 16 (b) of the Scheme of Management be strictly complied with, that meetings of the Advisory Committee be scheduled for not more than 14 days nor less than 7 days prior to meetings of the Trees and Surveys (Estate) Committee, that all pending Licence Applications and Notices of Breach should be tabled for the agenda of the Advisory Committee and that no Applications or Notices not so tabled should be tabled for the agenda of the ensuing Trees and Surveys (Estate) Committee, with all the ensuing pointless duplication of effort, especially on the part of the Estates Office, that the implementation of this proposal would necessitate.

 

3. Whether or not the above proposals are adopted, the Estates Governors are asked to recognise that the Advisory Committee, once established in accordance with the Scheme of Management, is an autonomous body, entitled to elect its own Chairman (who shall not, unless the Committee otherwise decides, have any casting vote nor any right to determine what subjects are or are not fit for discussion by the Committee) and establish its own rules of procedure and public accountability, and that, unless the Committee decides otherwise, there shall be no presumption of confidentiality in respect of any of the transactions of the

Committee.

 

Patrick Darby 13/11/1989