As reported last year in 'Southside' Magazine (and reprinted in the Dulwich Society News-letter for October 1987), "Dulwich Village's sylvan tranquillity is being disturbed by ripples of discontent from residents over an apparent policy of neglect by the Dulwich Estates Governors." The phrase "ripples of discontent" has subsequently proved something of an understatement - during the ensuing months events have unfolded with a speed which would have amazed all of us a year ago, and have been laced with not a little drama.  At the instigation of the Dulwich Society, two meetings were held at The Old Grammar School on October 20th and November 24th 1987, attended by representatives of many localresidents associations and amenity groups, who were invited to canvass their members with a view to compiling a dossier of specific and general complaints by local residents against the Estates Governors and their 'executive arm', the Estates Office.  The resultant dossier was duly sent to the incoming Chairman of the Board of Estates Governors, Marshall Field, in December, with an invitation to attend a public meeting under the auspices of the Dulwich Society, scheduled for February 29th, 1988.

 

This public meeting, at which our local M.P., Gerald Bowden, took the Chair, duly took place, and resulted in a statement of intent, drafted by Reg Collins, being put as a proposition to the meeting by the Chairman, and being passed overwhelmingly (with no more than 7 opposing or abstaining) by the 350 or so who attended.  This was to the effect that a 'Co-Ordinating Committee' be called together, with a view to creating a 'Public Advisory Committee' to represent the interests of Dulwich residents in their dealings with the Estates Governors.

 

At a meeting of the Dulwich Society's Executive Committee on March 8th, it was agreed that Reg Collins should write to the Dulwich Residents Association and to the Dulwich Village Preservation Society, sending them a draft agenda for the first meeting of the Co-Ordinating Committee (which is to be regarded as no more nor less than an enabling committee, with no fixed terms of reference other than the general objective of creating the Public Advisory Committee referred to above), and inviting each of them to nominate two members to represent them on that Committee.  At the time of writing, this Co-Ordinating Committee has yet to meet, although both the other societies have expressed their willingness (with varying degrees of enthusiasm) to take part.

 

At the risk of irritating those of you who are fully familiar with the arguments, I think it would be useful to repeat (with some amendments and additions) the substance of a paper which I wrote last October and which formed the basis for discussion at a meeting of the Dulwich Society Planning and Traffic Sub-Committee in December.  This paper itself repeated some material included in an article I wrote for the Dulwich Society Newsletter in 1982, which was eventually published in the 'Dulwich Villager' in 1984.  That article, I feel entitled to claim, accurately predicted the troubles which have now beset the residents of Dulwich, and gave my reasons for believing that these troubles were, in fact, inevitable.

 

­THE GOVERNORS' 'PUBLIC RESPONSIBILITY' - A MYTH?­

 

As long ago as 1909, E. T. Hall, then Chairman of the Estates Governors, wrote in a letter to the 'Daily Mail' of the Board's perception of its role "..... as trustees having ­a public respon-sibility­ ....."  The primary function of the Estates Governors and their predecessors has always been that of trustees for the various charitable objects started by Edward Alleyn, principally Dulwich College.  These objects, and the proportions in which they benefit, have been altered and added to since 1619, but the important point to appreciate is that (despite what successive Boards of Estates Governors appear to have believed) they do not include, and never have included, the people of Dulwich as such.  True, in the past the Dulwich estate has, by and large, been managed wisely and well - property values testify to that.  Indeed property values are the crux of the matter, for, as trustees, the Governors' duty has been to maintain the value of their assets so as to maximise income, and it is therefore natural that theyshould have taken what steps they could, by controlling development, to maintain the character of the area.  From Edward Alleyn's time College lands were leased out for terms not exceeding 21 years, with no premium payable on the grant of the lease.  In time, by a process which was not strictly legal, tenants were promised up to two renewals of their leases at the old rent, to encourage new building, making leases effectively 63 years.  The tenants' position was further strengthened by a special Act of Parliament in 1808, which permitted 84 year building leases (later extended to 99 years). Subsequently, the ban on a capital payment when a lease was granted was abolished, which meant that the College was now administering not only the Dulwich estate, but also a substantial equity fund which had to be invested for the benefit of Alleyn's foundation.  Thus, over a period of centuries, the emphasis shifted, to put it simply, from land to cash, but the College, and later the Estates Governors, always knew that, whether leases were granted for 21, 63, 84 or 99 years, the land would eventually revert to them.  They therefore had a direct financial interest, as trustees for the Foundation, in ensuring that the value of the estate was maintained.  Then along came the Leasehold Reform Act in 1967, and, although it may not have been appreciated at the time, all that changed for ever.

 

­THE LEASEHOLD REFORM ACT, 1967­

 

The Leasehold Reform Act was passed to enable those who occupied houses which they held under long (e.g. 99 year) leases to require their landlords either to sell them the freehold or grant them a 50 year extension of their lease.  Most lessees who have subsequently taken advantage of the Act have bought their freeholds rather than extend.  Section 19 of the Act provided as follows:

" - (1) Where, in the case of any area ...... held from one landlord..... it is in the Minister's opinion likely to be ­in the general interest­ that the landlord should retain powers of manage-

ment......  then the High Court may ..... approve a scheme giving the landlord such powers and rights .....

- (2) .....

- (3) ­The Minister­ in considering whether to grant a certificate authorising a scheme for any area, and the High Court in considering whether to approve a scheme ­shall have regard primarily to the benefit­ likely to result from the scheme ­to the area as a whole .­....."

[The underlinings are mine.]

 

The Estates Governors duly applied for such a certificate within the specified time limit (12 months from the Act becoming law) and the Minister granted it.  An Originating Summons was issued in the High Court on June 3rd 1971, and after various adjournments (during which other parties, including representatives of the Dulwich Society, were joined in the action) the High Court (Mr Justice Walton) finally approved the Scheme of Management on January 21st, 1974.

 

­APPLICATION OF THE SCHEME OF MANAGEMENT­

 

Let us examine how the Scheme applies, or was apparently intended to apply, to different types of property.

 

(1) Enfranchised leaseholds:  the Scheme ­certainly­ applies to any property enfranchised under the Act, in other words residential houses which were formerly leasehold.  Owners of enfranchised property subsequent to the original purchaser from the Estates Governors cannot plead ignorance of the Scheme (although not a few have tried to do so), as it is registered as a local land charge.

 

(2) Other property sold by the Estates Governors:  the Scheme can­, but ­does not automatically­, apply to other types of property, such as flats, commercial premises, or vacant building plots, playing fields or woodland, if the Estates Governors (as the present Managers under the Scheme) choose to make the imposition of the Scheme a condition of their sale of any such properties, as they have apparently done in all cases (so far).  However, the Estates Governors' duty as trustees is to make as much money for their beneficiaries as possible, and it seems to me that the logical consequence of the fact that the houses and land formerly held on lease from them will never again revert to them is that in future the Estates Governors are likely to be under pressure to agree to sales from purely financial considerations, regardless of their effect on the character of the area.  It seems reasonable to suppose that builders, or local authorities, would be willing to pay more for land freed from the provisions of the 'Scheme' than they would for land which was made subject to it.

 

(3) Freeholds retained by the Estates Governors:  these have, of course, diminished dramatically since the Leasehold Reform Act was passed, and will tend to decrease still further in future, as the Estates Governors receive offers so tempting that they cannot be refused to purchase and develop areas of woodland, playing fields, derelict mansions (such as are left), etc.  Clause 2(a) of the Scheme states that it "shall apply to each enfranchised property", which is deemed to include properties sold by the Estates Governors voluntarily (and not by enfranchisement) which they have chosen to make subject to the Scheme, which logically suggests that it is ­not­ intended to apply to property which they retain - even Peter Whiteman and Michael Rich, in their respective papers on this subject, seem to be agreed on that point.  However, I am not so sure.  You will recall that the Leasehold Reform Act itself referred to "the common benefit" and "the benefit....to the area as a whole", and clause 16(a) of the Scheme itself states that the rights and powers conferred on the Managers are to enable them "to preserve the amenities of the Estate for the common benefit".  "The Estate" does not mean only the aggregate of all enfranchised properties; it means the whole of the Dulwich Estates freehold - woods, recreational areas, roads, and all.  "For the common benefit" does not mean only for the benefit of enfranchising lease-holders; it means exactly what it says - for the benefit of all, or at least all who live within the borders of Dulwich.

 

As far as I can gather, provision for 'Schemes of Management' was included in the 1967 legislation not with the welfare of enfranchising leaseholders in mind, but to satisfy a powerful lobby of landowners such as the Grosvenor Estates and the Dulwich Estates Governors, anxious to preserve the value of what would be left of their estates after enfranchisement, and the inclusion of pious expressions such as "...in the general interest..." may be regarded (especially by the cynical such as myself) as so much window-dressing.  In 1967, of course, none of this mattered.  At that time, the interests of the landowners and of those who lived on the land they owned were identical - both sides wanted to maintain high standards.  It is easy to be wise many years after the event, and I do not think that in 1967 anyone could reasonably have foreseen that a time would come when those interests would diverge, even to the extent of becoming incompatible.  What worries me is that, in 1988, there are still many who, ignoring the evidence of experience, do not appreciate this fact.

 

What, for instance, if one of the sports grounds along Dulwich Common should become available for development?  Is it conceivable that a duty "to preserve the amenities of the Estate" would prevent the Estates Governors, should they so desire, from selling it for development?   I suspect that the answer is 'no', but in view of the inconsistencies in the Act and in the Scheme to which I have just drawn attention, one cannot be sure.  I think we should recognise that, whoever was originally intended to derive principal benefit from the concepts of 'Schemes of Management', it is possible to argue (and I would put it no more strongly than that) that their duty to preserve the amenities of the Estate would (a) prevent the Managers (who are at present, of course, the Estates Governors) from permitting the development of their own land if such development, or any other proposed dealings with the land, threatened such amenities, and (b) require them to keep their retained land properly maintained.

 

­THE ESTATES GOVERNORS' ALLEGED CONFLICT OF INTEREST­

 

If this is accepted as a possibility, one has no alternative but to consider whether, as Peter Whiteman maintains, but Michael Rich denies, the two distinct functions of the Estates Governors create an irreconcilable conflict of interest for them.  Having promoted the same view as Peter Whiteman for the last six years, I am bound to say that I agree with him.  Michael Rich's opinion must, of course, be respected, and I hesitate to contradict it.  I can only say that the possible adverse effects on their retained property of the Governors' selling land for the most they can get, which must entail permitting high-density housing, seems to me to be so minimal in the short or medium term, and even in the longer term so much outweighed by the immediate financial gain and the income that that will produce, as to be unlikely to figure in their deliberations at all.  Indeed, actual experience tells us that this is so in practice as well as in theory, as does the general conduct and attitude of the Estates Governors which has brought about the present climate of dissatisfaction.  Having said that, one could not criticize the Governors for pursuing such a policy if their only or main function were, as they seem to see it as being, that of Trustees for their beneficiaries.  Indeed, in that capacity, they have no option.  The question is, do the Estates Governors owe another duty which may be incompatible with that they owe to their beneficiaries?  As should by now be appreciated, they do - to the residents of Dulwich, under section 16(a) of the Scheme of Management approved by the High Court, "to preserve the amenities of the Estate for the common benefit".  This duty is neither inferior, nor superior, to the Governors' duties astrustees.

 

­THE ESTATES GOVERNORS' OBLIGATIONS UNDER THE SCHEME­­

 

There is undoubtedly a school of thought which maintains that present and future Dulwich residents can and should rely on the Estates Governors to carry out their obligations.  What then are the Estates Governors obligations as 'Managers' under the Leasehold Reform Act Scheme of Management?  The Scheme confers "rights and powers" on the Managers but, with one exception (that of forming the 'Advisory Committee', to which I will return later) imposes no specific duties upon them.  There is provision for the collection, from owners of enfranchised properties, of a periodic management charge every five years (the 'quinquennial charge'), to cover the cost to the Managers, attributable to the Scheme, of running the Estates Office and maintaining the roads, verges, open spaces, ponds and woods, etc.  If the Managers incur such costs, they will no doubt charge for them.  However, there is no specific provision in the Scheme for forcing the Managers to incur such expenditure if they chose not to do so.  Nor, if the Managers choose to turn a blind eye to unauthorised loft conversions, insensitive stone-cladding of exterior walls, lopping of trees, parking of caravans in front gardens, etc., etc., does there seem on the face of it to be anything that, in law, any outraged Dulwich resident can do about it, unless there has been an infraction of any statute or local authority by-law.  Apart from any statutory obligations the Estates Governors may have (e.g. in respect of highways), and any liabilities they may have to their Lessees in respect of the covenants in their leases, the Estates Governors seem to owe no specific­ legal duty, as trustees or in any other capacity, to the residents of Dulwich.  How-ever, they undoubtedly have a ­general­ duty to preserve the amenities of the Estate, and if they fail to comply with this duty the ultimate sanction is that they can be removed as Managers, and replaced.  One has to consider what is meant by the word "amenity" in the Scheme, since unfortunately it is not defined in the Scheme or in the Act.  Clearly, at the simplest level, one would think it must include items of 'village furniture' attached to the Estate freehold, such as railings, signposts, the memorial fountain, the Burial Ground, the 'manor wastes' alongside many of the roads, all of which help to give Dulwich its special character, and should be preserved and maintained.  Does it also include the 'uncovered land' which in 1909 E. T. Hall described as being intended to be kept open, "part as beautiful woodland, and part....as lungs and playing fields for the inhabitants"?  If it does, then the Estates Governors are in trouble.

 

­LEASEHOLDERS AND THE SCHEME OF MANAGEMENT­

 

When the dossier of complaints which was sent by the Dulwich Society to the Estates Governors was being compiled, an analysis of the replies to the questionnaires sent to representatives of local residents showed that by far the largest number of complaints, and the most detailed and best documented, came not from freeholders but from those who hold their properties under lease from the Estates Governors.  Within the Dulwich Estate there remains a wide variety of leasehold property - houses converted into flats, maisonettes, blocks of flats both small and large, commercial properties - and special cases of which the Old Grammar School is a foremost example.  Such leases usually include obligations on the part of the Lessor (the Estates Governors) to keep private access roads and forecourts, amenity areas, and service conduits used in common in good condition, and covenants to keep the structure of the building (including the roof and foundations) properly repaired and maintained, and to undertake responsibility for external painting, etc.  If the Estates Governors, as Lessor, fail to observe these covenants in such leases, there are, in law, remedies available to their individual lessees.  Where the lessees on any particular estate are collect- ively represented by a recognised residents or tenants association, the association may, as it were, stand in the shoes of the individual lessees.  However, such disputes are not matters of general public concern, even if they seem to be, and if local amenity groups and residents associations not directly affected by an alleged breach of covenant by the Governors attempt to interfere, they should not be surprised if the Governors, in effect, tell them to mind their own business.

 

Unfortunately, in the discussions which have taken place over the past weeks and months on the question of possible improvements or amendments to the Scheme of Management, this point does not seem to have been generally grasped.  In January, I attended a meeting of the Planning and Traffic Sub-Committee at which Prof. Peter Whiteman, assisted by other representatives of the Dulwich Village Preservation Society, presented a paper outlining the defects in the present Scheme of Management, and suggesting the setting up of a new and strengthened Advisory Committee as a way of remedying these.  The version discussed was a 4th draft, and although the mood of the meeting (with the notable exception of the guest representative from the Dulwich Residents Association) was that of general support for the views presented, there were some reservations of a minor nature, all of which, we were informed, were taken 'on board' in a 5th draft of the paper which had already been prepared.  What we were not informed, in being asked to recommend the adoption of the paper to the Dulwich Society Executive Committee, was that the 5th draft would incorporate substantial amendments, pleading a special case for the interests of leaseholders to be specifically recognised under the Scheme of Management, which had apparently been inserted after consultation with the Dulwich Residents Association.  I have to say, without in any way seeking to minimise the genuine grievances which have been put forward by and on behalf of the leaseholders, that I regard such a requirement as completely inapplicable to any discussion about the Scheme of Management.  I have now seen Michael Rich's paper in reply to the 5th draft of Peter Whiteman's paper, and I am bound to say, with respect, that I entirely agree with his view that "the suggestion that [the new Advisory Committee] could administer the Estates Governors' leasehold property is, in any case, wholly misconceived", for the reasons he gives.  Any proposal presented to the Estates Governors for a strengthened Advisory Committee, which incorporates this as a requirement, will never meet with their approval, and should the suggestion ever be brought before a court for determination it would stand no chance of success there either.  It must be clearly understood that, whatever the causes which brought it into being, the Scheme of Management is not intended to operate solely for the benefit of freeholders.  The Act refers to "the ­general­ interest".  ­All­ those living in Dulwich, whether they be freeholders, leaseholders, monthly tenants, flat-sharers, or their dependents, are intended to benefit from the Scheme, and for any one group to be allowed to make special pleading makes a nonsense of the whole thing.  If leaseholders wish to pursue their particular grievances against the Estates Governors in their capacity as Lessors, they must doso in some other way.

 

­DISSATISFACTION WITH THE ESTATES OFFICE­

 

The analysis of replies to the questionnaire mentioned above also showed that "various groups of residents expressed a lack of confidence in the Estates Office in certain areas."  It is, of course, quite possible that many of the currently perceived criticisms of the Estates Governors, particularly those which have generated the most heat, have a common root, in the sense that they may stem from inefficiency or apathy at the Estates Office, rather than any deliberate policy of neglect on the part of the Board.  There may be any number of reasons for this, if it indeed exists, including inadequate remuneration of employees (resulting in generally low levels of both expertise and job satisfaction), and ineffective supervision, both by the Estates Governors of the Estates Office and by the Estates Office of its employees and sub-contractors.  It is possible that the specific complaints, and the unacknowledged 2,000-signature petition deposited with the Estates Office, were not drawn by the Estates Office to the attention of the Estates Governors, who accordingly remained in ignorance of them.  Now that the Governors have been made aware, in no uncertain terms, of the depth of local feelings, one would hope that the situation would improve, and indeed there are signs that this is so.

 

­THE ADVISORY COMMITTEE

 

The one specific duty imposed upon the Estates Governors by the Scheme of Management is (as laid down in clause 16(b) of the Scheme) to form an 'Advisory Committee' of at least eight persons, with equal representation from the Governors and nominees of appropriate local residents' or amenity societies, to meet not less than twice a year.  The Governors, as Managers, "shall have regardto any representations made to them by the members of the Advisory Committee".  Having had regard to them, there is no guarantee that they will act on them. ­

 

The Advisory Committee, as presently constituted, has come in for considerable criticism.  The interests of local residents are currently represented by two members of the Dulwich Society and two members of the Dulwich Residents Association, matched by an equal number of Estates Governors.  The Committee does not seem to have met on a regular basis, or as often as it should, and its discussions are treated on a confidential basis.  This last aspect I find most extraordinary.  There is no requirement in the Scheme that the Committee's deliberations should be confidential, and when (as was apparently the case) a proposition was put to the Committee (presumably at the behest of the Estates Governors) that

they should be, our representatives should have (a) argued against it, (b) refused to allow it to be put to a vote, or failing that voted against it, and (c) declined to be bound by that vote.  There were no doubt reasons why they apparently did none of these, although one would be interested to know what they were.

 

­ALTERING THE ADVISORY COMMITTEE­

 

Certainly the Advisory Committee has not worked as intended, and the questions now before us are (a) whether, as presently constituted, but with renewed goodwill and application on both sides, it can be made to work, (b) whether its constitution needs amendment, and if so how whether such amendment would require any alteration to the Scheme of Management, involving an application to the Court, and (c) assuming a new Advisory Committee is created, with or without amendment of the Scheme, whether it is likely to operate to the satisfaction of local residents.  I shall now deal with each of these questions in turn.

 

(1)­ Maintaining the Status Quo.­  As I understand it, the Dulwich Residents Association (perhaps at least partly because they resent any increased role in the Advisory Committee for the Dulwich Village Preservation Society) do not see any real grounds for change, and in this they have powerful support from Michael Rich.  However, if the main argument for this is that there is, in fact, no conflict of interest on the part of the Estates Governors, and therefore no reason to believe that, given an understanding of the views of local residents, they will not deal with matters impartially, then that is an argument with which I cannot agree.  If the sole purpose of the Advisory Committee were to deal with applications for loft conversions and extensions, where the question of a conflict of interest scarcely arises, if at all, I might think otherwise, but since the Scheme of Management envisages representations being made to the Managers "concerning such applications or notices ­or otherwise concerning the amenities of the Estate­", and since such considerations are bound to involve the conflict of interest to a greater or lesser degree, I am bound to take the view I do.  Those responsible for deciding these matters have a stark choice between the views of Michael Rich Q.C. on the one hand, and Peter Whiteman Q.C. (and myself) on the other.

 

(2) ­Strengthening the Advisory Committee.­  It is hoped that all the present weaknesses in the Advisory Committee can be eliminated by creating a new Advisory Committee which would differ from thepresent one in three important respects:

(a) it would be larger and/or more representative of local opinion.  The Dulwich Society is recognised as the local amenity society for Dulwich by the Civic Trust, has charitable status, and is open to any Dulwich resident.  The Dulwich Residents Association, as I understand it, is also open to all, but gives priority to the interests of leaseholders and does not have chari- table status.  The Dulwich Village Preservation Society does have such status, and its membership is now drawn from a substantial part, if not the whole, of Dulwich.  Personally, as someone who no longer lives in Dulwich and likes to think that he is above such things, I find the present jockeying-for-position that seems to be going on between these three organi-sations somewhat ridiculous.  For the common good they should, to use the current parlance, get their act together.  If both organisations presently represented, the Dulwich Society and the D.R.A., agree that local residents should be represented on the Advisory Committee in a different way, either by the inclusion of one or more other organisations, or by all local residents associations joining together in one federation, perhaps with voting rights allocated in proportion to the strength of their membership, to elect representatives to the Advisory Committee, it is not open to the Estates Governors to object.  Likewise, any increase in the size of the Committee can be achieved without altering the Scheme of Management, but would require the consent of the Governors.  The maximum size of the Committee is, in theory, fifty; i.e. equal representation by the 25 Estates Governors ­or their representatives­ and by the representatives of local residents.  It does not, of course, have to be anywhere near that size.

(b) its function would not merely be advisory, but executive.  In other words, any decisions taken by the new Advisory Committee concerning applications or notices served under clauses 3(a) (i.e. material alterations or development), 4 (i.e. complaints about failure to keep properties in good repair), or 6(a) (i.e. conversion of houses into flats) or (b) (i.e. lopping trees or otherwise creating a nuisance) of the Scheme, or otherwise concerning the amenities of the Estate, would be binding on the Estates Governors.  I hesitate to contradict not one but two Q.C.'s, but I have to disagree with the opinion expressed by both Michael Rich and Peter Whiteman that such a change ­must­ entail an alteration to the Scheme of Management.  It need not, if the Estates Governors, as a board of Trustees, agree to 'rubber-stamp' any decisions of the Advisory Committee, and to be bound by them.  They cannot be criticised by their beneficiaries for so doing, since they can point to their obligations under the Leasehold Reform Act as justification for what might otherwise be a breach of trust.  Since

trustees cannot bind their successors, there can be no guarantee that such an undertaking would be irrevocable.  However, if in the course of time it became apparent that the Govern-ors no longer regarded themselves as being bound by it, an application to the Court to amend the Scheme of Management would have to be considered by local residents.  At this stage, I suggest, it is unnecessary, provided the Estates Governors agree.  Nevertheless, having said all that, I think if we are to 'sell the product' to the Estates Governors there are certain concessions which could be offered to them in return, which I will mention later, and which would­ require amendments to be made to the Scheme of Management.  If such amendments were made, requiring an application to the court (which, since it would be with the consent of all interested parties, would not be unduly expensive), the opportunity might as well be taken at the same time of securing the court's formal approval of the revised Advisory Committee.

(c) it would meet in public.  For reasons which I hope are now generally understood, it would be impertinent to suggest to the Estates Governors (as was proposed by more than one speaker at the meeting in October at the Old Grammar School) that all their meetings be held in public.  At general meetings of the Board there is business to discuss which is of no concern to Dulwich residents.  However, provided the Estates Governors agree, I can see no objection, and much to be gained, from holding meetings of the Advisory Committee open to anyone who wishes to attend and observe.

 

(3) ­Will it work?­  I hope so, but I have doubts.  If the new Advisory Committee is effectively to have executive powers, there will have to be provision for a casting vote in the case of voting being tied.  The Estates Governors are not going to agree to any proposal which does not provide for a representative of theirs to be Chairman and to have such a casting vote, unless provision can be made for the meetings to be chaired by some person whom both 'sides' regard as strictly impartial.  If there could be agreement on this point, no alteration to the Scheme of Management would, in my view, be required.

 

­REPLACING THE ESTATES GOVERNORS AS MANAGERS­

 

If the Advisory Committee can operate in such a way that, in considering each matter brought to its attention, each member of it, whether representing the Estates Governors or local residents, will have regard primarily to what constitutes 'the common benefit', real progress is possible.  However, it is not difficult to foresee a situation arising, perhaps over the proposed development of what is now amenity land of one sort or another, in which the interests of local residents and those of the Estates Governors (as trustees) are diametrically opposed.  The spirit of co-operation and goodwill which I think we are all trying to achieve would then be replaced by confrontation.  If that were to happen, the ­only­ option available to Dulwich residents would be to apply to the Court for the Estates Governors to be replaced as Managers.  Under the Leasehold Reform Act, and the Scheme of Management itself, an application to the Court may be made, either by the Governors themselves or by 100 or more owners, to terminate or vary all or any of the provisions of the Scheme, and transfer all or any of the powers and rights conferred by the Scheme on the Managers to a local authority or other body.   With leave of the Court, a smaller number of owners may apply to exclude part of the Estate from the Scheme.  In either case, an application will only be entertained "if a change of circumstances makes it appropriate". It might be thought, if the scenario outlined above comes about, that the fundamentally altered perception by the Estates Governors of their own role, and their apparent loss of interest in running the estate (as opposed to the investments which now represent it), would be such a change of circumstances.  All that, however, should be considered very much as a last resort, although I have to say that I do not see it as quite as much of a daunting prospect as some have made it out to be, except in the initial stage of setting it up.  If one organisation, representing local residents, were to take over the role of Managers of the Estate, that ­­need not entail assuming responsibility for maintaining those parts of the Estate in which the freehold remains vested in the Estates Governors.  Except for roads, responsibility for which could be taken over by the local authorities, the Estates Office would continue to carry out the Estates Governors' obligations as Lessors, either using its own operatives or sub-contractors, and (provided appropriate arrangements were made for their costs to be recovered, as at present) to maintain the Governors' other freeholds, such as the woods, ponds and verges.  The role of the new Managers would be limited to dealing with licence applications and, as it were, 'policing' the Scheme.  All that, however, is in the future, if it is anywhere.  For now, our best course of action, in my opinion, is to secure the agreement of local residents, and subsequently of the Estates Governors, to the creation of the new Advisory Committee as outlined above.

 

­OTHER CHANGES TO THE SCHEME OF MANAGEMENT­

 

I mentioned earlier that, assuming the agreement of local residents can be secured, there are certain concessions which could, and perhaps should, be made if we are to 'sell the product' to the Estates Governors.  I have two in mind, both of them concerning the quinquennial charge:

(a) There is no provision in the Scheme of Management for what, in the case of leasehold properties, is usually known as an 'interim service charge', i.e. payments on account of expenses properly incurred by the lessor, and in fairness to the Estates Governors (or to whoever may succeed them as Managers) there ought to be.  The present Scheme provides, as stated earlier, for the collection of a quinquennial charge, which becomes payable three months before the end of each five-year period.  The basis of the charge is to be the audited costs for the first four years of such period, multiplied by 125%.  That in itself means that there can be no allowance for inflation in the fifth year, but, that objection aside, the Gov-ernors are expected to lay out money in keeping the estate in repair, paying staff, and so on, without any opportunity to recover these costs until the end of the fifth year.  It could be argued that they can well afford to subsidise the residents of Dulwich in this way, but then again why should they?  Perhaps the Estates Governors are thinking along the same lines, which may be one reason why matters have reached the stage they have.

(b) The Scheme presently provides for the quinquennial charge to be levied on 'owners' (which effectively includes occupiers) of enfranchised properties, but not owners of properties which have not been enfranchised.  This, incidentally, makes it all the more puzzling why leaseholders are apparently so keen to be specifically included in the Scheme, since at present they enjoy its advantages, such as they are, without having to pay for them.  Why, though, since all Dulwich residents in theory enjoy the benefits of the Scheme in so far as they relate to the preservation of the local amenity for the common benefit, should not all Dulwich residents contribute to the quinquennial charge?  I realise that this proposal is likely to prove somewhat controversial, but I put it forward nonetheless.

 

                                                 Patrick Darby 11/4/1988

(Originally printed on a dot-matrix printer (my first, and last), and accordingly read by hardly anybody to whom I distributed copies.  Re-formatted 10 July 2024.)