Meeting with The Dulwich Estate - some reflections by Michael Rich
The public meeting with representatives of the Estate, organised by the Dulwich Society on 29th September, 2009, was, judging from the attendance, very welcome to residents: and I judge from the fact that the Estate was willing to field four representatives with the relevant responsibilities to answer questions on the running of the Estate and the running of the management scheme, it was not unwelcome to the Trustees. It was certainly an admirable opportunity for both residents and the Estate to understand each other better, although at times I was doubtful how far the opportunity had been taken.
The need for such increased understanding was apparent from the repeated cries from the floor for more openness and public participation not only in the Management Scheme, but also, and rather less appropriately, in the administration of the Charity. The Estate is surely right to take the view that the administration of the property held by the Trustees (largely the commercial property) is their business under their obligation to satisfy their beneficiaries and the Charity Commission. Their primary duty is indeed the maximisation of the income for their beneficiaries ( the seven schools, the Alms Houses and the Chapel).
Nevertheless it may be that the value of the exchanges was to give the Chairman and the Chief Executive some pause for further reflection on what is most likely to achieve the aim of maximising income, not only immediately but also over future years. One useful contribution from the floor, which I hope the Trustees will consider further, was to relate the maintenance of rental value to appropriate user mix. We were told of the letting of a shop to Oxfam, because, as we were told, that was the only offer that the Estate received. The presence of such charity shops is, however, as was said, as I believe correctly, detrimental to the prosperity of competing commercial traders and so to the value of the whole shopping parade. We were not told of any thought having been given to letting on terms outside the Landlord and Tenant Act with a view to making such user, if it must be accepted at all, capable of being determined when the economy recovers.
In the administration of the Management Scheme residents do have a direct concern, which was expressed in somewhat populist terms as “no taxation without representation”. That kind of language seems to me to misconceive the nature of the Scheme, which was approved by the High Court because the Court was satisfied, after hearing evidence, that the continued application of more or less the same covenants as had been contained in the leases granted by the Estate before enfranchisement would be of benefit to the freeholders after enfranchisement. That included the management of the Scheme by the previous freeholders (the Estate). Although there was a period when the Estate Governors (as they then were) doubted whether their continued role was of benefit to their beneficiaries, their successors (the present Trustees) have been willing to undertake that responsibility. The Estate Trustees are therefore the Managers of the Scheme because the High Court thought they were the most suitable people to manage it, and for myself I think that I would prefer them (composed in the way that was usefully explained to the meeting) to some elective body which could so easily fall into self-interested hands.
But the Trustees are not unfettered in their right (and duty) to manage. I was disappointed that the representatives of the Estate made no reference to the provisions of paragraph 16 of the Scheme and left it to the Chairman of the Dulwich Society who took the chair of the meeting to refer to, and describe the Advisory Committee of representatives of residents and amenity societies with which representatives of the Managers are required by that paragraph of the Scheme to meet not less than twice a year. This is the formal provision for consultation for which the meeting was clearly asking. The Scheme makes clear that the powers are conferred on the Managers “for the purpose of enabling them to preserve the amenities of the Estate for the common benefit”. Moreover the Managers are required to “have regard to any representations made to them by members of the Advisory Committee concerning …. applications and notices or otherwise concerning the amenities of the Estate” (my underlining). Although as I understand it the Estate has reconsidered the necessity, as they once thought, to treat the proceedings of the Advisory Committee as confidential, the proceedings are not published. It may well be therefore that the cry for openness and consultation could be best achieved by giving publicity to the proceedings of the Committee and inviting concerned residents to make representations through the representative members.
I hope that the Estate will feel that this meeting has been sufficiently useful to justify its repetition, perhaps annually. If so, I would suggest that the business should include a report of the Advisory Committee for the year. Certainly I look forward to such reports in future editions of the Journal.
His Honour Michael Rich QC
President The Dulwich Society