14-626 - Tooting Bec Cafe Disposal (SI and DJO 19.11.14)

PAPER NO.
14-626
WANDSWORTH BOROUGH COUNCIL
COMMUNITY SERVICES OVERVIEW AND SCRUTINY COMMITTEE –
27TH NOVEMBER 2014
EXECUTIVE – 1ST DECEMBER 2014
Report by the Director of Housing and Community Services to consider objections received
to the proposed lease of the cafeteria at Tooting Bec Common, SW17 (Bedford)
SUMMARY
This report sets out the responses received following the Council’s statutory
advertisements inviting objections to the proposed leasing of the cafeteria, being part
of public open space at Tooting Bec Common, SW17.
Having considered the objections, and responses to the proposals for leasing the
cafeteria on the Common, the Director of Housing and Community Services considers
that the negotiations with the current lessee should be stopped and that expressions of
interest for a new lease, to start as soon as possible in 2015 and to include specific
conditions including those referred to in paragraph 20, be invited from suitably
experienced organisations and individuals. The Executive is recommended to approve
this approach, having considered all the objections and responses. The Overview and
Scrutiny Committee are asked to support the recommendations.
The Head of Property Services’ comments at paragraphs 17 to 20 provide details of
the current lease arrangements for the cafeteria and draft heads of terms for the
proposed lease.
The Director of Finance comments that exposing the lease to competitive tender is in
line with existing Council policy and will ensure that the Council achieves the maximum
possible consideration for the lease whilst ensuring that the required toilet facilities are
provided. Any budgetary implications will be considered once the tender exercise is
complete.
RECOMMENDATIONS
1.
The Community Services Overview and Scrutiny Committee are recommended to
support the recommendations in paragraph 3.
2.
If the Community Services Overview and Scrutiny Committee approve any views,
comments or additional recommendations on this report these will be submitted to the
Executive for consideration.
3.
The Executive are recommended: -
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Objections to proposed lease of cafeteria at Tooting Bec Common
(a)
to consider the objections received to the proposal to grant a lease of no more
than 15 years to the current operator of the cafeteria on Tooting Bec Common,
SW17, and the contents of this report; and
(b)
having considered the objections, to not agree to the proposal for a direct re-grant
of the lease which was the subject of consultation and to instead instruct the Head
of Property Services, in consultation with the Borough Solicitor and the Director of
Housing and Community Services, to commence a procurement process seeking
a suitably experienced operator to enter into a lease of not more than 15 years to
develop and operate the cafeteria.
INTRODUCTION
4.
In July 2014 the Executive approved the proposals to advertise the Council’s intention
to dispose, by lease, of the cafeteria on Tooting Bec Common, SW17 (Paper No. 14364).
BACKGROUND
5.
The current lessee of the cafeteria has been granted planning permission to construct a
small extension to the rear and side of the current building to increase the kitchen and
indoor dining space and to provide a toilet that will be accessible to both customers of
the cafeteria and users of the common during café opening hours (Application number
2012/1184).
6.
In order that the lessee can secure the necessary funding to construct the extension,
the Head of Property Services, through the Council’s appointed property consultants;
Lambeth Smith Hampton, has been negotiating a surrender of the existing lease and a
re-grant of a lease for a 15-year term to replace the current lease that expires on 28th
February 2015.
7.
In accordance with the Borough Solicitor’s advice, the Director of Housing and
Community Services advertised the proposed disposal by means of a 15 year lease in
accordance with The Local Government Act, 1972, Section 123 (as amended). The
advertisement appeared in two consecutive editions of the local Wandsworth Guardian
newspaper, on the 7th and 14th of August 2014.
8.
The Notice gave anyone wishing to object to the proposal until 8th of September to
submit their objections to the Director of Housing and Community Services. This
deadline was subsequently extended to 29th September 2014 following representations
from a number of local representative groups, including the Tooting Commons
Management Advisory Committee that the original deadline was not shown on copies of
the Notice that had been sent directly to them.
9.
The Council received two written objections, one from the Tooting Commons
Management Advisory Committee and one from the Friends of Tooting Common.
10. Both groups are clear in their views that, rather than negotiate a new lease with the
existing café operator, the Council should invite expressions of interest from suitably
experienced organisations or individuals for a new lease to take effect on the
termination of the existing lease in February 2015. They both express the view that
competitive tendering of the opportunity would be the best way to get the best possible
offer and operator.
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Objections to proposed lease of cafeteria at Tooting Bec Common
11. Both groups cite a number of other concerns, including that a new lease should include
the requirement for the lessee to provide and maintain a publicly accessible toilet. Other
concerns such as the design of the proposed new extension, reference to the proximity
of the proposed extension to mature oak trees, and the proposal to overlay a part of the
outside area with artificial grass are, officers believe, already resolved in the planning
officer’s report to the planning consent (2012/1184). In summary, the approved plan
addresses these concerns: it does not include the use of artificial grass; the roof profiles
have been modified to match the existing; and the proposed extension has been
reduced in size to move the outer walls further away from the mature trees. Copies of
the planning consent and the planning officer’s report are attached as Appendices 1
and 2 respectively.
12. Whilst proceeding with the current intention to negotiate a new lease with the current
lessee would most likely be the surest and quickest way of securing the improvements
to the café that all parties wish to see, it should be possible to include in a new lease a
requirement for the lessee to obtain planning consent (if required) for an appropriate
extension/development of the existing facility to include publicly accessible toilets and
other relevant conditions. The current Lessee would be able to submit an expression of
interest for a new lease.
13. On that basis, and on the basis that competitive tendering has consistently provided the
Council with the standards and levels of services that it, and local residents, expect,
officers propose that the negotiations with the current lessee be stopped and that
expressions of interest for a new lease, to start as soon as possible in 2015, and to
include specific conditions including those referred to in paragraph 20, be invited from
suitable experienced organisations and individuals including from the current lessee.
COMMENTS OF THE BOROUGH SOLICITOR
14. Section 123 of the Local Government Act 1972 empowers a local authority to dispose of
land in any manner they wish. In the case where such disposal involves open space
land, the Council is obliged to comply with the procedures set out in section123 (2A) of
the Act. This provides that a council may not dispose of any land consisting or forming
part of an open space unless before disposing of the land they cause notice of their
intention to do so to be advertised in two consecutive weeks in a newspaper circulating
in the area and considering any objections to the proposed disposal which may be
made to them.
15. The Council is required to consider all objections when coming to a decision whether or
not to dispose of the open space and in doing so the Council is under an obligation to
act reasonably. To such purpose, the Council must have regard to all relevant matters
and disregard all irrelevant matter and come to a decision that is not so unreasonable
that no reasonable local authority could have come to that decision. Case law has
provided that section 123(2A) “…seems to envisage a careful balancing of the benefits
of selling open land space as against any objections. No doubt objections from those
who live in the area, it is envisaged, would be highly material in such a balancing
exercise.” It should be noted that the proposed disposal is by way of a lease of not
more than 15 years and is not a permanent reduction or sale of the open space.
16. The use of common land is restricted to use permitted by statute. The Ministry of
Housing and Local Government Provisional Order Confirmation (Greater London Parks
and Open Spaces) Act 1967 empowers local authorities to provide and maintain
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Objections to proposed lease of cafeteria at Tooting Bec Common
facilities such as tracks, courts, greens and such other open air facilities as the local
authority thinks fit for any form of recreation whatsoever and indoor facilities on
commons and open spaces and to et such facilities. This also includes the provision of
meals and refreshments of all kinds to sell to the public.
COMMENTS OF THE HEAD OF PROPERTY SERVICES
17. The current lease on the cafeteria was granted for 9.25-year term and is set to expire
contractually on 28th February 2015.
18. The current lease is ‘contracted out’ of sections 24 to 28 of the Landlord and Tenant Act
1954 which means that the Leaseholder does not have the automatic right to renew the
lease on expiry. As such the current lease comes terminates on 28th February 2015.
19. The current tenant, Mr Giuseppe Della Camera, has aspirations to extend the existing
property and extend his lease. In regard to the former, the tenant obtained planning
permission (Ref: 2012/1184) for a development to extend the property in January 2013.
This planning permission expires on 7th January 2016. The Leaseholder has also been
in without prejudice negotiations with the Council’s property consultant for a surrender
of the existing lease and a regrant of a lease for a longer term. These negotiations have
now been suspended pending the decision of the Executive.
20. In accordance with the recommendations of this paper Property Services are to instruct
the Council’s property consultant, Lambert Smith Hampton, to invite expressions of
interest for a new lease of these premise. The terms of the proposed lease would
include the following:Term
Up to 15 years
Term
1st March 2015
commencement
date
Repairs
Full repairing and insuring lease
Security of
tenure
Contracted out of the Landlord and Tenant Act 1954
Rent
To be advised
Rent review
Upwards only to market rental value
User
Cafeteria selling meals snacks ice creams and non-alcoholic drinks
Permitted hours Premises to be kept open at least 350 days in every year between
minimum hours of 9:00am to 4:00pm and maximum hours not
exceeding the opening and closing times of parks in control of the
Council.
Alterations
With the prior written approval of the Council, the Tenant may carry
out internal and external alterations to the Premises to upgrade the
facilities. In the case of external alterations no works to be carried
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Objections to proposed lease of cafeteria at Tooting Bec Common
out without first obtaining the necessary local authority Planning
Consent and Secretary of State consent both in writing.
Other
Leaseholder to be obliged to ensure its toilet facilities are publically
available.
Any development or extension to the premises not to interfere with
the existing mature oak trees.
Roof profile of any extension to be of similar detail to the existing
building
COMMENTS OF THE DIRECTOR OF FINANCE
21. The Director of Finance comments that exposing the lease to competitive tender is in
line with existing Council policy and will ensure that the Council achieves the maximum
possible consideration for the lease whilst ensuring that the required toilet facilities are
provided. Any budgetary implications will be considered once the tender exercise is
complete.
CONCLUSION
22. The Director of Housing and Community Services has considered the objections
received to the proposal to grant a new lease to the current lessee of the cafeteria on
the common. The Director concludes that the most appropriate way to secure the most
advantageous offer, in terms of both the level of service and income to the Council, will
be to advertise for expressions of interest in a new lease to start from 1st March 2015.
The Town Hall,
Wandsworth,
SW18 2PU.
BRIAN REILLY
Director of Housing and Community Services
19th November 2014
Background Papers
All reports to Overview and Scrutiny Committees, regulatory and other committees, the
Executive and the full Council can be viewed on the Council’s website
(www.wandsworth.gov.uk/moderngov) unless the report was published before May 2001, in
which case the committee secretary (David Jones-Owen, 020 8871 7032; email
[email protected]) can supply if required.
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