Exeter: The Incomplete Story (Part 4)

Phil Groom writes:

“Part 4?” you ask. Yes: Part 3 wasn’t labelled as such: it appeared earlier this week as Welcome to GemStar Jewellery and Gifts, Exeter. Since then SPCK have kindly furnished me with a copy of the Land Registry documentation pertaining to the transfer of properties to St Stephen the Great Charitable Trust (SSGCT).

The covenant contained in that document, and cited in my letter to Exeter’s Planning Services Dept (sent today, copied in full below) applies specifically to Bradford, Canterbury, Exeter, Truro and York.

I’d like to emphasise at this point — as stated in my letter — that I know of no cause for concern about the new tenants, GemStar, as a company: on the contrary, their presence is no doubt an asset to Exeter and I wish them every success. Unfortunately, like so many others caught up in this mess, they may find themselves unwitting victims of the Brewers’ innovative business practices; and in that, they have my sympathy.

Full details of the Planning Application along with drawings and other documents are available on the Exeter City Council Planning Pages:

The deadline for comments or objections is 21 days from 12/12/2008, the date of the Planning Application Notice as displayed in the shop window.

From: Phil Groom
Subject: Comments re. Planning Application 08/2291/07
Date: 19 December 2008
To: Rachael Durbin, Exeter City Council, Planning Services Dept    

Dear Ms Durbin,

I wish to comment on Planning Application 08/2291/07 re. the proposed “alterations to existing fascias to provide non-illuminated hand painted lettering on south east and south west elevations, hand painted vertical lettering on south corner of building and projecting sign on south west elevation”.

Having studied the proposed signage, I believe that its installation would be in further direct breach of the seven year covenant pertaining to the use of the property at 1-2 Catherine Street which restricts such use to Christian bookselling. I say “further direct breach” because the current usage of the shop as a jewellery store is also, unfortunately, in breach of that restrictive covenant, which states:

The Transferee hereby covenants with the Transferor that for a period of seven years from the date hereof the Transferee will use the Properties hereby transferred as bookshops which will serve a broad Christian tradition and sell books, bibles, church and parish stationery and resources, music, software, cards, gifts and other associated products which adequately reflect the range of theological views held within the broad Christian church including those of the Church of england, the Roman Catholic Church, the Methodist and Baptist churches as well as the Orthodox Church and will not use or permit the property to be used for any other purpose.

That citation is taken directly from the Land Registry form TP3, “Transfer of portfolio of titles”, certified copy dated 12/01/07, (copy available on request: please ask) whereby a transfer with “limited title guarantee” took place between the former occupants, the Society for the Promotion of Christian Knowledge (SPCK) and John Mark Brewer, Sandra Kay Brewer and Karen Ellen Brewer (the Brewers) who were “to hold the Property as Trustees of the St Stephen the Great Charitable Trust” (SSGCT).

Whether the Brewers had the right to dispose of the property is another matter (restrictions on disposition are imposed by Section 36 of the Charities Act 1993, and I am referring this matter separately to the Charity Commission) but even if they did have such right, the restrictive covenant remains in place and is binding upon any subsequent owners, and is in fact twice referred to in the current Land Registry files relating to this property, which also note that a copy of the covenant is filed:

Under “B: Proprietorship Register”, part 3:

(31.10.2008 ) A Transfer to a former proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in respect thereof.

and under “C: Charges Register”, part 1:

(06.05.2008 ) A Transfer of the land in this title and other land dated 29 November 2006 made between (1) The Society For Promoting Christian Knowledge and (2) John Mark Brewer and Others contains restrictive covenants.

Please note that I have no concerns whatsoever about the new tenants, GemStar, as a company: on the contrary, their presence is no doubt an asset to Exeter and I wish them every success. I fear, however, that they may find themselves unwitting victims of the Brewers’ innovative business practices.

My concerns relate to the use of these particular premises for purposes contrary to an established covenant and, specifically with reference to this planning application, by proposed signage that fails to promote the covenanted usage during the seven year period throughout which the covenant applies. Please do not hesitate to ask if you require any further information: this issue is but one small part of a much more extensive and ongoing scrutiny of the Brewers and their business dealings.

Please also note that a copy of this letter will be posted on the ‘SPCK/SSG: News, Notes & Info’ blog.

I thank you for your attention to this matter and I look forward to receiving your response soon.

Yours faithfully,

Phil Groom

Phil Groom
SPCK/SSG: News, Notes & Info
https://spckssg.wordpress.com

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35 responses to “Exeter: The Incomplete Story (Part 4)

  1. I wonder if they need to be told to avoid the possibility of wasted expenditure – although they should (I think) get any comments made as part of the process.

    Matt

  2. Valiant for Truth

    I wonder who is supposed to see that legal covenants are upheld. One wonders whether plans are afoot to sell the other shops listed above and how on earth one can monitor such things.

  3. >I wonder who is supposed to see that legal covenants are upheld.

    Anybody, via court action.

    >One wonders whether plans are afoot to sell the other shops listed above and how on earth one can monitor such things.

    We are thinking about that. There are ways.

  4. I’m slowly beginning to understand why Matt Wardman got a Lingamish award. My thoughts are with the people who are running the shop in Exeter. They probably didn’t know about the covenant. I bet the landlord knew.

  5. Elaborating slightly:

    >I wonder who is supposed to see that legal covenants are upheld.

    Anybody, via court action. The problem is usually around applicability of Covenants and their enforcibility.

    For example, my own council have built this sports centre:

    http://www.chad.co.uk/ashfieldnews/VIDEO-Dame-Kelly-opens-new.4650839.jp

    on a piece of land that their own website still describes like this:

    “The Lammas is a four acre recreation ground below the church, and was given to the town in about 1860 by the Duke of Portland. It was to be used as an open space in perpetuity.”

    http://www.ashfield-dc.gov.uk/ccm/navigation/leisure-and-culture/tourism-and-travel/old-sutton/7-the-lammas/

    But 2 years is pushing it a bit.

    >One wonders whether plans are afoot to sell the other shops listed above and how on earth one can monitor such things.

    Docs go into the land registry, and it is possible for third parties to register an interest in the disposal of assets. It needs to be done by someone who has a debt owed by the owner, and means they get money when it is sold. It can be removed by application only to a court.

  6. >Docs go into the land registry, and it is possible for third parties to register an interest in the disposal of assets. It needs to be done by someone who has a debt owed by the owner, and means they get money when it is sold. It can be removed by application only to a court.

    PS. Such an interest is picked up by searches, and it scares off buyers and estate agents – which means the owner has to talk to you.

  7. I’d very much like to support what you have written, Phil. Unfortunately I don’t think it is at all relevant to the planning application. Sorry.

    Speaking as one who was elected to a district council in 1999 and re-elected in 2003 and has served on a planning committee, might I please try to explain?

    There are only a limited number of relevant matters that can be taken into account when considering a planning application and I’m pretty certain that covenants (or any other questions concerning ownership or the owner’s rights) aren’t on the list.

    The general rule is that ANYONE can be granted planning consent ANYWHERE in England (subject to them having served appropriate notice on the owner of the land/premises concerned prior to submitting their application). Whether the person seeking consent has the legal ability to actually do the thing is immaterial!

    I also wish to take issue with mattwardman’s comment:
    > >I wonder who is supposed to see that
    >> legal covenants are upheld.
    >
    > Anybody, via court action.

    I don’t think that’s right. Surely only the person whose interests are infringed by the covenant can take action? Let me explain.

    Say, for example, the property was part of a larger area of land. And the person who owned the land placed a restrictive covenant on the property when selling it. The only person who could initiate legal action for breach of covenant would be the person who owned the land (or his successor in title).

    In this particular case I suspect that a court would be willing to strike out the covenant as being legally unenforceable (unless, for example, SPCK continues to hold title to an adjacent or nearby premises). Although, of course, that would never happen because the Brewers have nothing to gain by having the covenant struck out, seeing as how it appears to be unenforceable.

    So, whilst I agree with what you have written, I don’t think it will merit a mention at the Planning Committee (if the application actually goes to committee: I would expect it to be a non-controversial matter approved by officers acting under delegated powers).

    Likewise, unless there is a technical infringement (e.g. premises are within a conservation area that places restrictions on the size or style of lettering used), which is very unlikely, or the new sign which is to project from the building is considered to be out-of-scale for the development (also very unlikely), then there appear to be no legal grounds for objecting to the application.

    Sorry to be such a party pooper 😦

  8. Graham,

    Thanks for the comment.

    ** Covenants

    Let me explain my reasoning (and noting that I said the whole area of covenants is “slippery”).

    In general I’d agree with your comment that those affected by a covenant would be the ones to take action to ensure its enforcement.

    My understanding is that covenants are required to be known to the owner, and to still be (my word) “relevant”. They are also weak if too generally drawn.

    An example of a covenant that would not be relevant would be (say) a fence height limit of 3 feet on an estate which someone was trying to enforce on a neighbour when all the other houses have fences 5ft tall, as the overall “Open Plan Estate” objective had long since failed.

    In our case the covenant is very specific, and since it was to ensure that the shop supply that very distinctive “multi denominational religious bookshop with a broad stocking policy” service in the region, a *lot* of people are affected.

    The covenant is barely 2 years old it can hardly be ruled out of time.

    >I also wish to take issue with mattwardman’s comment:
    > >I wonder who is supposed to see that
    >> legal covenants are upheld.
    >
    > Anybody, via court action.

    >I don’t think that’s right. Surely only the person whose interests are infringed by the covenant can take action? Let me explain.

    Let me explain as well. My original comment was perhaps a little loose. If a covenant is around (say) a public right of way, then anyone who is affected – “the public” – can surely move for enforcement? That *is* anyone.

    In this case everybody who is interested in the service once delivered by SPCK Exeter and defined in the covenant is “affected”, surely?

    On that basis I would suggest that a large number of people could take action through the Courts. But that is expensive and will cost a minumum of perhaps £1000-1500.

    ** Planning

    Having checked a list of relevant factors, here:

    http://www.stratford.gov.uk/planning/planning-495.cfm

    I note that “private covenants” are stated as being “not able to be considered”. But note that this is a Local Authority site and not necessarily authoritative. OTOH, “The effect on the local economy” can be considered.

    I suspect that to get this to the Planning Committee would need interest from a local councillor, or an objection from a number of local churches – or perhaps the Bishop of Exeter, and that the Planning Committee would take a “fait accompli” view, rather than confront a problem they can avoid. I have bitter personal experience of Planning Departments and how they don’t like taking responsibility.

    I don’t think Phil will get the sign change stopped – but note that he called it a “comment” not an “objection”.

    However, I think it is good for the people who are running the business to know where they stand through an official process.

    Matt

  9. I quite understand

    (1) Planning matters are not controlled by private covenants

    (2) The sign does not breach the covenant in itself, but the whole change of use plainly does.

    SPCK would surely be the people who should enforce this, as they were the party who insisted on this covenant at the orignal time of sale 2 years ago? How did they assess the risk of the Vendors failing to respect the conditions of the sale, and what are tehy wiling to do about it?

  10. Valiant for Truth

    Agreed, Bishop. The funds which purchased the Exeter shop originally were from the giving and work of Christians supporting a 300 year old charity, SPCK, which was set up by men with good aims. Such loyalty and giving should not been thrown away and given to US interlopers because people do not monitor a covenant.

  11. I notice that SPCK included among its 2007 objectives for fufilling its charitable objects

    “Bookshops:
    1) Produce a reconstruction plan for the group.
    2) Reduce losses to an affordable level.
    3) Create a strong future for as many shops as possible.”

    and reported to the Charity commissions on 6.12.2007 that it had fulfiled this aim thus:

    “Bookshops:
    1) A new owner was negotiated and transfer achieved after six months.
    2) Losses were reduced, even when central severance costs are included.
    3) All shops and staff remained in operation via the transfer”

    SPCK still does have a direct interest in enforcing its covenant, as part of its core operations.

  12. Valiant for Truth

    At 6 December 2007 (above date for report to Charity Commission) at least five staff including three managers had been unfaily dismissed; around five staff in two shops had just walked, including all the staff at Exeter in October, and quite a number of staff had desperately found other jobs or were very actively seeking new employment. So “All shops and staff remained in operation via the transfer” is a statement which held valid for a very short time.

  13. SPCK’s 2006, 2007 and 2008 Annual Reports are now available via the sidebar, pdfs, courtesy of the Charity Commission.

  14. Hey there, you Superior Scribbler, you! First of all, I’m not “spamming” you; I promise! Second of all, I’d like to introduce myself: I’m Melissa B., The Scholastic Scribe, & I’m the “Original” Superior Scribbler! Third thing on my mind: I’ve been nominated for a pretty prestigious blog award; I’d greatly appreciate your vote, so if you click on over to my place, you’ll see the info. It’s an annual award from EduBlog, and I’m up for Best Individual Blog. And 4th thing on today’s agenda: I’ve got a cute “contest,” of sorts, going on at my place every Sunday. Please come by this Sunday for the Silly Sunday Sweepstakes. And, thanks for your support!

  15. SPCK is a respected charity. Many have suppported it throughout the years. I hope that they will police the covenants. Anything else would be a betrayal.

  16. asingleblog , I agree , have we not already been betrayed.

  17. Given Bishop Alan’s summary above of what the handover to SSGCT was supposed to have achieved, it looks like a fairly comprehensive betrayal to me — unintentional on SPCK’s part, I’m sure, but quite deliberate by the Brewers, and made all the worse by their claims to be Christians.

  18. Justice, I agree that we have already been betrayed on all fronts. Here is what I’m going to do.
    I’m sending a “signed for” letter with Self Addressed Envelope to Simon Kingston and the Bishop of Gloucester. I want to know what they are doing about the sale of the Exeter shop. Every person who has ever donated any sum of money to SPCK deserves an answer. They will probably ignore me but I will know that I have tried.

  19. I remember when we had our 3oo years Anniversary, and feeling so proud to be working for SPCK. Lets hope they do answer, im told they read this blog. Why dont we ask Mousey to pen them a poem.

  20. Justice, the letter I sent to Simon Kingston and Bishop Perham (with self addressed envelopes and marked private and confidential) reads as follows:

    Could you kindly confirm that you are aware of the sale of the SPCK bookshop in Exeter. Could you also confirm that you are aware that this building is now being used to sell jewellery as opposed to Christian books. It would also be kind if you would let me know that you are policing the covenanted buildings gifted to St Stephen the Great Charitable Trust. I’m not holding my breath in terms of an answer.

  21. asingleblog,Lets hope they do answer.

  22. I can confirm that Simon is aware of the situation in Exeter. As to what action SPCK may or may not be taking — that’s another story and probably strictly sub-judice.

  23. I can confirm that Phil Groom and Matt Wardman deserve more awards than anybody could possibly confer.

  24. Rumour has it that the Brewers may be receiving some special blog awards fairly soon…

  25. Phil Groom wrote:
    >…As to what action SPCK may or may not
    > be taking — that’s another story and
    > probably strictly sub-judice.

    If SPCK (or anybody else for that matter) wishes to object to the grant of planning permission, then the law requires their written objection(s) to be placed in the public domain.

  26. >If SPCK (or anybody else for that matter) wishes to object to the grant of planning permission, then the law requires their written objection(s) to be placed in the public domain.

    I think we’re probably agreed that objections to planning permission are unlikely to stop anything 🙂 – but it has been a useful conversation to put the focus on other ideas, and to point our attention to the position of all the *other* shops that they are doubtless trying to sell.

  27. Hey ho – looks like Graham’s right about relevance to planning permission: reply received today below. But the issued has been raised, the Brewers’ illegitimate asset stripping is exposed for all the world to see, and the covenant remains valid:

    From: Rachael Durbin
    Subject: RE: Comments re. Planning Application 08/2291/07
    Date: 22 December 2008
    To: Phil Groom

    Dear Mr Groom

    I refer to your recent email. I have read through the content of the same but must inform you that I am unable to take this into consideration in the determination of a listed building application or advertisement application. Only planning matters can be considered, and covenants are not relevant in this case.

    However, should the works be granted listed building consent that permission would not override any covenant. I would suggest that this is a private legal matter and not one which the local planning authority are in a position to assist with.

    If you would like to discuss this further please contact me.

    Yours sincerely

    Rachael Durbin
    Conservation Planner

    This message has been forwarded to Simon Kingston at SPCK.

  28. ie – Exeter City Council, like SPCK, don’t care a fig about legal covenants.

  29. Have just found these two little snippets:

    Exeter shop featured in the decorator’s portfolio:
    simontaylordecorators.co.uk/portfolio-exeter1decorator.html.

    Gem Star cited by John Harvey, Exeter City Centre Manager, as an example of the City Centre’s regeneration: Exeter Bites Back: Campaign Ambassadors.

  30. Posted a comment on the Express and Echo.

  31. Don’t know why your comment went through and mine didn’t.

  32. My comment also has not went through.

  33. At least we know we have tried.

  34. Probably just need to give them time to review comments…

  35. Given my history they’ve probably given me an ASBO.

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