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CLERK'S BRIEFING NOTE

CLERK'S BRIEFING NOTE
LEASE V LICENCE AT KICKABOUT AREA

 

The following information on leases and licences has been taken from NALC LTN48:

 

1 LEASES are interests in land and must be evidenced in writing. The 3 main indicators of a lease are:

  1. Exclusive possession of the land. The occupier may exclude anyone else from his land (including the landlord) because, during the term of the lease, he "owns" the land.
  2. The lease is for a fixed term.
  3. There is a payment by the occupier.

2 LICENCES may take the form of a written or an oral agreement.

  1. No exclusive possession is granted and there are no rights in the land itself. Ownership of the land remains with the owner (ie the Council) and the licence simply confers rights of occupation or use by the agreement which can be fairly easily withdrawn. The example of a licence is a ticket for a football match. The purchaser of the ticket is allowed on to the premises for a specific purpose but does not have any other rights eg he/she cannot evict others from the land.

Regarding the Kickabout Area -

 

If the Parish Council grants the Sedlescombe Youth Group a lease for them to take over the Kickabout Area it would mean:

  1. Planning permission would need to be obtained for a building on the land. The Parish Council could make the application as it is eligible for a 50% rebate on costs and any planning permission would remain with the land. The planning process would allow anyone to have their say on the proposal. It would, however, require plans to be drawn up and take about 8 weeks to be decided.
  2. Grant-makers usually require an applicant to be the owner or lease-holder of the land and, therefore, a lease would probably be a better option if the Youth Group wants to raise money for extra amenities on the site. Enquiries should be made regarding the length of lease that is required.
  3. The lease drafted by the Solicitor for the youth centre at the sportsfield could be used as the basis.
  4. The Youth Group would have control over the land and would, in effect, own it for a given period of time. They would be responsible for the following:
    1. Payment of a rent which could be a peppercorn rent. [If it can be shown that the Parish Council is acting as a local authority in providing the building and due to the nominal rent charged, it is a non-business supply of land (ie the funding would need to be given to the Parish Council),VAT could be reclaimed on the construction of the building, similar to the pavilion.]
    2. Grass-cutting
    3. Hedge-cutting
    4. Fence maintenance
    5. Maintenance of the building and any equipment on the land
    6. Litter collection
    7. Inspection - currently a parish councillor inspects the area each week and a professional inspection is carried out by a body such as ROSPA annually
    8. Insurance
    9. Compliance with the terms of the lease
    10. Compliance with the covenants on the land ie:
      1. Not to use the property other than as a play area for children
      2. Not to fell or destroy any trees without consent
      3. To maintain, retain and renew the chain link fence around the site
      4. To keep the hedge properly cut
    The Youth Group would be eligible to apply for a grant from the Parish Council if a proper application was submitted.

If the Parish Council grants the Sedlescombe Youth Group a licence to put a building on the Kickabout Area, it would mean

  1. The Parish Council would continue to be responsible for the land
  2. If the Council were to be fully involved with the running of the Youth Centre, the building could be placed on site in accordance with the Parish Council's permitted development rights.

On balance, in my opinion, it would be to everyone's advantage if a lease of the Kickabout Area was to be granted to the Sedlescombe Youth Group by the Parish Council, the period to be agreed, under similar terms to those included in the agreement drafted by Hedleys for the portacabin's use at the sportsfield.

 

P Raymond

Clerk/RFO, Sedlescombe Parish Council

17/08/09