The Scottish Ministers have now issued a decision on the PHCBS appeal. In a decision letter sent to all those submitting representation the decsion is:
In line with Scottish Government guidance, Scottish Ministers appointed an independent Reporter to consider the case and report to them. I was concerned to read that the Reporter concludes that PHCBS is not a community transfer body eligible to make an asset transfer request.
The Reporter concludes that PHCBS is not a community transfer body as defined in section 77 of the Act as it is not a community controlled body in terms of section 19 of the Act, nor has it been designated as a community transfer body by Order under section 77(2) of the Act. In particular, it has not been designated by the Asset Transfer Request (Designation of Community Transfer Bodies) (Scotland) Order 2016 as its rules do not meet the tests set out
in section 34 of the Land Reform (Scotland) Act 2003.
The Scottish Ministers agree with the Reporter that PHCBS is not a community transfer body. Scottish Ministers therefore find that this appeal is incompetent and accordingly the appeal is dismissed.
The Reporter also considered the merits of PHCBS’s case.
Despite PHCBS not being a community transfer body eligible to make an asset transfer the report is to be made publicly available.
You can get all the papers form the DPEA web site here
Chapter 1 outlines the background, while Chapter 2 deals with the eligibility issues.
2.80 If PHCBS falls within the scope of order SI 2016 No 316, as I consider it does, my view therefore is that it was not eligible to make the CAT request that it did. DGC did not properly check the position. PCDT’s representation on the point is very substantially correct.
DGC and PHCBS were both unclear about which category of CAT they were applying under:
- Community-controlled body
- Designated as community transfer body by ministerial order
On this point PHCBS changed its position mid-way through the appeal process so the Reporter evaluated them against both sets of criteria.
As a “Community-controlled Body” the reporter finds that PHCBS rules do not comply with 3 of the 6 provisions to be a community controlled body.
As a “Designated Community Transfer Body” -the Reporter finds that PHCBS rules do not comply with 6 of the 9 requirements.
The Reporter then concludes that it would be unreasonable to impose a condition that would otherwise overcome its non-eligibility as “this would turn it into an organisation with a membership very different from the present position. Most likely, it would be a very different kind of organisation.”
The Scottish Ministers agree with the Reporter on the above points and hence the appeal is dismissed. However the Rporter goes on to examine the merits of the case.
PHCBS Complaints against DGC
In regard to the large number of complaints made by PHCBS about DGC’s behaviour, the Reporter has drawn these into several distinct strands.
- DGC Officers favouring PCDT – no evidence of this was found.
- Specific compliant hat DGC officer report proposed to transfer Hall to PCDT. – “It is clear that PHCBS misread the report” which discussed options and made a quite different recommendation.
- DGC delayed verification of PHCBS request. It was submitted on 4th June and validated on the 7th .June.
- PHCBS complains that the scores and statements applied to PHCBS’s CAT request by DGC’s officer panel misrepresented the request and the degree of ocal community cohesion and ignored documents. These were available at review. It is not clear to the Reporter when these were submitted but he concludes “no prejudice to PHCBS has arisen in this respect.”
- PHCBS makes a range of complaints about the way in which DGC has dealt with representations and that defamatory statements were allowed on the DGC web site. DGC notes that “what PHCBS regards as defamatory remarks are no more than a mix of fact and opinion contributing to public debate”. The Reporter says “the fact that they are strongly adverse does not mean they are defamatory, and PHCBS has not provided a detailed rebuttal of the representations that it regards as defamatory.”
Reporters Conclusion on Complaints about DGC
“There is no evidence that DGC or its officers improperly favoured PCDT at the expense of PHCBS. Nor is there any evidence that DGC officers delayed verification of PHCBS’s CAT request; indeed, it is clear that they sought at a very early stage to help PHCBS improve the content of its request, and that offer was rejected.”
“PHCBS complains about DGC officer reports to committees not having PHCBS’s prior approval or not being the subject of prior consultation with PHCBS. But there was no need in my view for such approval or consultation”.
On mediation procedure
“.. PCDT is willing to participate in mediation, but PHCBS is not. The latter’s unwillingness reflects its non-recognition of the need for mediation, its view about the openness of its own processes through community meetings, and its view that public collaboration with PCDT in mediation would damage its reputation as a charity.“
.. “The need for mediation is evident to me .. PHCBS’s reference to public collaboration with PCDT in a mediation setting seems to misunderstand the private character of mediation. My view… is that mediation could open the way towards the difficult resolution of deep-seated issues, and that this would be very much in the public interest”.
On the substantive merits of the case and representations
- “there is a substantial degree of mis-match between the community that is PHCBS’s membership and the community of Portpatrick”
- “the meetings appear to have proceeded with an impetus that led – perhaps inevitably led – to general acclamation. I am far from satisfied that this process allowed for a full range of opinions to develop in the way that it seems the authors of the Here for Growth report may well have expected. Nor is there any evidence of any attempt to carry out a structured engagement process outwith the public meetings”
- “no evidence of any attempt having been made to obtain the particular opinions of minorities”
- “There appears to have been little, if any, attempt to seek the views or intentions of user groups.”
- “As PHCBS’s rules (particularly rules 66 and 71) give considerable authority to its board, I see nothing formally improper in this. However, a process which avoids airing such an important matter as this in a general meeting of its own members is not consistent with a process of full engagement. PHCBS’s references to the overwhelming support it has received have to be seen in that context.“
- In reference to the petitions of support: “To me, these approaches indicate something of a cavalier attitude to fair play in collecting and measuring support.”
The Reporter makes a number of points about Leadership and Governance.
“to close off the most obvious route to membership does not, to my mind, demonstrate good leadership or governance and limits responsiveness, participation and the potential development of a wider consensus. “
On PHCBS Consulation process:
- “the failure to engage in in-depth consultation, rather than what appears to be consultation by acclamation,”
- “the failure to deal with the pointers in the Here for Growth about matters that ought to be addressed in the process of working towards a CAT proposal, do not demonstrate good leadership or governance”
On the PCC Meetings as evidence of Consulation and Community support:
“Proper governance, however, requires any organisation to include the conduct of its business through its meetings, not through another organisation’s meetings.”
“It may be that recognition of the mis-match prompted PHCBS’s leadership to push for its CAT request through public meetings usually with a strong PCC involvement, rather than through its own structures. But if it were such recognition, what was needed in my view was a solution to the mis-match, not a process of working round it. Had that been done, the problems (of eligibility) might have been avoided. That they have not been avoided must be counted as a failure of governance.”
With reference to achieving the National Outcomes for CAT
- “I have found deficiencies in PHCBS’s governance and the proposed financial arrangements for the village hall.”
- “absence of in-depth engagement with the local community”
- “failure to engage with DGC on the details”
- “none of the Best Value themes is comprehensively met, with serious deficiencies for some of the themes.”
- “The existence of the eligibility problems is an indicator of failures in governance.”
- “Overall, I find that the overview which fits the proposed request, as it stands, most closely is that it would make a weak or poor contribution to meeting Scottish Government national outcomes.”
Reporters comments on PCDT Submission
There is some reference to PCDT’s submission, but since we did not appeal DGC decision to refuse our CAT request the Reporters comments are more limited.
- “I therefore do not accept PCDT’s contention that its application for a CAT, in its words, “still stands”. Nevertheless, its alternative proposal could be put forward again at some point in the future”
- “PCDT scores better than PHCBS on all three main headings – engagement, vision and impact, and sustainability.”
- “PCDT’s business plan was noted as having strong mention throughout of its vision and the positive change it looks to stimulate through the CAT. PCDT looks to work with the community to empower and build capacity across a wide variety of community sectors. It was noted that PCDT appears to have strong governance structures in place, with its executive team appearing to have a broad range of skills and strengths. A moderate degree of financial planning had been applied, but may have been slightly over-ambitious.”
- “PCDT’s business plan would benefit from engagement across the entire community and that PCDT should work in partnership with organisations with similar objectives in Portpatrick to produce a more holistic plan to the benefit of all local residents.”
- “My view is that a preference for PCDT’s proposal, albeit a seemingly better alternative to that put forward by PHCBS, cannot be reasonably sustained at present in the face of the expressed local opposition to it.”
So where does this leave us? At present we are awaiting a response from DGC on the decision and the analysis provided by the Report.
PHCBS appealed D&G Council decision not to award Community Asset Transfer to PHCBS. This appeal resulted in an review of the processes carried out by D&G Council and resulted in a report to the Ad Hoc Covid-19 Committee which were set up to deal with urgent matters during the pandemic. All the committee papers and decision may be down loaded here The committee report notes: “Officers recommended to the PHCBS at an early stage that additional , and more specific, information be provided to strengthen the application and in line with our usual arrangements, a Ward Officer was allocated to support the applicant.” However, no further information was presented by the PHCBS. The report also notes: “The submitted business plan refers to and focuses on the original Harbour ownership and regeneration. There is no mention of the Hall in this plan. Other than mention of providing a social and recreational space, the evidence demonstrating positive impact to the local community is poor / weak”.
PHCBS grounds for appeal included: “our application has been seriously misrepresented in its delivery to both Committees of Councillors on 4th Sept and 29th Oct 2019. Furthermore, we can evidence (in complete detail) how the score and statements applied to our application by Council Officers were seriously flawed and unfounded“.
You can judge for yourself the papers are all here including the evidence supplie dby PHCBS Link to D&G Council – Committee papers
D&G Officers reported: The Scottish Government’s advisors for CATs, COSS have also been consulted in the development of the (review) report.
The Ad Hoc committee voted along party lines with 5 members upholding the Council decision not to award the CAT to PHCBS and 3 voting for an amendment to overturn the decision not to award.
The Committee Agreed with the original decision “having reviewed all the information provided, to confirm the decision of the Finance, Procurement and Transformation Committee on 29 October 2019 not to transfer Portpatrick Village Hall to the Portpatrick Harbour Community Benefit Society.”
Notwithstanding the independent review by D&G Council and the advice received by Scottish Government Advisors on Community Asset Transfer, It would appear that PHCBS are seeking a further appeal to Scottish Ministers against the decisions and review by D&G Council.
We have formally notified D&G that we are happy to take part in any independent third party mediation exercise. We understand that PHCBS are challenging D&G Council decision not to award the Asset transfer to them and have not indicated any agreement to mediation at this time.
29th October 2019 – Community Asset Transfer Decision
PCDT Community Asset Transfer request was considered at Dumfries and Galloway, Finance, Procurement and Transformation Committee. We await the full text of the decision, but it is understood that the Committee supported the previous Area Committee recommendation as regards PCDT:
not to recommend the transfer for reasons of the exceptionally high number of representations opposed to this community asset transfer request, evidencing division in the local community and also AGREED to recommend that Portpatrick Village Hall remains open and in the ownership of Dumfries and Galloway Council until an alternative arrangement can be agreed; and FURTHER AGREED that officers explore the potential for both Portpatrick Community Development Trust and Portpatrick Harbour Community Benefit Society to seek mediation through national organisations to reduce division within the local community.
All the papers may be downloaded from D&C Council web site Finance, Procurement and Transformation page: https://dumfriesgalloway.moderngov.co.uk/ieListMeetings.aspx?CommitteeId=552
The full report by Director Communities officer’s report is included here: PORTPATRICK VILLAGE HALL – COMMUNITY ASSET TRANSFER – DECISION – REPORT BY DIRECTOR COMMUNITIES
The procedure following this has been laid out in the Director Communities report.
Where multiple requests have been received for the same asset, these must
be dealt with and progressed sequentially, in date order, by Committee i.e. the date at which the requests have been validated. (The PHCBS request was validated on 7 July 2019 and the PCDT request validated on 1 August 2019 and therefore this is the order they are considered).
It was noted that on the advice from DTAS, should Members agree to the transfer of the asset to PHCBS, they could not then consider the transfer to the PCDT.
Should the decision have been to transfer the asset to PCDT, this can only be done so on the proviso that any appeal potentially put forward on the decision against PHCBS’s request is concluded before the transfer of the asset to PCDT can be transacted and concluded. It is understood that the PHCBS CAT request was not approved.
4 September 2019 – Community Asset transfer Wigtown Area Committee
The full pack with the background to Portpatrick Village Hall, the status of the title, stage 2 CAT submission, community representations and our business plan may be downloaded. here:
Of particular note is that a independent Officer panel was established to evaluate the submission ( and the PHCBS) submission. Key issues in the assessment were:
- Engagement with stakeholders and the local community
- Vision and impact – the positive difference which would be made for local people
- Sustainability and financial planning
PCDT submission was scored as total score of 104/150.
- Engagement 19/30
- Vision and Impact 43/60
- Sustainability & Financial 42/60
By comparison the report notes the PHBS submission was a total score of 71/150.
- Engagement 13/30
- Vision and Impact 29/60
- Sustainability & Financial 29/60
The formal recommendation as regards PCDT is:
Following Members consideration, the decision of Wigtown Area Committee is as follows:
6.1 the Portpatrick Community Development Trust’s Business Plan and supporting documentation as detailed in Appendix 1 and Appendix 1a for the Community Asset Transfer of the Portpatrick Village Hall;
6.2 the options available to our Council as detailed in paragraph 3.20;
6.3 AGREED to recommend to Finance Procurement and Transformation Committee option 2, that being not to recommend the transfer for reasons of the exceptionally high number of representations opposed to this community asset transfer request, evidencing division in the local community and also AGREED to recommend that Portpatrick Village Hall remains open and in the ownership of Dumfries and Galloway Council until an alternative arrangement can be agreed; and
6.4 FURTHER AGREED that officers explore the potential for both Portpatrick Community Development Trust and Portpatrick Harbour Community Benefit Society to seek mediation through national organisations to reduce division within the local community.
We had previously (at the EOI stage) intimated a willingness to engage in constructive mediation. Following this recommendation we have written to confirm our continued willingness to engage in any form of independent mediation.
1st August -2019. Stage 2 – Community Asset Transfer
PCDT prepared a full Business Plan in support of Stage 2 Community Asset Transfer Request. The plan contains our development vision for an active and vibrant Community Hub based at the Village Hall. The plan also contains information on the consultation processes, our proposed partners and a full 5 year financial plan for the Hall.
You can read more about the Asset Transfer process on the D&G Site Here
More about our Plans Here
Anyone may make representations about this request to Dumfries and Galloway Council. Representations must be in writing and include the name and address of the person making it. A copy of the representation will be given to the organisation making the request. request by email to CommunityAssetTransfer@dumgal.gov.uk
Or in hard copy to: Community Development and Empowerment Manager, Communities Directorate, Dumfries and Galloway Council, Municipal Chambers, Buccleuch Street Dumfries, DG1 2AD