High Court judge orders involvement of Attorney-General in dispute between council and community trust over sale of old bus depot

A High Court judge has intervened in a property dispute involving the London Borough of Brent after concluding “something has gone wrong in these proceedings” involving the Attorney General.

In London Borough of Brent v Johnson [2020] EWHC 933 (Ch) Mr Justice Birss heard an appeal by Leonard Johnson of Harlesden Peoples Community Council and its Stonebridge Community Trust.

Their dispute with Brent concerns a former bus depot at Stonebridge Park, which Brent claims it can sell but which the community council contends it cannot because it holds the property for the benefit of the local community.

Brent started a claim for a declaration that it was the sole legal and beneficial owner of the property, together with an order restraining the appellants from entering restrictions on the land register.

The appellants argued grounds of promissory estoppel, constructive trust, charitable trust and public law arguments.

Deputy Master Rhys struck out the public law arguments and allowed a trial to proceed, due in July, on the promissory estoppel and constructive trust arguments.

Birss J said: “The problem is about the arguable charitable trust point. Counsel for Brent had put to the Deputy Master that an argument adverse to the owner of property that they held that property on a charitable trust was one which could only be advanced by the Attorney General and that the appellants had no standing to advance such an argument.”

An Attorney General staff member later responded: “I write to confirm that as presently instructed and based on the materials disclosed to date, the Attorney General will not be applying to join these proceedings.”

Brent said this meant the charitable trust argument had to be struck out but the appellants argued that the court had a discretion to allow the case to continue.

Birss J said: “I will make no secret of the fact that it seems to me that something has gone wrong in these proceedings…it is clear that the Deputy Master did not accidentally omit to make an order automatically striking out the charity arguments if the Attorney General declined to join the proceedings…it is not clear to me that the Deputy Master did, rightly or wrongly, actually decide that the proceedings had to be struck out if the Attorney General did not join in.”

Birss J said the consequences of a decision not to join the proceedings were not made clear to the Attorney General.

He said: “The email from the Attorney General’s office is unspecific. I am not surprised given the way the matter was presented…I would be much happier if it was clear whether the Attorney General had decided not to join the proceedings because the view was taken that [it] was content for the charity point to be decided without [it’s] involvement, or whether [it] was deciding to act in such a way as to prevent the charity point from being argued in the exercise of the Attorney General's role in representing the beneficial interest under any charitable trust. We do not know.”

Birss J said he was minded to make an order joining the Attorney General as a defendant, and it could then either take a neutral stance or put its view against the existence of the charitable trust, which could then be struck out.

Mark Smulian

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