I have reproduced it in it's entirety here.
AGENDA ITEM: 5 Pages 1 - 7
Cabinet Resources Committee
Date : 21 February 2011
Subject : Wyevale Garden Centre, Daws Lane, Mill Hill NW7
Report of Cabinet Member for Resources and Performance
Deputy Leader of the Council and Cabinet Member
for Education, Children and Families
1) The assignment of the lease from Wyevale Garden Centre to
Etz Chaim Jewish Primary School Trust.
2) The temporary letting of vacant space at adjoining Council
owned building known as the former civil defence building,
during the refurbishment period
To approve the:
1) Deed of variation being granted on receipt of planning
permission for the amendment of the user clause from a
Garden Centre to a school/provision of education services and
services ancilliary to the same, and other amendments to the
lease to provide appropriate terms for a school use.
2) Delivery of a one-form entry Primary Free School to be known
as Etz Chaim utilising Barnet’s existing Strategic Partnering
Agreement with Kier London Limited on behalf of Partnerships
for Schools, the Department for Education’s delivery agency on
school building programmes.
Judith Ellis – Valuation Manager (Property Services)
James Wills-Fleming – Corporate Programmes Manager
Status (public or exempt)
Public (with a separate exempt report)
For decision by Cabinet Resources Committee
Function of Executive
Reason for urgency / exemption from call-in (if appropriate) Not applicable
Contact for further information: Judith Ellis, Property Services, 0208 359 7364,
1.1 That a deed of variation for the change of use and additional variations to the
lease detailed in the accompanying exempt report be granted, subject to the grant
of planning permission and/or completion of the assignment of the lease from
Wyeval to Etz Chaim. This recommendation includes the Council entering into a
binding agreement with Etz Chaim to grant the requisite variations.
1.2 That the construction works required to provide a one-form entry Primary Free
School to be known as Etz Chaim be delivered by utilising the Council’s existing
Strategic Partnering Agreement with Kier London Limited on behalf of
Partnerships for Schools, the Department for Education’s delivery agency on
school building programmes.
2. RELEVANT PREVIOUS DECISIONS
2.1 Cabinet, 5 December 2005 (Decision item 6) – approved the Building a future for
Barnet’s Children: the Primary School Capital Investment Strategy.
2.2 Cabinet, 3 April 2008 (Decision item 13 and 17) – approved the selection of Kier London
Limited as the Council’s strategic construction partner.
2.3 Cabinet Resources Committee, 5 March 2009 (Decision item 12) – approved the re-build
of Colindale Primary School and the addition of the project to the Strategic Partnership
Agreement with Kier London Limited.
2.4 On 12 April 2010, the Leader of the Council and Cabinet Member for Resources
approved under delegated powers (DPR 1057) the acceptance of a tender contract sum
from Kier London Limited for works at Childs Hill Primary School.
3. CORPORATE PRIORITIES AND POLICY CONSIDERATIONS
3.1 Ensuring every school is a good school for every child is a priority in the Barnet Children
and Young People Plan 2010-2013 and supports the corporate priority of ‘a successful
London suburb’. Approving the assignment of the lease and change of use to Etz Chaim
will help to increase parental choice of school in Barnet. It will also contribute towards
ensuring there are sufficient school places in the local area, which is a statutory duty of
the local authority under section 14 of the Education Act 1996. Supporting those who
wish to set up free schools also contributes towards the Council’s priority of ‘sharing
opportunities and sharing responsibilities’.
4. RISK MANAGEMENT ISSUES
4.1 If the Council does not agree this proposal the school will be unable to pursue the
provision of a free school in this location, as the Etz Chaim Jewish Primary School Trust
require exchange of contracts being subject to confirmation that the subsequent deed of
variation will be issued by the council at the appropriate time. This requirement avoids
significant investment by PfS into a project that may not reach fruition.
4.2 A project risk register is maintained by the Corporate Programmes Team and there are
no risks which are considered to be significant.
4.3 To ensure accurate costs the project budget has been rigorously reviewed by the project
team including the project’s technical advisors, Gardiner & Theobald LLP (G&T). The
project team will monitor all aspects of the build to ensure continued assessment of the
finances from construction start to completion.
4.4 The Council has a Strategic Partnering Agreement (SPA) with Kier London Limited. The
SPA has successfully delivered or is in the process of delivering multiple school projects
including: Whitings Hill, Broadfields, Northway/Fairway, Colindale and Childs Hill
4.5 Depending on how the transaction is structured there may be a risk of judicial review of
the planning permission resulting in delay and/or the school not being constructed.
5. EQUALITIES AND DIVERSITY ISSUES
5.1 While conducting this project officers have complied with the Council’s statutory duties
promote equality of opportunity; eliminate unlawful discrimination and harassment; and promote good relations between people.
5.2 Schedule 8 of the SPA outlines Kier’s Race Equality Requirements and states that Kier,
including agent’s/contractors working on behalf of Kier, will comply with race relations
legislation, shall not discriminate and will promote equality in performing its obligations
under this agreement.
6. USE OF RESOURCES IMPLICATIONS (Finance, Procurement, Performance &
Value for Money, Staffing, IT, Property, Sustainability)
6.1 The SPA with Kier was the result of a rigorous procurement process and was structured
to enable the addition of further building projects such as this and still ensure value for
6.2 The SPA, with Kier London Limited, relates to the carrying out of works in designated
primary schools across the Borough. However, the SPA allows for additional projects to be
included to give the Council full flexibility and control over the programme. Therefore,
authority for this variation, including a waiver of the Contract Procedure Rules (to go out to
tender), already exists.
6.3 The total construction cost including internal project and programme management
resource and external technical and legal advisors will be funded by the Department for
6.4 Funding will be delivered to the Council through Standards Fund to an agreed payment
schedule that is aligned to the payment schedule agreed with Kier London Ltd.
6.5 The deed of variation is proposed on completion of the assignment which is subject to
planning permission being granted. This will ensure that the variation is only granted to
the school and does not benefit the existing lessee.
6.6 Future assignment provisions (to be one of the variations of the lease) may be more in
accordance with what you would expect to find in a new academy lease but this will need
consideration as to the detail restrictions.
6.7 If the school fails and the lease reverts to the Government, it is thought the asset will
return to the Borough. However the relevant statutory provisions need consideration
before this can be confirmed.
6.8 Other variations in the lease include: Amendment to the hours of use, playing of music,
Floodlighting, Assignment to a corporate body, or charity with the minister’s consent,
subletting to organisations providing uses consistent with that of a school.
6.9 These variations are acceptable in principle m and subject to planning and any other
consents necessary, and make the lease more consistent with an Academies lease.
Detailed negotiations on the proposed amendments will be concluded and reported
under delegated powers.
6.10 It is anticipated that the school will open in September 2011, and the school have
committed to parents and staff that this will happen. As a result should the conversion
works not be completed in time will require temporary accommodation and have
identified the adjoining building known as the former Civil Defence Building as being a
6.11 The ground floor is currently empty following the relocation of the Drug and Alcohol
project and the archive store, and totals approximately 4000 sq ft (400 sq m). The first
floor is occupied by the Sea Cadets who are holding over under a lease.
6.12 The future of the building is currently under consideration, with legal and planning
investigation being undertaken. It is not considered that a short-term letting of the
property is likely to impinge on the Council’s plans.
6.13 The short term agreement would in addition provide an opportunity to consider the future
of the site and/or prepare for a subsequent letting while the school are in occupation.
6.14 Agreement to the detailed terms of the lease will be reported under delegated powers.
6.15 The adjoining car park, is in Council ownership, and consideration is currently being
given to introducing charging. The lease to Wyevale Garden Centre affords rights to the
lessee for pedestrian access, and to maintain the area as public car parking. These
rights may be altered in the event of the Council granting a change of use.
6.16 In addition, the Council may redevelop the car park, but may be required to provide
alternative parking in the vicinity.
7. LEGAL ISSUES
7.1 None except as mentioned in the exempt and public report.
8. CONSTITUTIONAL POWERS
The Council’s Constitution in Part 3, Responsibility for Functions, states in paragraph 3.6
the functions delegated to the Cabinet Resources Committee including all matters
relating to land and buildings owned, rented or proposed to be acquired or disposed of
by the Council.
9. BACKGROUND INFORMATION
9.1 On 6 September 2010, Michael Gove MP, Secretary of State for Education announced
that Mill Hill Jewish Primary School (now known as Etz Chaim) was among the first 16
free schools nationally to be granted permission to progress their application to open a
free school in September 2011.
9.2 Free Schools are all-ability, state-funded schools, set up in response to parental
demand. These new schools will be academies, which are publicly funded independent
schools, free from local authority control. They will enjoy the same freedoms as
traditional academies, which include setting their own pay and conditions for staff,
freedom from following the National Curriculum and the ability to change the lengths of
their terms and school days. All Free Schools will be accountable like other state
schools via inspections and tests.
9.3 Etz Chaim Jewish Primary School Trust investigated various locations within the
Borough and found Wyevale Garden Centre in Daws Lane provided the right size and
location for their proposed School and pursued negotiations to secure ownership of the
lease with 102 years unexpired term.
9.4 The Council owns the freehold reversion in the land and buildings shown outlined in
black on the attached plan, which until closed in 1982 was a former swimming pool. The
land was disposed of on a 125 year lease in 1988 to Country Gardens PLC with a
restriction on use to a garden centre. The lease was granted for payment of a premium
at a peppercorn rent throughout the term, and now has 102 years unexpired.
9.5 The lease was later assigned to Wyevale Garden Centre, who are now seeking to assign
their interest to Etz Chaim Jewish Primary School Trust. Consent by the Council to the
assignment will be carried out under delegated powers, and the Council have limited
grounds to object.
9.6 Negotiations have taken place between Wyevale and the Etz Chaim Jewish Primary
School Trust, in conjunction with PfS who are funding the acquisition and conversion
works, and Heads of Terms have now been agreed.
9.7 In order for the building to be used as a school, planning permission for change of use
and for alterations is required, and it is anticipated that the planning application this will
be submitted by the beginning of March, and completion of the assignment will be
subject to planning permission being granted.
9.8 PfS are anxious to be in a contractual position with the Garden Centre to ensure that if
they achieve planning consent the transaction will complete and enable them to carry out
the required works and open the school in September, although it is accepted that
temporary accommodation may be required for a short period of time. Failure to achieve
a binding agreement leaves Wyevale free to negotiate with an alternative purchaser.
9.9 In order for exchange of contracts to occur, PfS require comfort from the council as
freeholders that a deed of variation will be issued for change of use, together with
various alterations to the lease terms to provide a lease agreement that is more in
keeping with appropriate for school/ educational use. This will not be issued until
planning permission is granted and the assignment has completed, which is anticipated
to take a minimum of 3 months to achieve.
9.10 Details of the financial implications are set out in the accompanying exempt report.
9.11 In addition Etz Chaim Jewish Primary School Trust have requested a 1 year lease from
May 2011 of the vacant accommodation in the adjoining Council-owned building
premises at the former Civil Defence Building. This was until recently used by the Drug
and Alcohol Project, and the archive store. The first floor is occupied by the Sea Cadets.
Terms have been discussed and are detailed in the accompanying exempt report.
10. LIST OF BACKGROUND PAPERS
Legal – JO’H
CFO – DM
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