Tony Freudmann seems to have those skills because for some time it has been obvious that he has fooled a lot of people that he genuinely wants to reopen Manston however it seems to be unravelling during this examination and only those wedded to the idea or those sufficiently entrenched into the idea of this being "houses v airport" that still take any interest.
What Freudmann seems to have forgotten is this is a Public Examination where verifiable evidence has to be produced to support the statements made by his team.
Deadline 6 came and went and many of the ExA's questions were responded to by RSP however their answers were "misleading, disingenuous and unsupported by the evidence" In fact on almost every occasion their answers lead to further anomalies which have then led to more questions, it is as if they are making it up as they go.
Written Question CA.2.16
Representations from Affected Persons
Provide details of negotiations with those Affected Persons who have submitted representations and who are not covered by other questions and comment on the likelihood of reaching an agreement on this in advance of the end of the Examination on or before 9 July 2019:
RSP's response
"The Applicant can confirm that discussions as to the acquisition of the site continue to take place between the parties. The Applicant will continue to progress discussions with a view to concluding the acquisition before the end of the examination period. It has been and remains the Applicant’s preference to acquire the site by agreement rather than relying on powers of compulsion."
Stonehill Park's response
"As set out in SHP’s answer, the Applicant’s strategy appears to have been focussed on maintaining a pretence to the ExA that it is making meaningful attempts to negotiate to acquire SHP’s land, when the opposite is true.
The Applicant has demonstrated itself to be an unreliable counterparty. From the evidence before the examination it appears clear that the Applicant does not have the ability, willingness or sufficient funding to acquire the land."
Written Question CA.2.25
Acquiring by voluntary agreement
DCLG Guidance related to procedures for the compulsory acquisition of land (2013) advises at paragraph 25 that, as a general rule, authority to acquire land compulsorily should only be sought as part of an order granting development consent if attempts to acquire by agreement fail.
The Applicant's Written Summary of Case put Orally - Compulsory Acquisition Hearing and associated appendices, submitted at DL5 on 29 March 2019 [REP5–029], states at paragraph 12.3 that:
“SHP had suggested that the Applicant lease the site for a period. Mr Freudmann inaccurately summarised the offer as being for 25 years. In fact it was for 125 years.”
The length of the potential lease appeared from Mr Freudmann’s comments to be a clear factor in RSP’s decision on this offer.
If this is not the case, set out the reasons for RSP’s decision on the suggestion by SHP that the Applicant lease the site.
RSP's response
"The Applicant understood the lease proposed by SHP to be for a period of 125 years at the time the proposal was received. At the CA hearing Mr Freudmann misspoke regarding the length of the proposed lease. The duration of the proposed lease was not a reason for refusing the offer. As noted in the Applicant’s Written Summary of Case put Orally – Compulsory Acquisition Hearing [REP5-011], the Applicant’s letter responding to the offer and setting out its concerns regarding the offer was included by SHP as an appendix to its Responses to Written Questions. For ease of reference, the letter (dated 21 March 2018) is attached (at Appendix CA.2.25 in TR20002/D6/SWQ/Appendices). It can be seen from the attached that there were a number of issues with the offer raised by the Applicant to which SHP did not respond satisfactorily. It was in light of those unacceptable conditions that the proposal was not accepted. In any event, the Applicant and SHP have been in negotiations regarding the site’s freehold for some time. The Applicant is hopeful that these negotiations can be concluded satisfactorily shortly."
SHP's Response
There are a number of points to unpack from the Applicant’s answer.
Firstly, Mr Freudmann more than “misspoke” regarding the length of the lease, his assertion that a 25 year lease was “absurd” demonstrates the lack of good faith which has characterised any “negotiations”.
Secondly, the Applicant did not refuse the offer, it simply ignored SHP’s subsequent letter of 9 April 2018. In doing so, the Applicant showed it had no regard for its obligations under the DCLG Guidance.
The Applicant refers to its letter of 21 March 2018, which it asserts sets out its concerns regarding the offer. The Applicant then asserts that SHP did not respond satisfactorily, and in light of the “unacceptable conditions” the proposal was not accepted. This assertion is misleading and not supported by the evidence.
The Applicant has glossed over the correspondence from SHP to BDB dated 9 April 2018, which responded to the BDB letter of 21 March 2018. This letter of 9 April 2018 is, apparently, the unsatisfactory response referred to in the Applicant’s answer. The sections of this letter (attached as Appendix CA.2.7 to SHP’s Response to First Written Questions [REP3-303]) that are relevant to the lease offer are summarised below;
Section 5:
SHP explained that the framework set out in the letter of 15 March 2018 was a clear framework to move matters forward but that the onus must be on the Applicant to engage with SHP, not the other way round;
SHP requested that RSP explain why it had said “any encumbrances attached to the lease would have to allow the development of the site unhindered and equivalent to owning the freehold”; and
SHP requested clarification whether the Applicant would be willing to accept a specific restriction against any future residential development of the land.
Section 6:
In the Conclusion section, SHP stated the following;
“If RSP is serious about actually delivering its proposals, the potential lease structure we set out is a solution that would provide an opportunity to resolve the issue and draw a line under the position. Ultimately, if RSP fails to engage with us on this basis, it will be even clearer that it is not serious about its proposals. If that remains the case it is clear that your client’s failure to comply with paragraph 25 of the Guidance related to the compulsory purchase of land will remain only one of the many reasons why an application for development consent order would not satisfy the requirements of section 55 of the Planning Act 2008.”
As explained above, the Applicant did not respond to, or even acknowledge the letter of 9 April 2018. The Applicant clearly believed that it was under no obligation to comply with the DCLG Guidance related to procedures for the compulsory acquisition of land (2013).
Unfortunately, this is just one of the many examples that demonstrates the lack of good faith in which the Applicant has approached the DCO process.
Written Question DCO.2.17
Article 9 - Guarantees in respect of payment of compensation, etc. The Revised 2.1 Draft Development Consent Order submitted at DL5 on 29 March 2019 [REP5-index number to be allocated] includes “a guarantee by a parent company of the undertaker” in Article 9(2)(f).
Which company will be the parent company of the undertaker?
RSP's response
"The undertaker, i.e. the Applicant, does not have a single parent company, but is 90% owned by RiverOak Investments (UK) Ltd and 10% owned by RiverOak Manston Ltd."
SHP's response
"Based on the publically available information held at Companies House, RiverOak Investments (UK) Ltd and RiverOak Manston Ltd, have called up share capital of £1,000 and £1 respectively, however all the capital remains unpaid.
As noted in SHP’s comments on the Applicant’s answer to question F.2.19, all funding has been made by the Belize entity, M.I.O. Investments Ltd. Yet, the Applicant refuses to provide any transparency over the ownership, or funding of this company."
Editor's note
Further to the restructuring of RSP the above comment by RSP's solicitor is extremely misleading and calls into question their ability to follow the Money Laundering Act from 2007. They are legally obliged to "know their client" and must identify the Beneficial Ownership of any person or legal entity they accept as a client. To this end they MUST know the ultimate beneficial ownership of Riveroak Investments (UK) Ltd as identified in their research. 60% (in other words a controlling interest) of RI(UK)LTD lies with HLX Nominees Ltd based in Tortola (British Virgin Islands) and as such who (or what) controls HLX is unknown and RSP have provided no independent verifiable evidence to back up the assertions
The Applicant's Written Summary of Case put Orally - Compulsory Acquisition Hearing and associated appendices [REP5-number to be allocated] states at
paragraph 3.1 that:
“restructuring was estimated to be complete by the end of April.”
The Applicant must note that the ExA require that any answers to these second questions to be submitted at DL6 (3 May 2019) must reflect and be informed by that completed restructuring.
RSP's response
"Noted. Restructuring has now been completed."
SHP's response
It is worth noting that in the Applicant’s Response for DL1: Enclosure 1 to Main Letter re. s51 Advice on Funding it stated that:
“The Applicant has recognised that the lack of transparency in relation to the Belize entity in particular has given rise to a number of questions.”
It is therefore literally incredible that the Applicant considers the so-called restructuring to have improved the level of transparency. A review of the information submitted by the Applicant at DL6 and other publically available information shows;
1. The only change is that the 9,000 shares in the Applicant (each with a nominal value of £0.0001) that were previously held by MIO Investments Ltd have been transferred to, RiverOak Investments (UK) Ltd ,a new UK SPV incorporated on 23 April 2019. That UK SPV is now owned 60% by a BVI
company, HLX Nominees Ltd, on which no information is available (although when undertaking a search on Google, the company is named in the Panama papers leaks).
2. The 9,000 shares that were transferred had a nominal value of only £0.90.
3. It is considered highly unlikely that the transfer price of these shares was anything other than £0.90, as the shares in the Applicant (which have a total nominal value of £1), have no intrinsic value.
4. The true value of the Applicant’s shares is the cumulative sum of the value of the shares in each of its subsidiaries. However, as all the expenses, costs and investments of these entities have been fully funded by loans from MIO Investments Ltd (now claimed by the Applicant to exceed £15m), it is not possible to see how there could be any value in the shares of the Applicant’s subsidiary companies.
5. As explained by Mr Rothwell at the CA hearing on 20 March 2019, the only “assets” held by the RiverOak companies is the Jentex land it acquired in 2018, which is owned by RiverOak Fuels Limited. MIO Investments Ltd, as providers of the loan to RiverOak Fuels Ltd, would require to have its loan fully repaid (with interest, fees and costs), which significantly exceeds the £2.3m paid for the land, before any value would attach to its shares.
6. The same would be true of the other loans claimed to be provided to RiverOak Operations Limited. Based on the Applicant’s recent submissions, these loans appear to be total c.£12.5m. As there are no assets in RiverOak Operations Ltd, the shares have no intrinsic value.
7. It is important to note that ALL the funding has been provided by the Belize based MIO Investments Ltd on which no relevant information has been provided. The Applicant intends that MIO will continue to provide funding but provides no evidence to support its assertion.
8. In SHP’s DL6 6 Submissions in SHP’s comments on the Applicant’s written summary of oral submissions put at the CA hearing [REP6-052], SHP set out a number of issues / concerns regarding the JV Agreement, why it does not say what the Applicant says it does and why the £15m “loan
agreement” is essentially meaningless as any payments are completely at the discretion of MIO Investments under the terms of the wider documentation.
In summary, it is clear that the Applicant has done nothing meaningfully to improve transparency.
In summary, the documentation shows that M.I.O. Investments (as Capital Investor as defined in the JV Agreement) effectively retains veto rights over any material action of the Applicant. As provider of all the funding, over which it has full discretion, in absence of any other funder to replace MIO Investments, MIO Investments has control over the decision making of the Applicant. Yet, no relevant information has been disclosed on MIO Investments.
Editor's note
It is clear that in answer to DCO.2.17 Freudmann is confirming that the Parent company providing the Guarantee is Riveroak Investments (UK) Ltd however this parent is 60% owned by HLX Nominees ltd registered in Tortola with unknown beneficial ownership. RI(UK)ltd has unknown owners, zero worth and is dormant. So of what worth is the Guarantee one should ask?
Written Question F.2.3
The Applicant is reminded that Regulation 5(2)(h) requires that an application be accompanied by a statement to indicate how an order that contains the authorisation of compulsory acquisition is proposed to be funded. (ed's note A very clear warning}
The Applicant is further reminded that DCLG Guidance related to procedures for the compulsory acquisition of land (2013) advises at para. 9 that the applicant should be able to demonstrate that there is a reasonable prospect of the requisite funds for acquisition becoming available.
The Applicant is reminded that information in the public domain at http://rsp.co.uk/news/the-formation-and-funding-of-riveroak-strategic-partners/ states that:
“comprehensive details of our funding partners and investment arrangements will of course be provided to PINS as part of the DCO application, providing solid evidence of our ability to meet all of the financial obligations associated with the acquisition, reopening and operation of the airport.”
The Applicant's Written Summary of Case put Orally - Compulsory Acquisition Hearing and associated appendices [REP5-number to be allocated] states at
paragraph 3.3 that:
“…the investors wished to remain confidential…”
i. Explain how this latter statement conforms to, and supports, a system of Examination which is designed to be open and transparent.
ii. Explain how this latter statement confirms to RSP’s own commitment to provide comprehensive details of its funding partners.
iii. Suggest ways in which the ExA may recommend to the Secretary of State on issues surrounding the availability of funding in the face of a desire for confidentiality relating to that issue.
RSP's response
i. and ii. The Applicant acknowledges the Planning Inspectorate’s desire for openness and transparency in the examination process. The Applicant has sought to provide sufficient information in all instances to assist the ExA in its examination of this application. However, the ExA will equally appreciate the unavoidable constraints of commercial confidentiality, particularly in the context where private individuals are involved in funding the project and investing in major infrastructure.
A balance must be struck between providing sufficient information to the ExA to enable it properly to consider the application and report to the Secretary of State whilst at the same time protecting the commercial interests of investors.
Plainly it is in the national interest to encourage private investment in infrastructure which is to the benefit of the UK economy. Indeed it was to encourage this kind of investment that Business Investment Relief was introduced in 2012. Business Investment Relief is an HMRC-approved scheme introduced to encourage non-domiciled UK residents to invest in the UK and does not require those using it to be disclosed. For the ExA to insist on full disclosure of those individual investors has the potential to undermine this type of investment in the UK.
iii. If the ExA has any residual concerns as to the funding position following DL6, the Applicant suggests that it provides the ExA with an unredacted statement, identifying the individuals who have invested and are committed to further investment, together with a version where such confidential information is redacted. The ExA then takes the former into account and publishes the latter. If it does not wish to take information into account that is not openly available then it leaves the issue to the Secretary of State to decide (e.g. in the form of a recommendation to grant the DCO subject to the Secretary of State being satisfied as to the availability of funding).
SHP's response
i. and ii. The Applicant’s claim that “has sought to provide sufficient information in all instances to assist the ExA in its examination of this application” is disingenuous and is contrary to evidence submitted to the examination.
It is apparent that the Applicant was given section 51 advice well before it submitted its application, and again following acceptance of its application on 14 August 2018 regarding the Inspectorate’s concerns regarding the information on Funding. Yet, the Applicant has consistently failed to provide the examination with the requested information.
"As reflected in Box 30 of the Checklist, the Inspectorate considers that the Funding Statement poses substantial risk to the examination of the application...……. In the generality, further evidence that adequate funds will be available to enable the Compulsory Acquisition of land and rights within the relevant time period.
Further information in respect of RiverOak Strategic Partner’s (RSP) accounts, shareholders, investors and proof of assets.
Further clarification in respect of the term “completion of the DCO” (Funding Statement para 12, 13, 27).
Further details of RSP’s Directors, staff, auditors etc.
Further details of the funders who have already expressed interest and others that are likely to come forward (Funding Statement, para 23).
Further justification as to why Article 9 of the draft DCO is appropriate and provides sufficient security for individuals in consideration of the provisions of the Human Rights Act 1998.
Further information on the sources and availability of funding for the Noise Mitigation Plan. Further information on the joint venture agreement (Funding Statement, para 19 etc).
Further details of how the costs set out in the Funding Statement at paragraph 15 have been estimated.
Further evidence to support various statements such as:
o “The investors are willing to underwrite the cost of any blight claims or eventual claims in compensation […]” (Funding Statement, para 10).
o “RiverOak anticipates that it will raise further equity and debt finance following the making of the DCO in order to develop the authorised development to completion” (Funding Statement, para 11).
o “[RiverOak] have drawn down £500,000 from their investors” (Funding Statement, para 20)."
Taken from the S.51 advice available here
In its answer, the Applicant appears to be advocating for a “Wild West” approach, whereby any legitimate concerns and the ExA’s commitments to openness, transparency and impartiality should be put to one side so as not to risk investment in the UK from anonymous “non-dom” investors. These “investors” are seeking to deprive another party of its land.
The Applicant’s arguments have no merit, and when considered in the proper context – against a backdrop where the Applicant has continually failed to provide requested information to the examination and other submissions have not been substantiated and shown to lack veracity – appear to be part of the Applicant’s strategy to obfuscate and avoid scrutiny of its application.
iii. The Applicant’s suggestion that should the ExA not wish to take information into account information that is not openly available, it should leave “the issue to the Secretary of State to decide (e.g. in the form of a recommendation to grant the DCO subject to the Secretary of State being satisfied as to the availability of funding)”, is plainly ludicrous and demonstrates an arrogance towards the process. It would be in clear breach of the ‘Guidance for the examinations for development consent’ (March 2015) and undermine the principles of fairness, transparency, impartiality and proportionality and would be prejudicial to the interests of other parties.
Written Question F.2.8
Information in the public domain, held at Companies House, shows that note 10 to the Financial Statements for Freudmann Tipple International Ltd for the period ended 30th March 2018 states that:
“During the year, the company held funds in trust for Riveroak Operations Limited, a company of which Mr A Freudmann is a director. At the balance sheet date, the company held £588,906.”
The Applicant’s response to ExA question F.1.2 [REP3-195] lists RiverOak Operations Limited as a subsidiary company of the Applicant.
i. Describe the relationship between the Applicant and Freudmann Tipple International Ltd.
ii. State the amount held in trust for Riveroak Operations Limited by Freudmann Tipple International Ltd as at 30th March 2019.
iii. State the purpose for which these funds are held.
RSP's response
i. The relationship between the Applicant and Freudmann Tipple International Ltd relates to the provision of banking services. Pursuant to the trust deed (at Appendix F.2.8 in R020002/D6/SWQ/Appendices) between the Applicant and Antony Freudmann, the Applicant has the exclusive use of the bank account of FTI Limited, referred to at recital A of the trust deed.
ii. The amount varies from the time to time. Funds are drawn down from the investors and then expended on costs associated with the project. As at 30th March 2019 the balance was £250,904.07
iii. These funds are held to cover costs associated with the project.
SHP's response
The relationship between the Applicant and Freudmann Tipple Ltd is highly unusual, with Mr Freudmann required to operate the bank account of a different company at the direction of the Applicant and grant a power of attorney in favour of the Applicant. Under clause 4.1.1 of the agreement attached as Appendix F.2.8 to the Applicant’s submission, it states that the arrangement shall continue until the Applicant or RiverOak Operations Limited sets up a bank account in its own name. It is noted that Freudmann Tipple Ltd is not a party to the agreement, raising questions as to
whether it has consented to this arrangement as would be required.
It is recognised that the requirements for opening UK bank accounts are much more onerous than in the past as a result of the requirements for banks to undertake detailed identity checks on directors, shareholders and any beneficial owners holding more than 25% of the equity interest in a Company. Checks are also required to be undertaken as to the likely source and uses of such funds to ensure that the bank is in compliance with ‘know your customer’ and money laundering regulations.
Having taken advice from a major UK Bank, SHP have been advised that the Freudmann Tipple International arrangement is highly unusual. Whilst the Bank would not completely rule out such an arrangement, the Bank advised that the proposal would be marked as high risk and the Bank’s
checks would be more extensive than those required to actually open an account in the name of the Applicant or its subsidiary. The Bank would also need to satisfy itself with the terms of the Trust Deed.
In view of the efforts required to have Freudmann Tipple International’s bankers consented to this arrangement, it is not clear why the Applicant did just not open its own bank account. It adds yet another layer of complexity to an already opaque structure.
Editor's Note Simply put it is pretty clear that the Beneficial owners of HLX Nominees Ltd and before them MIO Investments Ltd are clearly not happy in being identified. I wonder what the problem is?
Written Question F.2.20
Explain why you have failed to meet your anticipated deadline of 8 February, and subsequent Deadlines 4 (8 March) and 5 (29 March).
RSP's response
The delay in the submission of a revised Funding Statement is a result of the delay in concluding the restructuring of the company. There are two reasons for the delay to the restructuring. The first being that external parties originally intended to participate in the restructuring were unable to meet the
timescales inherent in the DCO examination process. Consequently a modified restricting has taken place which has brought the original MIO ownership onshore as anticipated at the compulsory acquisition hearing in March. That restructure was completed at the end of April. The second related reason concerns the complications surrounding the potential acquisition of the site as set out in response to question F.2.18 above.
RSP's response to F.1.18 "The discussions with Stone Hill Park themselves took longer than expected because the Department for Transport changed the terms of the deemed planning permission in January 2019 from that contained in the Town and Country Planning (Operation Stack) Special Development Order 2015 (as amended by the 2017 Order) to that contained in the Town and Country Planning (Manston Airport) Special Development Order 2019, which made extensive changes to the extent and scope of the permission with consequent effects on the acquisition. The coming into force of the 2019 Order was then accompanied by extensive works at the site by the DfT, as the ExA will have seen on the accompanied site inspection, further complicating the terms of the acquisition.
The progress of discussions with Stone Hill Park indicated that a voluntary disposal was likely. The Applicant has always been committed to acquiring the site by agreement if possible. To that end it has continued to engage with Stone Hill Park during the DCO examination and reached a point at which acquisition by agreement appeared likely. During the course of these discussions a new agreement was reached between Stone Hill Park and the DfT, the implications of which were not immediately transparent to other parties considering investment in the project. They required much more time to consider those implications than was available in the context of the DCO process. Given the urgency of providing the ExA with further information as to the restructure and of bringing ownership of the Applicant onshore an alternative restructure was put in place, Under this restructure, funds continue to be available to complete a negotiated acquisition."
SHP's response to F.1.18 "As noted in SHP’s response to this question and SHP’s response to the written question CA.2.17 submitted as part of SHP’s DL6 submissions [REP6-053], it is SHP’s firmly held view, supported by the evidence, that the Applicant’s engagement and correspondence with SHP has been purely tactical, and aimed at allowing the Applicant to maintain a pretence to the ExA that discussions are ongoing.Whilst the Applicant refers to a new agreement with the DfT, the Applicant has misrepresented the position. "
SHP's response to F.2.20
The Applicant’s admission that it has not been able to bring on board new investors during the examination process is revealing. However, it is wholly unsurprising given the lack of credibility attaching to the Applicant’s proposals that would have been apparent to any credible potential investor that was following the examination closely. It is clear that the Applicant is unable to raise new funding from 3rd parties
What is very clear from the Q&A responses is the devious, disingenuous responses from RSP which provide NO Verifiable Evidence which could be interrogated in the examination and RSP seem to think it doesn't matter.
Who controls HLX Nominees Ltd
Who is funding the DCO
Why is the sole source of funds MIO Investments Ltd
Why is Freudmann Tipple's bank account being used to pay all the bills
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