Lowther Goes Legal
We outline the latest developments in the mess that the Lowther
Trust has become.
We can confirm there is a court case pending, and we speculate on what might yet lie uncovered as this matter staggers forward.
Essentially in this article, we're taking apart the decisions of the last Council meeting (held behind closed doors with the press and public excluded), and trying to get at
what's really going on....
First, we ponder whether this matter is set to become Melton Grove Mark Two, then we Pick up the threads of this story from
our previous articles.
Next we look at proceedings of the Second Extra Ordinary Council Meeting, which began with a Row over what the minutes of the
last meeting said, before progressing (if that's the right word) to Consider a motion to adjourn the meeting for independent legal advice.
Next we look as three amendments from Cllr Mrs Oades, the First Amendment seeks to replace the present Trustees, The Second
tries to improve transparency and accountability. The Third argues for a repayable loan rather than a subsidy to be given.
Within this third amendment are three sub-issues: A £4,000 Emergency payment already made, the next shows money is to be provided for
Litigation, Compensation Or Settlement, and the third argues The Money should be a loan. All these amendments are voted
Next, the Council considers the Recommended option, and we take that apart to look at What it means, and at
The Conditions the Trust must agree to. Then we ask if Anything else has happened, before trying to
Bring all the threads together, and consider A readers view of the present Cafe service, before working out
What questions remain, and giving Our Own preliminary conclusions.
IS THIS MELTON GROVE Mk.2 ?
The unfolding disaster that is the Lowther Gardens Trust's plan to re-develop Lowther Pavilion is turning out to share many of the hallmarks of a story we have reported
We think it's shaping up to become 'Melton Grove Mk 2.'
Readers will remember it was just before Christmas 2010 (in the year before the May 2011 election) that we started to pick up stories about Fylde's Conservative group
planning an election 'war chest' to provide £300,000 of match funding to the Lytham Hall Lottery Bid (as it was then), and another £100,000 or so to give Ansdell the same sort
of 'street improvement scheme' that St Annes had received.
We became convinced that in order to fund these two schemes, a plan had been devised that existed right back to the November or December before the last election.
We believe that fund-raising plan was to sell off Melton Grove's Social Housing for a capital receipt that could fund these two projects.
It was told to us by insiders, and described as a plan for eye-catching proposals in election leaflets, to boost the Conservative electoral prospects.
Except it didn't quite work out that way.
The appalling lengths that Fylde's officers and Conservative Councillors went to as they sold off social housing to the private sector against justified and widespread public
dismay and opposition was a complete disgrace.
It all went very sour and became a notorious scandal, possibly the most shameful example of awful government in Fylde's history.
It ended with formal Inquiries and the censure of individuals. On 2 December 2011, and we published the outcome in 'Melton Grove at Council (again).'
This was after the Council received its Scrutiny Committee report into the sale of Melton Grove, where powerful speeches by Councillors recorded the scandalous behaviour of
the Council's officers, and the incompetence of both Board Members and the Cabinet.
On the 28th December 2011, the former Chief Executive retired early and commenting on this Cllr Paul Hayhurst said:
"I've said before that he should have gone, and I'm delighted that he's now decided that he's taking early retirement, because what we've had over the years is that we've
gone from one debacle to another."
Readers will recognise from the dates above - as we have done - that it is now also the November/December in the year before an election, and it's likely, (as they have done
before), that the collective of mind of the Conservative group will be turning toward finding impressive good news projects for their election literature.
Our readers might like to bear that in mind as they read on.....
PICKING UP FROM OUR LAST ARTICLE
It turns out that although the agenda for these Council meetings have not (and will not) be made public, what we deduced, surmised, and predicted from what was already in the
public domain, together with our experience of council workings, wasn't too far from what appears to have happened.
And because of some clever moves by Independent councillors, quite a lot of what has been going on has now been exposed, even though the matters had been discussed in secret
We speculated that that the Exempt Item to be discussed at the first meeting was probably the proposed redevelopment of Lowther Pavilion, and in particular, it was probably
about effect the development might have on the cafe.
Furthermore, because the reason cited for treating it an 'Exempt matter' was to do with someone's business affairs and legal professional privilege, we surmised that that
some sort of legal action or court case was pending.
In the minutes of that first meeting, we picked up that two Trustees of the Lowther Garden Trust (who are also serving councillors) declared interests and (properly) left
the Council Chamber when the item was discussed. But so did Cllr Elaine Silverwood. She is not a Trustee, but she is a close family relative of Robert Silverwood - who has a
lease of the Cafe in Lowther Pavilion.
We tied that situation into the comment by the Council's Trustee representative who had recently said....
'The Trust are in negotiation with leaseholder of the cafe over implications of the redevelopment proposals, and hope to come to an agreement.'
And we said this made it quite a good bet that, based on the plans the Lowther Gardens Trust had been promoting to enlarge and change the nature of Lowther Pavilion, there
had probably been no agreement between the Trust as Landlord and its cafe lessee, and matters were probably moving to be decided by a court.
We also noted that The Council's Trustee Representative was said to have resigned.
Subsequently, Cllr Roger Small has been proposed to replace her and was appointed to that role at the Council meeting on 10th December 2018.
However, we also knew that there was a prohibition on the buildings at Lowther Gardens being extended or added to.
That's partly because of restrictions that surrounding landowners can impose, but also (and mostly) because the Trust's Governing Document specifically prevents it and, as
far as we can see, it also prevents that prohibition from being changed.
With that in mind we were very puzzled that the Trustees of Lowther Gardens Trust had publicised plans to redevelop the Pavilion and - apparently - sought funding from
individuals and groups to contribute toward the redevelopment - by having their names etched on the windows for posterity at £1,000 a time and suchlike.
We were equally surprised that they applied for, and Fylde apparently validated and granted, planning permission for a scheme that cannot be built - according to the terms
of the Trust that governs what may and may not be done in the Gardens.
We were even more shocked when a chap spoke at the Planning meeting to tell the Council they could not do it, and the Council's legal officer appeared to advise
councillors that the chap did not have the most up to date information, and in any case the Council acting as a Trustee was different from the Council acting as the Council.
Whilst not being wholly explicit, the first part of what she said absolutely did lead us to the view that Fylde must believe there was another, more up to date version of
the Governing Document, which DID allow the re-development to take place.
But we couldn't imagine that would have happened without its being recorded on the Charity Commission's website and, in the conclusion of our last article, we speculated
that the whole of this debacle might have been based on a false premise - on an amended Governing Document that did not exist.
And if that was the case, we wondered if Fylde Council had been hoodwinked, or worse still, whether it was complicit in, an enormous con trick to circumvent the Trusts that
it should be protecting and holding dear.
We wondered if officers have been incompetent in this matter, or if they had been under so much pressure they have failed to perform their duty properly.
We also wondered whether information might have been deliberately withheld, or provided late, so as to limit councillors ability to properly scrutinise what was going on,
and this was what had prompted the Mayor to refuse to have the matter considered at that Council meeting and he closed the meeting prematurely - to, we were told - the fury of
THE NEXT EXTRA-ORDINARY COUNCIL MEETING
By now, we think our readers will sense this matter has been picking up both speed and heat. And they'd be right.
So now we come to the Special Council meeting of Monday 19th November.
Once again this was held behind closed doors as an 'Exempt Item'
Readers who want the full SP can follow this link to download a copy of the full minutes of that meeting.
However, we will now provide our own take on them.
Because it was an exempt item and because we had other pressing matters, we were unable to attend the start of the meeting that would have been the procedural matters held
in public before the motion to exclude the press and public, but even in this early stage, there seems to have been disagreement.
The first procedural matter is where Councillors declare any interest they might have. Once again Cllr Elaine Silverwood (perfectly properly) declared an interest in the
Lowther Gardens Trust item and left the room before it was discussed.
Then comes approval of the minutes of the last meeting.
As they had been drafted, those Minutes showed that at the end of his Mayoral Announcements the Mayor indicated.....
"Finally the Mayor mentioned the ongoing Constitution review and the importance that there was a consistent approach in identifying when the mover of an amendment was deemed
to have spoken on the amendment."
They also show that Cllr Mrs Oades proposal to suspend the Council's Standing Orders (to allow a full and open debate by letting councillors speak more than once in the
debate) was taken as being part of the Exempt Item number 12 - Lowther Trust.
A Row Over What the Minutes Say
When considering the minutes of their last meeting for approval, the Mayor (as usual) proposed them, but he made his proposing of them subject to two changes in the
The Deputy Mayor seconded his proposition to approve with these changes.
We ask our readers to bear with us for a couple of paragraphs and not lose the will to live as we try to explain what happened next.
As far as our readers are concerned, the actual words involved are probably are not as important as the subsequent procedural moves that took place to prevent the Mayor
requiring the minutes to be a more accurate record of the previous meeting.
The changes he required were:
CHANGE 1: To add at the end of the final sentence in the Mayorís Announcements: "and members may speak once on an amendment after it has been seconded with the proposer of the
original motion having the right to speak last;" and that
CHANGE 2: The heading "12 Ė Lowther Trust".. to be moved to after the words "..Ö the motion was LOST."
We've listened to our recording of the meeting, and as far as Change (1) is concerned, we think the Mayor was correct to want this change. His explanation of how he would
interpret the Constitution regarding when, and how often Councillors could speak, set out how the meeting would proceed, but the minute as drafted did not record his decisions
in this matter.
As far as the Mayor's second change is concerned, it looks as though he wanted it to be made more clear that Cllr Oades' amendment about having a full and open debate should
have been placed in the minutes *before* the start of the Agenda Item 12 about Lowther Trust (to clarify that it would not have been part of the Lowther Trust item)
We can't agree or disagree with this item (2) because it was after the public had been excluded and there is no recording to which we can refer, but we do know Cllr Collins
to be a stickler for proper procedure and we're inclined to see it his way.
But what happened next was, well, frankly, astounding.
Cllr Roger Small proposed what he called 'an amendment' to the changes the Mayor had sought in the minutes. It was:
"The draft minutes of the Council meeting of the 22nd October 2018 are a true and accurate record of the meeting and should be confirmed without alteration."
In our view this was entirely incorrect.
What he proposed was not an amendment because constitutionally, something which negates what has been proposed may not be considered an amendment to the proposition if the
same effect could be achieved by voting against the proposition.
However, the might of the Conservative majority steamrollered over this requirement (as we have so often seen before) because the minutes go on to say...
"A brief debate took place, following which the amendment was CARRIED.
It was then RESOLVED to confirm that the draft minutes of the meeting of the Council held on 22 October as a true and accurate record of the meeting.
The Mayor indicated that he would decline to sign the minutes on the grounds that he believed them to be inaccurate.
The Monitoring Officer advised that a note would be added to the minutes to reflect this."
Quite honestly, in all our experience of councils, we have never seen anything like this.
It is unprecedented at Fylde and, once again, we see Cllr Roger Small implicated in some inept and dubious governance.
What we think it shows is a majority party that will make up the rules to suit themselves as they go along, and a compliant (or browbeaten) officer class that is failing the
Council as a whole (and with them, the people of this Borough).
And so far, we've only got as far as approving the minutes of the last meeting!
Things were about to get a whole lot worse.....
A Motion to Adjourn
Immediately before the item to exclude the press and public from the meeting, Cllr Linda Nulty proposed (and Councillor Oades seconded), that the meeting be adjourned until
independent legal advice had been sought regarding item 6 - the Lowther Trust item
What Cllr Nulty was proposing here sounds to be a concern that the Council has not taken any, or at least sufficient, independent legal advice to enable it to come to a proper
and balanced view on this matter.
We think there could be two reasons for that call.
Either she didn't trust, or didn't agree, with the advice of the Council's in-house legal experts, (or perhaps she thought they were insufficiently well versed on the topic
Or - and in our view this is the more likely reason from the sound of things - she thought the Council was being asked to rely on legal advice that was not independent.
Advice that is not independent leads to the probability that the Lowther Trust has already taken its own legal advice in the matter, but if that was the case, it would appear
that either the Council was not being allowed to see the Trust's legal advice (because the Trust will not provide it to the Council?), or Cllr Nulty (and other Councillors?)
*have* seen the legal advice that has been given to the Trust but they do not feel it considers the matter from the Council's position well enough.
Later in the meeting it was to become clear what this dancing around the shadows was all about.
Fylde was being asked to stump up and underwrite the likely cost of legal representation for the Lowther Gardens Trust - and potentially an award of costs - if Lowther
Gardens Trust loses the case that is heading to court.
What a mess this is getting into.
A vote on Cllr Nulty's proposition was taken by a show of hands, and it was lost.
The Mayor, Deputy Mayor and Councillors Brickles, Clayton, Chew, Hardy, Hayhurst, Hodgson, Lloyd, Oades, Nulty, Rigby and Speak requested that their names be recorded as
voting for the motion.
That list of names who supported Cllr Nulty shows that, once again, the overall Conservative majority held sway.
But we ask readers to consider this: Unless you had already made up your mind to fund the Trust's court case - irrespective of your chances of winning it, why on earth would
you want to refuse to consider independent legal advice about your prospects of winning it?
But with that vote over, and no adjournment to get independent legal advice for the Council, the leader of Fylde's Conservative Group, Cllr Susan Fazackerley went on to propose
what had been recommended on the agenda paper (presumably by the Council's officers). But she sought to add one further point - which we'll get to shortly.
The recommendations were exempt, and so they were not published.
However, the vote on them does set out what they most probably said, and that came at the end of the meeting, so please bear with us readers, all will be revealed soon.
But first, having made her proposition that was, essentially, to give Lowther Gardens Trust money for their court costs in order to terminate Mr Silverwood's lease of the
Cafe, and after that proposition had been seconded by Cllr Karen Buckley, the matter was open for debate and amendment. .
Cllr Liz Oades led an assault on the propositions laid before them with three - we think very significant - amendments.
We'll look at them individually in a minute, but it's worth considering a bit more procedural stuff first if readers will bear with us.
If, as is almost always the case, you know that, whatever you propose, the Conservative majority can simply outvote you on every occasion, seemingly irrespective of right or
wrong - then it must become hard to keep going.
It must be tempting to lose heart and give up; to stop banging your head against the wall.
For some non-conservative councillors that is the case, but even if you know you're going to lose the vote when it comes, sometimes it's worth the effort of participating -
because in doing so, you can expose what's really going on, and hold the majority party properly to account for its actions.
Looking at the minutes, we think that's what happened here.
Normally, the minutes of a Council meeting record only the decision.
They don't record amendments that are proposed and lost. These are simply ignored as far as the minutes are concerned.
HOWEVER before the vote is taken, if five or more councillors ask for a 'Recorded Vote' then it is held as such and, like a school register, your name is called and you
have to say either For, Against, or Abstain.
This does two things. First, it shows the electorate who was, and who was not, responsible for the decision.
That's why it is normally used.
But it also requires the amendment you made to be published in the minutes even where it has been lost. (Because it would be entirely stupid to publish the result of a vote in the minutes
without knowing what the vote was about!).
What this means, is that with careful phrasing of your amendment, you can expose things within an exempt item that would otherwise not come into the public domain.
Looking at some of Cllr Mrs Oades 'old headed' amendments that were to follow, we were put in mind of the wonderful and strategically clever, legendary motion that former
Cllr Charlie Duffy proposed - and had debated in Full Council - to rename the Planning Committee as 'The Large Planning Application Rubber Stamping Committee."
This hoisted Conservative Councillors onto the twin prongs of a most uncomfortable pitchfork which, on one side had the Conservative Government's support for building in the
countryside, and Fylde Conservatives willingness to sacrifice the Fylde countryside for this purpose on the other.
Nowhere to run. Nowhere to hide.
We think that, at least in part, that's what Cllr Mrs Oades was up to with some of the amendments she proposed at this meeting, and as we now report....
THE FIRST AMENDMENT
Duly proposed and seconded, this proposed amendment said:
"I. That the Governing documents are re-drafted and the existing Trustees removed from office, to be replaced by Trustees with the necessary financial, legal and
II. To ensure that, in future, Fylde officers attend meetings of the Trust, minuting and meetings and ensuring that correct governance procedures are followed at all times."
That is strong stuff.
By implication, calling for existing Trustees to be removed from office like this, and to be replaced with new ones who have *enough* financial legal and theatrical
experience speaks volumes about her perception of the fitness and competence of the present people who act as Trustees.
After a debate, the recorded voting on her amendment was:
(Blue is Conservative, Red is Labour, Black is Independent, Orange is Liberal Democrat, Grey is Fylde Ratepayers, Purple is Individually Non Aligned)
Votes for Cllr Oades' proposal (12): Councillors Barker, Brickles, Chew, Clayton, P Collins, Hardy, Hayhurst, Hodgson, Lloyd, Nulty, Oades, Speak.
Votes against the proposal (26) Councillors: Aitken, Akeroyd, Andrews, Anthony, Buckley, D Collins, Cornah, Dixon, Donaldson, Fazackerley, Fiddler, Green, Harvey, Jacques, Kirkham, E Nash, S Nash, Neale, Nixon, Pitman, Redcliffe, Settle, Small, Thomas, Threlfall, Willder.
Abstentions (2): Councillors Ford, Rigby.
Although we're not experts in charity law, we're pretty sure that the Council cannot actually remove Trustees from office - and we'd be surprised if Cllr Mrs Oades didn't
know that before she proposed her amendment.
But by doing so, she exposed a view that the present trustees have caused this mess - because they appear to have been not sufficiently experienced and perhaps incompetent.
She also suggested the detailed proceedings of the Trust's meetings should be known to Fylde's officers.
She has also exposed the Conservative councillors lending their support to, and exercising their judgement (and taxpayers money) to underwrite the cost of what might be a
delinquent and or foolish board of Trustees if it loses the pending court case, and costs are awarded against them.
THE SECOND AMENDMENT
Councillor Oades second amendment said that at the end of a proposal saying:
"the ratification of any proposed settlement terms is agreed by the Council's Chief Executive in consultation with the Leader and Deputy Leader of the Council"
the words "and reported to the first available Council meeting after such agreement is reached" should be added at the end.
What Cllr Oades was trying to do here is to ensure the decision on this matter is transparent for all to see.
As it was worded, the detailed outcome of the legal action might only be known to the Chief Executive and the Conservative Group Leader.
Once again the vote was not surprising:
Votes for the proposal (13): Councillors Barker, Brickles, Chew, Clayton, P Collins, Ford, Hardy, Hayhurst, Hodgson, Lloyd, Nulty, Oades, Speak.
Votes against the proposal (26): Councillors Aitken, Akeroyd, Andrews, Anthony, Buckley, D Collins, Cornah, Dixon, Donaldson, Fazackerley, Fiddler, Green, Harvey, Jacques, Kirkham, E
Nash, S Nash, Neale, Nixon, Pitman, Redcliffe, Settle, Small, Thomas, Threlfall, Willder.
Abstentions (1) Ė Councillor Rigby.
We regard this as a wholly disgraceful abuse of the authority of the full Council, and we say Cllr Mrs Oades was absolutely right that the proposed settlement terms - which
the Conservative Group was about to underwrite with taxpayers money - was, and should have been, a matter for the whole Council, and the public, to know.
THE THIRD AMENDMENT
This was the killer amendment for us. It said
"All monies paid by the Council in respect of this litigation, or by way of compensation or other settlement payments to the tenant, excepting for the £4,000 which has
already been approved by the Chief Executive under the Council's Emergency Powers, shall be provided to the Lowther Gardens Trust as an interest free loan to be repaid to the
Council within five years from the date it was paid."
GOSH. Where to start on this.
The £4,000 Emergency Payment
What this tells us is that £4,000 of taxpayers money has already been spent by the Chief Executive using what he refers to as his 'emergency' powers.
What is doesn't tell us is when that decision was taken, and what the nature of the 'emergency' was.
Whilst in council spending terms, £4,000 isn't a lot of money, there is an important principle at stake here as to what can constitute 'an emergency'
We're familiar with Councils using this term and this power in cases where literally, life or property is under imminent threat - most notably for things like serious
flooding or threatened building collapse, or other impending disaster - where you need to be able to hire a big digger quickly to fill in breaches of river or sea walls, or to scaffold
an unsafe building for example.
We've also seen it once used at Fylde where, because of an oversight, a bill was not paid, and bailiffs appeared at the Town Hall and started measuring up the artwork on the
walls to sell it - in order to recover the unpaid amount.
On that occasion the finance officer went to the Midland Bank in person and drew out enough cash from the Council's account to pay the bailiffs who went away smiling. It was
But we're struggling to imagine what sort of an *emergency* could arise in what is turning out to be a conflict between the Lowther Trust (as landlord) and its tenant.
If Emergency Powers had been used simply to provide taxpayers money in secret - when there is no threat to life or property - and without an officer having to obtain the
authority of the Council to spend it, we would regard that as an abuse of office.
Thinking about it, we cannot see any circumstances in which a landlord/tenant dispute about renewing (or otherwise) a business lease could result in an emergency -
unless for example, the Trust had embarked on a commercial lease termination without understanding they could be challenged in court over it, and they didn't even have enough
money to cover the basic court costs.
If something like that was the case, then we think Cllr Oades' call for their removal and replacement would have been justifiable, especially when they could have solved the
problem by agreeing a new lease.
Payment For Litigation, Compensation Or Settlement
We know a little - but not a lot - about commercial leases, so readers should treat this section with a bit with caution.
That said, as we understand it, unlike renting, where the tenant with say a weekly, monthly or sometimes yearly rental has fewer rights in law, a lease is usually for a
defined term of years.
During this term, both parties must comply with the terms of the lease they agree. The lessee must pay a rent, and the lessor must give 'quiet enjoyment' to their lessee.
But a couple of other aspects also come into play in what is a fiendishly difficult legal framework.
If a lease is of more than 7 years duration it usually counted as the lessee 'owning' the property for some legal purposes. (Leasehold houses in St Annes for example often
have terms of hundreds of years and residents think of themselves as being the owners of the house).
Another aspect is that shorter commercial leases often contain a provision to renew them (and even if they don't, there can be an implied ability to renew).
The ones we have seen say something like '.... may renew the lease.... *for which permission will not be unreasonably withheld*'
The upshot is that commercial lessees usually have greater protection from their lease being ended - even at the end of its agreed term.
We know that Lowther Trust was negotiating with lessee of the cafe and that it appears the discussions broke down.
We wonder if what's happened here is that the Trust has served what's called a Section 25 notice to end the cafe lease altogether.
There are usually two main grounds where this can succeed.
One is that you're going to demolish and redevelop the property and you want to do something different with it.
The other is that you want to take back control of the property for your own use (An example might be a landlord wanting the lease of a house back so they can house a close
Now, if the Trust's negotiations with the cafe lessee had broken down, and they are planning to redevelop the building (as they have said they are), then they might have served a
Section 25 notice to end the cafe lease.
But because of various legal protections built into commercial leases (and almost certainly to one that had formerly been let by a Council), and because the present lessee
has run the cafe for at least 30 years to our knowledge, we imagine the lessee will have quite some confidence that the law will afford protection to them, and they might (and
it looks to us as though they have) contested the Section 25 notice that has been served on them.
We're not at all sure about this next bit, but if it is right, it would explain what's going on here....
If the lessee contests the termination of the lease, we think they become the active party in the court case that follows.
So it might be that, because of its actions to end the tenancy, the Trust now finds itself as the respondent to a legal action brought against them by their tenant - and a
Court will rule whether the tenant should be able to renew their lease just - as we happen to know from a previous life - as they have done before.
This would all fit with the opening of Cllr Oades' third amendment which says "All monies paid by the Council in respect of this litigation, or by way of compensation or
other settlement payments to the tenant.....,
This sounds as though Lowther Gardens Trust wants Fylde Council taxpayers to take over or underwrite any payments either to settle out of court, or for the defence costs of the court case that's probably on the way as we
write this article.
So why would Lowther Gardens Trust want Fylde Council to meet the cost of the impending court case?
And even more particularly, why would Fylde Council want to do that?
Provided that ending this lease is not the Conservative Group's own covert proposal to get rid of the Cafe operator themselves (and we can think of no sensible reason that
would be the case), then the only thing we can think is that Lowther Gardens Trust doesn't even have the money to pay the cost of the legal case it has sparked into life!
This could be credible because we have separately been told the Trust lost a considerable sum on one of the entertainments it staged recently.
If this whole situation has come about because the Trust has been so delinquent or incompetent that it started a legal action it didn't even have the money to complete - and
it has now pulled Fylde in to cover the cost of its incompetence and bad judgement, the we and, quite properly, most of the taxpayers of Fylde, would have the right to be very
angry about it.
Give it As a Loan
The final part of Cllr Mrs Oades amendment sought to have the money loaned to Lowther Trust (rather than provided as a grant or subsidy).
The Conservatives seem to have opposed this idea. They certainly voted against it.
We struggle to understand why this would be the case.
It may be that the Trust does not, or would not, have the money to repay the loan - and all that would happen is that the Council would have to increase the annual subsidy
it makes to the trust to run the Pavilion.
Another reason might be that the Trustees would not accept such a responsibility and might resign from the Trust leaving the Council to pick up the cost as the 'Trustee of
If that was the case, and the Trustee's fear of being personally liable for the costs of their decision caused them to balk, then we would be inclined to say 'Good Riddance' to the existing
If it is the case that they have caused this problem to arise, we would not want them to stay in post for a minute longer than necessary.
Furthermore, if the trustees did walk away, and the Council was left as the sole trustee for a time, it could solve the problem very simply by renewing the cafe lease and
abandoning the multi-million pound redevelopment project.
If the Trustees can't even fund the financial risks of the legal case they provoked (or have instituted), what on earth hope do they have of funding a £3m £4m or £5m
redevelopment project - or for that matter, even finding half that sum even if they can get grant aid for the other half?
But despite the logic we have outlined here, the Conservatives voted to give, rather than lend, them the money for the legal costs.
When it came to the vote, it was:
Votes for the proposal (to fund the Trustees with a repayable loan), (13): Councillors: Barker, Brickles, Chew, Clayton, P Collins, Hardy, Hayhurst, Hodgson, Lloyd, Nulty, Oades, Rigby, Speak.
Votes against the proposal (27): Councillors: Aitken, Akeroyd, Andrews, Anthony, Buckley, D Collins, Cornah, Dixon, Donaldson, Fazackerley, Fiddler, Ford, Green, Harvey, Jacques,
Kirkham, E Nash, S Nash, Neale, Nixon, Pitman, Redcliffe, Settle, Small, Thomas, Threlfall, Willder.
We'll consider why the Conservative group might see this as a good idea shortly.
THE SUBSTANTIVE MOTION
Having voted down all the amendments proposed by Cllr Oades (which we think served at least one of their purposes by exposing more of what was really going on), and with no
other amendments in sight, it fell to a debate and a vote on what was left, (technically called the 'Substantive Motion') that the Conservative Group Leader had proposed.
With the exception of (g) in the following list (which Cllr Fazackerley had added as an amendment of her own), we suspect this list will have been what was published as a
recommendation in the Agenda for this press and public excluded meeting. It was:
1. To acknowledge and understand that the Council is in a unique position as the permanent Trustee responsible for the continuation of the Lowther Charitable Trust and
should act in the Trustís best interest;
2. To acknowledge the cultural and community benefit derived from the facilities and activities delivered by Lowther Trust;
3. To approve an un-funded revenue budget increase in the subsidy payment to Lowther Charitable Trust for 2018/19 to a sum of £175k in order to provide the potential
resource required in defending the legal proceedings served upon the charity, on the conditions that:
a) officers are instructed to work with the Trustees to manage the case in the most effective way possible in order to minimise the ultimate cost to the public purse,
including consideration of further mediation or negotiated settlement;
b) the Trust meets the legal costs up to the Case Review Hearing (with the exception of the £4,000 approved by the Chief Executive, in consultation with, and with the
concurrence of, the Vice-Chairman of the Tourism and Leisure Committee, together with the Leader of the Council under emergency powers to fund the Case Review Hearing);
c) the Councilís Head of Governance takes the lead role in the management and facilitation of the legal proceedings;
d) if an outcome is achieved that is deemed acceptable to Fylde Council is also accepted by all of the other Trustees;
e) in the event that the case is successfully defended by the Trust all recoverable costs are returned to the Council; and
f) the ratification of any proposed settlement terms is agreed by the Council's Chief Executive in consultation with the Leader and Deputy Leader of the Council.
g) the Trustees, together with the Council, agree to comprehensively review the Governing Document to appropriately reflect the Councils position as the permanent Trustee
and, as a minimum, it will include a requirement that Trustees must receive approval from the Council before commencing, settling or taking any litigation action (except where
the litigation is directed by the Trusts insurers), or before taking any material step in any statutory process.
Here we have confirmation of our earlier suspicions, and we see even more of what's been going on.
WHAT DOES ALL THIS MEAN?
Well, points 1 and 2 are overtures to the main event. They seem intended to justify the unjustifiable.
Point 3 shows that, subject to some conditions, Fylde Council just voted to spend up to £175,000 of money that is not within their budget for this year. (That's
what an 'unfunded revenue budget increase' really means).
Make no mistake, this is taxpayers money.
It's all our money - even if they take if from another spending heading.
And ultimately, they're going to use this money to try to remove the present Cafe operator from the building.
If the Trustees can't come to an agreement with their lessee (and they failed to do that last time), then Fylde will give this money to the Trustees so they can
afford to contest the legal action the Cafe owner is taking to protect his commercial tenancy - as the law allows him to do.
There are about 78,000 electors in Fylde.
At £175,000 this decision will cost the equivalent of £2 on everyone's council tax bill.
Frankly it is a disgrace, and we think it's an enormous waste of taxpayers money.
Why on earth would this wasteful, idiotic decision have been taken when we're pretty sure the court case could be avoided altogether if the Trust simply renewed the Cafe
lease on the same or similar terms to those that exist at present, and under which the cafe has operated for decades?
That's a question to which we will return later.
THE CONDITIONS THE TRUSTEES HAVE TO AGREE
We said that the £175,000 was subject to some conditions, so we'd better have a look at them.....
The first condition (3a) is that a further attempt will be made to reach an agreed settlement (out of court). This makes sense, but we're not overly hopeful. It's been tried
once already without success. (We imagine Fylde would also have been involved in that process after they paid that £4,000).
3b requires Lowther Gardens Trust to pay for what it spent up to when the council chipped in the £4,000 as the 'emergency' payment.
So here we have it in black and white.
The 'emergency' was not for protection of life or property, it was to pay for (perhaps legal representation at) a Case Review Hearing.
As we understand it, a 'case review hearing' is a pre-action hearing that's held to see if the matter at issue can be resolved without it going to court.
How on earth could that ever be classed as an 'Emergency?'
It simply cannot.
By his action, and by only consulting Conservative councillors on this matter before doing so, (Vice Chairman of T&L Committee and Council 'Leader'), we believe the Chief
Executive has abused his delegated power.
He has failed to respect the minority parties and Independent members of the Council, and in doing so, he has failed to demonstrate the political impartiality that his job
requires of him.
Furthermore, if the Trust can't even afford £4,000 for the Case Review Hearing, we don't believe it has any business whatsoever taking money off people for a pie in the sky redevelopment
scheme it can never complete because its Governing Document prohibits it from doing so. It is utter nonsense.
3c puts Fylde's Head of Governance in the driving seat, and is one of the few sensible proposals in this dire and disastrous decision.
3d is not even a complete sentence. It says
"if an outcome is achieved that is deemed acceptable to Fylde Council is also accepted by all of the other Trustees"
We think there's a missing 'it' in the middle of the sentence
What's being said here is that whilst Fylde is a named Trustee, the other Trustees it created are to have less say than Fylde does. The £175,000 is only being offered
if Fylde Council (or Fylde's nominated Trustee?) can decide what is and is not an acceptable settlement.
Whilst we can see the practical commonsense in this, if it is a legitimate requirement (and we're not sure at present whether it is or not), it negates the very point of
having other trustees in the first place.
And as a matter of principle, we wonder what the Charity Commission might have to say about one trustee having more power in decision taking, than another trustee (or indeed
more power than ALL the other trustees put together).
3e says that if the Trust win the case, the Council will recover everything it can from the Trust.
We puzzle which hat the Council is wearing when it says this. Several times throughout this matter, we're struggling to see whether the Council is speaking as 'The Council',
or whether it is 'The Trustee'
3f empowers the Chief Executive and Leader of the Conservative group to ratify any proposed settlement terms.
It is a disgrace that any settlement terms will not be determined by the full council who approved the money to pay for them.
3g (Cllr Fazackerley's own amendment) says an awful lot.
"the Trustees, together with the Council, agree to comprehensively review the Governing Document to appropriately reflect the Councils position as the permanent Trustee and,
as a minimum, it will include a requirement that Trustees must receive approval from the Council before commencing, settling or taking any litigation action (except where the
litigation is directed by the Trusts insurers), or before taking any material step in any statutory process"
We find this a very surprising condition for providing the money.
That's not to say we necessarily disagree with it, but it seems to us to be at odds with what the Charity Commission would expect of Trustees.
To explain why, we need to go back to the process that explains why and how the Trustees were created.
On 15 July 2009, when the Lowther Gardens Trust had just been created and Fylde Council was the only Trustee, Fylde's cabinet considered a report to create additional
trustees. The pertinent part said:
"4. The Charity Commission believes that local authorities may not always be appropriate charitable trustees. The Commissionís guidance note on local authorities and
charities includes the following:
Are there any advantages in a local authority being the trustee?
Yes. The administration of a charity by a local authority can have advantages: as a body corporate, a local authority enjoys perpetual succession, so that it is not
necessary to make individual appointments of charity trustees or to vest the charityís property in them; and often the local authority will be willing to subsidise the
operation of the charity out of its statutory funds, either directly by way of grant aid, or indirectly, for example, by meeting the cost of maintaining the charityís property
or by providing professional services free of charge.
Are there any disadvantages in a local authority being the trustee?
Yes, our experience suggests that:
local authorities often fail to appreciate that they are not free to deal with the property of a charity in the same way as they can deal with their corporate property held
for statutory purposes. This can result in property being treated in a way which is inconsistent with the charitable trusts. For instance, where the property in question is a
recreation ground, a lease may be granted on preferential terms to a (non-charitable) sports club;
conflicts often arise between the interests of the local authorities and their council tax and rate payers on the one hand, and those of charities and their beneficiaries on
the other hand (Party political interests may even play a part in decisions made);
local authorities sometimes give the administration of charities less attention than would bodies of individual trustees constituted solely for the purpose of administering
them. Much of the day-to-day administration of the charity may be delegated to a committee, or even to officers in the exercise of their Local Government Act powers; and
in the event of local government reorganisation, a successor authority might not appreciate that property transferred to it from a predecessor authority is held on trust for
charitable purposes, with the result that it mistakenly treats it as part of its corporate property."
Prophetic, or what?
Fylde's Cabinet also considered who would appoint new trustees, and were told
"The existing trustees appoint new trustees. The council, as the existing sole trustee, would therefore initially appoint new trustees. But appointment of new trustees from
that point onwards would be the responsibility of the trustees as then constituted"
A note to the report also said
"It would be possible for the council to maintain control over the constitution of the trustees by retaining the power to appoint trustees. However, this would require the
Charity Commission to approve an amendment to the governing document. Given that trustees appointed by the council have the same powers and duties as all other trustees
(including duties as to conflicts of interest), it is difficult to see what the advantage would be in retaining the power to appoint trustees."
The report went on to say:
"13. All trustees have to act in the best interests of the trust. If trustees act prudently, lawfully and in accordance with the governing document, then any liabilities
that they incur as trustees can normally be met out of the charityís resources.
14. However, if trustees act imprudently, or are otherwise in breach of the law or the governing document, the position is different.
Here, trustees may be personally responsible for liabilities incurred by the charity, or for making good any loss to the charity.
Since trustees act collectively in running a charity, they will usually be collectively responsible to meet any such liability. Trustees may also be personally liable if
they incur liabilities or debts that amount in total to more than the value of the charityís assets, even if the liabilities have been properly incurred."
Fylde's Cabinet were convinced by the concerns set out by the Charity Commission, and by the discussions that took place between officers and the Commission, that it was
necessary for Fylde to increase the number of Trustees to broaden the governance perspective of the new Trust.
They passed a resolution to do so. The Charity Commission were asked to, and did, approve what became the first amendment to what was then the original Governing Document.
Several new Trustees were interviewed and invited to form the new Board of Trustees.
And that brings us back to Fylde making this quite Draconian condition (g) and especially the bit that says:
"....it will include a requirement that Trustees must receive approval from the Council before commencing, settling or taking any litigation action (except where the
litigation is directed by the Trusts insurers), or before taking any material step in any statutory process"
Again, like condition 3(d) but even more strongly here, we wonder how the Charity Commission will view Fylde's proposal that all the Trustees (including the Council's own
Trustee?) must in future seek permission from the Council before doing anything 'significant'.
The need for this condition to exist clearly suggests the Council think the Trust has embarked on a course of action that has resulted in litigation and / or it has taken a
material step in a statutory process without the Council knowing what it was doing.
This leads inevitably to the question about what the Council's trustee representative on the Lowther Gardens Trust was doing?
It seems to be the case that either they had no grasp of what was actually going on, or they were complicit with other Trustees in creating the conditions that have put the
Council in this invidious position.
That's bad enough, but there is another confusion sitting in the middle of this resolution as well.
It's another of those 'which hat is it wearing' moments.....
If, as per this minute, it is a condition of receiving the £175,000 that 'the Trustees' HAVE to agree to a change to the Governing Document (which says that the Council must
approve certain matters before the Trustees embark on them), then to us, the implication of that is to put 'The Council' - wearing its 'corporate body' hat - in effective
control of the Trustee's decisions - at least in respect of those specified matters.
Surely this can't be being said as 'The Council' with its 'Trustee' hat on - because if it did, it would put Fylde's Trustee Representative on the Trust in effective control
of the important matters, and there would be little or no point in having the other Trustees would there?
This is probably what the Charity Commission meant when it said:
'local authorities often fail to appreciate that they are not free to deal with the property of a charity in the same way as they can deal with their corporate property held
for statutory purposes. This can result in property being treated in a way which is inconsistent with the charitable trusts...;'
'conflicts often arise between the interests of the local authorities and their council tax and rate payers on the one hand, and those of charities and their beneficiaries
on the other hand (Party political interests may even play a part in decisions made);....'
So we'll be interested to see how the wording of Fylde's minute is translated and finds its way into a revised Governing Document for the Trust, (if at all).
HAS ANYTHING ELSE HAPPENED?
Well yes, a bit, at least.
In our own mind we keep going back to that statement by Fylde's legal officer at Planning Committee.
Up to that point, (or shortly after it), Fylde appeared to be entirely convinced that the Lowther Gardens Trust could go ahead and re-develop the Pavilion.
We've taxed our brain really hard on how this belief might have come about and, as we said in our last article, it's very difficult to come up with a sensible answer.
The only thing we could think is that someone might have invented or drafted a newer version of the Governing Document, or a new amendment to it. One that does allow
extensions and additions to the Pavilion - but without having had that amendment accepted or agreed by the Charity Commission. And this 'new version' has either been given to,
or has otherwise found its way into, Fylde's paperwork system, and Fylde came to believe it was a real amendment to the Governing Document.
We'd really like to see this if it exists.
Before Minute 3(g), we knew it would have been pointless asking Fylde for information about the Governing Document. They would have said 'No' because it was the property
of the Council as a Trustee, not the Council itself, and even the Freedom of Information provisions can't require Charitable Trusts to make information available.
However, we wondered if Minute 3(g) meant that the whole council as a corporate body will be in effective control of the Trustee's decisions - at least in some respects, and if
so, it might be the case that The Council is in effective control of some decisions taken by the Trustees.
If that was true, then it appeared to us that that information held by FBC (as a body corporate) regarding the trust might become subject to Freedom of Information requests.
So we explained politely what we've just outlined above, and asked:
- to receive a copy of the full Governing Document that is held by the Council, together with and any amendments that have been made to it.
- If (1) above was not the document that authorised the Trust to increase the size and or provide additional buildings in Lowther gardens, we asked:
a). to be advised whether the council held such a document and, if it did,
b). to receive a copy of the document on which the Council has relied to believe that such additions are now authorised and, if it is not date-stamped, to know the date of
its receipt by the Council.
As always, we had a very courteous reply which said the council did have a copy of the governing document of the Trust, but it held that document on behalf of the Trust,
in its capacity as a trustee, rather than for the council's own purposes. As a result, the governing document was not Ďheldí by the council for the purposes of the Freedom of
Information Act, and there was no requirement to provide it.
The current Attorney General himself could not have defended the indefensible better, we thought.
We politely disagreed with this view, but accepted that it was a matter that would 'come out in the wash' when the Charity Commission considered what changes would be
proposed to the Governing Document.
However, the reply to us also went on to say (somewhat surprisingly) that neither the Trust nor the council had argued that any such authorisation has been given to date.
It said that, on the contrary, both the Trust and the council acknowledged that the approval of the Charity Commission, in some form, would be needed before the Pavilion
could be expanded.
We're not exactly sure what 'in some form' means, but we'll let that go for the moment.
In response, we expressed considerable surprise that the Council's Legal Officer had not made that state of affairs clear at the Planning Committee when asked for clarity by
the Planning Chairman after a Public Speaker had said it was the case that......
"The trustee must not erect any additional buildings or extend the existing pavilion" so granting planning permission for this application would result in a breach of trust,
which all of the trustees including the council would be liable for....."
And Fylde's legal officer advised:
".......a full update has been made to the Governing Body document, so the email information that's been received by the speaker isn't full and complete in relation to the
updates that have been made.
So my understanding is that the Council is satisfied that the Governing Body has...., document..., has been fully updated"
And we're still surprised at that response from a professional officer today.
As readers will know, we're not easily put off the trail, and whilst we noticed that the reply had 'fessed up' to the prohibition on expanding the building still being in
place, we also noted that the second part of our Freedom of Information request had not been addressed.
So we asked it again with a slightly different question.
This time we have asked "whether the Council holds, or has held, a document that claims or purports or asserts or suggests that the Trust may increase the size of existing
and / or provide additional buildings in Lowther Gardens, or which otherwise seeks to circumvent the prohibitions set out in the current Governing Document, and if so, to know
the date that such a document was received by the Council."
We're currently awaiting a reply to this.
We recognise that a copy would not be provided to us if it is a governing document held by the Council as a Trustee. But we'd still like to know if a such document exists, and
when the Council first received it.
Furthermore, if it is NOT a governing document of the Trust, then we would question how might be held by the Council as a Trustee, (rather than by The Council as a corporate body)
and suggest in that case it would be susceptible to the Freedom of Information Act, and we will ask for a copy.
We might be able to report further on this perplexing matter if and when we get a reply.
PUTTING IT ALL TOGETHER
So what do we know now?
Well, the Council agendas (with their associated reports and probably with informative appendixes) have been kept secret because of there being an impending legal case. We
can understand the need for that. (Although we don't for one minute believe that *none* of the information could have been published).
Secret reports make it difficult for people to come to a view about what is being done with their money and in their name. Secret reports also feed suspicion and distrust,
and we believe Fylde could have been far more open with their document publishing in this matter without compromising their possible legal situation.
Fylde's Mayor who - like us - is a stickler for proper procedure, evidently didn't think even the Councillors had been given full and proper information on which to base
their decisions when he closed the first Council meeting prematurely to allow more time for questions to be asked and more information to be provided to Councillors.
That situation gives us the sense of information management / limitation by officers.
And if that happens, the driver behind it is usually political pressure from the leaders of the majority party.
Judging by the fury we were told Cllr Susan Fazackerley (Leader of the Conservative Group) displayed as the Mayor closed the first meeting, the situation has that sort of feel
to it as well.
So we fished in the pool of public documents that does exist, and used our experience to make some assumptions.
And now that the minutes of the last Council meeting have been released into the public domain, we can be more clear.
It now looks to us as though the Trustees of Lowther Gardens Trust knew (or should have known) they could not increase the size of the Pavilion.
They had a Governing document saying that increasing the size of the Pavilion and / or adding to it, was (and is) prohibited.
Nevertheless, they embarked on what we regard as a 'pie in the sky' scheme to redevelop, expand, and add to Lowther Pavilion in contravention of the Governing Document - and
also in contravention of a separate clause that prohibited them from changing the Governing Document in this regard.
They sought (and might have received) funds locally in support of this scheme - a scheme they did not have authority to implement.
We're not quite sure how that might play out going forward.
But at some point, we think that someone (or some people) prepared a new governing document for the Trust, or perhaps prepared an amendment to the existing one - something
that reverses or otherwise changes the clause that prohibits the Pavilion from being increased in size or having additional buildings in Lowther Gardens.
If such a document did or does exist, (and we think it does - or at least it did), then it might have been a legitimate attempt to prepare a form of words that could be sent
to the Charity Commission for their approval as a proposed amendment.
We don't think such an amendment had a cat in Hells chance of being approved given the nature of the Trust that was created by the gift of the land, but others may disagree.
More worryingly, such a document might have been intended to confound the unwary into thinking that it was an approved amendment or Governing Document; a piece of deception
testing the art of what might be possible.
As at today, no-one knows whether this document exists (or existed), but until the day of that Planning Committee when the man spoke in the public platform and said he was
convinced there was no such Governing Document that overrode the prohibition, we think several of Fylde's officers behaved as though there was - and not least amongst those was Fylde's legal lady at the Planning Committee meeting.
As yet we can't be sure about this matter, but it's more or less the only outstanding part of the jigsaw now.
That's because we now know the Trustees of Lowther Gardens Trust, having failed to agree terms for a renewal of the cafe lease, almost certainly served the cafe tenant with
'notice to quit'.
He appears to have responded by exercising his right to contest that notice in court, and to do so he will have taken an action against the Lowther Gardens Trust. (That's
why Fylde's minute says the money was for 'defending the legal proceedings served upon the charity')
Evidently there has been a pre-case review to see if it could be settled out of court, and that has been unsuccessful.
So now it's getting much more serious as it heads toward a court hearing.
If we were a Trustee, we'd be quite worried.
If the Trustees win the case, they will probably seek to recover their costs. But equally, if the other side win, costs will likely be sought against the Trustees and, if
what Fylde's Cabinet was told in 2009 is correct and they have a personal liability - and they are not entirely convinced of winning, we can imagine they too will have been worried.
So one way or another, quite possibly under threat of resignation as Trustees, we think they have convinced Fylde to remove the threat of personal liability for the decision
they took - by agreeing to fund the legal costs of their case against the cafe lessee.
And Fylde have now agreed.
Not only that, but the Conservative majority did so after explicitly REFUSING to obtain independent legal advice about the matter.
Why on earth would you do that?
In principle, we don't think Fylde should have agreed to give the £175,000.
With this move they have insulated the Trustees from the responsibility that they should rightfully shoulder for the decisions that they have taken.
In financial terms our view on this is the same as the need to preserve 'moral hazard' - people who borrow without repaying need to feel the weight of the responsibility for the decisions to borrow in the first place.
So we think there's a strong moral case for Fylde not having done what it has.
But in practical terms, Fylde will no doubt have seen that as the 'Trustee of last resort' if all the present trustees did resign (and we're not sure that would allow them
to escape responsibility for the decisions they took whilst they *were* trustees), then the costs of the legal case would fall back to Fylde Council anyway.
Fylde Council could be less pig-headed than the Trustees appear to have been, and close the whole thing down simply by granting a new lease of the cafe, then negotiating
with the Lessee about terms to run the new catering establishment if it is ever built.
We imagine that agreeing a new lease on the present or on similar terms would solve all the problems, and not cost Fylde's taxpayers the £175,000 it's heading toward costing
- equivalent of £2 on everyone's Council tax.
It's difficult to know (or even understand) why the Trust has sought this termination so strongly.
Whilst the present cafe might not have fitted with the style of the
proposed re-development, we've been to functions where the lessee has catered - including the Council's own Mayor Making events - and we have seen delightful offerings on the
His reputation for food is high and we know his customers to be fiercely loyal and appreciative. One of them wrote to us recently.
So we've no doubt the present lessee could adapt to a different catering style if that was required by the Trustees. (Though whether that's what the public visiting Lowther
Gardens would want is another matter).
We imagine the Trustees probably sought to justify the termination of the lease with their plan to re-development the Pavilion.
This was a scheme that never had any real financial substance; it drained a great deal of money that in our view should have been spent on the service not on plans and
architects fees; it was, and still is, prohibited from ever actually happening.
The re-development that went to the Planning Committee is a scheme that is now evaporating before our eyes - like the aroma from a cup of coffee in the cafe.
As a consequence, and like the coffee aroma, using re-development as a key justification for terminating the lease is also evaporating before our eyes as well. And that will
likely increase the strength of the lessee's claim to renew their lease.
Alternatively the termination might signify simple greed on the part of the Trustees (or on the part of FBC if they have been pushing the Trustees into this move).
The Trustees might believe that the sum paid for the cafe lease should be higher than it is (we don't know what it is), but they can't reach an agreed increase with the
tenant (who has a long history in this property).
In this sort of situation, the trustees will probably try to justify the termination by saying they want to take the cafe service back in-house (which is the other main
reason that can justify a termination).
If that's the case, we think the court case will hinge on factors like what experience the Trustees have of running cafes themselves, whether they have sufficient funding in
place, whether they have practical experience, and whether they have commercially viable business plans and so on.
But if the re-development option closes down because the building may not be expanded, or it has to start from base one again and stay within the footprint of the existing Pavilion, then we think the case for
terminating the lease now will be much more difficult to make.
We also know that the Conservative majority is unhappy with the present Trustees and the terms of the Governing Document. They must be, because Cllr Fazackerley herself added
an amendment saying that, as a condition of providing the £175,000, the Trustees must in future receive approval from the Council before embarking on any legal or statutory
Cllr Mrs Oades also seems to think the present trustees don't have the necessary financial, legal and theatrical expertise, and called for them to be replaced with others that
do. As the leading Independent councillor at Fylde, she is likely to know more in this matter than most people outside the Conservative Party.
She is also as - or even more - experienced in Local Government than Cllr Fazackerley, so her judgement is likely to be sound, and we always listen when she has something to
We also know that the Conservative majority voted against any proposed settlement terms being reported to the Full Council - which could keep that out of the public domain
And we know that the Conservative majority refused to provide the £175,000 as an interest free loan to the Trustees repayable within five years and decided to make it
available as a grant or subsidy.
The picture being painted throughout this matter is a Conservative group that wants to keep as much as possible out of the public domain whilst, at the same time, is strongly
supporting the move to rid the Pavilion of the lessee of Lowther cafe who has served them well for over 30 years or more, and whose catering they have been happy to have at
their most important event of the civic year - Mayor making at their Annual Meeting.
SO IS THE CAFE A PROBLEM?
We could understand what's been going on better if the existing cafe was a poor operation and creating a bad impression of Lowther Gardens - for example if it had been
prosecuted for something or if it had a very low hygiene rating.
In fact, it has the highest hygiene rating possible (5).
And, as we said earlier, we have already had contact from our readers who are unhappy about the threat to the present cafe operation. We've reproduced most of one of those
emails below so our readers can see their view:
"I remember my husband many moons ago taking me out for a meal, back in the day when he was still vying for my affections.
We had been walking, on a frosty Fylde day when I stepped into the bright school dinner hall type cafe, left over from a 70s and in desperate need of renovation. I say
stepped in, but we had to sort-of sideways slip into a huge queue that had formed at the door, jiggling for space as people tried to exit through us.
Although the cafe was self service, we decided it would be best to wait for a table before queuing for food. As we waited I saw trays of beautiful home cooked food exiting
the kitchen and home baked cakes and pastries passing by, And I started to understand why my husband had brought me.
Later, as I stood in the queue and desperately tried to choose which mouth watering cake would be mine, I noted that the staff were quick and efficient but the banter between
them and the happy atmosphere made me smile. Iíve since learnt that the staff are fiercely loyal to the two men that employ them and that they are equally loyal to their staff.
Iím lucky now to call these kind, generous, caring humans Ď friendí and although not close friends they have helped me on many occasions over the
years with their kind donations of food and their time for whatever cause I was helping.
Iíve often pondered why they stayed in such a neglected building. I believe, had they opened in some nice little bistro style cafe in one of the nearest towns they would
have earned far more.
Now back to my point.
Some might see a successful business like the one Iíve just talked about and decide they want a piece of that success, regardless of the cost and
the eleven jobs lost.
Some might think, if they cater to the ten bob millionaires that want to sit on their balconies sipping cheap Prosecco and pander to their over
inflated egos, they will surly be as successful too.
But some, should note my first paragraph and take heed !
In my humble opinion the success of this particular business is stunning home cooked food and a huge dose of loyalty !
Loyal, comes from the Old French word 'loial' which means something like 'legal' but if someone is only loyal to you because the law requires him to be, thatís not true
loyalty, which should come from the heart, not a contract."
That email is typical of the comments we've had about Lowther Cafe from our readers since we published our first article. We spoke with a reader of our acquaintance last
Friday, an occasional Lowther Cafe user, and former leisure industry professional. When we outlined what was going on he said incredulously
"What, Robert?, Why on earth would they do that?"
The cafe has a strong and loyal following, and frankly, we cannot see any justification - other than perhaps financial greed - for the plan to terminate his lease.
At this point we're inevitably tempted to recall another theatrical person, the playwright Oscar Wild who famously said "Nowadays, people know the price of everything and
the value of nothing."
THE QUESTIONS THAT REMAIN
We now know most of what has been going on, and there are only a few questions that still remain
One is the question of why Fylde wants to get rid of a successful cafe operator, and not get rid of a set of Trustees whose incompetence has self evidently created an
Probably an even bigger question is whether a document exists that says Lowther Pavilion is no longer subject to the prohibition on extending or adding to the buildings that
are in the gardens.
If such a document does (or did) exist, it raises the question of whether Fylde knew about it, and when they knew about it.
And from that comes another question - whether Fylde were hoodwinked into believing it was genuine in relation to the Governance of Lowther Gardens Trust, or whether they
mistakenly believed it was genuine, or whether someone at Fylde chose to believe it was genuine, knowing it was not.
There are some obvious further consequences that might flow from the answers to those questions.
We're also unclear about the role of some of Fylde's officers in this matter, especially in the areas of planning, governance and legal advice to councillors. But without
knowing more about the status of the 'mystery' document we can't yet tell much about that.
There are also questions about the role of Fylde's Trustee Representative in failing to keep the council informed what risks the Trust was entering into.
Here again, with the minutes of the Trust's proceedings not being open to public scrutiny, it's difficult to know whether this relates to competence or ignorance.
OUR OWN CONCLUSIONS
Unless a negotiated settlement can be reached - and we think that's unlikely given they have already tried this route - it's clear that this dispute is heading toward
a court judgement to decide it.
As we have shown, not all the matters are completely clear cut and definitive yet, but assembling the circumstantial evidence and relating it to what is now in the public domain, allows us to form a preliminary view.
That view holds in high probability the belief that elements within Fylde's Conservative Group had previously decided to support the Trustees in both re-developing and
extending the Lowther Pavilion building, and terminating the existing cafe lease at Lowther Gardens.
We can't imagine they would have done that if, advised by their officers, they still believed there was an absolute prohibition on extending the buildings.
(Well, not unless they hoped to sneak around the prohibition in the hope that no one would spot them doing it - which is quite a far-fetched idea.)
So we conclude there probably was some sort of evidence or belief - perhaps even a document - that justified their support for a re-development that was, in reality, in contravention of
the Trust's Governing Document.
Certainly, the circumstances around the granting of Planning Permission for the re-development lead us to the view that a pre-determined position of favour was held by the
Conservative members. We found that the way the reports were drafted, the way various councillors spoke in the debate, and the advice given by officers in that debate convinced
us to believe that the Conservative group's inbuilt majority were going to vote it through come what may.
So we're guessing - as we said at the beginning of this article - that behind all this secrecy and support for the Trustees, was a desire to have a good story and picture to
include in the Conservative election addresses for May next year. (As indeed had been the intention with the sale of Melton Grove Housing in 2011/11).
But just like the scandal of Melton Grove, this matter is turning very sour, and we're pretty sure it's not going to be the 'Good News' story that had been hoped for.
We think there is also an outside risk that something quite serious could come from the wake of the turbulence this has created.
So if this matter is not settled out of court, and the case about renewing the lease goes against the Council/Trustees, with the Trustees then having to grant a new lease AND pay the lessee's legal costs as well as
their own, then they're going to need most of that £175,000 that Fylde has earmarked for them at present.
We wonder if that happens, whether it's more that the Trustees that ought to be changed.
Dated: 11 December 2018