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Lowther Gardens. Trust?

Lowther Gardens, Trust?This article is our best guess at what's currently going on at Lowther Gardens in Lytham, and what information we can trust.

It has to be a guess, because although Fylde Council has debated the matter, it did so behind closed doors with the press and public excluded and, until last week, no details had been published.

But last week, the minutes of the first of those secret meetings *were* published, and they provided us with a few pointers about a meeting that, by all accounts, ended in acrimony.

So we've collected and stitched together information that was already, and is now, in the public domain, and used our experience of how local Government works at Fylde and elsewhere to fabricate what we think is most likely to be going on.

If we're right, this matter has the potential to become a shameful, sorry, messy, story.

SYNOPSIS
We begin with an Introduction leading us to the publication of the Minutes of the last Council meeting. We then give our take on what was likely to be behind the Declarations of Interest that were given by Cllr Cheryl Little, and Cllr Brenda Blackshaw and Cllr Elaine Silverwood, and ask What we can deduce about what's going on from the declarations?

Then we give Our take on the Minutes relating to the Lowther Gardens Trust debate, before rhetorically asking So what do we make of all this?

Then we broaden our view to encompass the Bigger Picture including the William Moffett legal opinion of 2005, and the Restrictions that the Charity Commission places on the Trustees of the Lowther Gardens Trust who may not extend the building as they plan to do.

Next we look at some Planning Committee matters and briefly at the Revised Planning Application submitted by the Trustees which is due for debate tomorrow.

Finally, we give our own (brief) Conclusions

 INTRODUCTION

In our counterbalance Snippets article of 26 October, we reported an item at the end of the Full Council meeting of 22 October 2018 headed 'Exempt Item – Not for Publication. Lowther Trust.'

We said that Exempt Items can exist for good and proper reasons, but they can also be used to hide sensitive or embarrassing matters.

We noted that the wording of the resolution to exclude the press and public said it was because the item contained:

"Information relating to the financial or business affairs of any particular person (including the authority holding that information) and information in respect of which a claim to legal professional privilege could be maintained in legal proceedings."

And, after trawling through Fylde's recent committee meetings we noted:

  • A brief mention in the Annual Report of the Lowther Gardens Trust in September 2017 which said they had embarked on a redevelopment plan for the Pavilion that was expected to cost between £4 and £5 million (none of which they actually had in the bank).
  • Fylde's Planning Committee of 1 August 2018, where the trust's architects applied for planning permission for what will be controversial and extensive alterations These included a two storey extension for a first floor restaurant and outdoor roof terrace space.
  • The very brief 'Outside Bodies Report' presented to the Tourism and Leisure Committee on 6th September by Councillor Brenda Blackshaw (who is the Council's nominated Trustee on the Lowther Gardens Trust) had said

"The planning application for the redevelopment is currently under consideration by Council. Decision anticipated soon.

The Trust are in negotiation with leaseholder of the cafe over implications of the redevelopment proposals and hope to come to an agreement."

From these points we surmised that the Exempt Item was probably about the proposed redevelopment of Lowther Pavilion, and in particular, it was probably about effect the development might have on the cafe.

Furthermore, despite Cllr Blackshaw's expressed hope, the stated reason for the exemption, (to do with someone's business affairs and legal professional privilege) gave us cause to imagine it likely that some sort of legal action or court case was pending.

We concluded our article by noting that a week after the Council meeting, no minutes had been published, and we said that was often a sign of a contentious debate and the need for careful wording of what had been decided.  We concluded:

'There's something very fishy going on here, and we've no doubt we will be reporting further on this matter.'

Events since that date have reinforced that view, albeit more quickly than we had expected.

 THE MINUTES ARE PUBLISHED

Notable amongst the events was the publication of the Council minutes - which we reproduce verbatim below- before offering our own take on them.

They say:

"1. Declarations of Interest
Members were reminded that any disclosable pecuniary interests should be declared as required by the Localism Act 2011 and any persona or prejudicial interests should be declared as required by the Council’s Code of Conduct for Members.

Councillors Blackshaw, Little and Silverwood declared a personal and prejudicial interest in Item 12 – Lowther Trust and left the room for the duration of the item.

11. Exclusion of the Public

The Mayor, Councillor Peter Collins, proposed a resolution to exclude members of the public from the meeting for the consideration of Item 12 in accordance with the provisions of Section 100 A (4) of the Local Government Act 1972. This was on the grounds that the business to be discussed was exempt information as defined under paragraphs 3 and 5 of schedule 12A to the Local Government Act 1972 - Information relating to the financial or business affairs of any particular person (including the authority holding that information) and information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Councillor Sue Fazackerley seconded the proposal.

It was RESOLVED to exclude the public.

(The room was cleared of members of the public. Having declared an interest in Item 12 Councillors Blackshaw, Little and Silverwood left the room.)

12. Lowther Trust

Councillor Liz Oades proposed that standing orders 11.5, 11.7 (d), 11.8, 11.10 (ii-v) and 11.11 be suspended for the remainder of the meeting to allow for a full and open debate in relation to Item 12 on the agenda.

Councillor Linda Nulty seconded the proposal.

After discussion a vote, by show of hands, was taken and the motion was LOST.

The Mayor then stated that it was his responsibility to uphold the rights of the councillors and ensure that they had the information necessary to enable decisions to be taken efficiently and effectively.

He made reference to Articles 1.02, 2.03 (b (i)), 14.02 and 15.01 (b, c) of the Constitution.

The Mayor indicated that, in his view, the information provided to members in the report, and since the publication of the report, was not sufficient to allow the council to take an informed decision on the matter and that his duty as Mayor therefore required him to refuse to allow the council to consider the item.

After a number of members had spoken on that point, he closed the meeting."

 OUR TAKE ON THE DECLARATIONS

Probably the first of the significant matters in the minutes were the interests declared by three councillors.

 Cllr Cheryl Little

First, Cllr Cheryl Little declared her personal and prejudicial interest as a Trustee of the Lowther Gardens Trust.

Her 'Current Outside Bodies' interests that are registered on Fylde's website do not record her as being a Trustee of this body.

This almost certainly means she does not formally represent Fylde Council on the Lowther Gardens Trust, and we assume she was selected as a Trustee (by the other Trustees) for her personal qualities.

For the avoidance of any doubt, we make it clear at this point that that whenever matters concerning Lowther Gardens Trust have been discussed at Fylde, Cllr Little has always, (perfectly properly) declared an interest as a Trustee of Lowther Gardens Trust, and acted appropriately.

She is, however, listed on Fylde's website as an 'Inactive Trustee' from 6 July 2015 to 3 April 2017. (We're not exactly sure what that means but it we suspect it means that during this period, she was the Council's formally appointed Representative, but ceased to be so on 3 April 2017)

That is pretty much confirmed by the Tourism & Leisure Committee agenda of 9 March 2017 - which showed Cllr Little as the Council's Representative on the Lowther Gardens Trust, whilst the minutes of that meeting record its decision that Cllr Brenda Blackshaw was to be proposed to the Council as the Council's new representative on Lowther Trust.

And the Council did indeed confirm that change of its representative at its meeting on 3 April 2017.

 Cllr Brenda Blackshaw

Next Cllr Brenda Blackshaw declared her interest. She is also a Trustee of Lowther Gardens Trust.

But she differs from Cllr Little in that she is not there in her own right, but as the Council's formally appointed Trustee.

According to Fylde's website showing the Inactive Trustees, she was first appointed on 25 July 2017 and that appointment ended on 3 April 2017.

That, of course, is impossible, and we suspect the information on Fylde's website is wrong. The real position is almost certainly that she formally took over from Cllr Little as the Council's nominated representative on Lowther Gardens Trust on 3 April 2017.

Our view here appears to be confirmed by her entry in the 'Current Outside Interests' tab section of her personal entry on Fylde's website which says she joined the Trust on 3 April 2017.

Like Cllr Little, she declared a personal and prejudicial interest in the Lowther Gardens Trust item and left the room when that item was discussed at Council.

 Cllr Elaine Silverwood

Was the most interesting declaration - at least so far as we were concerned.

Her 'Current Outside Interests' tab on Fylde's website says 'Not a current member of any Outside Body.' So she cannot be a FBC Trustee of the Lowther Gardens Trust, and she is not listed as a Trustee on the Charity Commission's website, so our readers might thus wonder why she declared a personal and prejudicial interest and left the room with Cllrs Little and Blackshaw when the Exempt Item came up.

Because our ear is close to the ground on such matters, we know from elsewhere that Cllr Elaine Silverwood has a close family connection to Robert Silverwood who is the lessee of the cafe at Lowther Pavilion, and it is the case that if a Councillor has a close family connection to someone whose business is being discussed by the Council, then they must declare a prejudicial interest and not take part in the debate.

That's exactly what Cllr Silverwood (perfectly properly) did. She publicly declared a prejudicial interest and left the room when that matter came up.

 SO WHAT CAN WE DEDUCE FROM THESE DECLARATIONS

We think we can deduce from Cllr Silverwood's need to make her declaration  that the subject of the Exempt Item concerned the lease of the cafe at Lowther Pavilion, which Robert Silverwood has held (to our personal knowledge) since the1990s or even a bit longer.

If we are correct in that deduction, and we tie that into the report from the Council's representative on the Lowther Gardens Trust (Cllr Blackshaw) on 6 September 2018 - where she said:

'The Trust are in negotiation with leaseholder of the cafe over implications of the redevelopment proposals and hope to come to an agreement.'

We can probably deduce another probability.

Given that the reason for the exemption was that the item was about

'Information relating to the financial or business affairs of any particular person ...... and information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.'

it's probably quite a safe bet to assume the agreement that the Trustees of the Lowther Gardens Trust had hoped to reach by negotiation with the lessee of the cafe, and regarding the re-development of Lowther Pavilion, have not had the outcome Cllr Blackshaw said she had hoped for.

That being the case, there are probably arguments going on at the moment about the future of the lease of the Cafe and if, (as we would expect) the current lessee does not want his agreement to operate the very busy and extremely popular cafe at Lowther Pavilion to be ended, then this is a matter that will likely end up in court - hence the reference to legal proceedings in the justification to exclude the press and public from knowing about it.

Readers must bear in mind that nothing of what we have just said is fact, of course.

It cannot be fact, because the documentation on this matter is not available for the public to see.

It is only what we think is the most likely situation - mapped out and underpinned by the scant milestones that *are* public knowledge, and our lifetime's experience of seeing how councils work.

Until we get to hear some actual facts in this matter we can only surmise what might be going on.

That said, there is one more fact that's only just emerged.

The agenda for the Tourism and Leisure Committee to be held this Thursday (8th November 2018) notes an additional outside body representation being offered by the YMCA, then contains the following under the item called 'Outside Bodies - Vacancies'

"Councillor Brenda Blackshaw was last nominated as the council representative for Lowther Trust at the Tourism and Leisure committee meeting held on 8 March 2018 which was approved at the Council meeting held on 16 April 2018.

Councillor Blackshaw has resigned from her role as the council representative on Lowther Trust leaving a vacancy on this outside body."

It's not at all clear to us what's going on here.

Firstly, we're quite surprised that Cllr Blackshaw CAN decide to resign from the Trust off her own bat as she appears to have done.

Unlike Cllr Little, (who is a Trustee in her own right and can decide whether to be or not be a Trustee at will), Cllr Blackshaw was appointed by, and represents, the Council on the Trust, and to our mind, if she wants no longer to do so, she should seek the permission of the Council to resign from the responsibility it bestowed on her and she accepted.

The first step in that process should be for her to notify the Tourism and Leisure Committee of her wish to resign, and to ask them to recommend a new representative to the next Council Meeting at which time her term would cease (exactly as Cllr Little's term ceased when Cllr Blackshaw was appointed).

It might be that this is what is intended, and the agenda item for Tourism and Leisure is just badly or clumsily phrased, but it does also say the Council has no representative on the Lowther Trust at the present time because the position is vacant.

Secondly, we worry why the need for this sudden departure comes about at all.

If our assumptions and deductions in the matter of the 'Exempt Item' are anywhere near right, it is crucial that the Council is represented continuously if it is to be able to influence both the decisions that the Trustees make at this time, and to protect the financial position of the Council as a Trustee.

We say that because, as we understand it, the Trustees share responsibility and liability for the decisions they take and, if there is talk of going to law, then the costs of doing so could be considerable, and we suspect in the end, they might fall back on the Council (and thus on us as taxpayers).

We were uncertain of the position here so we looked it up.

From what we can see, the Council is a named Trustee.

In another 'Exempt Report' that came to us in 2010 (when someone forgot to remove it from the back of a public copy of a paper agenda at a Cabinet Meeting), the Council's solicitor told the Cabinet of the day:

"The council holds Lowther Gardens as the sole trustee of a charitable trust......"

"At its meeting on July 15 last year, the cabinet took note of the general concerns of the Charity Commission about the suitability of local authorities to act as charitable trustees. It resolved to Invite (by advertisement and other appropriate means) applications to become trustees of Lowther Gardens, Lytham ....."

" The inaugural meeting of the trustees and subsequent early meetings will be facilitated and supported by the council. However, the board of trustees will want to gradually take ownership of all aspects of the operation of Lowther Gardens and Pavilion, and of the trust, consistent with their responsibilities as trustees. The inaugural meeting of trustees will therefore represent a very significant milestone in the history of Lowther.

The council will remain as a trustee, and will be entitled, through its nominated representative, to attend trustee meetings and otherwise function as a trustee. It is suggested that the portfolio holder for community services (presently Councillor Sue Fazackerley) be appointed as the council’s nominated representative."

So from our understanding of what was said in that report, just as the Bank of England is the 'lender of last resort' - Fylde Council is the 'trustee of last resort'

The other trustees exist only because Fylde acceded to the concerns expressed by the Charity Commission about Trusts having a Council as their sole trustee, and agreed to expand the number and scope of the trustees. But if we are correct here, all of them *except the Council* could choose to resign their positions as Trustees.

If that were to happen, then we imagine the liabilities of the trustees would fall back onto Fylde Council, as would any legal claims or costs arising from court cases they had instituted, as would any commitments entered into by the Trustees (such as any irrevocable steps toward the £4 to £5 million re-development scheme for which planning permission is currently being sought).

Our readers will now understand why we've made such a fuss about the Council having continuous representation on the Board of Trustees.

 OUR TAKE ON THE MINUTES RELATING TO THE DEBATE

So far we've only looked at the 'Declarations of Interest', but minutes of the last Council meeting regarding the actual debate of the 'Exempt Item' give us even greater cause for concern.

They tell us

"Councillor Liz Oades proposed that standing orders 11.5, 11.7 (d), 11.8, 11.10 (ii-v) and 11.11 be suspended for the remainder of the meeting to allow for a full and open debate in relation to Item 12 on the agenda."

(Item 12 was the Lowther Gardens Trust item).

Suspending some of the Council's Standing Orders is a legitimate, but exceptional, and even uncommon, measure.

The process to do so is set out in Fylde's Constitution, and Cllr Mrs Oades appears to have gone about it correctly.

A motion to suspend standing orders seeks to disapply some of the rules that govern debate in the Council Chamber.

In this case, the numbers referred to in the minutes show that her proposal was (in respect of the Lowther Gardens Trust issue) to:

  • Remove the limitation that councillors may only speak once
  • Remove the time limit that usually applies to speakers
  • Remove a restriction that prevents further motions from being proposed, and
  • Remove the facility that enables debates to be brought to an abrupt end by the use of a 'guillotine' motion

It's clear to us that these proposals from Cllr Mrs Oades were intended to enable greater probing and testing of the matters that had been placed before the Council.

It sounds to us as though some councillors felt they were being given incomplete or insufficient information on which to base their decision and wanted to use the Council meeting to look into matters more deeply.

Although our readers might think this probing and testing is exactly what the Councillors should do, the normally accepted way of dealing with decisions that the Council itself must take is that the debate and probing of the details are considered at a prior Committee meeting, (where time limits and other constraints are not normally applied)

When the questions and arguments have been tested in Committee, someone proposes the words that will go forward as a recommendation from that Committee to the Council.

So when it gets to Council, all the questioning and testing of arguments has been done, and the decision required of the Council is simply whether to approve the recommendation of its committee, or whether to send the matter back to the committee for reconsideration (or rarely, for Council itself to change the recommendation of its committee).

In these circumstances, it is appropriate to have councillors only consider the Committee's recommendation (and not to repeat the questioning and testing of the arguments that went on in Committee), and that's why the Standing Orders (usually and sensibly) place limits on who can speak when and for how long and so on.

Council meetings are not intended for questions; they are for decisions.

HOWEVER

As readers will have spotted, this item was not placed before a committee to be debated, probed and tested.

It was taken straight to full Council in the first instance.

That is unusual. It surprised us, and it makes us wonder what the motive might have been for doing it this way.

The Tourism and Leisure Committee - whose terms of reference include the broad responsibility for leisure management, community development, recreation, parks and open spaces development, and grounds maintenance, arts, culture and heritage - also have the a specific responsibility regarding Lowther Gardens Trust. It is:

"10. To deal with issues arising in relation to the Trust set up to manage Lowther Pavilion and Gardens"

But Fylde's Tourism and Leisure Committee have not even been asked to consider and debate....

  • the proposals that were being prepared by the Trust
  • the impact of those proposals on the tourism and leisure services for which the Committee is responsible
  • the impact and potential impacts of those proposals on the Council as the named Trustee of the Trust
  • the impact of what was being proposed in relation to the existing cafe

We are really surprised that the Tourism and Leisure Committee has not been more involved in this matter - especially given its sole and specific responsibility for the Trust.

We suspect it was because such matters had not been considered in Committee that Cllr Mrs Oades made her proposition to suspend Standing Orders at Council - so that the probing and testing could take place.

The Minutes show that Cllr Mrs Oades' proposal was voted down.

No details of who voted which way are given in the minutes, but our experience of these matters leads us to believe it was likely to have been voted down by the Conservative group of councillors who have an overall majority on the Council.

Readers will no doubt want to ask themselves (as we ask ourselves) why, in the circumstances of that Council meeting, the Conservative majority would want to prevent any councillor from probing and questioning the issues before them?

Our experience shows that the usual answer to this question is that the real decision has already been taken in a Conservative group meeting before the Council meeting, and that 'party line' becomes what all Conservatives must then collectively support in the Council meeting (on threat of being sanctioned or suspended from their Conservative party membership).

But there was to be yet another twist in this tale.

The Mayor, (Cllr Peter Collins) then said that in his opinion (which in a Council meeting is final), not enough information had been provided to allow members of the Council to take an informed decision on the matter, and it was his duty as Mayor to refuse to allow the Council to take a decision without having had all the necessary information.

And that's what he did, citing the relevant sections of the Constitution to justify his stance.

In our lifetime of watching how councils behave, we have never before seen a Mayor be placed in such a position - where he has to use his Mayoral authority to prevent the council from taking a decision on something.

What - in our view - should have happened is that in the event that insufficient information had been provided, the Council's Monitoring Officer should have been the one who stepped in, stopped the debate, and advised councillors that they were about to take a decision which was either outside their authority in law or outside what their constitution allowed them to do, or it would put the council at risk of doing one of these.

It should not have been left to the Mayor.

We've been told by some councillors who were present that the Leader of the Conservative group reacted to the Mayor's decision with fury (and we've seen examples of that behaviour before - just look back at our early articles about the loss of the Lytham Hall lottery scheme).

We're told that she menacingly warned the Mayor to think very carefully about what he was doing, and that after the Council meeting there was a Conservative conclave to decide what to do next.

We heard gossip about dark threats to remove the Mayor from office and to change the Council's constitution so that only Conservative mayors would be elected in the future.

We've no idea whether that gossip is accurate or not, but it did come to us from several different insiders.

With so much vitriol and disagreement, (and we have to say, with so much integrity and bravery displayed by the Mayor), it's no wonder the minutes of that meeting took a long time to be written and published!

We're now told that Fylde has arranged an Extra-ordinary Council meeting to take place on 19th November 2018.

It is a single item agenda and, once again, it is an exempt about the Lowther Gardens Trust which will be taken behind closed doors.

 SO WHAT'S TO MAKE OF ALL OF THIS?

Well, we're not yet at the bottom of this matter.

As we set out above, we suspect it is all about legal action being taken by the Lowther Gardens Trust or their cafe lessee, probably about termination of the lease, and this will involve what's known as the law of property and the law of landlord and tenant - which is fiendishly difficult to fathom.

We were once in a position where we needed to try to understand this aspect of law - in our case concerning the considerable protections that the law affords to tenants who were under threat by a bullish landlord. We were referred to the definitive legal text on this matter published by a specialist law publisher called Sweet and Maxwell.

To see the only publicly available copy of that text locally, we had to go to the library of Lancaster University - which we did.

We're not easily put off by 'legalese.'  Up to then, our view had been that if you stay with it for long enough you can usually fathom it. 

But it took less than half an hour with 'Sweet and Maxwell' for us to realise this topic was so specialised and convoluted that it was beyond our comprehensive ability, and we gave up.

Our point in recounting this little tale is to demonstrate that in matters of property law, the outcome is never going to be a foregone conclusion, and that the costs involved in contesting legal cases between landlord and tenant can be significant.

Normally, this would be a matter exactly for those parties, the landlord and the tenant, and each would assess the risk and benefits of going to law and decide what they want to do about it.

So we have to ask the question why is Fylde council involved at all, and why is this matter blowing up into such a big matter and being surrounded by such secrecy? Could it be there is some likely financial risk to the Council as a 'trustee of last resort'?

We speculate that the answer might be in this region and connected with Cllr Blackshaw's sudden decision to want to resign as the Council's Trustee Representative on the Lowther Gardens Trust.

She might have entirely personal reasons for doing so of course, but the suddenness and unexpectedness of her pending departure, together with Fylde's officer's willingness to declare the position to be currently vacant which (in theory) means that at the present and potentially litigious time, the Council - as the 'trustee of last resort' has no representation on the Trust that runs Lowther Gardens.

The sense we get from this suggests an attempt to put distance between her and what the Trust (or possibly what the Council?) is doing.

Perhaps as someone with a foot in both camps, she doesn't want to be linked to, (or maybe even doesn't adequately understand), what's going on.

And that sense does nothing to dispel the concern we have on this item.

 THE BIGGER PICTURE

There's another, related, matter concerning Lowther Gardens as well.

Again in our last Snippets article, we reported a planning application on the agenda of Fylde's Planning Committee of 1 August 2018. We said it was a controversial item because it involved removing a lot of trees and opening up the vista of the Pavilion from the road.

But in truth, we regard it as being even more controversial because it seeks to increase the size of the Pavilion by both increasing its footprint area and its elevation, by adding an additional storey for a new cafe.

We think this proposed alteration is probably the root cause of the issue with the existing cafe lease - because the plan includes work to

"Including a two storey extension to the east to form a first floor restaurant with external roof terrace"

and it sounds to us as though the Trustees of Lowther Gardens either haven't been able to reach an agreement with the present lessee of the cafe to run that facility (if it ever gets built), or they don't want him to run it and are trying to terminate his present lease.

But we're struggling to see why either of these will be the case when - as far as we can tell - the Trust has no promise of the significant grant funding they say they will need toward the £4 or £5 million cost of their (what at this stage we consider to be a 'pie in the sky') scheme. It's far too early to be making decisions about who is going to run a future catering facility in a non-existent building.

Not only that, but we'll be amazed if they ever get to implement such a plan because of two restrictions that we know of, a legal opinion, and the Trust's 'Governing Document'.

 THE WILLIAM MOFFETT OPINION

This legal opinion came into being when Fylde was itself planning a very controversial scheme to increase the size of Lowther Pavilion by adding a second floor as a Civic Suite and Art Gallery.

In our recent 'Snippets' article we made mention of a definitive barrister's opinion that convinced Fylde to agree that Lowther Gardens was, and had always been, a Charitable Gift and as such had to be registered with the Charities Commission.

We also reproduced part of the agenda of the Planning Committee which said

"A number of representations have been received which refer to a covenant and a Counsel opinion. Covenants are not planning matters and are not taken into consideration when determining planning applications, and as such a breach of a covenant could not be used as a reason for refusal of planning permission. That said in order to provide clarification Officers have sought advice from Legal Officers who have confirmed that they are very familiar with the William Moffet opinion as they originally instructed him. The issues covered in that Opinion were about restrictive covenants and whether or not the council held Lowther as a charitable trustee. Neither of those matters are capable of being material planning considerations, so their advice is to disregard them in assessing the application."

We have a copy of that opinion dated 9th June 2005 which speaks of restrictions on proposals to increase the size of the Pavilion.

To see all the facts in this matter first hand, our readers can follow this link to download barrister William Moffett Opinion which was prepared for Fylde Council.

It's probably best to read the whole document, but we think the most relevant points within it about extending the Pavilion are:

  • Clause 30 (onward) which says that a further extension would breach the Building's Conditions and then considers whether such a breach would be a breach of trust or a breach of covenant.
  • Clause 51 and 52 which question the principle of leasing part of the building for a cafe but says a court could infer deemed consent, or it could be addressed in other ways.
  • Clause 53 (onward) which considers the enforceability of the Covenants and (from what we understand) notes that some of the properties on land around the Gardens enjoy the benefit of the covenants and could enforce them, even today.

The matters in this opinion regarding increasing the size of the Pavilion Building are as real today as they were in 2005 and, from our understanding, they are not wholly dependent on what the Charity Commission might or might not have to say on the matter.

They depend on whether someone with the benefit of those covenants chooses to act in order to exercise the benefits they currently enjoy.

And the really important thing here is that these matters (breach of covenant) are wholly separate from the (breach of trust) matters in the Governing Document of the Charitable Trust

 THE CHARITY COMMISSION

The Charity Commission is not concerned with all of the matters addressed in the William Moffett opinion. They are only really concerned with what might be breaches of trust (rather than breaches of the covenant).

So not all of the restrictions in the opinion were carried forward into the Governing Document of the Lowther Gardens Trust.

However, we believe the one that WAS carried forward requires the Trustees not to extend the Pavilion.

We know this because a matter arose in the last few years when a reader wrote to us seeking help and expressing concern that, having been refused permission to use Lytham Green for a meeting of a political nature, the organisers of a political meeting sought, and received, permission to hold the meeting at Lowther Pavilion.

We were aware of the conditions in the conveyance that precluded use of the Pavilion - (Not to permit or suffer any public meetings for the discussion of political religious trade or social questions, or other matters of controversy to be held, or religious services to be conducted, or lectures addressed on any part of the gardens') - and at the request of our reader, we wrote to the Charity Commission drawing attention to this proposed use and asking them whether they needed to know about it, or to take any action.

The relevant paragraph in a reply from a nice lady in their 'Permissions and Compliance Team' said:

'According to our records this charity is governed by a Scheme dated 3 June 2009. The only restriction within the governing document is contained in Clause 7 which states "the trustees must not erect any additional buildings or extend the existing Pavilion". For information, please find attached a copy of this document.'

As such, the Charity Commission were not in a position to take any action on the matter of the political meeting. (We presumed this was because they did not believe that a breach of this condition in the covenant would have constituted a breach of trust.)

Readers can follow this link to download the Governing Document for the Lowther Gardens Trust which we received at the time and, (as the lady said) precludes any extensions when it says

'7. Restriction on building

The trustee must not erect any additional buildings or extend the existing pavilion.'

The Governing document also restricts a Trustees power to amend the Governing Document vis.

9. Power of amendment

(1) The trustee (subject to the provisions of this clause) may from time to time amend the trusts if it is satisfied that it is expedient in the interests of the charity to do so.

(2) The trustee must not make any amendment which would have the effect directly or indirectly of

(a) altering or extending the purposes of the charity;

(b) authorising the trustee to do anything which is expressly prohibited by the trusts of the charity:

......"

So, quite separately from the matters of breach of covenant enforceable by local landowners, given that extending the Pavilion is expressly prevented by the Trust's Governing document, and according to it, that document may not be amended to do anything which is expressly prohibited by the trusts of the Charity, we can see no way the scheme to extend the Pavilion can go forward.

 PLANNING COMMITTEE MATTERS

At its last meeting (when the matter was deferred for further information), Councillors were advised by officers that they should disregard the Barrister's opinion because it was not a planning matter.

We're utterly amazed at this foolishness.

It might be (and probably is)  the case that in planning terms it is not a citable reason to refuse a planning application, but we argue it is not a reason to disregard the status of the proposed extension so far as the Charity Commission is concerned (and indeed as far as the potential benefits of covenant holders are concerned).

Indeed we'd go further. We say that if - as is the case here - the Council, as a body corporate, is the Trustee of last resort, and if it fails to consider and take account of the fact that that the Governing Document of their Lowther Gardens Trust prohibits any extension of the Pavilion, we cannot see how it will not be in breach of trust if it agrees to this application.

We regard it as entirely irresponsible of the Council's officers not to address this aspect to the Planning Committee.

It is a matter that is separate from the issue of covenants (which seem to us to be being selectively used to encourage councillors to disregard such matters)

So whilst the Planning Committee might be told to bury their heads in the sand under Lowther Gardens, and that they must not consider the potential risks the Council could be subjecting itself to by granting such a planning permission, we are completely astounded that the matters which restrict the extension of the Pavilion have not first been reported to either (or both) the Tourism and Leisure Committee, and/or the Finance and Democracy Committee, both of which HAVE responsibility for the wider implications of what is being proposed.

 THE REVISED PLANNING APPLICATION

The (revised) Lowther Gardens planning application is now back on the Agenda for this Wednesday's (7 Nov 2018) Planning Committee Meeting.

It's an awful report (and an awful scheme in our view).

We would have been ashamed to have produced a report that so acquiesces in the damage that this scheme will have on such an important garden that is within both a conservation area and is a locally listed heritage asset.

The whole tenor of the report is obsequious, apologist and flinching. It continually seeks to avoid facing up to what should be its responsibility. Its tone puts the authors and contributors in the position of 'collaborators' (in the old fashioned sense meaning 'to maintain face and appear independent whilst secretly helping an enemy or opponent').

We'll not go into all the details of the revised scheme itself, except to say that it follows the same awful principle as the previous version it that it mostly extends the building at the expense of parking areas, and then reshapes the remaining car parking at the expense of the planted parts of the gardens.

It also opens up the view of the Pavilion from East Beach. (there is now some re-planting shown on this frontage but the details explain it is to be low planting intended only to screen the car park).

We're less than impressed with the 'Tree Officer' who advised that

'the trees to be removed are of limited quality and supported the proposals. 47 new trees are to be planted to replace the 54 trees being removed.'

The plan showing the removals has tiny red dots which mark the trunk positions of the trees scheduled for removal.

The normal way of showing them (so as to illustrate the impact their removal would have), is to show the trees using their canopy spread.

Like we said it is: obsequious, apologist, flinching, and collaborative.

The re-configured car park provides 69 spaces - only 4 more spaces than at present - but it is intended to serve the new 150 seat Studio Theatre as well. The real additional parking spaces will most probably be on the surrounding roads.

The Environmental Health officers say

"Due to the close proximity of residential properties there is a potential for noise nuisance as a result of activities taking place on the premises.

1. The outside terraces shall be closed to patrons no later than 21:00 on any day.

2. There shall be no amplified entertainment taking place on the terraces."

Our own view on this application is much closer to the one expressed by the Lytham St Annes Civic Society who say

"We wish to point out that the main purpose of the area is for it to be a public park, free for all to use. We have always feared that the car parking areas would be extended and sorry to see this proposed, with the inevitable removal of mature shrubs and trees.

The idea in particular that the edge of the site should be opened up so as to merge with the Green i.e. removal of vegetation is conceptually wrong. The Lowther Gardens are there to give shelter from the winds with trees on all of its edges."

 OUR CONCLUSIONS (FOR NOW)

We await the next instalment of this saga with bated breath.

But in the end, we go back to our original point. There are covenants, and there are charitable trust prohibitions that say the Pavilion cannot be extended.

We don't presently see a way around that.

And unless someone has found a way around it, the rest of what's going on is probably best described as a nonsense.

Dated:  6 November 2018

 

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