Public Services Ombudsman Asked to Investigate @ Auld Fowler's HQ

Formal Complaint Lodged with Public Services Ombudsman

The Arts Festival with the full support of Prestonpans Community Council today lodged a Formal Complaint with the Scottish Public Services Ombudsman. The details of the letter despatched are given below, and most importantly [in bold] the actions the Arts Festival and Community Council are asking the Ombudsman to take to get things onto a fair and reasonable basis again.

Such a step can only be taken after all other appeal procedures have been followed which it seems they have!

"1. Historic Scotland’s [HS] Officers and the Minister[s] responsible have failed in their statutory duty when responding to our request that the Auld Fowler’s HQ/ Coeval Building in Prestonpans be Listed. Furthermore it transpires from sight we now have under Freedom of Information that HS repeatedly failed in its statutory duty under the Act in addressing a series of inappropriately ‘casual’ similar requests since 1995 arising via our local authority, East Lothian Council.

Specifically, the Act [a] requires them to consider requests with the assistance of experts, and [b] to consider them for either architectural or historical reasons.

On no occasion have they considered historical reasons as a basis for Listing and only on one occasion did they take outside architectural advice. They had no internal officer at any time who was in any way professionally competent in matters of industrial history. Rather they have at all times been determined to address and reject the applications on architectural grounds.

The case we advanced on historical grounds was listened to but not forwarded to the two architectural experts consulted at the final stage.

The responsible Minister at the time [Linda Fabiani MSP], when questioned in Parliament by our MSP Iain Gray, repeated the HS conclusion without any personal consideration of the matter, and was assured in her Briefing by HS that they would ‘hold the line in public’ for her.

2. As well as seeking proper Listing, our Arts Festival also launched a campaign for Community Right to Buy, not I must record in order to take possession of the building per se, but as a second front to ensure its protection. 800 + Panners, i.e. the requisite 10% of the delineated EH32 adult voting population, signed the Application but it was immediately rejected on the grounds that Lidl, the owner of the Auld Fowler’s HQ, had entered into an Option to Sell with G2 involving demolition and the construction of new flats – most recently promoted as Scotland’s ‘cheapest at £64,000’.

We have thus far been denied sight of the Option under Freedom of Information by the Department for Rural Affairs. However, regardless of its precise contents the basis for the Option is in our opinion ultra vires for the following reason. At the time Lidl was granted consent to build its store on the balance of the site where the Auld Fowler’s HQ stands, its own architect had asserted that retention of the Auld Fowler’s HQ was an integral part of the design. As such, unless and until such a caveat was removed no such offer could be made or accepted. Accordingly our Application for Community Right to Buy should have succeeded.

3. Whilst all these matters were in hand, in June 2008 with no reference to the elected Councillors or to our campaign members, the Building Control Department of East Lothian Council [ELC] issued authority to Lidl to demolish the Auld Fowler’s HQ. This information has only come to light this week. The officers explain that such a procedure is normal under ELC protocols i.e. that elected officers and campaigners are not consulted or informed in matters relating to Building Controls. We are frankly incredulous that any such ‘normal’ procedure could be mandatory under law and we assert that the officers concerned, knowing that such an authorisation to demolish this heritage building was not only a high profile issue in the community but also subject to appeals, should have paused and at the very least consulted with elected Councillors and campaigners.

The decision made in June 2008 ‘effectively in secret’ could have the outrageously perverse outcome that this heritage asset is lost to our community whilst appeals and due process is still ongoing. Our request to ELC to suspend its authorisation has as we write gone unanswered.

The officers in question have argued that the ‘integral design solution’ advanced by Lidl’s architects is not in any manner binding since it was not specified as a Condition in the Consent eventually granted. This we find wholly disingenuous. If an applicant had already agreed to retain the Auld Fowler’s HQ why would it need to be included as a Condition? No reasonable person could accept that as a defence.

What in Our View Would Resolve the Problem?

To ensure honourable due process and appropriate respect for our community’s wishes, specifically:

1. We ask that ELC immediately suspend the authorisation it gave to Lidl/ G2 for demolition of the Auld Fowler’s HQ in June 2008.

2. We ask that the Minister responsible instructs HS immediately to appoint experts in industrial history to evaluate the historical significance of the Auld Fowler’s HQ and the appropriateness of a Listing.

3. We ask that HS re-evaluate its procedures for the consideration of all applications in future to ensure that historical significance is encompassed both discretely and together with architectural significance.

4. We ask that HS in its future recruiting of in-house Inspectors includes those who have historical competences.

5. We ask that the procedure at HS where ‘casual’ discussions about Listings with local authorities and its inspectors reach ‘conclusions’ that impact on the nation’s heritage ignoring the statutory requirements cease.

6. We ask that where an Application for Listing is properly made the reasons why the applicant is making the request should be made known to the experts whose opinions are sought.

7. We ask that any Conditional Offer to Sell that frustrates a Community Right to Buy application should always be available for public inspection and subject to an appropriate time constraint. "