Vale
Royal Borough Council, Cheshire County Council and the Local Government
Ombudsman
Our response to the Ombudsman's
provisional
report, 5th December 2007
1) Sorry for the delay with our response,
unfortunately we had a family bereavement just after we received your
provisional report and that has occupied most of our time over the
last few weeks.
2) Unfortunately, your provisional report fails
to crystallise, let alone fully address, the key issues. Therefore, we
thank you for the invitation but won t be distracted into wasting any
more of our time and effort further controverting the substantial
amount of irrelevant and biased information in your report. Whilst we
have identified numerous flaws in your provisional report we are
restricting our response to the key issues.
3) Summary of the flaws in your provisional
report. (Full details in appendix)
A. Your conclusions are fatally flawed because
they are based on false premises.
B. You failed to consider whether Human Rights
Act issues were engaged in this case and whether they were properly
taken into account.
C. You ignored a number of relevant and material
issues. (Or failed to attach sufficient weight to them)
D. You took into account numerous irrelevant
issues. (Or attached to much weight to them)
E. You have also erred, both in fact and in law,
on numerous occasions.
F. You have biased the report by including
information favourable to your conclusions and Cheshire County Council
(CCC) whilst omitting information contrary to your conclusions and
favourable to us.
4) We are aware that if your office was to find in our favour
it would face criticism for its earlier handling and follow up of our
initial complaint. However, if our case had been dealt with fairly and
promptly it would never have reached such an impossible stage. By
seeking to legitimise and minimise the actions of CCC over the last 6
years you have done us, your own organisation, and justice in general
a great disservice.
5) We also believe that you have allowed your
view of events to be coloured by accepting numerous unsubstantiated
assertions from CCC. Mrs McMeekin confirmed her naive belief that
Council staff would not mislead the Local Government Ombudsman s (LGO)
office.
6) In 1997 Vale Royal Borough Council (VRBC)
said that we would have to suffer the consequences of their failure to
take enforcement action by having a step at the boundary of our
property or a ramp on our land. We refused both. The problems they
faced were entirely theirs. We were just the victims of their
incompetence and maladministration.
7) In 1999 VRBC promised the then LGO that CCC were going to
redesign the road so it could be completed without any impact on our
property.
8) In a meeting with Mr Woods in 1999, it became obvious that
CCC couldn t meet their earlier promise to the LGO. We offered an
amicable solution. We have never had a response to that offer.
9) In 2001 CCC sent us a plan that clearly showed a step at our
boundary (and a ramp on our property). We asked CCC repeatedly to tell
us which specific statutory authority (law) permitted them to
interfere with our rights. We have never received a satisfactory
response to that question. After they attempted to carry out the works
we submitted a proposal to resolve the issue. We have never received a
response to this proposal.
10) In 2002 we self abated part of the works and submitted a
complaint about CCC'S s actions to the LGO. Since 2002 CCC have been
threatening us with legal action.
11) Whilst now accepting that CCC has no right to construct a
ramp on our land you still wrongly imply that CCC, without proper
plans and without proving their authority, can construct a step at the
boundary of our property. This is a clear breach of our legal and
human rights.
12) In essence we are back where we started in 1997. Your
office has spent 10 years taking us round in a circle. We are now in a
worse position than we were in 1997 and solely reliant on our legal
and human rights.
13) VRBC must retain a level of responsibility for allowing the
developer to put the road in the wrong position in the first place.
Our 1997 complaint was concluded after they promised the Ombudsman
that the planned works would not impact on our property. Now it
would appear that our 2002 complaint is being concluded in the full
knowledge that the works will impact on our property.
14) The LGO s blind faith in the integrity of Council officers,
and the absence of appropriate follow up, has resulted in the
continued disregard for our treatment at the hands of CCC. Our case
must raise serious questions about the efficacy of your office.
15) We would be grateful if you would send your final
determination without any further delay. After spending the last 10
years trying to secure an equitable remedy through the LGO, we hope
you appreciate why we are now keen to focus our attention on
alternative legal and human rights remedies.
Appendix
A) Your conclusions are fatally flawed because they
are based on false premises.
A.1) That we have to accept a step at the boundary of our property.
A.1.1) A 9inch step at the boundary of our property is an unequivocal
interference with our right of way. We have the legal right to self
abate and/or take legal action and we intend to do so should it become
necessary.
A.2) That CCC have the statutory authority to construct a 9inch
step at the boundary of our property without our agreement.
A.2.1) You fail to appreciate that CCC do not have the statutory
authority to construct (or direct others to construct) a step at the
boundary of our property.
A.2.2) In any event, during 2001 we repeatedly asked CCC to quote the
specific statutory authority they were relying on to implement plan
29. Indeed, we actually went further and offered to let them complete
the works if they would simply prove that they had the statutory
authority to do so. Six years later we are still waiting for a
satisfactory answer to that question.
A.2.3) If their plans were above board they should have been only too
willing to give us the necessary information and cross sectional plans
to make an informed decision.. It is CCC s continued reluctance to do
this that has caused the substantial delay in resolving this issue.
Bushell v Secretary of State for the
Environment (1981) Lord Diplock "Fairness requires that the
objector ......... be given sufficient information about the reasons
relied on by the Department as justifying the draft scheme to enable
them to challenge the accuracy of any facts and the validity of any
arguments upon which the departmental reasons are based"
B) You failed to consider whether Human Rights Act
issues were engaged in this case and whether they were properly taken
into account.
B.1) You should have concluded that Article 1 of the first
protocol was engaged and that the Council neglected to give this issue
proper and timely consideration. Their failure was so significant as
to amount to maladministration and this omission has contributed to
the injustice suffered.
B.2) A step at the boundary of our property (or a ramp on our
land or a crossing gradient greater than 1 in 10) is a clear and
unequivocal breach of our convention rights under article 1 of the
first protocol. That protection is in addition to our common law
rights.
B.3) The principles of Article 1 of the First Protocol of
the Human Rights Act: This Convention right provides that every
natural or legal person is entitled to the peaceful enjoyment of his
possessions. Property" or "possessions" in this context has a wide
meaning and covers anything of economic value. It includes physical
and non-physical property such as land and buildings.
B.4) An interference with property must also satisfy the
requirements of legal certainty. In other words, there must be a law
which permits the interference and that law must be sufficiently
certain and accessible. There must also be procedural safeguards
against arbitrary State decisions.
B.5) If CCC had the necessary statutory authority all they
needed to do during 2001 (or at any time since) was to submit a full
set of plans, together with a statement of the specific statutory
authority (law) that permitted them to carry out the works. We
would not have been in a position to stop them.
B.6) All we have ever wanted is the satisfactory completion of
works adjoining our property. You may have seen a cross sectional view
of the proposed works and been satisfied by Council assurances, but
forgive us if our past experience makes us far more wary and prudent
than yourself.
B.7) Therefore, we will never accept, without the necessary
proof, that CCC have the right to interfere with our right of way by
constructing a step at the boundary of our property. If they had the
authority they assert, and you appear to now accept they have, our
complaint could have been resolved 6 years ago by the simple
expediency of telling us what it was.
B.8) Your attempt to legitimise CCC s actions leaves us with no
alternative but to rely on our legal and human rights in a court of
law. At least we wouldn t be denied the right to see a copy of the
cross sectional plan that CCC rely on (but suspiciously won t show
us). Neither would we be denied the right to know what statutory
authority they rely on (but suspiciously won t tell us) in order to
carry out the works.
C) You ignored a number of relevant and material
issues. (Or failed to attach sufficient weight to them)
C.1) That a tarmac drive to our property existed before the
road was constructed and still exists today. It wasn t rough ground
during 2001 and it isn t rough ground today.
C.2) That the roadway was constructed on top of our drive. As a
result, the differential between our drive and the road can be
measured accurately on site without recourse to, or reliance on,
levels shown on plans.
C.3) That the boundary crossover level shown on plan 29 was
purely an arbitrary decision by Mr Woods. It had nothing to do with
existing, real or even surveyed land levels, but everything to do with
extricating CCC from their self created difficulties.
C.4) Vale Royal Borough Council s promise to the Ombudsman
following her 1997/8 investigation.. That the planned works would not
have any impact on our property.
D) You took into account numerous irrelevant issues.
(Or attached too much weight to them)
D.1) The boundary dispute is (and always has been)
irrelevant to our complaint. The differential between our drive and
the new road is some 510mm. The distance between the road and the best
boundary position CCC could ever achieve is 3.5 mtrs. It means that,
even under the best case scenario for CCC, the resulting step would
still be over 6inches in height. That is not acceptable. So the
boundary issue is clearly irrelevant to our complaint and was only
introduced by CCC to cloud the issue and divert attention from the
reality of the situation. A tactic that appears to have worked with
the LGO s office.
D.2) Surveyed levels See section C.
D.3) Expert s advice. The advice you sought from various
sources is flawed, unreliable and hence irrelevant. You failed to
inform them of a material fact and/or provide them with a copy of the
cross sectional plans necessary for them to fully consider the
consequences of the works on our right of way.
D.3.1) As an example, but the same argument applies to all the
experts evidence in your possession, Renault s reply that their van
could access and egress a 1 in 10 gradient would have been altogether
different if you had asked the right question or provided them with a
cross sectional plan. It s clearly impossible for any normal vehicle
to access a property with a 1 in 10 gradient followed by a 9 inch step
just as it is impossible for a normal vehicle to egress a 1 in 10
gradient that is preceded by a 9 inch step.
D.3.2) You can t fail to inform expert witnesses about a
material fact that would clearly influence their response, then seek
to rely on their response. Particularly when we were not allowed to
see, let alone controvert their evidence.
E) You have also erred, both in fact and in law on
numerous occasions. The following is one obvious example but there are
many more.
Planning permission: We don t accept your conclusion
on numerous grounds.
E.1) During 2001 CCC stated that the works were being carried
out under the General Permitted Development Order 1995, Article 3,
Schedule 2 Part 12 and, as such, did not require planning approval by
Vale Royal Borough Council. We supplied evidence to your office during
March 2007 controverting that claim but were never told that CCC had
subsequently changed their defence regarding this matter. We should
have been told of any material change to their defence (and
been given the chance to controvert it) well before you issued your
provisional report.
E.2) However, having said that, all CCC have done is replace
one unsound defence with another. There is no method of statutory
interpretation that can be applied to Section 55 of the Town and
Country Planning Act that would allow CCC to carry out the planned
works without planning permission. Therefore, you have erred in fact
and law by accepting that it does.
E.3) Section 55 of the Town and Country Act is clearly there to
allow a Highway Authority to meet their statutorily obligation to
maintain and improve existing highways. The highway in question has
not yet been completed and adopted. CCC may have chosen to maintain
the unfinished road but that is quite different from being statutory
obliged to do so.
E.4) CCC were not attempting to maintain or improve a road,
they were merely attempting to facilitate the completion of a new road
by a Bondsman.
E.5) CCC were attempting to complete the road to an altogether
different and lower standard than that previously approved by the
planning authority.
E.6) The Developer had been told on numerous occasions by the
planning authority that they would have to submit plans for approval
for even minor variations from the approved and bonded plans.
E.7) A key part of the statute quoted has been omitted from
your provisional report (namely; not including any works which may
have significant adverse effects on the environment.). The full
wording completely negates CCC s claim that the works were permitted
development.
E.8) Plan 29 clearly has a significant adverse effect on the
environment for various reasons including, but not limited to, a
footway design that leads people into the road on a bend should they
be reluctant, or find it difficult, to traverse the adverse crossing.
A significant safety and environmental issue by any stretch of the
imagination, especially with regard to disabled people. In addition,
the plan has a significant adverse effect on access and egress to our
property.
E.9) In any event it is not up to CCC to decide whether the
works constituted permitted development or not, that is clearly the
role of the planning authority. Particularly since CCC s plan
infringes National Planning Policy, which calls for a sustainable
environment which is accessible to everyone, including wheelchair
users and other people with disabilities.
E.10) For planning permission to be granted for such works, CCC
would have needed to produce plans for approval and public comment. By
trying to bend the permitted development rules, CCC are again
displaying a reluctance for their actions to be scrutinised.
F) You have biased the report by including
information favourable to your conclusions and Cheshire County Council
(CCC) whilst omitting information contrary to your conclusions and
favourable to us. The following is just one obvious example but there
are many more.
F.1) You fail to mention in your report that we have repeatedly
asked CCC to settle this matter in an amicable way. It is CCC who
decided to pursue legal action, not us.
F.2) The whole point of us repeatedly bringing this matter to
the attention of the LGO was to avoid court action if possible. We
were led to believe by your own adverts that you were an alternative
to court. A statement that we now know is completely untrue.
F.3) You also fail to mention the two meetings we had with CCC
during which we attempted to resolve the matter. On the first occasion
we received no response at all to our offer to settle. On the second
occasion, in 2001, Mr McGinn made it quite clear that all they were
willing to do was pay for the cost of constructing the works but not
pay any damages for the resulting impact on our property. We followed
this up with a formal written proposal to settle the matter but again
received no reply.
F.4) As far as CCC s last offer to settle is concerned we have
the following comments to make. This was after they threatened court
action and refused to show us (in cross sectional detail) what impact
their proposed plans would have on our property. Unfortunately, until
CCC is willing to disclose what the full impact of their proposed
plans will have on our property we will never be in a position to take
the matter further. Once we have been fully informed of the impact on
our property we would be willing to consider any and all offers.
However, there has never been a good reason for another meeting.
All that has ever been necessary is for CCC to demonstrate that the
works will not impact on our property or make us an offer if their
plans do impact on our property rights.
F.5) We appreciate that CCC may not want to furnish us with a
cross sectional version of plan 29. Doing so would clearly prove
our case against them. Hence their reluctance to give us a copy of
the cross sectional plans for the last 6 years, and your reluctance to
force them to do so now. Therefore, CCC are in a catch 22 situation
of their own making because it is wholly unreasonable for anyone to
expect us to blindly agree to anything.
F.6) However, there is another alternative which would
alleviate the need for CCC to expose their untenable position, and
also avoid the need to apply for further planning permission. Simply
make us a without prejudice offer to allow them to finish the road to
the existing planned and bonded standards. In essence respond, or at
least make a counter offer, to any of our numerous efforts to settle
this matter since 1999. We are sure that, once they attempt to resolve
the situation fairly and amicably, the matter could be resolved within
days and the works completed within weeks. It is solely their
continued reluctance to consider such an amicable solution that has
caused the additional six year delay.
[Back
to the top]