Monday, 5 September 2016

Case Study 1 Investigation Failure Part 1

Maladministration - A local authority failed to apropriate Land prior to its sale disposal thereby prejudicing the right to object to the loss of open space

Personal Injustice - The right of the individual to object through due process was wholly prejudised resulting in the loss of open space and amenity Additionally the authority misled investigation , failed to provide timely  information in compliance with the law and substantially frustrated their act and omission through service denial causing significant distress and cost in both time effort and financial outgoing ( the complainant attended all relevant council meetings relating to this land matter)

The complainant asserted

 a. failed to or to check the status of the land prior to any alleged appropriation or its statutory requirement to  advertise  or in the alternative apropriate it at all  under s122 LGA
  b. did not advertise its intention to dispose of the public open space and consider any objections before making its decision;
  c. did not consider the need for public open space in accordance with the lawful requirement to do

The precedent set by the LGO relates Bolsover  to an almost identical parraellel, with the exception in this case that the authority where wholly aware that this was POS Public Open Space

 Subsection(1) of the Local Government Act 1974, section 122, requires the Council to decide that the land is no longer required for the purpose for which it was held immediately before the appropriation. This requires a council to consider the public need within the locality for the existing use. The Council should have known that the land was held as public open space and consideration should have been given in a report as to whether it was no longer required for this purpose.

The Test

This is a simple test , which technically embodies two questions to the Local Authority
Did you apropriate the Land before its disposal in accordance with direction given under s122 of the LGA (1973)  Y / N
Did You Sell The Land  Y / N

The Evidence

The evidence which was provided to the LGO was clear

No advertised statutory notice relating to the apropriation of this land was placed in the local press
No Process of Apropriation had begun

The auction details of the Land Where provided
The Transfer Title was Provided
Information from the District Auditor recording transactions at the identified site was provided

A fully completed FOI request detailing material facts and a link to same via What Do They Know in respect of relevant and outstanding matters

The complainant had substantially alerted and provided the LGO the means to address these two basic questions to the offending authority which had defacto acted ultra vires 

Failure Of The Local Authority To Respond & To Mislead

Correspondence from the first contact 13 months prior requesting details of the land sale to a legal where provided

Subsequent correspondence including a request to meet with the Paid Officer and the Statutory Officer ,CEO & City solicitor  that being in law accorded the status in respect of the LGA as proper Officers

In order to provide the facts to the LGO the Complainant lodged a FOI Request asking for details of the Apropriation of the land disposal at this locality .

The local Authority  initially failed to provide the information in accordance with the schedule afforded by law and subsequentally went on when out of time to refuse  to provide any response to the simple questions through out on whether the land was apropriated or not

The complainant also drew to the attention of the LGO the authorities view to misleading where in one instance it was stated the land at the unapropriated location was more than a mile away when its was 100m from the complainants home

The Authority misled the LGO asserting that the process of appropriation was still underway . Apropriation could not occur on land passed into private ownership the act and ommision in law had occurred and to which no remedy to the loss of  objection could be met

The complainant also drew to the attention of the LGO the authorities track record of unlawful instruction  which ammounted to significant prejudice and disrimination as a result of the  Local Authorities Failure to address duties, a duty being required in law

The complainant also made the LGO aware that the solicitor who appeared to be vetting communication was also the legal responsible for conveyancing an area where the act and ommision occurred

Refusal To Investigate

There was not "enough" personal injustice to merit investigation. How much does there need to be ?
The right to deny representation with subsequent loss of amenity on land valued by an individual is of significant personal value It is clear above what constitutes Maladministration and what constitutes the injustice done The ombudsman fails to distingusih that a member of the public can be an individual

The ombudsman understanding of process is incorrect.Re On One site Apropriating Land on Title removes all POS designation even though 10 % of the site might be only be required the whole of the Green would be impacted.

In the matter of apropriation of another  this was not under taken at all the position is therefore unlawful

In the matterr of delay the query has been with the Authority in excess of 13 months including unrespondent FOI requests contrary to the law not the implied date of 6th Sept alone

Finally there is misnomer on the distance of land from the complainants home . There is no known precedent to suggest that  a  personal injustice as a result  of loosing  POS that which effects the well being of an individual  as use of right is negated in the fashion ascribed by the ombudsman. In the Bolsover ruling quite the contrary

The Analysis

In Part 2 of this assessment we shall analyse the substantive failings and courses of action hereafter in respect of the Ombudsman Failure to Investigate and uphold the direction of the Law

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