A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it
In respect of the Ombudsman Investigation conducted by Rob Draper and Paul Lewis. I am mimded to comment on the quality of investigation undertaken on this matter ( Case Investigator Salary £35 - 40 K) There can be no mitigating circumstance for failing to read and examine correspondence in detail. Whilst it may be time consuming and a specialist area of law it was not for the investigator to conclude on this matter without taking legal direction or advice from a lead in the case management legal team and ignoring the facts provided by the complainant in preference to that given by the local authority , in particular Property Law Solicitors who appeared to be vetting enquiries and had made the acts and ommsions in the first instance and should have raised concern
The only mitigating circumstance for the conduct and standard of investigation from the LGO is that being if they had been significantly
The Authorities Case Fails by default , they did not appropriate the land MW prior to its disposal . This is a significant administrative error which technically is a lawful act and omission . As part of appropriation the authority failed to consider the use of the land , take objections duly made from individuals who valued its use as POS
and held by the the Directorate of Sport and Recreation . POS being defined
First the Ombudsman appear to refuse to investigate this complaint as there does not appear to have been personnel injustice
The Ombudsman claimed they would or had not investigated this complaint yet Leaked documents show that the Ombudsman was in communication with the council. Mr XXXX in point of fact learned 2 days in advance from the authorities solicitor that the ombudsman would not be investigating the complaint
1. Link to the Councils preferred Auction House clearly detailing this site as SOLD in rather large writing
2. A TP Deed indicating the transfer of Land to a third party provided by the council under a FOI request
3, Comments by the District Auditor clearly stating that identified transactions had occurred on the land
Included a clear communciation stating that no Statutory Advertisement was made in press as requirted prior to Disposal
We also provided the LGO with a FOI Request which asked the council key questions and which they refused to answer, which should have sent some alarm bells ringing
The Ombudsman was also advised that the legal parties vetting all communications by the complainant was also intimately involved with Property Law , Conveyancing and Assett Disposal
The council where looking into this 6th Sept 2016 when the relevant questions had not been answered by the Councils Assett Management Dept some 13 months previously
The complainant drew to the attention of the LGO aspects of its administration which constituted personnel injustice in addition to the fundamental injustices associated with failure to appropriate which also ammounted to personal injustice
The View of The Ombudsman
It is clear to the complainant that no detailed specialist Legal Advise was taken by the Case Investigator
I have reviewed how Mr Lewis handled the case to make sure there is evidence which justifies the decision not to investigate
It would appear that this statement does not deal with the prima facia matter which was the evidence assessed was it corroborated and were disputed was it cross referenced to eliminate anything that was given by the local authority to be misleading. The purpose of review is also to ensure that a claim is duly made and the evidence is valid Eg The LGO chose not to believe the assertion of MR XXX which was based on fact the land was SOLD and was sold and NOT Appropriated The statement seeks only to confirm the view that the LGO did not investigate what they are lawfully charged to do in respect of the injustice that ensued and had beyond all reasonable doubt had occurred. The LGO therefore acted with substantial bias as they chose to act on information provided by the local authority which in essence was that which was subject of complaint.
It also underpins the Investigative Casework system as being substantially flawed in so far as any investigated allows for the review of evidence provided by both parties to ensure that the accuracy and validity is transparent
I am also party to leaked information which shows in the main what contact was made to the local authority by the LGO which was substantial to the Local Authority to provide the response given in the letter of Mr Draper in order to make the assertions below which were not made on the evidence provided to the LGO that being what was not considered because in his own words they allegedly did not investigate the complaint. It seems strange to say the least that such an overwhelming view can be provided in circumstances where no alleged investigation ocurred
The Ombudsman Statements
"The Ombudsman does not investigate alleged procedural fault for its own sake."
This statement is wholly misleading what was presented to the Ombudsman was the Lawful requirement to administer Land Disposal under SS122 of The Local Government Act, and the consequence of personal injustice arising out of the maladminstration per se and any associated prejudice or alleged discrimination in preventing factual presentation of the matter
In such matters two material cases where presented as a matter of fact where act and omission had occurred , that properly amounting to maladministration . Contrary to the LGO assertion such complaint was not a debate for its own sake
This embodies three caveats.
Sufficient evidence was presented to the Ombudsman to raise the two critical questions to the authority (1) did you make statutory notice and (2) have you sold the land. In many respects the Complainant had already answered those questions in the evidence provided to the Case team
You complained in detail about the Council’s procedures for setting aside a piece of public open
space land for use as a car park, and for the sale of another piece of open space land near your
home which had been a play area.
The complaint relates to the process of apropriation which is a lawful process required to be undertaken on an asset that constitutes an area of POS Public Open Space. For the avoidance of doubt the complaint relates to maladministration surrounding such disposals . It does
not relate to the councils right to dispose of land belonging to it. The LGO comments that the complaint is a notional comment on process is wholly incorrect
" there was no evidence the land had yet been appropriated or sold. "
If the authority had failed to appropriate the land there would be no visible evidence other than the required statutory advertisement in press which the LGO where advised was
not present
In a balanced evidential test the burden of proof therefore becomes one of the Council to provide details in press of the Statutory Notification duly made and asked of the council on a number of occasions by the complainant. Under Wednesbury it is unreasonable to ask the complainant to provide evidence of something that did not occur and did not conform to the direction of statutory advertisement the purpose of which is to make " any individual aggrieved by the process..." aware
In balance there was significant and sufficient evidence before the LGO to ask the
reasonable question of the LA , was land sold , when . in addition to identify statutory advertisement and any subsequent minutes relating to appropriation
In Regard to the
Sale of the Land Could it have been more obvious ?
"The TP1 form,(transfer of land) you sent us on 9 September 2016 is neither sealed by the Council, nor signed by the relevant officer, nor dated. So it is not evidence an appropriation or sale has taken place. "
The document clearly referred to the derived Title , the document
being provided by the Council as part of an FOI . That document substantially differs from that held by Land Registry as required in law in so far there has been omission of date. Enquiries to Land registry confirms that this Land was registerred in Jan following the sale in Dec 2015 under private ownership under the derived title YY56103. A Land Title would not in any case provide details of apropriation that is something that can only be verified by statutory advertisement and direct confirmation in respect of the Councils Minutes , which would have been signed of by a delegated Named Officer under the council scheme of delegation as to whether it was appropriated or not from the council and the which the investigator clearly failed determine by asking the authority to provide evidence of the same . It remains concerning as to why on the
TP ( Transfer Document) the date was omitted when such a document was requested . The ommision of evidence and burden of proof falls solely on the Local Authority to defend . The intent to misled concerning.
The
TP1 Title was requested from Mr Winters as part of a FOI request . The local authority provided this document omitting the critical date of transfer , which for avoidance of doubt occurred in January a month after the sale of land at auction. The sale of this land had occurred
" That being so, any time and effort you put into trying to hold the Council to account for its decision was a matter of your own choosing. "
The ombudsman statement is one of ignorance and would fail any Wednesbury test , it is entirely reasonable for the complainant to pursue any of the councils acts or ommsions arising out of Mal Administration where they have caused personal injustice and to persist to do so by acting
ultra vires Indeed under the proximity test there is an extant view to have to do so. The Direction of EHCR akso is clear any one wronged by a Public Authority has an extant right to have matters furthered
The Ombudsman asserted
" you have provided no evidence the loss of public open space rights over that land has caused you significant personal injustice "
Mr XXXX provided not only the personal injustice relating to the lawful right to object as an individual and as a result of loosing the quiet enjoyment and amenity of this space but substantial procedural anomalies in their own right amounting to mal-administration
1.
That failing in those duties had substantial
impact on Mr XXXX in the following ways
(i)
That the continued failure for the
authority to accept , acknowledge or communicate on issues which they where
obliged to do so resulted in Lawful representation embodied in the councils
Constitution being denied ( FOI Request ). Request to see petition
wording on the alledged petition on planning application and locality of
respondents taken to imply for the process of appropriation that
the land was no longer required for intended purpose when this was a general
document , draughted some years prior where both the wording and locality of
the appellants questionable
(ii)
That continued vetting and interference by
certain officers resulted in a position of service denial those officers being
correctly
identified as proper
officers materially identified as holding a duty in regard to concerns
duly raised as part of council administration
(iii)
That the councils assumption by general members
of staff mentored , instructed by the above (whether instructed or
assumed ) that every legimate or reasonable contact had to be deferred ,
stonewalled was detrimental to Mr XXXX and constituitional and
human rights
(iv)
I draw attention to the failure to respond
to simple requests in the time afforded by the law can only be disciminatort or
prejudicial . I put it to you the council did not respond because
(1) the signatory office to the Wibsey fair Site did not have lawful authority
(2) The process of s122 of the LGA was not undertaken for a Play area and Open
Space valued by residents resulting in denial of representation
(v)
That both historically and currently that
prejudice has perpetuated over some time as consequence of political
interference resulting in significant damage to the reputation of Mr XXX as an
Environmental Consultant and his capacity to determine the environment in which
he lives ( ECHR applies)
(vi)
That the continued failure to acknowledge that
the council had not handled asett disposal properly and to deny process
cost sunbstantial time and effort to the detriment of Mr XXXX and the charitable
work he administers and in his capacity of environmental consultant as
well as undue stress and inconvenience arising out of service denial
It is clear throughout the personal injustice is irrevocable loss of open space that being
valued by an individual through the right to objection lost by maladministration and
recorded on the RUDP as that designated as POS
" Mr XXXX decision statement refers to only one piece of land about a mile away from your home."
Lawful precedent on proximity.
Outcome caused by the negligence should have been reasonably foreseeable when the negligent act was committed
The Complainant has never argued that the council have no right to dispose of land which is POS , in order to so do , the authority must comply with the directions of the law, part of which embodies representation to objection
The council misled they are two pieces of land the first that was not lawfully apropriated was no more than 100 m away from the Complainants home .
The second a Fair Green aprox 1 mile which is POS Public Open Space Mr Draper arguement is fallacious that only 10 % of the land would be physically used is correct but the process of apropriation would remove designated Public Open Space from ALL of the Title resulting in a loss of POS Statutory advertisement on S122 LGA is clear in its direction. In the determination of this matter the council have refused to provide information in the public interest as to whether the officer signature to the legal document had delegated authority , as being a named or proper person , given , the process of terminating POS was an infringement to use and that properly designated the same on the RUDP
" You refer in your correspondence to loss of these rights to the public as users of the open space land. Without specific consent from others, however, you do not have authority to complain for anyone else "
The investigators view to the use of the term Public in dealing with Public Open Space reflects considerable stupidity and misunderstanding and bias on the part of the ombudsman The individual clearly makes representation about the
individuals infringement of objecting to the loss of the designation Public Open Space which has been prejudicially lost as a result of the councils acts and ommsion . The signatory to the complaint is Mr XXX and therefore the complaint is duly made by the individual not the Public . Because the matter relates to POS - Public Open Space and contains the word "Public" does not follow that the complaint is made on behalf of the public
"Council said as recently as 5 September 2016 it was seeking information from its estates department to reply to your enquiries on the matter."
Intention to
mislead and to provide communication as part of a public service and in the public interest in an accurate and timely manner
1. As demonstrated to the LGO this question remained outstanding
LINK for the best part of 12 months
04.09.2015
2. It was re-presented as a Lawful requirement under the
FOI Act
29th June 2016 and to which the authority failed to respond in accordance with law
3. The impression that this question was being dealt with as an ongoing matter is wholly incorrect in fact and law . The land had not been appropriate and had already been sold
4. As part of the documentation provided under the FOI Act the date on the
TP1 LINK ( Deed Transfer0 had been omitted . The date of sale at Auction was
December 2014 and the date of Transfer January
5. It is unlikely under
Wednesbury that the presentation of two questions Was it Apropriated and Was it sold being presented officers as part of their lawful duty, a duty being that required in law would ammount to disproportionate use of officers time , the involvement of those officers in obstructing fact are due process would amount to misfeasance in public office
Communications To Office of LGO
Case Officer Brief
Link 26 August 2016 12:19
Corrrespondence
Link on the relevant questions 04.09.
2015 sent as case evidence 09 September 2016
FOI
Link Duly made asking relevant questions on appropriation to which the Council failed to answer Available
29th June 2016
Previous Casework
Bolsover Council
Other Documents Sent to the Case To Follow
In Part 3 of this Action we will update on Legal Challenge to the LGO when Pre Act service of Pre Action Protocol has been served under the Civil Procedings . We are minded to do so under CFA .
" The only way to challenge the decision further is by seeking a judicial review in the High Court. Please take some advice before considering such action as the Ombudsman must – as a publicly funded body – seek to recover the costs of defending unsuccessful applications."
In the same manner we will pursue this matter to the end of justice as a publically funded organisation with duties inherent in law , the LGO must uphold the Public Interest. It is not for the LGO to place itself outside or above the law and to waste public monies when Risk Assessment is one of substantive jeopardy It is not for the LGO to defend lawful acts and omission made by the local authority but to rule if the outcome had adverse consequences to the complainant in doing so it was not for the LGO to prejudice or discriminate the complainants case by acting solely on misinformation provided by the council or in the alternative relying wholly upon the council without giving the complainant redress to correct anything that was given to be misleading
Sound Familar ?
Other Cases
Investigator
Definitions.
In this Act,
S 10 Open Spaces Act 1906
· The expression “open space” means any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied:
S 122 LGA 1972
[F1(2A)A principal council may not dispose under subsection (1) above of any land consisting or forming part of an open space unless before disposing of the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed disposal which may be made to them.
The Council where Advised on the Lawfulness of Proceding but persisted
On The Matter of Wibsey Fairground - Failure To Lawfully Apropriate S122 LGA (1972)
There are a series of procedural errors that remain outstanding
In both the matter of Land at Woodside and Land at Wibsey Fairground the Paid Offfcer for avoidance of Doubt CEO Kirsten England and the Statutory Officer the City Solicitor Suzanne Hemmingway and the Officer Allegedly delegated to progress the matter Strategic Director Steve Hartley where duly contacted as part of ongoing process (i) To seek information (ii) To clarify process (iii) and to seek documents relevant to statutory representation
How It Works - Chronology
The Wibsey Fairground - In this matter advertisement was begun in
September 2015 In this instance the Land , designated POS Public Open Space belonged to the Directorate of Sport and recreation. Objection was duly made
LINK and The Council were informed that Objection could not be fairly made when the council had failed in good time to provide relevant information such as a copy of any lease see email
Hemmingway/Pearson
On the
22nd April 2016, the Appropriation was closed and signed off by Strategic Director Mr Steve Hartley despite a covering letter stating that if we did not resppond within 21 days the council would close the objection. The document can be seen here in Appendix 4
LINK . No information was provided with that decision relating to the demise of the land , why the land was no longer required immediately prior to its use
At this stage it is both accepted (by the authority) and assumed that all lawful directions required of
s122 of the LGA (1972) had been met, when they had not , which must include that the land in question is unequivocally , no longer required for its intended use immediately prior to its disposal.There was no contact made whatsoever by the Director Of Sport and Recreation the Officer allegely delegated to appropriate other than to state if the Council did not hear from statutory objectors , duly made , they would assume that Objections no longer stood (not an assumption valid in law the duty upon the council was to deal with same in accordance with direction given by the act) . Moreover on numerous attempts to contact the said officer , individuals where directed to the office of Richard Winter , City Conveyancing solicitor
In accordance with process the Corporate Executive Committee met see Report of the Strategic Director Regeneration to the meeting of the Executive to be held on
14 June 2016 Link The decision to determine the future of this historic piece of land given to be POS was made ahead of the LDP on the basis of retaining allocated funding for a revenue making project. This contradicts UDP processes and specifically conflicts with substantive tests required within
s122 of the LGA (1972) on fiscal motive and bad faith
I am minded to comment on the composition of the Panel which was substantially flawed had substantial conflict of interest and was wholly BIASSED in regard to agenda item which should have been properly proceded under UDP process.
(i) Members Determining the Matter where principly in one form or another involved in funding acquisitions for the site subject of concern
(ii) In the alternative members held port folios which where directly related during the period where funding was acquired
These matters are reflected in the request for call-in
Subsequently a request for Call in
Link This link contains a Wednesbury Test On Reasonableness and highlights clearly further ommissios in the Councils decision Making process
.This request was facilitated through
one honourable member who upheld the councils
constituition
and values and was granted under process to be heard at the Environment and Waste
Management Overview & Scrutiny Committee held on ,
28 June 2016 Link
( I am minded to deal with the comments of Clr Ralp Berry as his position allegedly breaches the Members Code of Conduct For avoidance of Doubt Woodside remains within the same Neighbourhood as Wibsey and to which Council Tax Payers contributed through the South Bradford Neighbourhood Commitee . Unless of course youn where a councillor who did not pay it In respect of lawful precedent cited on Proximity Test , the right to represent such is a matter speaks for itself
Sedley J's judgment in R v (1) Somerset County Council
The Council asserted that attendance at A Corporate Panel and a subsequent
Call in Process constituted engagement on the test that the land was unequivocally no longer required This was not the case . The Direction and Decision to apropriate the Land by Committee had already been made and approved as a revenue generating car park. . Engagement with statutory objectors was that which properly should have occurred and was that conducted by the signatory Officer between Sept 2015 and 22 nd April 2016. No such contact was made with any objector
At that meeting Richard Winters misled on two counts
(i) Because Mr XXXX had been given licence to speak for 5 minutes (at the discretion of the chair) the process was bona fide and objectors had been duly engaged in respect
(ii) And that objectors had been contacted and engaged that is not the case ( one other willing to validate the assertion )
(iii) The Council where asked to provide details of all consultation or communications between the objector to date the council has not done so to validate claims that Mr Winters wrongly asserted at committee
The Council admission of error on Statutory Notice
" Members were advised that the original notice had incorrectly used the term
“lease” but that it had not had any material effect as objectors to the proposal had still
had the opportunity to make representations which was the purpose of the notice.
They were further advised that there had been opportunity to make written representations,
which had been taken up and that there had been opportunity to attend the Executive,
which had been taken up; that speaking time at the Executive had been both allowed and
made use of. The only outstanding matter was that the objector maintained his objections.
"
- It is not generally in law not acceptable to have error on statutory notices as being duly made
- It is not within the gift of the council to determine a failure in law the direction would be to re-advertise not to act ultra vires
- The Council failed to comprehend that it was not possible to respond to the advertisement without seeing the material document
- The council failed so supply on request throughout (and to which one objector was misled to believe was the material factor in the lands demise)
- The council also failed in their own argument - that being part of Cabinet approval process was not in law that accorded with the direction given within S122 of the LGA which has ended
- . Closure to objections occcurred on the 22nd April 2016. That the matter of Executive Cabinet was solely at the discretion of a Chair not a due process and the decision has alreasy been recommended .
- It is therefore not reasonable argue valid or impartial participation at that stage
- Objectors only learned through an article in press 4 days prior to the Cabinet meeting and were not informed until the press where made aware
- It is the objectors right in Law to maintain Objection and the authoritiies duty to address the same in accordance with the act
- The authority failed to do
- Some objectors report that they were not duly informed of the outcome as required by the act
Before reading the anomolies on process , it may be worth reading the following impartial extract from Kate Silverton , Lawyer , writing in the Local Government Lawyer
Getting Appropriation Right
It should be mentioned in passing that special rules apply to the appropriation of certain types of land, such as land held under the Housing Act 1985, open space commons and allotment gardens, so it is always advisable to ascertain exactly how the land is being used. Sometimes the use is not always obvious, so it is always worth inspecting the site if possible.
Assuming for these purposes that none of the special rules apply, the appropriation of land for planning purposes contains a procedural aspect and a number of key substantive elements.
Procedure
Dealing first with procedure, a local authority must ensure that there is a proper paper trail in place showing that an unequivocal resolution to appropriate land for planning purposes has been made and minuted. In addition, the memorandum executing the appropriation must be signed and dated by an officer of the council who is authorised under the council's standing orders to make the appropriation. This is something that should always be checked.
Land Surplus to Requirements
In terms of the substantive requirements, the council has to resolve that a particular piece of land is no longer required for the purposes for which it was used immediately prior to the appropriation. In reaching this decision the council must consider the public need within the locality for the existing use, but provided that the resolution is not made in bad faith and it is not a decision that no reasonable authority could possibly take, then this is entirely up to the local authority to determine. (See Dowty Boulton Paul Ltd v Wolverhampton Corporation (no2) [1973] 2 All ER 491).
In reading these document
14 June 2016. it is important to realize what is relevant and required of the process of Lawful appropriation and any direction or tests given under s122 of the LGA (1972). and what is not
Care must be taken not to consider other detracting matters given by officers on planning and other financial issues relating to the revenue aspect of the proposal which was contrary to the direction . The meeting was formally defined as OBJECTIONS TO PROPOSED APPROPRIATION OF LAND. During that meeting little regard , if at all was given to the material tests applied to process and objection. Mr XXXX was
Subsequently a request for Call in was granted under the Environment and Waste Management Overview & Scrutiny Committee
LINK (By Member Request ) ,held on
28 June 2016 The representation made to the Scrutiny Panel was clear that the objector was not engaged in any process or consultation in respect of the unequivicol use of the land and its demise by apropriation.
The wording of such document is ambiguous and misleading, the complainants assertion , related to what the council failed to lawfully do as part of apropriation , which for avoidance of doubt closed on the 22nd April 2015 when such a decision had been reached. Not a notional participation in a Cabinet meeting at the discretion of the chair where a recommendation had already been made , and to which no equal time or parity was given . It is not reasonable to assert that which occurred at the said meeting ion any way conformed to what was required of the council to apropraite other than over ruling objections duly made and to which no reason had been provided for the demise of the land immediately prior to the apropriation
The honourable member much to her credit in upholding justice when referring to call in was clear in her reasoning for doing so
“The person making the request states that "
the Chair refused to allow full participation in
lawful process that excluded those party to it."
I have reviewed the papers and whilst I have no comment or opinion as to the appropriation of the land for the car park or indeed car parking or open space use in theward,
I am concerned when a person feels that they have been excluded from the decision-making processes of the Council that the Council shows that it has followed the correct processes properly. It would seem to me that it would be fair to review if the Council has followed the correct procedure(s) when appropriating this land and would ask that you call-in this decision for review”.
It is clear that the complainant for avoidance of doubt was an objector Duly made , not as reflected at the call in meeting a member of the public. It is also clear that the Complainants assertion was the preclusion of process leading up to the decision 22 nd April 2016 which it is the duty of the Local Authority to have unequivicolly addressed and to which the Chair on Corporate Committe refused to hear at that panel. The chair appeared to have no knowledge on the Matters of Appropriation or the relevant tests to determine questions by the panel as to whether criteria where met and relevant questions addressed to make repersentation independent of Legal . Instead contrary to the representation made the Chair was negligent in her role deferring to Legal , whom in the first instance allowed acts and ommisions to occur. The Chair subsequent at call also failed in his understanding of the concern which is clearly highlighted above and related to the requisite statutory duty , not a casual day out at committe in City Hall which was asserted by both Chairs to be sufficient to have met process
At that meeting Richard Winters misled on two counts
(i) Because Mr XXXX had been given licence to speak for 5 minutes (at the discretion of the chair) the process was bona fide and objectors had been duly engaged in respect
(ii)
This is not the case . The matters raised had already been approved by the Council on the basis that the Strategic Director , Steve Hartley had complied with all relevant caveats necessary to forfill the requirement and direction of
s122 of Local Government Act (1972)
The Council , has not satisfied , the objectors , that he has has Lawful Authority as a Named officer under the cities scheme of delegated Powers to have been lawful signatory to the process or in the alternativr complied with the requistes of procedure
Procedural Anomoly ( Based on Advice from DCLG and Ministry of Justice)
Removal of statutory right afforded on POS under S122 LGA (1972) , in most or all Local Authorities fall usually within the remit of the Paid Officer - CEO and /or the Statutory Officer - City Solicitor. since this affects a civil right or use of right designate It is possible for the Paid Officer (CEO) through the Cities Scheme of Delegation by Committee to appoint a Named Officer , which should be clearly recorded in the Cities minutes . It is important that the process of Named Officer is completed , for avoidance of doubt , to ensure that signatory officer has had lawful power of authority as delegated , and that any perpetuity in role is maintained to ensure such processes are legally completed.
Regulation 7 (2)
The minutes of a meeting of the council, its committees, sub-committees
or joint committees must record the decisions
made to them and be made available to the public. The Openness of Local Government Bodies Regulations 2014
("the 2014 Regulations"),
issued under s.43 (2) of the Local Audit and Accountability Act 2014, which
came into force on 6 August 2014 require (i) certain decisions made by officers
to be recorded in writing (ii)
records of such decisions and any background papers to be made available for public inspection and (iii)
such papers to be retained by the council
for prescribed periods. Part 4 of the Government's guide to the 2014 Regulations considers the requirement to record and
inspect decisions by officers
Regulation 7 (2) of the 2014
Regulations requires a decision to be recorded if it would otherwise have been taken by a council, committee,
sub-committee, or a joint committee but has been
delegated to an officer under:
(a) a
specific express authorisation or
(b) under a general authorisation to officers to take
decisions and the effect of the decision is to:
(i)
grant a permission or licence (e.g. a permission to use a playing field for a
school fete)
(ii)
affect the legal rights of an individual (e.g. the termination of an allotment
garden tenancy);
(iii)
award a contract or incur expenditure which, in either case, materially affects the council's financial position (e.g. the
award of a grounds maintenance contract or the payment of a grant).
Scheme of Delegation City Bradford Council
Link
The Test on Uneqivicol Use
The council claimed that a number of consultations had occurred
In Section 6:2 Other Issues raised in the Representations to the appropriation under
s122 LGA 1972
The order of business was stated to wholly mislead the panel the agenda is clear OBJECTIONS TO PROPOSED APPROPRIATION OF LAND.Instead the meeting was turned into one of validating the planning decision The Planning decision is not relevant as stated to the lawful process of apropriation
The council did however seek to use Planning Matters historically as justification for its demise on consultations made in various ways outside process as that given to be the land being no longer required for its intended use The council again misleadingly refer to Other Issues raised in the Representations to the appropriation under s122 LGA 1972 and make reference to these consultations
- Firstly the council can not claim these consultations were addressing the substantive test as to whether the land defined by statutory advertisement was required for its intended use immediately prior to its disposal, because they where made some substantial time prior to the advertisement of Appropriation of the speciffied site which began in Sept 2015 Direction is clear the intended use immediately prior to its disposal
- Secondly, consultation was not expressly made on the whether the land was no longer required for its intended purpose as a fair prior to disposal,or in the alternative made genericall as " petition for Car Parking in Wibsey"
- Thirdly, the site remained in use as a fairground thereafter
- Petitions supporting and objecting to the proposals were reported at (public) meetings of the Bradford South Area Committee on 28 November 2013 and 25 September 2014. Despite numerous attempts to receive copies of the same as part of process , particularly in regard to the alleged 1500 signatories in favour of car parking was not facilitated .A petition of 57 local residents where identified as clearly opposing the the defined use expressly at the site contrary to a general petition calling for more car parking. This process in no way demonstrates unequivicol resolution or demise of the land which continueds as an anual fair
Land Surplus To Requirements
- In reaching this decision the council must consider the public need within the locality for the existing use, but provided that the resolution is not made in bad faith . It is clear by admission from the local authority that this premature procedural decision is being made to retain allocated funding for a revenue generating project This is clearly annotated
- The council will also have to show that the purpose of appropriating the land is in the interests of the proper planning of the area. In demonstrating this, the council must be able to show that there is a nexus between their inhabitants and the appropriation of the land other than a purely financial motive. The council can not assert at this stage of the LDP the loss of POS would be meet this requisite . The only thing the council has demonstrated is the receiving directorates intention to act for fiscal reasons which is a decision made in bad faith
- No document was provided to the complainants despite requesting the same from the Council to demonstrate that this land was surplus to requirement as stated in executive report
Procedural Anomolies
A number of procedural anomolies where made during the Corporate Cabinet meeting and the subsequent call-in
The motion was made to over rule statutory objectors duly made or in the altenative only one component of objection - ie whether or not the council made available a lease when requested
The process of appropriation itself occurred from when it was advertised mid August (2 Weeks) till 22nd April 2016 when it was closed by the officer alleged to have signed the document
In the the event non of the tests required of appropriation where made the Cabinet would not have power to over rule any statutory objection in law and is solely dependent on what the offcer Mr Hartley did or did not do
The City solicitor who attended the first Corporate Public meeting refused to provide the advise given to Councillors in respect of the decision before the panel. In essence this should have contained the relevant summary of substantive evidence that the council ( which it did not supply to objectors as part of due process) had proven beyond all reasonable soubt that the Land was no longer required for the purpose which it was intended immediately prior to its disposal, that its intended demise was unequivical. It is unclear why the solicitor refused in a public meeting to provide the reasons for the disposal of the land , in a Public Meeting with a substantive Public Interest test and statutory obligations. It is unclear why the City Solicitor refused to provide such information S42 Privelege Does Not Apply
Instead much of the meeting impinged on budgetary constraints that the decision be made ahead of the forward plan (also with statutory obligation to consult)
because it would loose funding on the site subject of concern. Such consideration is that made in bad faith and contrary to direction given in
122 LGA.
Through out the Council failed and continue to fail in providing response to requests made
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LINK LINK
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The council relied on a petition made some substantial years before the advertisement of 122 of the LGA not immediately prior to the order
- The Council failed to provide critical documents when requested to do LINK LINK ie , including a Copy of the alleged petition numbering n = 1500 in order to confirm precisely the wording and the locality of any signatories . In accordance with Wednesbury it is not possible to object to a process in which material fact was with held
- Any lease subject of advertisement
- Any exhaustive document demonstrating the land was no longer needed for intended purpose prior to disposal
- Details of Committe or other statutory process identifying Mr Hartley as the named proper Officer ( not the means of the same which had not been followed)
In respect of the land which continued to be used for the purpose of a Fairground either naturally , by covenant of lease in 2016 it continued to be used for its intended purpose in respect of Open space and anual fair
2015 LINK 2015 and
2016 LINK2 LINK3
The obligation is on the local authority are to conform to the direction of the Act not to over rule objections duly made , the local authority can not over rule statutory objections duly made , they must by law address them as per direction of the act
On the date of Committee Meeting the Council claimed that the statutory objector was engaged thereof as part of process yet the City Solicitor , Parveen Acktar , refused to provided the complainant with any advice she had given Cabinet in respect of the determination of this matter thereby precluding the Public from statutory matters relevant to appropriation.
Since the Cabinet approved this matter a key component of such advice would or should have been that it would be a requisite of any forward plan to engage the land use not wholly the function of Cabinet , prior to any development plan not formally approved . The position was therefore one of conflict of interest. An FOI request is now forth coming to assess the validity of such advise , that , being a material factor in the decision to appropriate and being in the public interest
The Council also minuted the agenda iteme as OBJECTIONS TO PROPOSED APPROPRIATION OF LAND with a direction to cabinet to "Over rule statutory objections" duly made, it was not properly the gift of Cabinet to Over rule objections duly made by an act of law, o the basis of funding allocation , merely to approve , the decision of the officer when it had satisfied all tests and directions where met under the duty and direction of s 122 of the LGA . The Cabinet failed to discuss , understand , or provide reason as to how the test was made , if at all it was. In the matter of appropriation it is solely the act and undertakings of the officer that would have delegated authority if at all to be signatory to the item , it therefore follows the cabinet must only concur with such a decision when it is wholly and unequivocally decided the test were met. In providing a blank document failing to give reason as to why the land was no longer needed for its intended purpose did not meet the act is one of a number of procedural failings including a clear audit on delegation of a named officer., In the agenda item relating to the decision report it was not the role of Cabinet to overule objections soley on the basis that the authority would retain allocated funding as admitted in the Councils own report . Additionally a decision made ion bad faith would also prejudice the lawful participation in any consultation relating to the forward plan placing the city in jeopardy under the caveats of Unitary Development legislation.
The argument stated throughout by the council was fallacious ie that the involvement at committee by the complainant after the closure of objection 22nd April 2016 when a recommended decision had been made was wholly unreasonable , and biassed. The decision as a whole was further biassed to political decision by virtue of cabinet participation with those engaged ion making the decision on the basis of funding because they either benefitted (via port folio position ) or participated in the area committee for fund acquisition or for that matter where elected members for the ward which may have conflicted with lawful objection the subject of relevant determination
Maladminsitration
- The Council Failed to conform to statutory directions processes and procedures in the determination of this matter. Failed to comply with the Law
- That substantial material fact was with held or given to mislead
- That information lawfully requested relevant to the process of appropriation was withheld or denied prejudicing the outcome
- Failed to uphold the duties and values of the cities constituition
- Failed to uphold direction on the ECHR and as a consequence impacted on the individual
- incorrect action or failure to take any action;
- failure to follow procedures or the law
- failure to provide information;
- inadequate record-keeping;
- failure to investigate;
- failure to reply;
- misleading or inaccurate statements;
- inadequate liaison;
- inadequate consultation;
- broken promises.
Personal Injustice
- That the Council Failed to consult the complainant as required by statutory process and the right to object to the quiet enjoyment of open space was prejudiced
- That information provided was misleading
- That the Council Stonewalled the Complainant causing distress , financial inconvenience , significant loss of personal time
- That the councils behavior undermined its constitutional basis resulting in service denial , prejudice , discrimination and disregard
- That the councils failure amounted to a breech under the ECHR European Human Rights Directive
- failed to provide information when reasonably requested as part of statutory representation
The Proximity Test
The pre-HRA approach to judicial review, and more specifically to planning challenges, is well illustrated by Sedley J's judgment in R v (1) Somerset County Council, (2) ARC Southern Ltd ex parte Richard Dixon.[4] He stressed that public law is not about rights, even though abuses of power might, and often do, invade private rights. Instead, public law is concerned with wrongs, particularly the misuse of power.
Sedley J made it clear that the English Courts have always been alive to the fact that a person or an organisation with no particular legal interest in the outcome of a apparent misuse of public power. Thus, if an arguable case of misuse of public case might wish, and be well placed, to draw the Court's attention to anpower could be made out at the application for leave stage, the Court's only concern should be that it was not being made for an ill motive
In 1994, the Courts recognised that a public spirited citizen without any direct legal interest in the outcome of the case, unlike a "meddlesome busybody", may be allowed to seek judicial review in cases which present a serious issue of public importance, R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Lord Rees-Mogg.[5
Failure To Accept Complaints On Officer Conduct & Continued Discrimination & Service Denial
In the handling of this matter the complainant also highlights failure of the Council to take complaint on Officers failing to under take duties in role The identifiable Officers where Ackhtar , Bowness and Winters. The compalinant has also provided the LGO with historic documents demonstrating the councils continued view to prejudice and discrimination in this matter and considers Prejudice and discrimination as a central component of this complaint causing substantial personal inconvenience , injustice and adverse consequences arising out of personal injustice set out in communications to investigators
Evidence
Response From Assistant City solicitor Failing to Progress Complaint of Officer
Conduct and Service Standards
Link Continues Failure to provide information Bowness
LINK when requested on designated POS
Link Failure Of Paid
CEO Link and Statutory Officers
LINK Link It is not properly Mr Winters role to interfere with communciations made to the named parties nor to vet any act or omision resulting from failure in his service area by diverting or misleading due process.
In Short the level of prejudice and discrimination shown to the complainant was beyond that which would have been applied to any other service user
General Comments
There has been overt failure within the council ,
Such failure derives from two causalties Lack of Leadership from the Office of the CEO and ommisions principly resulting from Legal Services acting ultra vires . In the matter of POS the LGO have been presented with two defined cases which have impacted and had adverse consequences on the complainant . There are substantially similar cases which result from the Local Authority circumventing process on the LDP - Local Development Plan and acting prematurely by transeferrin Public Open Space outside the process of allocation . This technically has substantial implications for the office of the District Auditor DA investigations which would occurr outside the scope of the LGO
It is not in the Cities interest to allow Legal and Democratic service to act autocratically or to provide members with information and legal advice that is substandard. The implication throughout is that Legal Services and Senior Officers lie outside the Officers Code of Conduct is wholly wrong and contrary to the Cities Constitution
