Case 1 - Analysis

Abbreviations

LGO                Local Governemnt Ombudsman
LDP                 Local Development Plan
POS                 Public Open Space
RUDP              Replacemnet Unitary Development Plan identifying site allocations
ECHR             Europaen Concention on Human Rights
LGA (1972)     Local Government Act
OLGR (2014) The Openness of Local Government Bodies Regulations 2014

LAAA (2014)  Local Audit and Accountability Act 2014FOI                  
FOI                   Freedom of Information Act
de jure               "according to law"
res ipsea locquiter "it speaks for itself "
ultra vires  beyond one's legal power or authority.
Wednesbury Reasonableness  A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it

Comment on Standard and failure of Casework  Investigations

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 misled

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  POS  and held by the the Directorate of Sport and Recreation . POS being defined POS  There is no remedy to this position

1. First the Ombudsman appear to refuse to investigate this complaint as there does not appear to have been personnel injustice

2. 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

Principle of Failure leading to Malaadministration

This case is predicated on TWO  key facts was the land appropriated prior to sale and when was it sold

Key evidence was provided to demonstrate that the Land was Sold namely

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

                        "Our audit work confirms the assets we enquired about were sold."

Evidence that the Land was NOT Apropriated 

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

Intention To mislead

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

It is clear the LGO have been misled to believe  that

(i)  the Land Has not been Sold when it has -  beyond all reasonable doubt
(ii) the process of apropriating the site at MW was ongoing when it was not completed and could not be completed in law having passed into private ownership. This is a position de jure which speaks for itself res ipea loquiter
(iii) 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 04 September 2015 16:35and to an FOI Request made 29 June 2016

(iv) That in providing documentation to an FOI duly made , the date of transfer was deliberately omitted

(v) Intent to Act ultra vires The local authority where alerted through matters of planning and councillor representation that the such a process was required  in law and that such a land holding was POS .The authoity chose to procede  ( see Application  and link sent

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

• Failure to provide information in a timely fashion 
• Failure to Consult when lawfully required to do so (both Sites)
• Failure to provide accurate information
• Providing misleading or inaccurate information as part of  statutory request
• Refusal to deal with inquiries duly made
• Vetting of contact with Statutory and Paid Officer in respect of Land Appropriation issues , they being Proper Officers accountable in Law responsible for over seeing the process legally and constitutionally

• The Loss of lawful right to object being wholly prejudiced
• The loss of quiet and reasonable enjoyment of the land in question as result of loss of open space
• Very significant distress , in being stonewalled 
• Substantial impact of time and effort in attending meetings and being ignored by the authority where there was a constitutional and statutory right to have so participated
• The Right under the Localism Act as an individual to register its use as a Community Assett 

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 Meadway Site

The Council where Advised on the Lawfulness of Proceding but persisted 

Play Ground

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

Link  May 2016  Link May 2016  Link Sept 2015

The report which was available to cabinet was as follows  Report Wibsey Fair Objections

The matter relates to Statutory Objections duly made Objection to Statutory Advetisement duly made and appropriated 22.04.2016 by the Strategic Director Steve Hartley

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  

• Under the Councils Constititution  normal process on  Land Disposal or proposed  change of use is mediated through  3.3.3 which enables constituents to  Find out from the Forward Plan what key decisions the Executive will take and when it is proposed they are taken.In the report the reason given by the receiving directorate for determining the decision  under executive Rules are  given under Sections 3:1 to 3:3 which indicate any LTP funding not expended within this period could be reprofiled. The receiving Directorate , who had material reasons to prejudice process of any  asset and funding associated with it , considered it  impractical to defer the decision until it has been included in the published  Forward Plan.    It is not properly the role of the Receiving Directorate to Act ultra vires and prejudice decision  by misrepresenting  fact or critically acting on behalf of legal services on a duty to be conformed by the SS 122 of the Local Government Act 1972
• The decision to appropriate was therefore made in bad faith on the basis of potential monies that a  receiving directorate would loose if it did nnot make this Under the Councils Constititution  normal process on  Land Disposal or proposed  change of use is mediated through  3.3.3 which enables constituents to  Find out from the Forward Plan what key decisions the Executive will take and when it is proposed they are taken.
  In the report the reason given by the receiving directorate for determining the decision  under executive Rules are  given under Sections 3:1 to 3:3 which indicate any LTP funding not expended within this period could be reprofiled.
  The receiving Directorate , who had material reasons to prejudice process of any  asset and funding associated with it , considered it  impractical to defer the decision until it has been included in the published  Forward Plan.    It is not properly the role of the Receiving Directorate to Act ultra vires and prejudice decision  by misrepresenting  fact or critically acting on behalf of legal services on a duty to be conformed by the SS 122 of the Local Government Act 1972   

• 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
LINK     LINK  LINK   LINK   LINK   

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