The LGO's report

After many months in the making, the Local Government Ombudsman's report says
"...I do not consider that there has been any unreasonable delay in arriving at this point..."

AFTER TWENTY YEARS OF NEGLECT?????...and over three years of ignoring most of MY communications on the subject, while taking NO steps that have made the slightest difference???? I wouldnt like to be in the way of what is UNreasonable then!!!

When I had picked myself up off the floor, and banished the word "whitewash" from my ears, I realised that the LGO can only base his report on what he has been told bythe council. I have seen what he has been told, and quite frankly a lot of it is rubbish.

When I take off my "conspiracy theory" hat and discount the untenable notion that the council are deliberately misleading the LGO to buy more time...I am left with two theories:

1) Malcolm Morley considers the matter so unimportant that he hasn' t bothered to check his facts properly.
2) He is trusting his subordinates to tell him the facts accurately, and they have failed to do so

All he has to do - all ANYONE has to do - to see what the real problem is, to see how bogus some of his statements are, is to get out of their comfy publicly-funded chair and LOOK!



Unfortunately, the LGO report does not address two of my major complaints: The complete lack of any response by Malcolm Morley to any communication ever sent to him, and the cavalier attitude of the council to the residents in the past with their "sue us if you can afford it" attitude.

As such, I have insisted that the matter remains open until I get satisfactory answers.

MP Bill Rammell visits

At last, someone who may be able to make a difference has been to visit. Bill Rammell MP has been to view the problem for himself. You will also notice that he has been removed from the list of those who have singularly failed to respond to my communications on he subject. (Apparently there has been some sort of email "glitch" ad he has not been receiving my correspondence). Now that we have established a DIRECT line of communication to him, perhaps things will improve.

The meeting was extremely constructive: Mr Rammell made it clear to us that there IS indeed a problem, and that he thinks it is not "right" that the council has taken so long to deal with it. He is going to take the matter up with the council on our behalf.

As he pointed out, he does not run the council but perhaps his intervention may put a rocket under that backsides of those who are paid hundreds of thousands of pounds to do exactly that!

Public Meeting goes well

The public meeting was well attended - thanks to all who gave their time.

We have started the ball rolling on two petitions - one from the residents and a public one. Please support us!

Public Petition

If you sympathise with our plight, please cut and paste this petition into an email, send it to me and copy in all of the other email addresses in the "How can I help" section.

Or, better still...print it off, and tell your friends about it and get them to sign it too! Email me for my postal address if you take this route.

I am most grateful!

PETITION
To HARLOW COUNCIL

I/We the undersigned support the residents and / or owners of properties that border the gully running between the estates of Woodcroft, Kingsland and Abbotsweld, Harlow Essex and owned by Harlow Council.

I/WE CALL FOR:

1. Immediate repair of the damage to properties
2. Immediate replacement of all land lost or financial compensation for the same
3. A program of works – to commence immediately – to prevent recurrence of the problems
4. A public statement of the commencement and duration of those works
5. A public apology by the council for the decades of neglect and the cavalier treatment of the residents affected.

Name

Address

Signature

(Please indicate whether you are a resident of Harlow)

Public Meeting

Tonight we are having a public meeting, My neighbours and I pounded the streets a few weeks ago to gauge the local feeling. Mostly they were resigned to being ignored by the council and treated with contempt as the have been since the 1970's when this problem first began.

Certainly, none of them felt that the council had any intention to do anything to solve the problem - ever! Some have moved their fences back 4-5 feet to avoid the problem, one has lost a strip 3' wide from the whole length (about 50-60 feet!) of his garden. Many have lost fences and had to replace them at their own expense.

It was from these poor long-suffering victims that we heard of the council's infamous solution: "If you have go the money, sue us" and the other totally bogus legal claims such as that as the residents land was falling onto the council's...its was the residents problem and they were lucky the council didn't sue them!!!

Now I'm a grizzly old hard-nosed type who is a) he world' greatest cynic and b) has, but this shocked even ME!

We managed to persuade many of them that groups action may succeed where each had individually failed, especially when driven by someone with a reasonable knowledge of the law.

Our plans, above all else will be lawful and peaceful. I have started two petitions: one for the residents, demanding (among other things) the immediate repair of the land and a second, public one whose text is elsewhere (See "Public Petition" in the right hand column).

If you sympathise with our plight, PLEASE PLEASE PLEASE cut and paste it into an email and send it to me (see right-hand panel) and - more importantly, copy in all of those people in the "How can I help" section!

I am also going to create a signboard declaring "Council Negligence" and including some photos from this site, and I'm going to stand at various prominent places in the town (including outside the council offices of course!) seeking public support for the petition.

Freedom of information

The Freedom of Information Act 2000 is a very useful tool for anyone in a similar position to us. Subject to some exceptions regarding obvious things like personal information, national security etc, public bodies are required by this Act to provide information to the public on request.

They ARE allowed to charge a small fee if the amount of information is large, but you can always then ask to view the information at your local council rather than have them send it at your expense. Generally, for small requests, councils don't charge.

This forces them to disclose information that often they would like to keep to themselves, and will frequently assist you in any complaint or case against them.

Here is the text of a letter in relation to the current case which you can adapt and use as you see fit.

PS you can also use it verbatim to find out for yourself what information Harlow holds about this 30+ year problem caused by their negligence - be prepared for a big shock if you are a Harlow Council Tax payer!!! Because the answer - if they are to be believed - is practically nothing!!! Write to them yourself - all it costs is a stamp!

Legal Department

Harlow Council

Harlow

CM20 1WG

Dear Sir,

I hereby make a formal request under s1 Freedom of Information Act 2000 (FOIA) for records held by Harlow Council on the following subject:

The ravine or gully that runs roughly North-South between Woodcroft / Kingsland to the west and Old Orchard / Abottsweld to the east, including any section between Southern Way at the lower end and Todd Brook at the northern end.
 
Any reference to “The Council” is taken to include any appointed subcontractor working on the council’s behalf. Permission is hereby given for the council to forward this request to the relevant parties who may hold information in the cases below where the council do not. ) NB It is a fundamental requirement of his request that subcontractors records are included in any search

Information sought in respect of the gully / ravine:

Minutes of any meetings, internal memos, emails, records of phone calls, records of personal meetings and subcontractors’ work orders / job requests relating to:

• its use (or discontinuation) as part of any drainage system or other watercourse, natural or man-made.
• its condition, maintenance or deterioration.
• visits to inspect it or maintain its physical condition / dimensions / freedom from obstruction of water flow (other than for routine hedge-trimming or grass-cutting)
• any remedial work or attention to any mature trees within or adjacent to its boundaries, including both planned and reactionary ad-hoc felling, lopping, pollarding or attention to root systems
• plans, maps or surveyors’ reports relating to its past, current or intended course
• plans, maps or surveyors’ reports of any surface water drains / culverts which feed into it.
• accounts, charges, or any other financial information relating to the amount of expenditure on all of the above activities
• any other document relating to its past, current or planned usage, condition and maintenance
• any documents relating to the council’s general policy on the inspection, maintenance and usage of the ravine and any similar land feature.

Yours Faithfully

Bill Rammell MP replies...at last - well almost

At last some recognition "from above" that people are starting to take notice! I invited the interested parties to a public meeting tonight (Weds 25th) hosted by my lovely neighbours (whose wall collapsed into the ravine over Easter).

I received a letter from Mr Rammell's Office apologising for not being able to attend, and suggesting a time to meet.

Progress to a degree...but not sufficient for me to remove the description in the right hand panel, as Mr Rammell himself has still never replied to me!

LGO's Investigation nears completion

Yesteday I sent an email to the Local Government Ombudsman saying that whatever HE felt was a reasonable time for Harlow Council to reply to him...MY patience had now been exhausted, and bearing in mind that I made the original complaint to the LGO in early February 2008, I don't think I was being unreasonable!

Today, there is a glimmer of hope on the horizon: he says:
"I now have a response from the Chief Executive on your case. I will go through the papers early next week and write to you then"

Well that's a change then, consider the potted history of the complaint:

Mid Feb: LGO Complaint Process Started
13th May response from LGO in reply to my query about what was happening / why was it taking so long etc...

"I have been pressing the Council for a substantive response by e-mail and I have today left a message for the relevant contact person to get in touch. I will continue to press for an urgent reply and I apologise that it has taken so long already."

Well it's polite of the LGO to apologise on behalf of the slack council - but no surprise to me that I'm not the only one that suffers from their geological timescales and indifference. I'm a bit jealous though - at least he GOT a reply in the end, which is more than I ever did!

When you realise that the LGO is the body formally charged with investigating complaints of this nature, it is astounding that even THEY are treated to the same "deaf ear" treatment as humble taxpayersm and residents who are simply seeking redress for the damge to their properties caused by the council's years of neglect!

Can you imagine a police force failing to reply to the IPCC? - or a firm of solictors ignoring a request for information from theLaw Society?

In my view, even having to be asked twice, let alone "pressed" continually is shameful conduct and speaks volumes for the attitude of this "rotten borough".

Finally, I have to say that the LGO is the only body in this whole sad debacle that comes out with any credibility whatsoever. They have always replied promptly and courteously - it remains to be seen whether I maintain that rosy view after I hear the outcome of their investigation - let's see if they actually have any teeth!

Fame at last

Our local paper (the Harlow Star) ran a piece on the problem last week - That will probably be the closest I ever to gt to my "15 minutes of fame"!

I contacted BBC's "Watchdog" about it, but they haven't got back to me yet...fingers crossed for another "15 minutes"

The Legal Position

WARNING: I am not (yet) legally qualified. What follows is the analysis of a recent law graduate. While I am fairly certain of its accuracy and relevance (or I wouldn't be going public with it!) I would not wish anybody to act upon it. By all means use it as a starting point for a discussion with your own solicitor if you are in the same boat...but be guided by the professionals. If he/she does violently disagree with it or think I'm talking rubbish, I'd appreciate a nod and a wink so that I can adjust my position to a more accurate one. So as Esther Rantzen used to say: "Unless you know differently..."

AT common law (i.e there is no statute [Act of Parliament] saying so, it is merely the collected and accepted wisdom of centuries of legal judgements, which a court will follow unless there are exceptional circumstances) the general rule is that a landowner must provide support to his neighbours. So I can't dig a trench in my garden that is so deep and so close to your garden that your flower beds fall into it. (Well of course I CAN, but if I do, you can sue me and you will win!)

Ref: Thompson, Mark P -  "Modern Land Law" 3rd Edition (Oxford University Press 2006) ISBN 0-19-927790-7 pages 480-481.

Professor Thompson Says:

"The obligation with regard to support extends to acts of omission"

...meaning that by FAILING to do something with my trench (e.g. shoring it up when its obvious it will collapse if I don't) I will also be liable for you disappearing flower beds.

He then mentions the reported case of Holbeck Hall Hotel Ltd v Scarborough Borough Council [2002] 2 All ER 705 (a reported case is one that raises important points of law or interpretation. Its outcome is then taken as the "correct" law in subsequent cases where the facts are the same or very similar. This saves time and provides a degree of consistency in the law. It is known as a "precedent")

In that case, a hotel collapsed into the sea after the council failed to provide adequate coastal defences.

The problem here is that is could be unfair and burdensome to expect landowners to be responsible for geological problems on their land that are not their fault (excuse the pun!) As Thompson puts it:

"Liability will only arise in such cases if the landowner is aware, or should be aware of the danger"

After looking at all of the evidence on he other areas of this site you will see that Harlow Council have been very well aware of the problem for decades! I have been asking them to fix it for FOUR years! In the very first conversation I had with them on the telephone, Kelvin Orrowe of the Council (See the side panel "How Can I Help?) told me that the council had been aware of the problem "for quite a while". So from their own mouths, the council have removed the first hurdle.

The next hurdle is a low one - its the "riparian" angle. (That's "to do with rivers" to you and me). Its one of those inevitable geological problems that Thompson referred to. If I have a river running through my land, over time it will cut away its banks during its meanderings and change its course. If those banks are on YOUR land, it seems a little harsh to hold ME responsible when nature is the true cause! Apart from the many photographs I have of the bone-dry ravine bed, and my evidence of looking into it every day for four or five years without ever having seen any flow, there is the evidence of many longstanding residents (20 or 30 years in some cases) who have also never seen it flow.

If you read the Long Term History you will soon appreciate WHY there has been no regular flow since the late 1960's and that this in fact is the very heart of the problem! This isn't just the view of this barrack-room environmentalist, it is supported by a recent report by a chartered surveyor [LINK TO BE ADDED LATER - scan of surveyors report]. Anyone trying to suggest that the council should be able to avoid liability because the ravine is a watercourse is going to look pretty silly.

Not only that but the council (or rather their predecessor, the HDC) actually  CAUSED the problem in he first place when they built Bishopsfield! Hurdle 2 down.

What other straws might they try to clutch at? Act of God? Natural Erosion? Read Leakey v National Trust [1979] EWCA Civ 5 and you will see that a landowner is indeed responsible for "natural" problems when they have had notice of them and failed to take reasonable steps to avoid them. As Lord Justice Shaw said in that case:

"As the owner of land is normally in the best position to obviate or to contain or to reduce the effect of nuisances arising naturally on his land, he should be primarily responsible for avoiding the consequences of such nuisances or for compensating those who suffer by their occurring"

Like ME for instance...hurdle 3 down.

What is left? Tree Roots? Apart from the fact that any damage caused by tree roots is as a direct result of the HDC's own actions (and the current council's failure to rectify the problem) read Delaware Mansions Limited and Others v. Lord Mayor and Citizens of The City of Westminster [2001] UKHL 55 where Westminster were liable for damage caused by tree roots. The important point there was made by Lord Cooke of Thorndon:

"I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable."

Does 30 years notice by some residents and a further FOUR by me sound like "ample notice" to you? It does to me. Hurdle 4 down.

Quite frankly, I can't think of any other possible defence. If YOU can, please let me know!

If the Council's legal department are worth their wages (paid by ME, of course) then they will know all this. If they didn't before, they do now, a I have spelt this out to them at least twice! (Without any comment or reply from them...AS USUAL!)

My humble opinion is that they are well aware that they haven't got a leg to stand on and are relying on the ignorance / poverty / lack of willpower of the victims to avoid having to spend the money. Surely this could be the only explanation for their notorious reply to one resident who 10 years ago lost a 3 foot strip of the full width of his garden to the ravine:

"If you have the money, sue us!"

If I'm right, and they know they are liable, but refuse to act for the reasons I suspect, then that sounds to me like a very strong case for an action against each of them personally for "Misfeasance in public office" - but I haven't done enough research on that yet to come to a conclusion. Watch this space...

FOOTNOTE:

Bearing in mind all of the above, wouldn't you expect the Council to have some paperwork on all the problems involving the ravine? I would. Oddly enough - they haven't. Not even after a request under the Freedom of Information Act 2000 and a subsequent complaint to the Information Commissioner. You will have to wait till I get round to posting THAT particular piece of fun!

Cock-up or Conspiracy? You decide.