A response to a memorandum written by Mr Hobbs, Assistant Ombudsman. York LGO office
(Following his private telephone conversation with Cheshire County Council on the 16th April 2002.)
This conversation resulted in Mr Hobbs’ refusal to investigate my 2002 complaint. However, I didn't receive a copy of this memorandum or the chance to controvert it until 9th June 2006. Over 4 years later.
To make my response easier to follow I have also reproduced the relevant parts of the memorandum in this document. [Memorandum quote]
1. [The position at the moment is that work has been completed save for a stretch immediately outside the Nunn house.]
That is not in dispute; in fact it formed the basis of my 2002 complaint to the Ombudsman. The bond shouldn’t have been triggered until the problems on site had been resolved. All that did was to entrench the wrong position of the road and frustrate the section 38 agreement leading to the Councils’ current difficulties. In essence they shot themselves in the foot by triggering the bond before resolving the problem.
2. [The County is considering a number of options having recently sought Counsel’s opinion on the subject.]
That is not in dispute. In fact I suggested that they review their options in my 2001 proposal to them. For the record I am still waiting for a response to that proposal.
3. [The matter is under review and the Council is proceeding with caution. Mr Nunn is being kept informed as the Council is wary of his litigious nature.]
The Council have never kept me informed. Please refer to my response in 2 above. The only information I have ever been given is in response to my letters. I have never had any direct, proactive and informative letter from the Council about the matter.
Mr McGinn’s subjective assertion as to my litigious nature doesn’t fit the facts. I spent 7 years (1991/97) trying to warn Vale Royal Borough Council (VRBC) about the problems they were creating before involving the Ombudsman. In addition I spent 5 years (1998/2002) trying to do the same thing with Cheshire County Council (CCC). Hardly the actions of a person with a litigious nature, however, having said that I will not be intimidated by threats from Council staff. Ironically, both complaints to the Ombudsman were preceded by threats from the Councils. In 58 years I have only ever embarked on one court case and that was with Mulberry Estates between 1992 and 1996.
4. [However attempts are being made to make progress and to this extent we agreed that there was nothing for the Ombudsman to do by getting involved at the present.]
I am aware that the Councils have attempted to inveigle others into resolving their problem over the past few years but they have made no attempts to progress the matter with me.
I am very concerned that Mr Hobbs accepted, without question, the word of Mr McGinn. Especially since my complaint refers to Mr McGinn’s numerous attempts to intimidate me with the threat of unwarranted court action. Please refer to my response to point 6 below as an example of Mr McGinn’s unwarranted threats. My complaint contains many more.
However I am even more concerned that Mr Hobbs agreed not to investigate my complaint further with a person who was also the subject of my complaint. This completely defies common sense.
5. [Apparently at the weekend Mr Nunn smashed 25 feet of new kerbstone.]
Firstly, this is an emotive and slanderous accusation. I did not smash 25 feet of kerb. I removed the kerbstones without smashing or damaging a single one. Furthermore I can prove it, ironically using evidence supplied by CCC.
During 2004 a neighbour of mine, Mrs Hindmarsh, complained about local youths using bits of site rubble to damage their greenhouses. The Ombudsman was even involved. As part of their defence CCC included a photograph taken in the vicinity of my property [Photo 1 refers].
The photograph taken by CCC during 2004 quite clearly shows a number of undamaged kerbs together with a mound of hardcore. This was created after I self abated the nuisance to my right of way during 2002 so the kerbs had been there for about two and a half years by then.
As can be seen there are no smashed kerbs in the photograph. Ironically, a year earlier some of the kerbstones and hardcore were actually taken by Vale Royal Borough Council. My wife witnessed the event and assumed that they had taken some of the kerbs and hardcore to finish a job elsewhere. In any event I have further photographic evidence showing the machine I hired and the care I was taking over the removal of the kerbs.
Following Mrs Hindmarsh’s complaint CCC removed the remaining kerbstones and hardcore. With the kerbstones belonging to College Hill and some of the hardcore belonging to me, technically CCC and VRBC are both guilty of theft.
6. [The County is considering a criminal damage charge.]
Mulberry Construction Ltd owned the land the kerbs were situated on and College Hill underwriters owned the kerbs in question. CCC may ‘consider’ bringing a criminal damage charge but the fact remains that the matter has nothing to do with them. Even if they wanted to bring criminal damages against me they couldn’t because I didn’t damage any of their property.
Furthermore, the roadway was not a highway so the majority of their Highway Authority powers are irrelevant. As a result the only powers they have on site are those conferred in the Section 38 agreement.
The threat of court action is, and always has been, a devious attempt to do two things. Firstly, to intimidate and harass me and secondly to block the involvement of my MP and the Ombudsman.
Furthermore, I gave CCC, Mulberry Construction (the owner of the land), Mr Jones College Hill underwriters (the owner of the kerbs) and Mr Duffy (the contractor who laid the kerbs) notice of my intentions and the opportunity to return me to the status quo well before I self abated.
The law is quite clear regarding nuisance to someone’s right of way, I am legally entitled to take court action or self abate a nuisance to my right of way. I chose to self abate.
As a matter of interest CCC has played the ‘we are going to take you to court’ card on numerous occasions over the past 8 years. On one occasion Mr McGinn even threatened to have my vehicle unlawfully removed.
In order to complete the roadway to adoptable standards they need to trespass on my property and interfere with my right of way. It is absolutely ludicrous for them to suggest that they could take me to court because I have stopped them from infringing my legal rights. Incidentally triggering the bond, together with the continued threat of unwarranted court action over the matter, is also violation of my Human Rights under Article One Protocol One, ‘quiet enjoyment of my property’.
7. [Mr Nunn complains about an enduring trespass which was apparently dealt with by the Court of Appeal 8 or 9 years ago. Mr Nunn was awarded damages then which apparently extinguishes his right to pursue the trespass complaint.]
The Court of appeal did indeed deal with the trespass issue; they found that any ramp on my property would be a trespass. I was awarded costs at the time but damages could not be awarded because the Court of Appeal quite simply had no idea about Mulberry Estates’ intentions following their ruling. (Mulberry Estates did not attend the hearing). As the Appeal Court stated Mulberry could redesign their roadway without trespassing on my property, and as a result damages would be small. However, Mulberry was also warned that if they didn’t do this then the damages would be substantial (Unlike Mulberry I did attend the hearing). They were ordered to come up with a final plan (Interestingly, one that I also agreed to first) so that damages could be assessed. So in essence the Court of Appeal gave me all the protection I need against having a ramp on my land without agreement.
Mulberry Estates went into receivership following our application for costs and as a result never produced a plan. However, as my Barrister rightly stated that does not give anyone else the right to put a ramp on my land and claim the matter has been dealt with.
8. [This is a major plank of Mr Nunn’s case and potentially weakens his position.]
Having the Court of Appeal’s finding that a ramp on my land constitutes a trespass strengthens rather than weakens my case.
In any event it is totally irrelevant to the matter in hand because the Councils promised the Ombudsman during 1998 that the roadway would be completed without impacting on my property. They even came up with a design, which although not perfect, would have alleviated many of their problems.
In reality CCC’s plan, to force others to resolve their problems between 1998 and 2003, has now gone disastrously wrong. Worse still, triggering the bond has now made the problem much more expensive to resolve, therefore Mr McGinn’s actions are nothing more than an attempt to cling on to an untenable position they had previously abandoned.
For the record nearly all this information was available to Mr. Hobbs before his telephone call to Mr. McGinn. At the very least I would have expected Mr Hobbs to have read my complaint and identified that Mr McGinn may have had his own motive for blocking my complaint. As a result he would have been able to prepare some prudent questions rather than just accepting what Mr McGinn stated without demur.
It would appear from the wording of the memorandum that Mr. McGinn’s agreement was also a part of the decision making process. That in itself raises even more questions about Mr. Hobbs’ impartiality.
There is another issue that needs urgently addressing. Following the Ombudsman’s refusal to investigate my complaint I sought the help of my MP. However, when he contacted the Council they suggested that I had no complaint of substance because the Ombudsman had refused to investigate it. This has also happened in many other cases, the Balchins case is an example. Councils use an Ombudsman’s refusal to investigate a complaint as a platform to argue that they are right. This seriously undermines any chance of a complainant obtaining redress for the injustice they have suffered. This perceived approval of their position is the main reason why Councils continue to defend untenable positions and why some complaints can take years to resolve.
That said I don’t want to take the emphasis away from my 2002 complaint so as far as this response is concerned I shall refrain from commenting any further.
Trevor R Nunn 12th June 2006
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