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Public Inquiry at Lampton Road - what are Hounslow’s Legal & Planning departments up to?

Publicity has been given recently to the struggle through to the higher courts of the land, for one small boater to retain the rights to continue a long-held [150 years +] tradition of mooring to the banks of the ancient river Brent. It is now possible to reveal the role that Hounslow Council has taken, in seeking to circumvent the Appeal Court rulings against the Canal & River Trust [CART].During preparations for my appeal to the Royal Courts of Justice [against the eviction notices that the predecessors of the Canal & River Trust had served on my boats], I had applied to Hounslow Council for a “Lawful Use Certificate” for the mooring of my boats. This is a certificate that Local Planning Authorities [LPA’s] are obliged to issue upon application, if the “use” applied for does not require planning permission, or alternatively has been carried on for at least 10 years.The purpose of the application had its roots in the 2012 judgment by Mr Justice Hildyard of the High Court [recently discredited and set aside], to the effect that I had to produce evidence of some positive right to moor, if I wished to escape the waterways authority’s accusation that the boats were moored “without lawful authority”.Mindful that such a certificate alone would have sufficed to pre-empt any action on their s.8 Notices, the Canal & River Trust acted to persuade Hounslow Council against issuing the certificate before the then pending trial took place. In submitting a 4 page set of arguments for the Council planning officer to use, they requested that their submission be “treated sensitively”. It is to the eternal discredit of the Planning AND Legal departments of Hounslow Council that they interpreted this as a request that the submissions be kept secret from the applicant – and that they unlawfully acted in accordance with that understanding. The upshot was that they refused to disclose the content or even the tenor of the submission against the application, and unilaterally, in defiance of the regulations governing their conduct, refused the application after long months of delay, without any chance given to the applicant to answer points at issue. Having subsequently goaded the legal department into first producing the submissions and then having a face-to-face meeting, the advice was taken to prepare a second and simpler application requiring no evidence of use at all. Once again, CART intervened effectively, and protracted processes were claimed to be unavoidable so that the date for production of the Certificate in time for the Appeal came and went, and I consequently withdrew that second application.The Planning Inspectorate [PINS] appeal having been lodged, CART once again repeated their objections online, and the Council’s position in regard to the appeal hardened – moving from the claimed readiness to concede that a certificate would be granted, to a reversion to the original discredited claims for the unlawful status of the moorings.In short, instead of simply conceding the facts that they had been presented with, the Council dug in their heels and procured the services of a high-powered barrister – who, last Tuesday 12th March, had to leave home at 0630 hours to force her way out through the snow-bound roads of Kent, to reach the Civic Centre in time for the Public Inquiry. How many thousands of pounds of council tax payers money were spent on this fruitless exercise will probably never be known – but the barrister came primed by CART with extraordinary [and ordinarily persuasive] arguments against the lawfulness of the moorings.Faced with a few blunt truths that she apparently had been kept in ignorance of, the barrister made a brave attempt at mitigating the situation for the Council – but they were intransigent about backing off, and so in the end, we spent a day arguing over whether some pot plants had been in place for more than 10 years or not.That utterly ludicrous situation was where we ended up despite my pleas to the planning committee to intervene, and despite promises from the planning chairman Theo Dennison to investigate the situation, months before we ended up in this farce.Why the Council acted so unlawfully in support of an old enemy [British Waterways, now CART] in so intransigent a fashion, and why the planning committee should have supported such unlawful behaviour, is frankly incomprehensible. Even less understandable is how the legal department could be so utterly debauched as to have not only encouraged such unlawful behaviour but urged defence of the indefensible as they did – at such cost to the taxpayer. Is it not about time that some serious independent investigation into the Council was carried out? The Council’s salaried officers are evidently a law unto themselves, and our elected officers are pusillanimously powerless before them. Is that a state of affairs we should be content with? "Yes Prime Minister" is reality not fiction, and such farce is amusing only on the TV screen.

Nigel Moore ● 4764d11 Comments

The involvement of the waterways authority in directing how the council officers should treat the application is dealt with in more detail in a canal website published this morning:http://www.narrowboatworld.com/index.php/news-flash/5557-shen

Nigel Moore ● 4757d

Very out of touch with this Sarah, and Photobucket have changed their codes. But to give it a go with a couple of variations:The area is under the footbridge on the path leading from Brent Way to the Dock Estates.

Nigel Moore ● 4760d

Greetings, Nigel.  Could you give clear instructions about the area you are interested in.  Some of those people taking wild life photos or 'snow' photos may come up with something?

Sarah Felstead ● 4760d

Good thinking Sarah, and Jim has been, and has taken photos, but not of the relevant area from the time required, which is around 2002.It is all silly really, as I had a previous judgment considering the use of the land, which clearly establishes that the garden area was started around 1996 – but as the gates from that time had deteriorated and disappeared by 2003/4 [when the judgment acknowledged the creation of a new garden], the Inspector concluded that there was no evidence to show that the garden also had not disappeared, which meant according to her that the legal ‘clock’ stopped and did not restart until 2004.She is wrong on the facts, and her finding effectively calls me a liar, because I gave evidence of continuous use from my living on and alongside the site, but the case was decided on the material evidence before her – and it had not occurred to me that demonstrating continuous use of such a sort would be needed anyway; it was just how I described the land in the application. It seems that she swallowed the barrister’s argument that without a gate there was no garden.It doesn’t really matter; I got the Certificate describing the essential components of my application. If the Council wanted to get nasty and attempt action on the basis of the Decision, then I would challenge that and bring out further evidence – but unless and until that happened and I was told to stop sitting out on the bank on sunny days, &/or told to remove the flower pots from the bank, there is no point in my making a pre-emptive issue of it myself.But - if anyone does have datable photos of the garden under the footbridge from 2000-2004, then I would be glad to have them on file.

Nigel Moore ● 4760d

"whilst the Inspector did not believe that we could prove 10 years use of the pot plants [!?]" ... a long shot - but has our Jim ever visited you along there and maybe he took his camera? ...

Sarah Felstead ● 4761d

Adam, I had said in my appeal application that I would be asking for costs, because the Appeal was only necessary by reason of the Council’s refusal to engage with me in the first place, and by reason of their refusal to agree to the fundamental issue even to the last minute. They could have agreed a Statement of Common Ground even a month or two beforehand and saved the Public Inquiry, letting the Inspectorate decide the issue on paperwork only.In fact I had suggested that course of action to Richard Gruet weeks before I even lodged the appeal.It didn’t quite go down on the day as you describe in your case, but close. I suspect that the barrister had not been told by the Council that I had already won an Appeal Court judgment as to the lawfulness of my moorings. In the private discussion she asked for in order to see what we could agree on before proceeding with the hearing, it was obvious that the barrister had come prepped by British Waterways [or CART as they now are], with some absurd arguments which would nonetheless have effectively obscured matters for any non-specialist. I dispensed with those simply by observing that the unanimous decision of 3 Lord Justices of Appeal had to carry rather more weight than the opinion of either her or some local planning authority such as Hounslow, so that her arguments didn’t cut much ice. She blinked a bit, then said “well what are we here for?” I told her that in the first place that judgment had only been handed down a few weeks previously, but also that even though the Certificate was now no longer needed, the Council had extorted over a thousand pounds from me for a £75 application, and I intended to get the certificate I’d more than paid for. When she said “so it’s just about the money?” I noted that I was entitled to what I’d paid for whether I needed it anymore or not, and that, to be frank, I was more than upset with how the Council had treated me in refusing to engage, so that I was quite prepared to embarrass them over it.She took the point, and we agreed to ask the Inspector for another half hour to try sorting things out to save hearing time. She spent about 10 minutes or more persuading Jimmy Walsh and Robert Coomber of the sensible course of action, and when we got together she said they’d agreed to the main issues with interpolated wording to include the BW definition of “home mooring” [which I’d put in the first paragraph of my Statutory Declaration], and just wanted to make a point over the ‘garden’. Having conceded that, she then asked if I’d agree to no order for costs, and whether foolishly or not, I agreed.So – similar to your scenario, but they agreed the concessions before asking that I make no application for costs, rather than making my agreement a pre-condition of their concessions. Whichever, it was ridiculous that all the expense and time-wasting should have gone on – and from what I could see of the earnest discussion between them, I seriously doubt that the Council would have made any concessions at all without the barrister’s encouragement.

Nigel Moore ● 4761d

Nigel,Out of interest did you make an application for costs against the Council ?.  I know of a somewhat similar tale involving my current employers and Hounslow just prior to me joining the Practice, where from what I'm told our side was approached by Council officers just prior to the start of the appeal inquiry and they said "if you agree not to make an application for costs we'll tell the Inspector that we have no evidence to contradict your appeal".AS I often say there is always two sides to every story, and I usually tend to defend Council Officers as I often find the whole story is somewhat different to how one individual tells it, but what you've said bears similarities to this other previous case I'm aware of and it is rather worrying...

Adam Beamish ● 4761d

For the record, I received today the Planning Inspectorate’s rather swift Decision following last Tuesday’s Public Inquiry - and whilst the Inspector did not believe that we could prove 10 years use of the pot plants [!?], she nonetheless made the finding that: “the Council's refusal to grant a certificate of lawful use or development in respect of leisure ("home") moorings as defined by the British Waterways Act 1995 s17(3)(c)(i) for up to three narrowboats, with small storage shed, mains power and mains water, was not well-founded . . .”Largely, the decision in this regard was inevitable, because following a brief discussion with the Council’s hired barrister at the commencement of the hearing, it was conceded that a certificate should be issued couched in such terms; the weight of evidence for the sufficient time of such use &/or development being acknowledged. The lesson is, that that weight of evidence was readily available to the original case officer from the outset – had he revealed the questions raised by British Waterways’ hidden submissions.Further, that “great deal of evidence as to the mooring of these boats over a very long period of time” [in the words of the Inspector], was also made available for the second and simpler application I had made following refusal of the first – no possible excuse existed for procrastinating on that application, and even less so for denying the relevant facts right up to the day of the hearing. Had it not been for a very professional outside barrister, who had the sense to persuade the Council officers they should back off from their recalcitrant position, the Council would have remained hell-bent on denying the blindingly obvious.The only really obscure element in the whole farce was the Council’s motivation in all this, and how/why the Council’s legal team could have got it all so horribly wrong in making the recommendations they obviously did, and giving advice contrary to Planning Inspectorate Guidance.

Nigel Moore ● 4761d

Until you do not use the legal system, you do not realise how bad the whole system is?Only individuals realise it who suffer from the so called very ethical system. You see people with money and legal power behind them, how they manage to twist situations make it look right in the eyes of the people that suppose to be fair to uphold the law.

Satvir Sidhu ● 4763d

True enough. Costs, whether of time or money, and the uncertainty of any legal process, are sufficient reasons to give anyone pause for second thoughts about taking action for themselves. All ‘big’ people or organisations take advantage of that.However, my complaint/challenge is not so much directed at the plight of the individual afflicted by these carryings on, but rather at the wider, general picture; with the proven fact that we have non-elected officers acting against the law, and doing so with impunity. Most especially troubling, is that it is the legal department who are guiding and defending this.It may be, as in the “Yes Minister” series, that our elected members are truly powerless to do anything about it, but they could at least expose such actions when they become aware of them – and they have chosen not to do so. I am more interested in seeing the responsible individuals being made an example of for the future benefit of the borough than anything else. We need to be confident that all sectors of the borough administration are recipients of sound legal [even if moral is beyond them] steering, from those we pay to fulfil that function.

Nigel Moore ● 4763d

I think this is a similar albeit a rather more involved concern that relates to some other irregular methods also posted on this forum.I know Adam has made some insights but it does not account for the inconsistencies and double standards that seem to have surfaced.It is little wonder that objecting residents do not follow up greivences and poor decisions when the cost and legal nonsense becomes to costly and time consuming.Trouble is those in power know it and use it and those working for it seem to believe they are the law.Doesn't make any of it right though.

Raymond Havelock ● 4764d