Normally, there is little public interest in the report of a planning inspector. But today, we had sight of the report of Clive Neild, BSc, CEng., MICE, MCIWEM following a public inquiry into two appeals by Mr Thomas Till in respect of land at Trewern Hall, near Welshpool. One appeal, against a decision of Powys County Council has been dismissed - a side issue. Forget it for now, but it may well come back to bite the Council in a few weeks time. A separate post. But the appeal against the Environment Agency! Wow! This is big - big enough to go national. It involves a costs award against the EA which will amount to hundreds of thousands of pounds - of our money.
I'll try to keep it simple. At issue is the height of an 'argau', (a flooding embankment) which serves as a defence against the flooding of the outstanding property, Trewern Hall, in Montgomeryshire. The owner of this property wished to raise the level of the argau. Another 30 property owners in the area believed that this development would increase the risk of the flooding of their homes. The dispute has rumbled on through all sorts of legal procedures over several years - resulting in huge legal costs, and a conviction against the name of a local land agent, the aforementioned Mr Thomas Till.
Mr Till appealed against the refusal by the Environment Agency to allow the raising of the argau. The inspector found in favour of Mr Till, deciding that the EA had acted unreasonably. Big decision. Big victory for Mr Till. He decided that the danger to the other 30 properties would be no more than 'slight', but that the benefit to Trewern Hall would be crucial to the protection of this important building. This becomes a major public issue because of the costs incurred by Mr Till and the property's owner, Mr Chapman. This is what the Inspector decided;
It is clear that the Environment Agency acted unlawfully and unreasonably in its determination of the application for the following reasons;
- The EA abjectly failed to have regard to all material considerations, the essence of a reasonable decision;
- The EA failed to comply with its statutory duty to consider the effect on the historic building, and even at the appeal has presented no evidence of this;
- The EA claims to have considered only the information contained in the application. despite the fact that it already had detailed knowledge of the proposal....;
- The EA misdirected itself as to the effect of Government and EA policy;
- The EA took no account of flood modelling that showed that the Applicant's land and property would be seriously adversely affected by ( other works) even though it was aware of these effects;
- The only written record of the decision makes no reference to how the various issues were balanced;
- The key issues were neither identified or balanced.
And on and on it goes, rubbishing a Government sponsored, taxpayer funded body in as condemnatory a manner as I have ever read or heard of. The Inspector finishes up by finding that the Environment Agency has acted unreasonably and concludes that a full award of costs is justified. That means that hundreds of thousands, (perhaps half a million) of the taxpayer's money that is ploughed into the Environment Agency has been 'blown' on legal fees and agent's fees etc.. And this does not include what the whole fiasco cost the Agency itself. In the private sector, heads would roll.
UPDATE - Now look here folks. This is not a judgemental post. Unusually on this blog, I decided to forgo opinion. Though I've listened to all sides over the years, I found the issue so complex (as well as involving good friends) that I've not taken a public view on it. I've tried to avoid any word which may indicate an opinion (and edited one word out!). But what I do think, after reading the inspector's report, is that the Environment Agency made a pig's ear of their case, let a lot of people down, and blew a huge sum of taxpayer's money. And there may be a follow up when my solicitor friend has been through it.
8 comments:
What comment have they made if any
I wonder who advised the EA.
But they will just sigh and move on, more unaccountability
" The EA abjectly failed to have regard to all material considerations, the essence of a reasonable decision ..."
About says it all. Good that the Inspector put this paragraph at the top of what passes for the first page of his expert/considered opinion!
But yes, what a silly waste of money. But hey, its not like Wales is in the middle of a recession!
"Examiner has failed to consider the teachings of the instant claims and cited prior art 'as a whole'" in conflict with MPEP See, e.g., MPEP Section 2111.01 which states, in part: “Finally, when evaluating the scope of a claim, EVERY LIMITATION in the claim must be considered"; attached as Ex. A, emphasis added in capitals.
PS Added emphasis should not be in capitals, but don't know how to get bold or underline on here.
The scandal is that in the majority of cases the ordinary man in the street simply cannot begin to afford to challenge these people so for every case such as this,many go through unopposed.
In the private sector there would be disciplinary action,even dismissal.In the public sector it will be quietly forgotten.
Sorry, missed a 'transition line/sentence'.
The failure to consider the whole case/all material considerations is, if true, a winning argument and provides a sound basis to reverse or send back a legal decision for reconsideration on the merits. Where there is support, I use the same legal argument in the appeals and legal responses that I write - all of the material facts must be considered by the fact-finder before arriving at a legal conclusion. A win can mean hundreds of jobs are created or saved.
In a civilized society governed by rule of law "The pen is (often) mightier than the sword".
The recent Telegraph inspired expense-scandal expose being but one example.
Out of interest. "Argau" is the Welsh word for damn or embankment. Is it used as dialect word in Montgomeryshire English? If so how is it pronounced...the Welsh way or something different?
VM - The EA have made no comment at all. Another aspect of this is that the abject performance of the EA at the Inquiry has let down the 30 householders in the area who were depending on them. The only serious attempt to put their case was by two old friends of mine, who will be feeling very upset indeed at this judgement.
B in C - I've asked another friend of mine who used to be a solicitor to read through the report to help make a judgement on it. I really do not think that the EA should get away with this without some real public criticism.
Penlan - You are right about this. In this case a very determined property owner and his agent risked all becuase they believed they were right. I've watched the case develop over the years and been amazed that they did not give up years ago. Its cases like this that has taught me that the law can often be reduced to a lottery.
Anon - Its usually pronounced 'argi' rather than 'argai'
Your rural view of the 18th June demands comment . . . the simplistic summary is unbalanced. So . . . . if you receive a measured reflective comment
a) Will you publish
b) Will you promote it to attach to your blog-o'-the-day.
George Whitworth
George - Why don't you correct it. My blogposts are always an invite to comment - and your opinion would be very welcome. I tried to report what was the finding of the Inspector in a factual way, which was inevitably simplistic - but I have asked two people to read through the reports in detail for me and let me know how they read it. This report is such a big issue, that I want to properly understand exactly what the Inspector is saying. Since you've asked I'll write a seperate post, probably in a week or so.
Post a Comment