On Monday 13 May, Icklesham Parish Council considered a request from a lady buying a house in Tanyard Lane for permission to park in the open ground next to the Council-owned allotments in Pear Tree Marsh in Winchelsea. The person she is buying from has temporary permission to park here. This request re-ignited an issue that has been festering for years.
Pear Tree Marsh is sited off Tanyard Lane, which is part of the A259(T). Most houses on Tanyard Lane do not have off-street parking and their occupiers have to park in one of the lay-bys on that road, where they are subject to burglary and vandalism. Indeed, the lay-bys are the crime hotspot of Winchelsea.
Pear Tree Marsh was purchased many years ago by the Parish Council from the District Council, who applied a covenant to the sale that the site could only be used for allotments. However, in addition to several allotment plots, the site has a large area of open ground. Allotment-holders have always parked here. Indeed, many took on an allotment plot only to get access to parking. This resulted in derelict plots. The worst offenders included a couple of ward councillors and ex-councillors for Winchelsea, who invited friends to park in Pear Tree Marsh as well. Not unnaturally, this was seen as unfair by those without access.
Some years ago, I proposed to the Council that the situation should be regularised by opening up parking to all residents, possibly at a small charge. Should too many residents apply, priority would be given to those without off-street parking and, if necessary, places could be allotted fairly by ballot.
In the petty personality-driven politics of Icklesham Parish Council, the proposal was opposed by several councillors from other wards, ie not resident in Winchelsea, notably Cllrs Merricks, Stanford, Bronsdon and Sutton. There seems to be a fear that Winchelsea ward councillors might be allowed to do something for their electorate. Ostensible objections have centred around Rother's covenant. Of course, covenants can be varied and the Council succeeded in doing so in the case of Icklesham Recreation Ground.
Moreover, there are doubts as to whether the covenant does actually forbid parking, given that this does not interfer with the provision of allotment plots.
Eventually, the Council was persuaded to write to Rother to clarify the situation. And here, we came up against the Rother solicitor David Edwards. Those familar with the complaints under the Code of Conduct made against Winchelsea ward councillors will remember that Mr Edwards was legal adviser to the Rother Standards Committee. Mr Edwards advised the Committee that, once a parish council had made a decision, councillors were prohibited from criticising or campaigning against that decision. In the end, the judgements of the Standards Committee against the Winchelsea councillors were quashed by an Appeals Tribunal, to the profound embarrassment of the Committee (the Tribunal reasserted the democratic principle that councillors were free to engage in political activity, including campaigning against council decisions).
In the case of Pear Tree Marsh, Mr Edwards judged that, before the District Council could be asked to vary the covenant, the Parish Council would have to secure permission from the Secretary of State for Communities and Local Government to convert the site from use as allotments, even though we do not wish to convert any plots to parking, merely to use unused and unusuable land within the site for this purpose. On this quibble, the non-Winchelsea councillors have built their objections.
However, Mr Edwards' interpretation raises the issue of the legality of allowing any parking on Pear Tree Marsh. It cannot be claimed that the existing parking is pursuant to the use of allotment plots, as it takes place overnight, when allotments are not cultivated. And some of those with access to parking are not allotment-holders, but friends. Why is one group of residents still allowed to park?
The new Clerk has undertaken to research the history of issue. For the foreseeable future, the unfair and unsatisfactory situation in Tanyard Lane will continue, perpetuated by councillors from wards other than Winchelsea. Another telling reason for a separate Parish Council.
Showing posts with label Code of Conduct. Show all posts
Showing posts with label Code of Conduct. Show all posts
Wednesday, 15 May 2013
Friday, 27 January 2012
Winchelsea ward councillors report in Rye Observer 27-Jan-2012
We’ve been rather quiet in 2011. The reason has been the vast amount of time that we have had to devote to fighting false allegations made, in February 2010, by councillors from the other wards of Icklesham Parish Council to Rother District Council’s Standard Committee. This story has already featured in the pages of the Observer, so there is no need to repeat it here. But one aspect merits elaboration: the subject of the parish council meeting in August 2009, which was the origin of the complaint against Cllr Comotto. This was a proposal by the chairman and some other councillors that the parish council should sue the Wincheslea website www.winchelsea.net (with which Cllr Comotto is involved) for defaming Icklesham Parish Council by referring to "a history of incompetent chairmen" and "a dysfunctional council”.
It subsequently emerged that local councils (and indeed central government) do not have the right to sue for defamation! Indeed, this is a basic principle of law, designed to protect freedom of speech. How did Icklesham Parish Council ever come to consider such a proposal?
We have tried to find out, but it has not been easy, not least because Icklesham Parish Council no longer has any of the relevant papers in its files! This is not the first time that official papers relating to a contentious issue have gone missing at Icklesham. However, from another source, we learned that the initial legal advice was obtained by an Icklesham ward councillor from an anonymous acquaintance (for all we know, this could have been a man in the pub, perhaps even the same man whose advice some years ago almost got the parish council prosecuted for VAT evasion).
A group of Icklesham councillors then consulted the Sussex Association of Local Councils (SALC). SALC say that their policy is not to give advice to individual councillors, only to councils (or clerks). They seem to have made an exception on this occasion. SALC have refused to answer further questions on their role but we know that they consulted their solicitors, Hedleys, a firm specialising in local authority law. Hedleys deny advising the council to sue for defamation but they did draft a letter for the council to send out which makes this threat. SALC did not spot Hedley’s error.
The proposal to sue the Winchelsea website was then placed, as a “confidential” item, on the agenda of the August 2009 council meeting. August council meetings are supposed to be only for the signing of cheques. Why could the council not wait until September? Was it because Winchelsea councillors had indicated that they might not be able to attend the August meeting? And then there was the agenda item. This was vague and made no mention of the proposal to sue. The resolution was tabled at the meeting. There can be no doubt that the intention was to keep Winchelsea councillors in the dark. So, when other councillors discovered that we had learned of the secret proposal, they openly protested that we should have been allowed to prepare ourselves for the discussion!
After an acrimonious debate, during which it became apparent that whatever legal advice had been received by certain councillors had been incomplete and not well understood, the council decided to delegate decisions to sue for defamation to two councillors and the clerk. The proposed delegation of powers (not to mention the vagueness of the agenda) was probably illegal. Given that a decision to sue could cost the council many thousands of pounds, it was certainly highly imprudent.
So, here we are, two years on. The text which so upset some members of Icklesham Parish Council, and which snowballed into the Standards Committee fiasco which has just ended, is still on the Winchelsea website. This includes the reference to the often “dysfunctional behaviour” of Icklesham Parish Council. Who can argue with that now?
Sunday, 15 January 2012
Rother not to appeal against appeal in Winchelsea freedom of speech case
The Standards Committee of Rother District Council met on 11 January 2012 to consider whether to appeal against the judgement which comprehensively and utterly overturned Rother's ruling that Winchelsea councillors had breached the Councillors' Code of Conduct. As the Standards Committee could find no error in law in the appeal judgement, they decided that they had no grounds to contest it.
Rother seemed inclined to heap the blame for their decisive legal defeat on the solicitor they had employed (at a cost of some £6,500) to investigate the allegations against Winchelsea councillors by other Icklesham Parish Councillors. She was accused of failing to draw the attention of Rother to the freedom of speech issues raised by the case.
But why should the investigator take all the blame for ignoring a fundamental human right like freedom of speech, when the Rother sub-committee which ruled on the complaints against Winchelsea councillors included two solicitors (the Chairman and Rother's legal adviser)? And why did no one notice the issue of freedom of speech when it had been clearly flagged up to both the investigator and the sub-committee by Winchelsea councillors?
It also needs to be pointed out that the investigator's case against Winchelsea councillors rested primarily on a series of allegations that they had made untruthful and misleading statements about Icklesham Parish Council. In other words, her contention was that Winchelsea councillors had acted disreputably because they had lied. One can see why the investigator may have thought that freedom of speech was irrelevant.
The investigator's real failure was that she ignored evidence which destroyed the allegations that Winchelsea councillors had lied. Her failure may have been, in part, because she did not have an adequate understanding of parish council matters such as Local Action Plans (LAPs), despite the fact that they were at the heart of the complaints.
But the Rother sub-committee is even more at fault in these respects. It was given the same evidence against the allegations as the investigator but also heard that evidence confirmed, in person and in no uncertain terms, by the former Clerk to Icklesham Parish Council. Yet, when confronted with these facts at the sub-committee hearing, the Chairman interrupted the evidence and abruptly shifted the goalposts, stating that it was irrelevant whether the statement by Winchelsea councillors were true or not, what was at issue was whether their language was intemperate.
Ironically, by switching the case for the prosecution from the issue of truthfulness to the issue of expression, the Chairman himself brought the issue of freedom of speech into consideration. In the landmark Livingstone case (2006) --- ignored by the Rother sub-committee --- the judge said that, "The burden is on the [the person seeking to interfere with the right] to justify interference with freedom of speech. However offensive and undeserving of protection the appellant’s outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of Article 10(2) to render him liable to sanctions".
But even if the Rother sub-committee ignored the law, why did they not exercise commonsense? What reasonable person believes that the words "sham" and "ambush" are intemperate language and worthy of extended and costly consideration by a semi-judicial tribunal?
The Rother sub-committee, like their investigator, is also guilty of failing to understand parish LAPs. As noted, these were at the heart of the allegations against Winchelsea councillors. During the sub-committee, the Chairman expressed confusion over terms such as LAPs, LATs and Quality Parish Councils. He also expressed a lack of interest.
What indisputably breached Winchelsea councillors' right to freedom of speech was the sub-committee's opinion that councillors cannot question and lobby against council decisions, whether or not those decisions are flawed or even improper. This doctrine was expounded very firmly at the sub-committee hearing by Rother's solicitor and strongly supported by the Chairman and the District Council representative. Only the parish council representative was uneasy about this attempt to suppress freedom of speech.
Unfortunately, it would appear that Rother's Standards Committee has learnt nothing from the appeal tribunal judgement against them. They have not felt it necessary to consider how they came to be guilty of such a gross misinterpretation of the law. At least one member, Rother Councillor Roger Bird, is in complete denial and resolutely rejects the appeal tribunal judgement. According to Cllr Bird, "The issue showed the lottery of going to judgement. It comes down to the spin of a coin." Was this an insight into how Rother reached its now discredited decision against Winchelsea councillors?
RC
Rother seemed inclined to heap the blame for their decisive legal defeat on the solicitor they had employed (at a cost of some £6,500) to investigate the allegations against Winchelsea councillors by other Icklesham Parish Councillors. She was accused of failing to draw the attention of Rother to the freedom of speech issues raised by the case.
But why should the investigator take all the blame for ignoring a fundamental human right like freedom of speech, when the Rother sub-committee which ruled on the complaints against Winchelsea councillors included two solicitors (the Chairman and Rother's legal adviser)? And why did no one notice the issue of freedom of speech when it had been clearly flagged up to both the investigator and the sub-committee by Winchelsea councillors?
It also needs to be pointed out that the investigator's case against Winchelsea councillors rested primarily on a series of allegations that they had made untruthful and misleading statements about Icklesham Parish Council. In other words, her contention was that Winchelsea councillors had acted disreputably because they had lied. One can see why the investigator may have thought that freedom of speech was irrelevant.
The investigator's real failure was that she ignored evidence which destroyed the allegations that Winchelsea councillors had lied. Her failure may have been, in part, because she did not have an adequate understanding of parish council matters such as Local Action Plans (LAPs), despite the fact that they were at the heart of the complaints.
But the Rother sub-committee is even more at fault in these respects. It was given the same evidence against the allegations as the investigator but also heard that evidence confirmed, in person and in no uncertain terms, by the former Clerk to Icklesham Parish Council. Yet, when confronted with these facts at the sub-committee hearing, the Chairman interrupted the evidence and abruptly shifted the goalposts, stating that it was irrelevant whether the statement by Winchelsea councillors were true or not, what was at issue was whether their language was intemperate.
Ironically, by switching the case for the prosecution from the issue of truthfulness to the issue of expression, the Chairman himself brought the issue of freedom of speech into consideration. In the landmark Livingstone case (2006) --- ignored by the Rother sub-committee --- the judge said that, "The burden is on the [the person seeking to interfere with the right] to justify interference with freedom of speech. However offensive and undeserving of protection the appellant’s outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of Article 10(2) to render him liable to sanctions".
But even if the Rother sub-committee ignored the law, why did they not exercise commonsense? What reasonable person believes that the words "sham" and "ambush" are intemperate language and worthy of extended and costly consideration by a semi-judicial tribunal?
The Rother sub-committee, like their investigator, is also guilty of failing to understand parish LAPs. As noted, these were at the heart of the allegations against Winchelsea councillors. During the sub-committee, the Chairman expressed confusion over terms such as LAPs, LATs and Quality Parish Councils. He also expressed a lack of interest.
What indisputably breached Winchelsea councillors' right to freedom of speech was the sub-committee's opinion that councillors cannot question and lobby against council decisions, whether or not those decisions are flawed or even improper. This doctrine was expounded very firmly at the sub-committee hearing by Rother's solicitor and strongly supported by the Chairman and the District Council representative. Only the parish council representative was uneasy about this attempt to suppress freedom of speech.
Unfortunately, it would appear that Rother's Standards Committee has learnt nothing from the appeal tribunal judgement against them. They have not felt it necessary to consider how they came to be guilty of such a gross misinterpretation of the law. At least one member, Rother Councillor Roger Bird, is in complete denial and resolutely rejects the appeal tribunal judgement. According to Cllr Bird, "The issue showed the lottery of going to judgement. It comes down to the spin of a coin." Was this an insight into how Rother reached its now discredited decision against Winchelsea councillors?
RC
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