The Fraternity

0 This account of manoeuvring around the subject of Rights of Way might, on the face of it, appear to be much to do about nothing. That would be to ignore the alarming levels of activism directed against homeowners undeserving of militant attention. This Report reveals unacceptable levels of insidious abuse of office. What we are saying is that this unchallenged malfeasance has run its full distance: the time has arrived to say ‘enough’, to organise to defend positions and demand a Policy Review. Why, within the bureaucracy, has truth been treated as an option? It is because the pretence of accountability is a sham. The Planning Inspectorate’s Quality Assurance Department is a misnomer: there is neither quality nor assurance. The absence of effective enquiry, of curiosity, is almost total. It is axiomatic that a complaints system must be independent, not left in the hands of the colleagues of the subject of the complaint. The strategic Department of Special Casework has no apparent comprehension or understanding of the meaning of impartiality. Its entire raison d’être appears committed to the protection of reputations and home-team interests. One positive result to arise from this Report is its potential for raising the Judiciary’s awareness that evidence is being put before them upon which they could not and should not rely. The Inspectorate is fully aware that the Judiciary will take the view that their Inspectors are entitled to come to the conclusions that they do, even when it is evident they are acting as interested parties. There is also evidence that the Authority is employing tools such as the filibuster and high legal costs to see off the unwelcome opposition of ordinary citizens. Article 6 of the 1998 Human Rights Act guarantees citizens – all citizens – the right to a fair, independent and impartial tribunal. Yet Secretary of State DEFRA who appoints Inspectors is now in the untenable position as both Policy Maker and Decision Taker. The Local Public Inquiry faced by this Report’s author was illegal. Urgent steps need to be taken to legitimise the process because the accumulating bill for compensation and redress is enormous. By means of an administrative sleight of hand, New Labour replaced the Independent members on the Lord Chancellor’s Panel with what are essentially interested parties from a pool of Officials from Countryside Access. A grim passage through zones of government draws towards a conclusion via Section 11 with the Crown Prosecution Service (CPS) and the serious allegation of a cat’s cradle of deceit and negligence. 1 A PERSISTENT EVIL Bad Law is one of the reasons bullying and intimidation are predominant features in today’s Rights of Way administration. However, it is a secondary consideration to the problem of good Law being used badly. The first major landmark instrument of Law of New Labour was The Human Rights Act 1998. Article 6(1) of that Act has it that “…..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law”. There are four key words: Tribunal, Independent, Impartial and Fair. A Public Inquiry is not a Tribunal. Within a year, the Government compromised Article 6. In a surreptitious, migratory and unpublicised move, Independent Inspectors on the Lord Chancellor’s Panel were discarded and replaced by former Rights of Way Officials. Of the 11 Inspectors who undertake Rights of Way Casework, 9 came from Rights of Way positions. It is now Secretary of State DEFRA who appoints Inspectors to chair Rights of Way Public Inquiries. In becoming both Policy Maker and Decision Taker, her situation is untenable because it is her policy that is at issue. Inspectors must be Independent of other groups, not dependent upon, or subject to, their control. It is true that Bryan v. UK [1995] 21 EHRR 342 agreed that Inspectors act Independently but that referred to the old regime, before the process became politicised. The European Court believed that where the question of Independence became an issue, the issue could be resolved in the High Court, yet the High Court has no authority to hear cases afresh. It does not resolve the core problem of the unacceptable propinquity between Secretary of State DEFRA and her Inspectors. Rights of Way Inspectors cannot be considered Independent as required by law. When Rights of Way officials are elevated out of their offices to assume the appointment of Inspector, there is no indication of a change of mindset away from their dedication to the cause of Countryside Access. They are not impartial: the law is routinely broken. The word ‘Fair’ has featured prominently in recent manifestos yet in Rights of Way matters, the word is used rhetorically. That is equally the case when 2 Government talks piously of delegating power downwards to Local Authorities. A Council’s executive is represented by the decision makers, the democratically elected members. They are supported by administrative officials, the advisers. In one case study arising from a wrongful designation, the desired solution was to divert the footpath. Eighty-five per cent of the Committee Members in District and Council voted to make the Order. The Officials were politically and doctrinally opposed. Although they are obliged to follow the Members’ lead, they appear to derive, indeed encourage, support from local activists and sympathetic Organisations. In this situation, a solitary objection is sufficient to have the Order referred to a Local Public Inquiry. Secretary of State DEFRA appointed as Inspector a former Rights of Way officer, a member of their professional association, The Institute for Public Rights of Way officers (IPROW). Dorset CID told the Planning Inspectorate that their representative “was identifiable with one side of the argument”. This solitary individual set aside the wishes of the democratically elected members, supporting in effect their advisers whose advice the elected Members had considered to be unsupportable. Whether at an Inquiry or in Court, flights of high hurdles are set along the way to deny Justice to those seeking to protect their homes. There is a cheats’ charter in place to target and deprive homeowners of their rights. Usually, the victims are ordinary people, not stereotypical toffs. Four Principles have emerged as representing the modus operandi of those Rights of Way officials identified as playing a cruel game: 1. The drawing-out of procedures and responses over time, with the aim of physically and mentally exhausting homeowners . As bad an example of this is that faced by siblings Archie (84) and Ivy (78) Peppard in 1973 when they first encountered walkers passing through their farm. Thirty-seven years later, after calculated obstruction by Somerset County Council, and now in poor health, they are yet to witness the return of control of their property. Whereas those opposed to the Peppards have friends and resources available with which to have their way, their victims are invariably alone and vulnerable. 3 2. The crucifixion of homeowners by the appalling costs arising from the defence of their homes. The Mear family lives at Wood Farm, Waresley, near Sandy in Bedfordshire but within Cambridgeshire County Council’s areas of responsibility. The Council intervened in a private access dispute between the Mear family and their near neighbours, the Leaches. Allegedly, the Council spent over £345,000 in support of the Leaches’ case and consequently lifted the Mears’ costs beyond £½m. The Judge said: “To some extent it can be said that Cambridgeshire County Council have been fighting the battle of the Leaches”. 3. The practice of identifying, steering and following one or more Champions or kindred spirits (frequently a close neighbour) towards a collective desired goal. There is a case study from Maulden, Bedfordshire, in which there is evidence of intimidation and collusion. The homeowner who defended his home against the acquisitiveness of his tormentors lost £70,000 in expenses, including fines, suffered 20 years of heartbreak and collected a criminal record for his trouble. There is a worse case in Somerset whose County Council arranged indemnity against financial loss for their Champion. Nina Hirst, county solicitor, confirmed the arrangement with his solicitors, Zermansky and Partners of Leeds. “I emphasise here the necessity that this correspondence is kept confidential and that it is privileged”. Cases such as this attract fellow travellers, the cash-rich with common interests. Allegedly, both the Ramblers’ Association and the Open Spaces Society jointly handed over a total of £15,500 to this Champion, their means to their end. 4. The absence of proper, functional monitoring machinery means officials operate in a climate of impunity where truth is all too often optional. There is a Quality Assurance Department within the Planning Inspectorate, yet there is no discernible quality, nor the slightest assurance that colleagues will receive full and proper investigation of alleged misdeeds. The complaints process must be independent. There is no justification for the total protection of Inspectors from questions arising from what may be an unfathomable Decision, other than via a restricted Judicial Review. The High Court’s attitude limits the concept of equality under the law insofar as it unreasonably insists that Inspectors are entitled to come to the decisions that they do. With 4 all courses blocked, the option of an appeal to the Ombudsman, Administrative or Political, might appear attractive, yet their terms of reference are so circumscribed as to render the Ombudsman course virtually useless. Unusually in these cases the burden of proof is on the defendant, not the prosecutor who has charge of the requisite documents. There have been reports of the misrepresentation of evidence, the hiding and losing of evidence, alteration of maps and documents, as well as other misdemeanours.

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