Thursday, 22 July 2010

Gardengate Closed!


Yes, it's true, the Gardengate case is finally over, NCC have thrown in the towel. It was looking that way following their application to postpone and then going very quiet, then I got a letter Wednesday morning.

But I'd like to share with you the manner in which they graciously withdrew. I could sub-title this bit 'Sometimes It's Hard to Say You're Sorry'...

And so we'll begin. The first reason they gave was that they'd got a date wrong. Good of them to admit that because I hadn't noticed. Essentially the summons said that on 2 October 2009 I had failed to do the works required within the period on the original notice. But 2 October was in fact the last day of that period, therefore I couldn't be said to have failed to comply with the notice until 3 October. I look at it now and it does look pretty dumb. Lesson of the day, always check your dates people.

I'm not convinced that this was fatal to their case however and I can certainly think of an easy way they could have got round it if their hearts were still in it.

Secondly they forgot to mention a piece of legislation. Again, I really do wonder whether that was a deal breaker.

Anyway, now it gets more interesting as the question as to whether officers had been properly delegated powers to issue enforcement proceedings, a key plank of my defence, now arises. NCC say that, for them to argue this point they will need a witness to attend who is on leave on the day of the hearing so they would need an adjournment. I can see how this is offputting for them as they'd only just attended a hearing where they had agreed a new date. The court probably wouldn't be that sympathetic to a further request for an adjournment in those circumstances.

They then make a big point of saying that they don't accept my arguments on the delegated powers issue but more on that later.

Finally they seem to sort of blame their bottling the case on my illness but not before some huffing and puffing about how I could have got somebody else to do the work for me. But still, they graciously inform me that NCC is "willing to allow me a further opportunity" to get the work done and indicate that they'll look at it again towards the end of the year. Thanks to this change of heart (sort of), they therefore plan to offer no evidence against me and the case will be dismissed. Which is nice.

So, what do we think? Well I can't be sure but I honestly suspect that, if they were confidant that they were clear on the delegation of powers issue we wouldn't be looking at the end of the case now. They've known about my disability since before they issued the summons and they've had adequate time to take it into account. I suspect that the other reasons given are pretty minor issues that could have been dealt with quite easily, although I don't really know enough about Magistrates Court procedure to be absolutely sure.

What definitely is clear is that, should they decide that they do want to prosecute me in future they will have to start from scratch with a new notice and, as I don't have any employment tribunals coming up, I'll probably be able to rustle an appeal up this time.

However, let's just imagine a hypothetical situation where they have realised that the required powers to start enforcement proceedings HAVEN'T been properly delegated to officers just as I've argued. Leaving things to the end of the year would give the Development Control Committee enough time to either put the required delegation in place or to make a decision on enforcement action themselves. Should the DCC take either of those courses of action then that would be as clear an admission that powers weren't properly delegated before as it's possible to get, despite all the denials. As I've suggested previously, that might leave a number of NCC officers in sticky legal situations, not to mention NCC itself. Needless to say I'll be watching the comings and goings of the DCC very closely from now on.

But for now this is the first time in two years where I haven't been embroiled in some sort of legal tussle with NCC, with two years of internal wrangling before that and frankly I'm a little tired. We are talking full on career and life fuck-up here. In my honestly held opinion I don't think it's in anybody's interest for me to hear from them ever again about this.

Who knows, I might then get some peace for a while, start getting better and maybe even remember how to look after myself again.

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