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AFFIDAVIT SEPTEMBER 1999 - WD/98/0996/F |
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IN
THE MATTER OF THE TOWN AND COUNTRY PLANNING ACT 1990 AS AMENDED WITH
REFERENCE TO PPG NOTES & CIRCULARS _________________________________________ AFFIDAVIT
OF NELSON JAMES
KRUSCHANDL _________________________________________
I
NELSON JAMES KRUSCHANDL c/o
The Old Steam House, Lime Park, Herstmonceux in East Sussex MAKE OATH
and say as follows:- 1. I
make this Affidavit in respect of the serious professional negligence of
Officer(s) of my Local Planning Authority and subsequent procedural
irregularity agreed by Committee, as a result of which I have been
occasioned significant expense, loss, delay and anxiety and am now
threatened with bankruptcy proceedings. 2. I
am a design engineer. I
have worked from The Old Steam House since 1982.
I hold patents relating to electric vehicles and developed
refuelling technology stemming from those patents on the premises.
I have long thought the premises held potential for conversion to
a residential use and consequently secured an option to purchase, so as
to pursue restoration. 3. On
or about 4th September 1995 I was party to a planning
application WD/95/2285/F designed to allow restoration of a building I
knew supplied electricity to Herstmonceux village between 1888 – 1920.
The history and original use of the building formed part of the
application. 4. The
application was for a change of use as an incentive to both restore and
preserve the archaeological remains and history of the building. 5. The
local authority sent their conservation officer, Ms Chezel Bird, to
evaluate the site for historical importance.
I met Ms Bird on site and conducted a tour where a number of
features common to early steam powered generating stations were pointed
out. I also showed Ms Bird
a subsurface chamber to the front of the building not connected with
electricity generation. 6. The
local authority refused the permission, stating that in their opinion
there was no history of any importance to warrant protection, which
would qualify the proposal in respect of DC10 of their Local Plan. 7. I
now refer to DC 10 as seen in the exhibit bundle at pages 59-63, where
it is made clear that the preservation of history is a priority and
where such development proposals will normally be permitted. 8. I
relied on the Council’s conservation officer to comply with the
requirements of The Town & Country Planning Act 1990 as amended and
updated on a regular basis by the circulation of Planning Policy
Guidance Notes. As the
applicants were not expert in conservation policy (in person), the
Council had/have a duty to fully research the history and present a
balanced report to Committee, to enable the Committee to reach an
informed decision. In the event, no such information was made available to
Committee and the application was refused. 9. The
application went to appeal, where in the absence of any supporting
information to sustain the historical importance of the building and the
denial of such importance by Chezel Bird, the Inspector had no option
but to uphold the decision of the Local Authority. 10. On
or about 16th July 1997 I came to know Ronald Saunders.
Mr Saunders was able to confirm that he saw batteries in one room
of The Old Steam House, where the coal-bunkers are/were and that his
father was the engineer who ran the steam engines to produce
electricity. 11. During
March and May of 1998 I contacted the Sussex Industrial Archaeology
Society. A representative,
Ronald Martin, visited The Old Steam House and confirmed its former use.
He later wrote a letter of support in connection with a planning
application. I refer to the
exhibit bundle, where a copy of his letter shown stamped by Wealden
District Council, is seen at page 25. 12. Now
with supporting evidence of the history of the building, I made a
further planning application WD/98/0996/F.
This application included details of the archaeological remains
in a drawing. Other information concerning the use was confirmed in a
letter accompanying the application, seen at pages 26 to 32 of the
attached exhibit bundle. 13. I
was contacted by a concerned Councillor who had received an advance
report for the next Area Plans South Sub Committee, in June 1998.
The officer report recommended to decline to determine the
application under Section 70 of the T&CP Act 1990, where an
application contains no new changes or material considerations. 14. I
read the Act and realised that where new information concerning
historical importance was introduced, that was sufficient reason for the
Local Authority to consider the application.
At this time I did not know it was required by PPG 15. 15. I
immediately wrote a detailed letter to every councillor explaining the
new proposal and elaborating about the history as a material
consideration. I put the
Councillors on Notice that a failure to consider the application may
lead to a Judicial Review. 16. I
attended the Committee meeting on 25-6-98 and fortunately am able to
rely on a quality recording of the argument put forward by the officers.
The officers failed to introduce any argument relating to either
PPG16 or PPG 15, or make reference to Circular 14/91. The officers argued that the Council should not determine the
application and that such determination would halt in progress
litigation. I gained the
general impression that the officers wished to be able to continue with
litigation concerning the removal of items from the building, amongst
them toilet facilities, and that this was the reason for declining to
determine the application. The
recording highlights the misdirection and extraneous argument.
One officer, Mr Scarpa went so far as to say that I would not
achieve a Judicial Review. I
now make reference to the recording attached hereto and refer to it as
Exhibit 2. 17. I
now know that PPG 15 & 16 make it abundantly clear that such
applications are to be afforded express priority under the direction of
the Secretary of State with a presumption in favour, and as seen at
pages 64-68 and 83-89 of the exhibit bundle.
I also know that Circular 14/91 expressly says that any
significant material circumstance is sufficient reason for the Council
to determine an application and that the applicant should be given
the benefit of the doubt. Accordingly,
the officers presentation to Committee was unbalanced and failed to
direct the Committee members properly and according to the requirements
of the Acts and Policy Guidance Notes.
According to the National Code of Local Government Conduct,
Councillors are personally responsible for wrong decisions, even though
the information to make a more informed decision was denied to them.
There is no discretion to ignore PPG notes in relation to
historical/archaeological sites. 18. The
application was refused by the Committee, they declining to determine
according to officer recommendation.
Accordingly, I applied to the Legal Aid Board for funding for a
Judicial Review. This too
was refused and I could not obtain Legal Insurance from Law Assist to
pursue the matter privately. 19. I
attempted to Appeal the decision to the Planning Inspectorate, who
pointed out that where S. 70 had been invoked, my only remedy was to
apply for a Judicial Review. Helpfully
the Inspectorate copied part of Circular 14/91, where the rules
concerning S.70 are laid out. I
refer to this letter as seen in the exhibit bundle at pages 16 and 17.
By now I was out of time to apply for a Judicial Review. 20. About
this time I made contact with a local historian who directed me to
‘The Maltings’, a reference library in Lewes.
Here I found a mention of The Old Steam House dated 10th
October 1913. The report
tells of electricity supplied to the village for cooking and lighting.
I was also able to discover from the visitors book, that Chezel
Bird had visited the library in connection with the planning application
in 1995. As an amateur I
located the newspaper reference with ease using microfilm rolls which
are clearly date attributed. I
can see no reason why a professional could not also locate the same
reference. I now refer to
the extract seen at page 92 of the attached exhibit bundle. 21. I
wrote to the Council listing 17 material considerations and Mr Kay wrote
back confirming that these were indeed material to any planning
application. I refer to these letters seen in the exhibit bundle at pages
14 and 15. 22. I
contacted the Royal Commission of Historic Monuments in England.
The Commission kindly faxed back a list showing that only 26
buildings were shown listed in England for power generating buildings.
I now refer to the fax seen at page 13 in the exhibit bundle.
I understand that listing is similar to scheduling. 23. In
light of this information I realised that these premises were a valuable
archaeological resource and not previously known.
I contacted English Heritage to find out more.
English Heritage informed me that they had especially
commissioned a Monument Protection Programme in 1994.
Buildings supplying electricity between 1888 and 1919 were an
especially rare resource. I
was told that Local Authorities had been consulted as part of the
Programme, but that Wealden had not informed them about these premises.
I refer to extracts of the MPP Stage 1 Report seen at pages 69 to
82 in the exhibit bundle. 24. I
contacted the County Archaeologist at Lewes.
He visited the site and showed me PPG 15 and PPG 16.
He advised me that the features of the upper level consisting of
original match-boarding were worthy of preservation. He did not know of the Monument Protection Programme to
protect early industrial electricity buildings.
But he did confirm without any doubt that this was a steam
powered station. He also
told me that I was fortunate, because Wealden’s District Planning
Officer was a keen amateur archaeologist and would know the value of
this find. 25. I
wrote to Wealden saying that I wished a meeting in advance of a planning
application, but they refused to discuss any application from me.
In fact, Mr Philips, an enforcement officer told me I might as
well give the building to my neighbours and later put this writing. He said he would discuss a planning application with the
owner. The District
Planning Officer has recently denied any negligence on the part of their
officers in handling planning applications since 1994. I refer to
correspondence seen in the exhibit bundle at pages 2–12 . 26. I
spoke with Councillor Jarman, my local member.
He seemed rather evasive and not ready to commit himself, or
support any application. He
confirmed that he knew about the electricity generation, but he said “who is going to pay for the restoration”.
I concluded that the Local Authority were rather more than
disinclined to fund or part fund restorative works.
I wrote to Mr Jarman asking if funding was a consideration in the
planning process. So far I
have not received a reply. I
refer to my letter seen at page 7 in the exhibit bundle. 27. Not
long after my conversation with Councillor Jarman, I spoke with a
gentleman who had just spoken with Councillor Jarman.
When asked about resolving the planning situation at these
premises Councillor Jarman said words to the effect: “the situation
will be resolved when the Council finally bankrupt Mr Kruschandl”. 28. I
have recently received a bill of costs from the Council and letters from
Mrs Nuttall confirming that she intends to bankrupt me.
I take this as confirmation that the various conversations were
an accurate portrayal of the Council’s method by which to dispose of
this matter, and so avoiding liability for the negligent appraisal by
Chezel Bird and subsequent frustration of WD/98/0996/F by wrongly
invoking S70 to be able to decline to determine the application. 29. It
appears that the legal department refused to agree a reasonable
compromise in respect of toilet removal, so as to advantage themselves
of an expense bill, which they duly achieved.
I was the litigant in person in the Court of Appeal and they
could be confident of my failure. 30. My
understanding of PPG 16 and 15 is that the Local Authority are to refer
such matters to English Heritage if they are unsure of the value of any
historical find. On each of
the cited applications they have failed to take the steps as recommended
by English Heritage or PPG’s. I
feel that the Council’s conservation officer was negligent and that
during the handling of subsequent applications where new evidence has
highlighted the negligence of the conservation officer, other officers
have simply diverted attention away from the correct procedure so as to
frustrate my attempts to put a fully supported application before the
Committee. 31. In
1995 a survey was commissioned by English Heritage to identify the cause
of loss of so many English monuments.
According to the MARS Report of 1995, one monument a day is lost. Most losses occur in the South East of England.
I refer to pages 54 to 56 in the exhibit bundle. 32. Step
3 of the Monument Protection Programme to identify and protect early
electrical power stations, notably steam powered units on private
estates, shows demonstrably that there is a shortage of examples of this
period, that no building contains machinery and that in the South East,
only Bateman’s exists. Bateman’s is a small water turbine and therefore competing
technology. I refer to the
MPP updates seen at pages 33-35 and 58 and the brochure on Bateman’s,
seen at pages 36-38 in the exhibit bundle. 33. It
is reasonable to assume that if the Committee had been provided with the
information of the Monument Protection Programme dated June 1994, PPG16
and 15, (Circular 14/91) and other information pertinent to changes of
use to protect our heritage, they may have come to a different decision
on the application in 1995. It
follows that if the application had been refused, after such information
had been properly provided, that the Secretary of State would have
considered the Appeal in light of policies designed to protect Early
Industrial Generating Stations. 34. In
all the circumstances and in consideration of the above affidavit with
reference to the exhibits, it appears as though the proper procedures as
laid down by the Secretary of State have not been followed and that
there has been negligence for which I should be entitled to relief. Sworn by NELSON JAMES KRUSCHANDL Before me, …………………………………………………… Solicitor
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