Ask a straight question, get fobbed off: Hastings Borough Council evades accountability again

Hastings Borough Council (HBC) has a persistent habit of obstructing local democracy. Through 2023 there were questions to Full Council, but some never got answered. (HBC cabinet of 2 October had more of the same.) Bernard McGinley reports – with necessary detail – on an authoritarian problem that’s causing continuing misery. The next Full Council is on Wednesday 22 November.

Old Roar Gill is polluted, as HOT has reported. Animals have died and others been made sick there because of the pollution. Local residents are very concerned, including by lack of signage. Local groups have tried to get improvements. HBC has done little about a public health hazard.

A broad Question was submitted in advance for the Full Council meeting of 19 July. It expressed concern about the condition of the Old Roar Gill and asked about no signage there and sick dogs.

The Council reply said:

I am afraid this question has been rejected for the FC meeting on 19th July in order to avoid duplication as it is substantially the same as another question received for that meeting

This was not true.

Later, in November, a related question was submitted for answer at Full Council. The anonymous and offhand reply of 15 November 2023 from HBC Democratic Services was this: 

Dear Laura,

The Chief Legal Officer has rejected your question under Rule 11.5 of Part 4 of the Council’s Constitution as it is defamatory and offensive towards the Council and Councillor Batsford. You should raise any potential breach of park byelaws via the Council’s corporate complaints process here.

Scope of questions

11.5 The Chief Legal Officer may reject a question and the ruling shall be final if:

• • • • • • it is not about a matter for which the local authority has a responsibility, power, duty or function or which affects the Borough;
          • it is defamatory, frivolous or offensive;

. . .

Kind regards,

Democratic Services 

The HBC Constitution Part 4 is on Rules of Procedure. HBC in their reply say they consider the Question to be defamatory and offensive. It is actually neither. The Question cited and quoted from the relevant byelaws before asking what it asked. The pollution exists, the Council inaction exists, the breaches of the byelaws exist, and the attempted clean-ups led by Cllr Batsford took place without professional ecological advice last summer. Publicity notices were headlined ‘Wet and Dirty’:

Neither HBC nor Cllr Batsford are being defamed by the Question to Full Council. Is the Question offensive? No. It asks calmly and politely about a longstanding problem that the Council has failed to deal with. The Constitutional detail is about offensiveness not about embarrassment.

The byelaws are intended to prevent pollution and blocking of the stream. They were revised less than three years ago and can be read here. Clearly the HBC is in breach of its own byelaws in not keeping the streams clear of blockages and litter and allowing disturbances in the Gill.

Cllr Batsford’s clean-up operations were done without seeking ecological advice. He was warned of ecological dangers but proceeded. The ‘Wet and Dirty’ activities were in breach of the byelaws protecting the Gill.

The Derbyshire case

Modern law on defamation of public authorities used to look to the case of Bognor Regis Urban DC v Campion (1972), in which the defendant was financially ruined by the costs of defending a libel trial for having handed out a leaflet at a meeting in a village hall. That decision on ‘damages against reputation’ was overturned (‘wrongly decided’) in the 1993 case of Derbyshire County Council v Times Newspapers Ltd and Others. The Law Lords of the House of Lords (at that time the ultimate authority) held that such organisations may not sue in defamation, because they are government bodies and should therefore be open to ‘uninhibited public criticism’. They also decided that such a suit would be incompatible with Article 10 of the European Convention on Human Rights, on Freedom of Expression.

Lord Keith as lead judge in the Derbyshire case commented: 

What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.

So the HBC Chief Legal Officer’s line about ‘defamatory and offensive’ is patently flawed. The question is not defamatory or offensive: instead, the blanket refusal to answer is unreasonable. (Further: Council officers and councillors taking offence does not in itself make the matter offensive.)

Newsreel

In 1933 a British Pathé newsreel celebrated Old Roar Gill as a beauty spot. The local authority was also celebrating Old Road Gill. The film catalogue description is this:

OLD ROAR GILL (1933)

Short Summary

Hastings Corporation preserve and area of natural beauty for the local people.

Description

Full title reads: ‘Sussex. Old Roar Gill, famous Hastings beauty spot, opened to the public – for ever – by the Mayor.’ Hastings, Sussex. The Mayor of Hastings makes a short speech of welcome. Various shots of river bank area — Old Roar Gill. Lots of shots of country and streams. The Corporation of Hastings is preserving the area of Natural Beauty for the people of the town. Shots of Councillors and Aldermen enjoying a walk through the nature area.

How times change. 

HBC neglect of the Gill is now notorious in that part of the Borough. Residents and local groups are trying to improve the situation. A packed meeting in Alexandra Park in July (including many councillors) was one outcome.

‘Previous’ 

As well as Hastings Borough Council, Southern Water (SW) are involved, and the Environment Agency (EA), a non-departmental public body. Many local people were at the demonstration against Southern Water on 12 October. Behind closed doors, recriminations abound. Meanwhile the Council won’t even put up signs warning against allowing dogs near the water. This is in every way toxic, and anger-making. Dogs have been or are still sick, unwell, lethargic, with diarrhoea and vomiting, etc. One dog, Rusty, developed seizures, and died. Other dogs in the area have become sick and been put down. There are dead fish and dead badgers.

HBC has ‘previous’ in the matter of constraining legitimate public opinion. On 15 November 2023 a local resident wrote to HBC:

This is the second time I’ve had a question to Full Council rejected, back in July my question was rejected due to it being ‘substantially similar’ to another question. But when I attended the meeting there wasn’t one that I would consider ‘substantially similar’. In fact Cllr Barnett spoke to me during the meeting and was happy to answer my question. I emailed [an officer in Democratic Services] to explain that there wasn’t a ‘substantially similar’ question and he never replied. 

I stress to you that with this second rejection I feel censored and I insist you put my question forward.

The situation about the Old Roar Gill should be explained. Instead there is another clear case of evasion and censorship, which is not something for ‘the Council’s corporate complaints process’, with its ‘commitment’ to ‘Customer First’. The Gill is not primarily a matter of complaint but of democratic accountability. What does the Council propose to do – and when – about its longstanding neglect of the Gill? (In 2012 HOT reported on SW’s Old Roar Ghyll Pollution Prevention Scheme: what has happened since?)

Accountability is a core principle. Rapidly, in Paragraph 1 of Part 1 of the Constitution, chuntering starts about ensuring that procedures are

efficient, transparent and accountable to local people. 

In practice, public questions are refused by officers so that elected Councillors are not aware of the questions and are not held to account. This is similar in many respects to officers’ censorship of planning applications — possibly more serious.

Objections to planning applications are subject to censorship so that those details of objection do not reach the Planning Committee. HOT has reported on some. Sometimes the censorship is through ‘black tippex’ on the pdf objection statement, but that is not the only technique. A comment on case HS/FA/23/00344 (nowhere near the Gill) now reads in full:

Mr Richard Price

Comment submitted date: Thu 31 Aug 2023

Dear Sir/Madam,

I object to this application for a number of reasons.

%COMMENT REDACTED%

(Elsewhere in HOT, Richard Price has chronicled the damage to the Gill, the testing controversy, responsibility and other matters.)

The Constitution and other Council statements are saturated with statements and platitudes about service and accountability. They should mean something but often they do not.

Following a sewage spill on 14 May, the local Sewage Contamination Group (SCG) had a meeting with the government’s regulator, the EA, at the Gill. The Agency line taken was that it was for the Council as owner of the bank to put up signs. 

Old Roar Gill was discussed at Public Questions at September Full Council. The minutes record: 

What will happen if Southern Water refuse to pay for an ecological survey? Councillor Barnett answered that Southern Water have been asked to pay for the survey and the issue being that they keep denying pollution there when we know there is. 

A question was asked when will signs be installed by Old Roar Gill. Councillor Barnett answered that there are signs in the park that show no swimming is allowed. Cllr Roark added that other signs say dogs should not go in any of the water courses in Alexandra Park.

Council Leader Cllr Barnett said at cabinet on 6 November:

If we put up a sign saying the water is not safe, that could be very difficult for our relationship with the EA.

The response privileges Agency staff over the citizenry and pets and wildlife. This is unimpressive — though resources (lack of) are another factor. 

Meanwhile the water is not safe. The EA has a reduced budget and SW are provoking widespread discontent. Neither is mentioned in the current Waterways Management Plan for Alexandra Park. The drainage of the ‘Balancing Ponds’ (near Little Ridge Avenue) is another matter of evasion, disregard, contradiction and incomplete answers by the managerial entities involved, while ducks and other wildlife made do without water in a heatwave. (They can’t.) At Full Council in July, Cllr Roark, Environment Portfolio Holder, replied unhelpfully:

. . . I don’t dispute that the pond drained and it may be that this happened due to the recent activity in the area, however I am not aware that either HBC or Southern Water drained this pond on purpose. If I find out anything further about this I will let the questioner know.

Over 4 months later, there is still no clarification. The frequent ‘catching up’ and many meetings lead to very little it seems. (HBC cabinet’s request in October to SW for ‘a comprehensive plan for the protection of Old Roar Gill’ is due to be responded to by the end of the year.) 

Similarly a careful FOI request (FOIR-528193128) on the responsibility for two ponds and specific events was met with by generalised guff about conduits and culverts regarding one of them. The Council response was a non-answer.

Different question, same response

Another question was submitted later, quoting the Old Roar Gill byelaws ((iii), (iv), (x) and (xi)), noting breaches of them, and asking:

Has HBC considered using the byelaws in Old Roar Gill that prevent pollution and blocking of the stream and are they aware that HBC are in breach of their own byelaws in not keeping the streams clear of blockages and litter and allowing disturbances in the gill?

In response HBC Democratic Services wrote (again anonymously and patronisingly):

The Chief Legal Officer’s ruling still stands.

Making a public allegation that the Council and Cllr Batsford are breaching the park byelaws requires substantive evidence but in any event, this would be better dealt with as a complaint to the Council with the evidence to support your allegations which can be investigated and responded to.

(See also the Postscript, below.)

As Democratic Services should know, the evidence exists. The Gill is smelly and polluted. Animals (some unfeasibly described as ‘roadkill’) are endangered. Park streams have been blocked by the lack of HBC maintenance, and blocking the streams (like other disturbances) is a breach of the byelaws. High levels of E-coli and streptococci persist, increase, despite Southern Water’s supposed clean-up.

The state of Old Roar Gill is not a matter for corporate complaints (which don’t involve members), but for Councillors to explain themselves and do something, including requiring action of officers.

To be defamatory an allegation should be untrue. The threshold for defamation is high. This by contrast looks like a tawdry attempt to hide HBCs embarrassment at the truth. The democratic services officer remains anonymous — shabby and unprofessional practice. Why is the name kept secret? HBC Democratic Services have not explained what is offensive or what needs to be rephrased to make the question acceptable. 

The toxicity threat continues at the Gill. Cllrs Jobson, Bishop and Evans are among those to have requested warning signage, but that still hasn’t yet happened. The need for change is clear in the Council’s way of doing things — their neglect and inaction, the lack of a maintenance contract. Hiding behind false suggestions of what is ‘defamatory and offensive’ is not a good look.

Postscript: another evasion

Following the letter from HBC Democratic Services quoted (just above the wetwipe photograph) above, the complainant tried again with a different Question, as calm as before, ending:

Has HBC considered using the byelaws in Old Roar Gill that prevent pollution and are they aware that not keeping the streams clear of blockages and litter and disturbances in the gill are a breach of the byelaws?

On Monday 20 November at 6:06 p.m. a reply was received, disrespectful and anonymous like its predecessors: 

Dear Laura,

The Chief Legal Officer will accept the question if you are happy to remove ‘Southern Water have clearly breached the byelaws by polluting the gill.’. We await the ecological survey of the gill and we cannot publish an accusation that Southern Water have breached bye-laws until there has been further investigation.

If you are happy to make that amendment, we would take this to the next ordinary Full Council meeting on 24th January 2024. Unfortunately, we do not have time to respond to the question by Wednesday.

Kind regards,

Democratic Services

The Council move from defending the Council and Cllr Batsford to defending Southern Water too. They won’t even acknowledge that SW have polluted the Gill. By ‘cannot’ HBC mean ‘will not’. This is all the stranger as they insist in a reply to another Question (concerning an ecological survey) that

The council has no information to substantiate the questioner’s claim that Old Roar Gill has deteriorated since it was declared a Local Nature Reserve. [In 2002] (Cllr Roark, Environment Portfolio Holder, Written Answer, Full Council, November 2023)

Residents and visitors have been telling the Council for months and years, and moreso since the sewage spill of 14 May. Two local campaign groups, SCG and SORG, have been active. See also the Written Questions to Full Council in July.

Apparently the word of local people isn’t good enough regarding ‘no information’, and yet Cllr Batsford was out in the Gill in the summer, trying to clean up. On 16 May 2023, Cllr Barnett made a lengthy FB comment on his walk

from Alexandra Park, along the stream under the road and up to the waterfall, a popular Victorian tourist attraction.

Last time I did this, a couple of years ago, the valley had a magical atmosphere despite, or perhaps because of, the way nature has taken over with trees and stone structures fallen into the stream.

Today it seemed abandoned with so much debris that the stream was almost totally blocked in parts. There was a strong sewage smell near the bridge, and a bit upstream from there. I found two pipes that might have fed muck into the water, but no clear evidence of raw sewage.

At Full Council on 19 July, Cllr Roark stated:

The Environment Agency (EA) are the responsible regulators for SW and pollution in watercourses and the clean-up operation following the sewage leak in May was the responsibility of Southern Water under the oversight of the EA. 

The minutes of the HBC cabinet meeting of 4 September record:

A question was asked regarding the pollution in Old Roar Gill. What will happen if Southern Water refuse to pay for an ecological survey? Councillor Barnett answered that Southern Water have been asked to pay for the survey and the issue being that they keep denying pollution there when we know there is. [emphasis added]

See also the Southern Water Update, item 7 of the October cabinet minutes, with details such as 

The Deputy Chief Executive answered that legal action will continue to be reviewed.

and

Councillor Barnett highlighted that issues have continued with Southern Water weekly for over two years and the privatised culture of Southern Water is a serious concern.

So the Council’s ‘no information’ on deterioration is belied by its own records. There is ample evidence of it, and of the Council’s democratic deficit.

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