What a fascinating game this is, kafka-esque to say the least !

Who would have thought that trying prevent old people slipping and hurting themselves would encounter such bureaucratic resistance?

As a Council Tax payer I would much rather my money was spent repairing dangerous footpaths than on engaging expensive solicitors to try and find ways of avoiding repairing the footpaths !!

I am afraid I will have to ask for some further explanation on a few points, probably requiring the assistance of the expensive solicitor:

You state:

“A Highway authority does not have a duty to maintain, or a liability for damage, caused by the failure to manage or maintain artificial embankments along which a highway or road may run, this is the responsibility of the riparian owner who would be responsible for damage to the surface if a pond were to overflow”

1) Section 41 of the Highways Act 1980 imposes the duty to maintain the highways, this contains no exceptions relating to embankments. What statute or case law are you relying on, for this exemption from the general duty to maintain the highway ?

2) On what basis do you assert that the embankment has not been “managed or maintained”? If it is a requirement that such embankments must withstand a 1 in 100 year flood, then why is it that every embankment “managed or maintained” by the Council failed to contain the water in the July 2007 floods that we are referring to ?

3) On what basis is the embankment an “artificial embankment”, to the best of my knowledge the pond is a natural structure.

4) My understanding is that Riparian Ownership relates to the land adjacent to a watercourse. On three sides of the pond we own the land and must be the Riparian owners. On the fourth side the land is unregistered and I dont see how we can be the Riparian owners any more than we are the legal owners.

5) It has long been established that the owner of property situated on a lower level than its neighbour cannot bring a claim against that neighbour for any flooding caused by the natural occurrence of water running onto the lower land. On what basis do you therefore assert that the riparian owner is responsible for damage to the footpath ?

You then go on to say:

“It is clear in this instance the roots to which you refer were probably exposed in the 1980s and the responsibility and liability for these probably lies with the riparian owner”

Are you asserting that the liability for acts or omissions of a previous owner from 20 years ago have somehow passed to us ?

Alternatively are you asserting that liability rests with the owner in the 1980′s, in which case any action would surely be time barred ?

I am afraid that the last paragraph of your letter is so jumbled that any meaning it once contained has been lost !
(Try reading it out loud if you disagree)

Also my name is James Hickman, not John Hickman !

I congratulate you on an excellent job of protecting the council’s highways maintenance budget, I hope that will provide some solace to your conscience when someone’s much loved grandmother slips and breaks her neck on the path.

Kind Regards,

James Hickman

Any news ?

Whilst everyone is dithering about who is responsible, the risk that someone may trip or slip and injure themselves remains high !

If I don’t hear within 7 days I will serve notice under Section 56 of the Highways Act 1980.

Kind Regards,

James Hickman

I think you need to advise the solicitor that the strip of land we are talking about, i.e. where the footpath goes between the land of our property, Church House on one side and the Church Pond, that we recently acquired, on the other side does not belong to us.

According to the land registry that strip of land is not owned by anyone, but sits as a small landlocked, unregistered parcel, between the other two titles.

I assume that the landowner in this case would therefore be the Treasury Solicitor on behalf of the crown ?

Regards,

James

Thank you for your email in relation to the work that Mr Goode has discussed with you. I understand he has asked a member of my team to undertake some path surfacing work for you and I have inspected the site to advise that officer. I am now seeking advice as I understand the path here has been previously been repaired along the embankment by the owner of the sluice because the pond has overflowed it’s capacity damaging the path and exposing the roots and washing away the path surface as Mr Goode suggests.

Previously our County Solicitor handled this matter in relation to the path and the structural problems the previous owner had with the embankment here and I would appreciate his advice before the extent and manner of our involvement can be determined. I appreciate however that some flood damage may have been sustained but we need to recognise a significant overflow problem in this structure may exist (I was unable on inspection to identify a functioning sluice overflow structure other than a pipe which may be inadequate for flood volumes) and whilst we would like to assist owners of such features crossed by rights of way we need to ensure this is done on an appropriate basis.

I have hope to speak with the Solicitor today and will revert back to you as soon as possible.

Regards

Dave Jones
Senior Countryside Access Officer
Countryside Service
County Hall
Spetchley Road
Worcester
WR5 2NP
01905 768289
djones@worcestershire.gov.uk

First Sent 27th Feb 2007

I appreciate that, like most local government institutions, you are almost
certainly over worked and under resourced, but can you give me any
indication as to when this work might be carried out ?

I am not looking for a firm commitment, just an approximate plan so that I
can let people know when they ask me.

Thanks again for all your assistance,

Regards,

James

I appreciate that, like most local government institutions, you are almost certainly over worked and under resourced, but can you give me any indication as to when this work might be carried out ?

I am not looking for a firm commitment, just an approximate plan so that I can let people know when they ask me.

Thanks again for all your assistance,

Regards,

James