The Dialogue with Leeds City Council

The single most overwhelming issue, articulated by large numbers of residents was the desire to increase access to the water’s edge. A second, commonly occurring theme related to improved links between the retail centre and the river. A large number of people who contributed to the proposals wished to retain the existing ecology, landscape and character of the riverside area and did not wish to see major developments change the character of the water’s edge.

Cllr Harris says that Leeds City Council cannot ignore the RoSPA Report, commissioned by the council, which has recommended fencing off the River Wharfe along Wharfemeadows Park in Otley.

• We believe the RoSPA Report is seriously flawed in several very important respects.   See below
• Leeds City Council adopted its recommendations unanimously on 9 February and is now attempting to hide behind RoSPA.
• The council is trying to impose its premature decision on the Town Council and people of Otley without any consultation whatsoever.
• The council’s plan is quite disproportionate to the evident risk.
• Unlike Leeds roads the river at Otley has enjoyed an exemplary safety record since Wharfemeadows Park was opened in 1924.
• The opposition of local residents and businesses to this decision is overwhelming and growing by the day.
• In admitting that fear of litigation is the driving force behind its decision, the council is promoting a culture of blame, litigation and compensation rather than standing up for common sense.
• The Council, in law, has to act reasonably. Adopting a Nanny State attitude is no substitute for good, democratic local government.

 "The proposal to erect a fence had absolutely nothing to do with the council trying to avoid legal action.
"The council is fulfilling its responsibilities to ensure as far as possible that there are no accidents on an extremely dangerous stretch of high and fast flowing river immediately adjacent to a public park."  Wharfedale Observer, 3/1/2007

Compare this with the observation by Councillor John Procter: "if we choose not to make a decision and a fatality occurs we could face corporate manslaughter charges’" Yorkshire Post, 23/2/07.

In just a few weeks, the council had moved from a position of disregard of the legal implications to suggestions that they could be banged up for years. What caused the change in attitude? It is difficult to avoid drawing the conclusion that the response in Otley was so overwhelmingly negative that it was felt necessary to change the line from ‘the council has decided’ to ‘the council has no choice’ if the policy of fencing-off was to succeed.
Officers and politicians who support Leeds City Council’s decision to fence off Wharfemeadows Park in Otley invariably employ one or more arguments as to why there is no alternative other than to fence off the River Wharfe. The following are the arguments most commonly deployed

"The coroner has ordered us to carry out certain things." When I have seen this argument, it is usually phrased in a vague way as if to imply that the coroner has commented specifically on the need to fence in Roundhay Park and the River Wharfe. We know from the Report of the Director of Learning & Leisure to the Executive Board on 9th February 2007,   that the coroner made suggestions regarding only the signage at Roundhay Park. No reference was made to fencing and no mention was made at all to Wharfemeadows Park. The coroner’s remarks have relevance for the people of Otley only insofar as the Executive Board decided to include Wharfemeadows Park in their risk assessment

The views of such a well regarded body as RoSPA cannot be ignored. RoSPA may be ‘well regarded’ as Phil Staniforth claimed in a recent e-mail to an Otley resident; this doesn’t mean RoSPA or its agents can’t make mistakes. In his report to LCC, the RoSPA consultant instructs: ‘ the councils (sic) is strongly urged to carry out these recommendations and your attention is again drawn to the implications of the Tomlinson Case where in effect a Council was strongly criticised and found at fault in law for failing to implement the requirement of a safety review.’ It is obvious that the RoSPA consultant sets great store by the Tomlinson Case ruling as indeed we all should.

As it happens, the Law Lords have opinions about the role of RoSPA.
Here is Lord Hoffmann: "It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgement which the courts must make and which in England reflects the individualist values of the common law." My reading of this ruling is that, whilst it is important to take cognisance of the views of RoSPA, it would be wrong to feel bound by their recommendations.
But Congleton Council was ‘heavily criticised’ as the consultant claimed. Hoffman reported the original judge as saying, "I do not think that the defendants’ (Congleton Borough Council) legal duty to the claimant in the circumstances required them to take the extreme measures which were completed after the accident." This is a specific reference to the destruction of the beaches in the disused quarry by Congleton Council after the accident to discourage people from using them. In other words, the judge was actually telling the council not only that they needed to do nothing but that their attempt to make the quarry less accessible and hence safer was an ‘extreme measure’!
The ruling of Lord Hutton in Paragraph 57 - 59 is particularly germane as it is concerned with rivers flowing through towns and cities. "The situation of a town on the banks of a river is a familiar feature…there is always danger to the individual who may fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water". The Law Lords found in favour of Congleton Borough Council unanimously.
Whilst appreciative of the RoSPA consultant for (unwittingly) providing us with ammunition for our case, we are perplexed as to why he thought the reading of the ruling for LCC would assist his case. Could it just possibly be that he didn’t know about the Law Lords’ ruling and thought the Appeal Court (in which Tomlinson won on a split decision) was the final ruling? Whichever is the case, officers and councillors should think very carefully before invoking the name of this flawed document. They would do well to study other recent relevant cases: Staples v West Dorset District Council or Donohue v Folkestone Properties Ltd (itself invoked in Tomlinson v Congleton). More recently and closer to home is Thornton v Bradford Metropolitan Council. In every case the defendants won the case and what is most striking is how robust is the language of the judges in defence of the duty of councils to do only what is within the "bounds of ordinary common sense and reasonableness".

Officers and/or councillors would be liable for corporate manslaughter. This is the most difficult argument to rebut, not because it is a good argument, which it isn’t, but because in part it would require LCC to be correct regarding its duty of care which we dispute. The kind of organisations which have a legitimate concern about the ramifications of the new bill are likely to be involved in transport and hazardous materials. Louise Christian of Christian Khan, probably the leading lawyer in this country on corporate responsibility, explained on Radio 5 a few days ago that the new law would not create new offences but would allow for individuals to be charged with the offence where previously organisations had collectively faced fines. The internet has a plethora of ‘experts’ and consultancies already offering training on something which doesn’t yet exist and almost certainly they will be seeking to create a climate of fear in the corporate world. The idea that dozens if not hundreds of local authority officers and councillors are about to be frog marched down to the local nick is pure fantasy.
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