GREG Franklin has denied claims by Wingecarribee Council general manager Jason Gordon that he opted to take legal action against the council.
Mr Gordon released a statement about the Franklin family's plight to build a house on land in Moss Vale, which was published in Monday's Southern Highland News as a Letter to the Editor.
Mr Gordon said the expectations held by the Franklins were "beyond the reasonable ability of the council to resolve".
However, Mr Franklin said the claim he initially lodged with the council was for it to move a sewer pipe "discovered" under his land, which is preventing a house being built, or pay him to do it.
Mr Franklin alleges the council, or specifically the planning department, was initially trying to intimidate him into dropping the claim.
He said the claim that existed now was for costs only, including legal costs, he has incurred trying to get approval to build a home.
Because the amount in the claim was higher than the council's $12,500 sign-off limit, it has gone to the council's insurers to deal with.
"Our lodging a claim, and council's referring the claim to their insurers, in no way constitutes litigation," Mr Franklin said.
The matter will again be discussed in closed session at tonight's general meeting.
Mr Gordon has said he would release a further statement after the meeting.
Here is Mr Franklin's entire response:
In reply to Jason Gordon's, General Manager of Wingecarribee Shire Council, press release of February 17, 2012 - Mr Gordon's statement is incorrect in many aspects, and does not provide a clear picture of events.
I would like to respond to each point.
"Given that the Franklins have opted to take legal action against Council, the matter was considered in Closed Committee.
This statement is incorrect. We lodged a claim for compensation, the first time in March 2011. This claim was for council to move the pipe or pay us to move the pipe. We withdrew that claim in May 2011 as the stress of dealing with council, who as we had asserted in writing to Jason Gordon, were [we believe] intimidating us to drop the matter of the sewer pipe, had caused complications to Fiona’s pregnancy. This was communicated to council when we withdrew our claim and started a new claim, now claiming damages for personal injury caused by council's [alleged] intimidation. This claim was also forwarded by council to its insurers. An amended claim was presented to council after talks with council directors after publication of my letter to SHN on 21 October 2011. This claim was for our costs and did not include damages. This claim was also forwarded by council to its insurers. Our lodging a claim, and council referring the claim to its insurers, in no way constitutes litigation. Litigation starts only when a party applies to the court to start proceedings. Even then discussion can occur to find a resolution. This is not only allowed under our legal system, but also encouraged. The court will also order mediation before the case is heard if mediation has not already been undertaken.
"There remains a great deal of sympathy within Council for the situation faced by the Franklin family, in spite of their failure to show that Council provided them any information prior to purchasing the land in question."
Council has not expressed or demonstrated sympathy in any way; in fact, quite the opposite has been demonstrated. A reply by Jason Gordon to my letter giving reasons how [we believed] council staff were intimidating us was described as heavy handed and dripping in sarcasm by two reputable members of the local community. Council has always known that our son was autistic and that its actions were having an adverse effect on Fiona's pregnancy and the whole family. In addition, the three councillors I contacted; Cr Arkwright, who after getting a staff member to reply to our first letter, did not return my calls when the [alleged] intimidation began; Cr Maugher did not return my call or answer my email; and Mayor Halstead, whose response was to have a council employee phone me and inform me the Mayor would not discuss the matter any further with me.
"Council resolved to conduct 'without prejudice' talks with the Franklins in an attempt to resolve their difficulties in good faith.
The “without prejudice" talks were offered only after the last council meeting on 8 February 2012, and only after I had been presented with council's ultimatum that it would move the pipe only if I withdrew all claims against council. I presume by all claims they include my allegation of intimidation.
"Council’s subsequent offer to move the sewerage pipe in question at our expense has been widely reported in the press."
We had first asked for this in late 2010 via a letter to Jason Gordon. The matter was passed to their insurers in March 2012. Our first offer to council was that the pipe be moved as part of our building works, thereby greatly reducing the cost to council. The council response to that was it was our problem and we had to move the pipe. It was again offered, this time by council, as an outcome of my meeting with council directors in October 2011, with the possibility of payment if the amount was less than council's excess. At that stage I had not tallied all our costs. Our building application included plans drawn up by the surveyor recommended by council. That application was refused, one reason being that the plans were not acceptable. Council has not responded to our question as to how the plans were deficient. But that and the other conditions that resulted in our application being refused no longer apply, the plans now being acceptable. It was our intention to move the pipe and build, with our claim for compensation happening in parallel. Council's refusal of our application put a stop to this.
"However, now that these discussions have taken place, it is clear that the expectations held by the Franklins are beyond the reasonable ability of Council to resolve."
On the contrary; it is council's expectations that are unreasonable.
"Council remains committed to resolving this matter within the reasonable boundaries of compromise."
Council has never made any attempt to resolve this matter within the reasonable boundaries of compromise. In fact, council has acted in a way contrary to the code of conduct. Council has, and still is, taking every avenue it can to force us into submission. I still am, and always have been, willing to find a resolution. In fact, my solicitor and I have offered this to council, and its insurers, on numerous occasions. Council has only engaged in talks when media exposure has forced its hand. And let's not forget Jason Gordon's statement as reported by SHN in "Family home now only a pipe dream" (11/2/12): "I don't know how long the insurance will take to consider the claim," which indicates that council had terminated all talks.
"Council also takes this opportunity to urge all property buyers in the Wingecarribee to undertake appropriate due diligence before purchasing."
I find this remark astonishing. Like all purchasers, we engaged a solicitor to undertake conveyencing on our behalf. I would suggest Jason Gordon refer to the Conveyencing Act, in particular section 52A. In addition, the council sewerage and drainage diagram for our block does not have the pipe marked, nor is there an easement in the certificate of title. So the fault lies with then council, which did not update its own documentation, or follow the relevant acts and negotiate to create an “easement of convenience” when the pipe was laid.
"The matter will be again be reported to Council on 23 February 2012 for consideration, following which a press statement will be issued."
I trust that the points I have made are tabled at this meeting. I would again suggest to Jason Gordon, and now the councillors, that they contact me to discuss this matter. I can then expand on these points and others, including the adverse effect this has had on us both economically and to our health, one example being the emergency Caesarean at which Fiona and our daughter Emily were within moments of death.