Piffs ELM Ltd v Commission for Local Administration in England
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] EWHC 1547 (Admin) |
| Docket Number | Case No: CO/612/2020 & CO/1135/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1547 (Admin)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: CO/612/2020 & CO/1135/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Hunter (instructed by Harrison Clark Rickerbys) for the Claimant
Jason Coppel QC (instructed by Bevan Brittan) for the Defendant
James Pereira QC & Horatio Waller (instructed by One Legal) for the Interested Party
Hearing dates: 24 – 25 May 2022
Approved Judgment
Introduction
Two applications for judicial review are before me, both arising from decisions made by the Local Government and Social Care Ombudsman (“LGO”) in relation to a complaint of maladministration made by Peter Cassidy and Jacqueline Cassidy on behalf of Piffs Elm Limited (“PEL”) against Tewkesbury Borough Council (“TBC”) acting in its capacity as a local planning authority. The complaint concerned TBC's refusal to refund a planning application fee (“the refund refusal”) after deciding not to determine PEL's planning application pursuant to s.70A, Town and Country Planning Act 1990 (“the s.70A decision”). Section 70A empowers a local authority to decline to do so where more than one similar application has already been refused in the relevant period. In a final report issued on 22 August 2019 the LGO found that TBC was at fault because it did not consider exercising its discretion to return the fee and that this had caused injustice (“the August 2019 decision”). On 14 November 2019, the LGO withdrew the August 2019 decision and re-opened his investigation (“the November 2019 decision”). On 2 February 2021, the LGO issued a further final report now finding that TBC was not at fault (“the February 2021 decision”).
In claim CO/612/2020 PEL challenges all three of the LGO's decisions. In claim CO/1135/2020 TBC challenges the August 2019 decision in so far as it was not lawfully withdrawn and remains the operative decision.
At the time when CO/612/2020 was issued, PEL challenged the August 2019 decision and the November 2019 decision. The LGO's re-investigation had not been completed at that stage. On 4 December 2020 Pepperall J granted permission in respect of two of the grounds that PEL relied upon, namely grounds one and four. He also granted TBC permission in proceedings CO/1135/2020 in respect of its three grounds of challenge to the August 2019 decision and an extension of time for bringing the proceedings. Both claims were then stayed pending the LGO's publication of its further final report. The parties were given permission to file amended pleadings after receipt of the report and all parties duly did so.
On 9 August 2021 Jacobs J granted PEL permission to challenge the February 2021 decision on two of its additional proposed grounds, namely grounds one and three. He refused permission in respect of additional ground four (which has not been pursued thereafter) and he ordered a ‘rolled up’ hearing in respect of additional ground two. He lifted the stay and directed that the two cases be heard together. At the outset of the hearing I indicated that I would hear full argument on ground two on a provisional basis, deferring consideration of whether to grant permission in respect of it until my reserved judgment.
Accordingly, as formulated in PEL's Amended Statement of Facts and Grounds (“PEL's ASFG”) and TBC's Statement of Facts and Grounds (“TBC's SFG”) the issues before me are as follows:
August 2019 decision
i) Did the LGO err in law in concluding that TBC had a discretion to refund the planning fee and in consequently finding maladministration (TBC's Ground 1);
ii) Alternatively if the LGO was correct to find there was a discretion to refund the planning fee, was his conclusion that TBC acted maladministratively irrational, flawed by a failure to take into account relevant considerations and/or inadequately reasoned (TBC's Ground 2);
iii) In any event, if there was a discretion to refund the planning fee, would it have been Wednesbury unreasonable for TBC to have refunded the fee in the present case (TBC's Ground 3);
iv) Did the LGO err in concluding that he lacked jurisdiction to determine the part of the complaint relating to the s.70A decision (PEL's original Ground 4);
November 2019 decision
v) Did the LGO have the power to withdraw the August 2019 decision, re-open the investigation and issue a new report (PEL's original Ground 1: “the Withdrawal Ground”);
February 2021 decision
vi) Did the LGO err in law in refusing to consider TBC's actions “in the context of the judicial review, and any previous planning applications” when determining whether there was any fault resulting in injustice in its refusal to return the third planning application fee; and/or did he fail to give adequate reasons for this conclusion (PEL's additional Ground 1: “the Context Ground”). (The reference to a judicial review is to PEL's challenge to TBC's refusal of its second planning application);
vii) Did the LGO err in concluding that he lacked jurisdiction to determine the part of the complaint relating to the s.70A decision (PEL's additional Ground 2: “the s.70A Ground”);
viii) If I accept that the contention is arguable, did the LGO err in law in concluding that there was no fault resulting in injustice in TBC's refusal to return the third application fee because there was a “respectable legal argument” that it had no power to do so; and/or did he fail to give adequate reasons for this conclusion (PEL's additional Ground 2: “the Fault Ground”)?
When addressing these issues, it is logical to first consider the Withdrawal Ground, since if the LGO lawfully withdrew the August 2019 decision, that decision no longer has any effect and the focus must then be on the grounds of challenge to the February 2021 decision. There is no direct authority on whether, and if so, in what circumstances the LGO has power to re-open an investigation after issuing a final report and this issue loomed large in the submissions made to me. When I address the February 2021 decision, I will first consider the Context Ground and the s.70A Ground, as they both relate to the LGO's decision as to the scope of his investigation; and then I will consider the Fault Ground, which concerns the LGO's substantive conclusion. Before addressing any of the grounds I will explain the relevant legal framework in relation to the LGO and then set out the material facts and circumstances.
The Local Government Ombudsman: the legal framework
The statutory provisions
The LGO was created by Part III, Local Government Act 1974 (“LGA 1974”). The LGO's power to investigate is found in s.24A. This section was added by the Local Government and Public Involvement in Health Act 2007, which repealed the previous provision relating to investigations, s.26(10). As relevant, s.24A provides:
“(1) Under this Part of the Act, a Local Commissioner may investigate a matter—
(a) which relates to action taken by or on behalf of the authority to which this Part of this Act applies,
(b) which is subject to investigation under this Part of this Act by virtue of section 26, and
(c) in relation to which subsection (2), ( 3) or (5) is satisfied.
(2) This subsection is satisfied if, in relation to the matter, a complaint which satisfies sections 26A and 26B has been made to a Local Commissioner.
…..
(6) In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the provisions of this section and sections 26 to 26D, act in accordance with his own discretion.
(7) Without prejudice to the discretion conferred by subsection (6), a Local Commissioner may in particular decide—
(a) not to investigate a matter, or
(b) to discontinue an investigation of a matter
if he is satisfied with action which the authority concerned have taken or propose to take.”
Section 26A is satisfied where (amongst other circumstances) a complaint is made by a member of the public who claims to have sustained injustice in consequence of the matter. A “member of the public” can include an incorporated body: s.27(1). Section 26B requires the complaint to be made in writing within the prescribed period.
Section 26 LGA 1974 is headed “Matters subject to investigation”. As relevant it provides:
“(1) For the purposes of section 24A(1)(b), in relation to an authority to which this Part of this Act applies, the following matters are subject to investigation by a Local Commissioner under this Part of this Act—
(a) alleged or apparent maladministration in connection with the exercise of the authority's administrative functions;
…..
(6) A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say—
…..
(c) any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law;
Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it.”
Section 28(2) LGA 1974 provides that save for the fact that it shall be conducted in private, the procedure for conducting an investigation “shall be such as the Local Commissioner considers appropriate in the circumstances of the case”. Section 28(4) states that the conduct of an investigation “shall not affect any action taken by the authority concerned or any other person or any power or duty of the authority concerned or any other person to take further action with respect to any matters...
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R (on the application of Piffs ELM Ltd) v Commission for Local Administration in England
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