R (Hughes) v Local Government Ombudsman

This is an application by three residents of Hartlepool, Messrs Pennock, Hughes and Long, who have been extremely ably represented by one of their number, Mr Pennock, by way of application for judicial review against the Commissioner for Local Administration, loosely called the Local Ombudsman, permission for which application was granted by Hunt J on 8th December 2000.

The facts can be shortly summarised. The complaint arises out of the acquisition by the three gentlemen in question of properties in Hartlepool in Cleveland which were being newly constructed by a developer, and for the purpose of access to their new houses a new road was to be built.

When they purchased those properties they, of course, anticipated that the road, albeit it was to be a private road and not planned to be adopted, would be to a satisfactory standard and, indeed, to the standard promised in the plans which were made available to them. They paid a price for their properties which took into account the fact that the properties would be accessed reasonably and appropriately and that they would not be liable as frontages for the cost of any such road.

They served on the local council, by way of enquiries, solicitors no doubt acting on their behalf, standard enquiries which provided as follows in relevant part, first of all under the heading “Maintenance of roads et cetera”:

“3.1. Are all the roadways, footpaths and footways maintainable at the public expense within the meaning of the Highways Act 1980?”

The answer given to that was “High Street: Yes”, because their road accessed off the High Street, “Internal roads: No”. There was then a subsidiary question in relation to adoption agreements. Then at 3.3.1:

“Have the Council entered into any subsisting agreements relating to the adoption of any of these roadways. If so, please specify.”

2:

“Is any such agreement supported by a bond or other financial security?”

The answers to those questions given, of course, by the local council itself was, “no” in relation to the existence of an adoption agreement, and “not applicable” in relation to whether such agreement was supported by a bond or other financial security.

As a separate question in the enquiries under paragraph 5 headed up “Outstanding notices”, the enquiry was made:

“What outstanding statutory notices or informal notices have been issued by the Council under the Public Health Act, Housing Acts, Highways Acts, Building Acts or part 3 of the Environmental Protection Act 1990?”

The answer that was given by the Council was “none”.

I should at this stage set out the statutory framework which forms the basis of this application, by reference to the Highways Act 1980. The particularly relevant sections are in that part which is headed up “The advance payments code”. Section 219 is headed up “Payments to be made by owners of new buildings in respect of street works” and 219(1) reads as follows:

“Subject to the provisions of this section, where -

(a) it is proposed to erect a building for which plans are required to be deposited with the local authority in accordance with building regulations, and

(b) the building will have a frontage on a private street in which the street works authority have power under the private street works code to require works to be executed or to execute works,

no work shall be done in or for the purpose of erecting the building unless the owner of the land on which it is to be erected or a previous owner thereof has paid to the street works authority [which in this case would have been Hartlepool Borough Council] or secured to the satisfaction of that authority the payment to them of such sums as may be required under section 220 below in respect of the cost of street works in that street.”

It can thus be seen that in the normal course the relevant party, in this case the developer, was required to lodge a sum or provide security in respect of the undertaking to put the street or highway or road into the appropriate condition. There is, however, provision for an exemption from that obligation, and that is provided for under section 219(4)(e) of the Act:

“Where the street works authority, being satisfied that the whole of the street or such a part thereof as aforesaid [this relates to a possibility that there was or was to be an adoption agreement in relation to some part of the street as provided for in section 219(4)(d), which does not arise in this case] is not, and is not likely within a reasonable time to be, substantially built up or in so unsatisfactory a condition as to justify the use of powers under the private street works code for securing the carrying out of street works in the street or part thereof, by notice exempt the building from this section.”

It is that subsection, 219(4)(e), which has formed a substantial part of the submissions before me today. Section 220(1) deals with the amount of the money or security that is to be expected to be provided in the absence of such an exemption under 219(4)(e). It reads as follows:

“In a case to which section 219 above applies the street works authority shall, within 6 weeks from the passing of any required plans relating to the erection of a building deposited with them … serve a notice on the person by or on whose behalf the plans were deposited requiring the payment or the securing under section 219 above of a sum specified in the notice.”

By section 220(3):

“Subject to the provisions of this section, the sum to be specified in a notice under subsection (1) above is such sum as, in the opinion of the street works authority, would be recoverable under the private street works code in respect of the frontage of the proposed building on the private street if the authority were then to carry out such street works in the street as they would require under that code before declaring the street to be a highway which for the purposes of this Act is a highway maintainable at the public expense.”

Section 224 provides that certain matters are to be local land charges, and by section 224(2) the matters so referred to included under (a):

“notices served by a street works authority under section 220(1) …”

And by subsection (d):

“notices served under subsection (4)(e), (f) or (h) of section 219 above exempting a building from that section.”

The history since the acquisition by the claimants of their properties has been unfortunate. It appears that the developer did not and, indeed, was not required to provide any such sum or security in respect of such sum, nor was there an exemption notice issued by the council. The developer went into liquidation. The works that were done to the road have been, on the claimants' case, and it has not been a matter of specific dispute at any time, carried out unsatisfactorily and, on the evidence before me, at least the sum of £42,000 if not more will be required to bring the roads into a satisfactory condition. Although the Hartlepool Council has not yet required the frontages to carry out or contribute to the cost of the carrying out of such works, because of the state of the road that, inevitably, on the claimants' case, will occur, and, in any event, inconvenience is caused by the present state of the road.

Complaints were made by the claimants to the defendant, the Local Ombudsman, who investigated the matter, and it is her failure to comply with her statutory obligations as the claimants assert, and is now being accepted on her behalf by Mr Corner of counsel on the defendant's behalf, which has led to this application.

The report concluded that there was maladministration by the Hartlepool Council, which I will turn to, but that there was no injustice resulting, and consequently no order or recommendation was made by the Ombudsman with which it was to be expected that the local council would comply.

The duties of the local ombudsman are set out under the Local Government Act 1974 Part 3. Section 26 of the 1974 Act provides by (1):

“… where a written complaint is made by or on behalf of a member of the public who claims to have sustained injustice in consequence of maladministration in connection with action taken by or on behalf of an authority to which this Part of this Act applies, being action taken in the exercise of administrative functions of that authority, a Local Commissioner may investigate that complaint.”

And by subsection 10:

“In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the preceding provisions of this section, act at discretion; and any question whether a complaint is duly made under this Part of this Act shall be determined by the Local Commissioner.”

The local ombudsman has certain powers of recommendation if satisfied that there has been injustice sustained in consequence of maladministration, which Mr Corner tells me largely revolves upon the publicity which accompanies such reports, which leads in almost every case to the local authority acting in compliance, or indeed better than in compliance, with the recommendations of the local ombudsman.

It is plain that there is a great deal to be respected, in more ways than one, about the work and the functions of the...