R v Local Commissioner for Administration for the South, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire, ex parte Eastleigh Borough Council

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE TAYLOR
Judgment Date11 March 1988
Judgment citation (vLex)[1988] EWCA Civ J0311-2
Docket Number88/0221
CourtCourt of Appeal (Civil Division)
Date11 March 1988

[1988] EWCA Civ J0311-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM AN ORDER OF MR JUSTICE NOLAN

Royal Courts of Justice

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Parker

Lord Justice Taylor

88/0221

The Queen
and
The Local Commissioner for Administration
Ex Parte Eastleigh Borough Council

MR JEREMY SULLIVAN Q.C. and MR PETER TOWLER, instructed by Messrs Sharpe Pritchard & Co. (Agents for R.W. Read Esq. of Eastleigh), appeared for the Appellants (Applicants).

THE HON. MICHAEL BELOFF Q.C. and MR DAVID MOLE, instructed by Messrs Thornton Lynne & Lawson, appeared for the Respondent (Respondent).

THE MASTER OF THE ROLLS
1

This appeal is about drains and an ombudsman. Most of the time the drains served six houses in Hampshire. However, on occasion they backed up to the discomfiture of the householders. The ombudsman was, to give him his proper title, a Local Commissioner of the Commission for Local Administration in England whose territory included the borough of Eastleigh. On the complaint of one of the householders, he investigated and concluded that the continued existence of the defect in the drains was caused by maladministration upon the part of the Eastleigh Borough Council. The Council was not amused and sought judicial review of the ombudsman's report.

2

Nolan J. held that the Council had cause for complaint on two grounds. First, the ombudsman had acted contrary to section 34(3) of the Local Government Act 1974, in that he had questioned "a decision taken without maladministration by an authority in the exercise of a discretion vested in that authority". Second, the ombudsman had acted contrary to section 26(1) of the Act in that he had made a report on a complaint when it had not been established that the complainant had suffered injustice in consequence of the maladministration which was the subject of that complaint. However the learned judge refused to quash the report or to grant the Council a declaration that the ombudsman had exceeded his jurisdiction. The Council now appeals against this refusal and the ombudsman cross-appeals against the finding that he exceeded his powers.

3

Although this might be dismissed as a storm in a sewer, in fact it raises issues of some importance concerning the relationship between the courts and the local ombudsmen. But before considering those issues, I must say a word about the facts. These I take from the ombudsman's report, because for the purposes of judicial review proceedings he, and he alone, is the tribunal of fact.

4

The six houses were built in 1977 within the area of the Eastleigh Borough Council. It was accordingly the function of that Council to enforce the Building Regulations (see section 4(3) of the Public Health Act 1961). It was for the Council to decide on the scale of resources which it could make available to carry out this function. In doing so it had to strike a balance between the claims of efficiency and thrift, being answerable for that balance to the electorate through the balloon box rather than to the courts (per Lord Wilberforce in Anns v. Merton L.B.C. [1978] A.C. 728, 754).

5

The ombudsman has found that the building control staff processed, on average, 210 applications per officer, which was 50% higher per officer than in the remainder of Hampshire. This placed considerable demands on the staff and was achieved by limiting inspection to four of the more important of the nine stages requiring statutory notice of inspection to be submitted by builders. These four stages were the excavations for foundations, the oversite concrete, the damp proof course and the drains. The reason for limiting the inspections to these four stages was that the Council had always been "lean on members of staff" and it was thought appropriate to concentrate resources on inspections at the "critical stages" of building work, on the basis that defects at these stages were likely to prove the most difficult to correct at a later date. The Council operated a "demand" system for inspection, meaning thereby that the Council did not indulge in random inpections, but only inspected when notified that the appropriate stages had been reached. This was the policy of the Council. It is now necessary to look at the practice.

6

It is now known that the problem experienced by the householders stemmed from the fact that the sewer over part of its length had a very shallow gradient of 1 in 140 and that there were undulations in it such that in places it was flat or had a reverse fall. The relevant code of practice called for a minimum gradient of 1 in 80 and the plans showed a gradient of 1 in 27 in one section and 1 in 70 in another. A gradient of 1 in 140 would not have been approved.

7

The ombudsman's report records that a number of inspections called for by the Council's policy were not effected, but seems to accept the building control officer's explanation that this must have resulted from a failure by the builders to notify the Council that the appropriate stage of construction had been reached. So far as the drains were concerned, there was a first inspection which was confined to houses 5 and 6. House 4, which was that belonging to the complainant, was not inspected. Of this inspection the ombudsman reported:

8

"25. By way of general comment Officer A has said that at the first drains inspection he would be concerned primarily with the construction of the sewer or drain and that the inspection would be a visual one. He has said that the only precise way of checking the gradient would be to survey the levels at the relevant manholes, but as this would require two people it was never done. However, he has said that from his experience it was possible to do a rough inspection by eye and, if in doubt, to lay a builder's level on the exposed pipes. Undulations in the pipe work should be apparent from a visual inspection. In this case the only opportunity he had to inspect the pipe work, before it was covered over, was when he carried out a first drains inspection for Houses 5, and 6. He cannot recall precisely what he was able to inspect at that time but thought it likely that only a small part of the sewer had been constructed sufficient to enable the drains from Houses 5 and 6 to be connected."

9

This was followed by a soil and vent pipe test on all six houses. In some cases the pipe work was found to be unsatisfactory and was retested a few days later.

10

It seems that the second drains inspection was effected as part of the final inspection of Houses Nos.3, 4, 5 and 6. On this the ombudsman has reported:

11

"26. Officer A has said that at the second drains inspection, (which can be done at the final inspection), the primary concern was to check that the drain or sewer was water-tight. This can be done by either an air test or by a water test although the latter is time consuming because of the time it takes the pipe work to be filled with water. Undulations or deflections in a sewer can be tested by the use of mirrors; but this was rarely done. As regards the overall gradient of a sewer this can only be tested at this stage, with precision, by a survey of the levels at the relevant manholes, but the water test referred to above will give a rough indication as to whether the gradient is adequate or not, by measuring the time it takes for the pipe work to empty when the water is released. Alternatively a steel ball can be dropped into one end and the time it takes to reach the other end will give an indication of the gradient. The Council have never used the latter test. The complainant, who is an architect, has said that in his experience it is common practice for contractors to set up the necessary tests for drains and that little time need be wasted by the building control inspector.

12

"27. Officer A has said that when he carried out the second drains inspection on this site his primary concern had been to test that part of the drainage system closest to the house. It was for this reason, and because of pressure of work at the time, that a soil and vent pipe test (which is an air test) was done for the pipe work from the sewer to each house. He has said that he did not test the sewer itself because of lack of time and because there was no indication on the ground, or from his experience of this builder elsewhere, that there were likely to be any problems. Also, it is easier to put right faults in this section of sewer than the drain which actually enters the home. He has pointed out that an air test of the sewer would not have revealed the fact that it had a shallow gradient or that there were deflections or undulations in it; if indeed there were at that time. As regards a water test he has said that unless the builder had already set up the test by filling the pipe work with water he would not have had time to wait for that to be done."

13

The ombudsman's conclusions are stated in paragraphs 30 and 31 of his report:

14

"30. In my view good administration dictates that the Council should carry out an inspection under the Building Regulations in respect of all stage inspections for which they have received notice from the owner or builder as the case may be. Where inspections have not been made at a particular stage I consider that special attention should be given on the final inspection to remedying the omission. In the case of drains it is a relatively easy matter to carry out a full test, such as a ball test or its equivalent, at the final inspection stage and I consider that a Council have a duty to ensure that this is done because a final inspection should mean that, so far as the Council are concerned, they have with reasonable diligence and expenditure of officer...

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