Public Health Act 1961 — Building regulations — Sewer laid at incorrect gradient — Complaint to local ombudsman — Report critical of building officers’ inspections — Continued existence of defective sewers due to maladministration — Whether ombudsman exceeded his powers
In 1977 6 houses were built in the area of the borough council. It was the function of the council to enforce the building regulations under section 4(3) of the Public Health Act 1961. Because of pressure of work, the council confined inspections of building work to four of the nine stages where inspection may be called for. It was the policy of the council not to carry out random inspections but to inspect when a demand was made. The private sewer serving these houses had been laid not at the recommended gradient of 1 in 80 but at 1 in 140: the householders experienced problems over the sewer and incurred remedial expenditure. One of them complained to the local ombudsman.
The ombudsman issued a report in which he was critical of the system of inspections and recommended that where any inspection was omitted special attention should be paid to the final inspection to remedy any omission. He considered that the sewer had not been fully or properly inspected and that following soil and vent tests at each house, which revealed some deficiencies, the officers should have been alerted. He considered on a balance of probabilities that the complainant had suffered an injustice through the council’s maladministration and that it would be fair for the council to contribute to the remedial work. The council sought judicial review of that report and Nolan J (July 13 1987) decided that the ombudsman had acted contrary to his powers in section 34(3) of the Local Government Act 1974 as there was no maladministration in the exercise of the council’s policy decision on inspections, nor was was there any injustice to the complainant as required by section 26 of the Act. However, he refused to quash the report.
Held The ombudsman’s cross-appeal was dismissed and the council’s appeal allowed. 1. There was no breach of section 34(3) of the Local Government Act 1974 by the ombudsman (Taylor LJ dissenting). Although the ombudsman was not entitled to find maladministration in the inspection policy (that was a policy matter), he was entitled to find maladministration in the council’s officers not satisfying themselves that the sewer had been constructed properly (an administrative matter). 2. There was a breach of section 26(1) of the 1974 Act (Lord Donaldson MR dissenting). In this report the ombudsman had concluded that “on the balance of probabilities” the council’s failure to inspect had been the cause of expenditure by the complainant: there was sufficient doubt in that view as to negate any finding of injustice to the complainant.
R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council
[1979] QB 287 considered.
Jeremy Sullivan QC and Peter Towler (instructed by Sharpe Pritchard & Co for the solicitor to the council) appeared for the appellant council; and the Hon Michael Beloff QC and David Mole (instructed by Thornton Lynne & Lawson) appeared for the Local Commissioner.
