Local administration – Council failing to require developer of housing estate to provide security to cover provision of private access road – Council failing to issue exemption certificate – Ombudsman finding maladministration by council but no injustice – Whether matter should be reconsidered by ombudsman – Claim allowed
Hartlepool Borough Council granted planning permission for the development of a housing estate. The claimants purchased houses on the newly developed estate.They submitted that the price they paid for the properties reflected their anticipation that an access road, albeit a private road, would be built to a satisfactory standard. The developer subsequently went into liquidation without constructing the access road to such a standard.
The claimants complained to the defendant Commissioner for Local Administration (the ombudsman) that the council had failed to require an advance payment under the advanced payments code within the Highways Act 1980, or to secure an agreement and bond from the developer, to enable highway works to be implemented should the developer fail to do so. Section 219(1) of the 1980 Act provides that a developer is required to provide a security or ‘such sum as may be required under s220… in respect of the cost of street works’. Section 220 provides that the sum is to be specified in a notice. However, section 219(4)(e) provides that, in certain circumstances, the council can make an exemption notice, so that the advance payment requirement does not apply. In the instant case, the council had not required the developer to provide any advance payment or security, but they had also failed to issue an exemption notice. The ombudsman found maladministration on the part of the council but decided that no injustice had arisen.
The claimants sought judicial review to quash the ombudsman’s decision. They submitted that no reasonable ombudsman could conclude no injustice had been caused, and, therefore, the court should prevent the possibility of any other finding being reached. The defendant accepted that the ombudsman’s report contained failings, and that her reasons for reaching her conclusion as to injustice were inadequate. It was prepared to submit to judgment, but contended that the matter should be remitted to the ombudsman for reconsideration without any anticipatory fetter imposed by the court at this stage. The defendant submitted that it would be open to the ombudsman, upon reconsideration, to hold that there was no injustice, for example, because the cause of the claimants’ loss was due to a failure on their part to inquire about the service or otherwise of a notice under section 220 of the Act. The issue was whether there should be reconsideration, and if so, upon what basis.
Held: The matter was remitted to the ombudsman for reconsideration.
It was not appropriate for the court to fetter the ombudsman’s discretion in advance. The matter was to be reconsidered, and no direction was made that the ombudsman should come to any particular findings.
The claimants appeared in person; Timothy Corner (instructed by Pulvers, of Watford) appeared for the defendant.
Sarah Addenbrooke, barrister
