R. v. The Commissioner for Local Administration exp. David and Lynda Turpin

Transcript date:

Thursday, January 29, 1998

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Moses J

IN THE HIGH COURT OF JUSTICE CO/3078/96

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice Strand

London WC2

Thursday, 29th January 1998

B e f o r e:

MR JUSTICE MOSES

- - - - - - -

REGINA

-v-

THE COMMISSIONER FOR LOCAL ADMINISTRATION

EX PARTE DAVID TURPIN AND LYNDA TURPIN

- - - - - - -

(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited,

180 Fleet Street,

London EC4A 2HD

Telephone No: 0171-831 3183

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

- - - - - - -

MR G JONES (instructed by Richard Buxton, Cambridge CB1 1XJ) appeared on behalf of the Applicants.

MR B ASH QC and MR J HOBSON (instructed by Pulvers Solicitors, Watford WD1 2BL) appeared on behalf of the Respondent.

J U D G M E N T

(As Approved)

Crown copyright

MR JUSTICE MOSES: Mr and Mrs Turpin live at 2 Walden Close at Cambridge. On 19th April 1991 they obtained planning permission to build their house at that address. It was expected to be a happy retirement home for that couple.

At the time they obtained planning permission they appreciated that there was to be a development in close proximity to their home, but they had anticipated that the space between their home and that development would be 6.4 metres. That was the separation shown on the plans prepared which was the basis of the permission that was given.

In 1994 the Cambridge Housing Society proposed development adjacent to their home at No 2. They made two separate applications for planning permission: one, C/0462/94, proposed nine separate dwellings and the other C/O995/94, proposed eight, but both those applications showed a mere 4 metres separation between the nearest house and No. 2 Malden Close, a reduction, therefore, of 2.4 metres.

The Applicants had the opportunity to comment upon those proposed applications on three occasions: first, on 15th June 1994, secondly, on 27th October 1994, both in relation to the development proposal of nine houses and thirdly, on 20th December 1994 in relation to the proposal of eight houses. In respect of each of those proposals the separation shown on the plans was 4 metres.

Owing to personal difficulties, with which it is unnecessary to deal, unfortunately the Applicants did not notice that reduction and made no specific, or indeed any, objection on that basis, although they did comment in other respects on one of the proposals.

On 1st February 1995 planning permission was granted on the basis of a report that was before me, which the Applicants obtained and which was before the Commissioner for Local Government, otherwise known as the Local Government Ombudsman. That report made no specific reference to the precise distance between No. 2 and the adjacent development, nor did it make any reference to the reduction in spacing from 6.4 metres to 2 metres.

In April 1995, when the development started and foundations were being dug, the Applicants found, to their dismay, that they were being dug but 4 metres away from their house. They thus became aware that the space was much narrower than they had envisaged at the time their house was built. The developer, perhaps not suprisingly, was not prepared to do anything about it. They took the matter up with the local planning authority and they were visited, on 16th May 1995, by Mr Carter, the Local Authority Planning Officer.

He accepts, as was accepted when the Ombudsman was considering this matter, that on that occasion he sympathetically, as one would expect, remarked to the Turpins that their house did now give the impression of being squeezed in, and also made the comment that moving the development 2.4 metres closer was not very satisfactory. According to the Turpins, he also admitted making a mistake in failing to draw that reduction, from 6.4 metres to 4 metres, to the Council's attention when they were considering the planning permission which was granted on 1st February 1995.

The Applicants complained to the Internal (that is the Council's own Ombudsman) and then to the Local Government Ombudsman by letter written on their behalf by Mr Buxton, their solicitor, with his usual scrupulous attention to detail. His central complaint was that an acknowledged mistake had been made in failing to bring to the attention of the Committee, considering the planning application of the developers, that there had been a reduction in the space between the nearest house and the Turpins' home.

On 24th June 1996 the Local Government Ombudsman, Mr Commissioner White, made the decision not to investigate the complaint any further than had already taken place. It is that refusal, confirmed in a letter dated 5th September 1996, that is the subject of the challenge before me.

So far as the statutory framework is concerned, by section 26(1) of the Local Government Act 1974:

"(1) Subject to the provisions of this Part of this Act 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."

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."

So far as reasons are concerned, that is dealt with in section 30 of the Act:

"In any case where a Local Commissioner conducts an investigation, or decides not to conduct an investigation, he shall send a report of the results of the investigation or as the case may be a statement of his reasons for not conducting an investigation-

(a) to the person, if any, who referred the complaint to the Local Commissioner in accordance with section 26(2) above, and

(b) to the complainant and

(c) to the authority concerned, and to any other authority or person who is alleged in the complaint to have taken or authorised the action complained of."

The legal principles that are relevant to this case are as follows:

1. The Local Government Ombudsman has a wide discretion in deciding whether to undertake an investigation.

2. That decision is reviewable by this Court but the cases in which it can be demonstrated that the exercise of the discretion not to investigate is unreasonable in a public law sense, will be difficult to sustain. (See Regina v Parliamentary Commissioner for Administration ex parte Dyer [1993] 1 WLR 621 per Simon Brown LJ 626E to 627H.)

3. Nevertheless one must bear in mind that maladministration includes neglect, inattention and incompetence and that injustice may arise, not merely as a result of a redressable injury, but also as a result of the outrage which is caused by incompetent administration

(see R v Parliamentary Commissioner for Administration, ex p Morris and Audrey Balchin [1997] JPL 917 936).

The investigation into the complaint made on behalf of these Applicants was, first of all, undertaken by an investigator who refused to countenance any further investigation and then by her line manager, the assistant director who also refused. The reasons why the investigation was refused need not be of further concern since the Commissioner himself considered the matter afresh because the Turpins were dissatisfied at the earlier refusals.

The basis of the Commissioner's decision to refuse further to investigate the matter is set out in a letter, dated 24th June 1996, and I read into this judgment the whole of that letter:

"Dear Mr Buxton

Complaint against Cambridge City Council

Thank you for your letter. I have now reviewed your complaint which had previously been considered by Miss Beck and Mr Purser.

You say that Miss Beck's and Mr Purser's reasoning is flawed because it is based on the false premise that the planning authority could not or would not have done anything that would have made any difference had it realised the problem before it was too late.

In his letter of 7 June 1996, Mr Purser said that there were no administrative shortcomings in the way that the Council processed the planning application and consulted Mr & Mrs Turpin. I agree with this conclusion.

You say that you are satisfied that Mr Carter, the Planning Officer, made a mistake in not realising the unsatisfactory distancing before it was too late and that had the mistake not occurred, the outcome would very likely have been different.

The Council's view (after the event) is that the reduction in spacing between the previous scheme and the present scheme (6.4 metres to 4 metres) would not materially affect Mr & Mrs Turpin's amenity to an extent to warrant raising it as an issue or even contemplating refusing the application. Mr Carter has denied that he made a mistake.

The only written evidence is, I believe, Mr Carter's written note of his visit to Mr & Mrs Turpin's house on 16 May 1995.

Mr Carter said that Mr & Mrs Turpin's house 'did now give the impression of having been squeezed in' and that 'the impact of the housing moving 2.4m closer to the Turpins was not very satisfactory.'

If Mr & Mrs Turpin had objected to the distance between their house and the new house, this issue would have been addressed in the report to Committee Members. My view is that, in the absence of an objection, it would be unreasonable to criticise the Council's officers for failing to highlight to Members the issue of the 2.4 metre reduction in spacing before they took their decision on whether or not to grant planning permission.

I have therefore decided not to pursue this issue and I do not think that it is necessary for me to form a judgement about whether Mr & Mrs Turpin have suffered injustice as a result of the Council not specifically addressing spacing as an issue for Members.

For the reasons I have given, I am unable to help Mr & Mrs Turpin."

At the time he reached that decision the Commissioner had before him a letter from the Chief Executive of the Planning Authority dated 26th March 1996. In that letter the Chief Executive stated that issues as to space were relevant and were considered. He stated that in the case of the two recent applications, the applications made by the developer in relation to the nine and then the eight houses:

"In neither case was the issue of the proximity of new development to the Turpins' house seen as an issue of particular concern. The case officer's view, using the criteria described above in relation to this issue, was that both proposals were satisfactory."

He then went on:

"The original approved drawing... for the Turpins' house... showed their house 6.4 metres from an adjacent dwelling. The two recent applications showed the spacing reduced to 4.0 metres... Though there were other matters of concern to be addressed with the first application... in neither case was the distance between the proposed new dwellings and the Turpins' house considered to be a matter of such weight as to raise concern, or for it to be raised in a Committee report."

He further pointed out that no representation was received from Mr and Mrs Turpin.

The Commissioner then went on to consider the differences in the schemes as originally proposed when the Turpins' house was built and the schemes as proposed by the developer. He says:

"Given the distances and types of rooms involved it was considered that this reduction in spacing would not materially affect their amenity to an extent to warrant raising it as an issue or even contemplating refusing the application..."

and he went on to comment upon the failure to receive a written response on that point from the Turpins and said:

"If Mr and Mrs Turpin had responded to our consultation letters their concerns would then have been directly addressed by officers and the Committee. ...

In terms of the technical assessment of the scheme(s) given the design of No. 2, it is felt that it has not been unduly affected by the Council's decision to allow the spacing to be reduced from 6.4m to 4m".

He then went on to record the comments, which I have already stated, given by Mr Carter on 16th May 1995, and to record that there was a denial of any acknowledgment that a mistake had been made, and then concludes the final page of his letter as follows:

"3. The reason why there is no reference in the committee report of 1st February 1995 to the change in distance is because it was not considered to be a material planning consideration."

There was also before the Commissioner, when making his decision, the actual recommendation to the Planning Subcommittee who had to decide this matter. That letter confirmed the fact that the Planning Subcommittee did consider space between the house and the development. It referred specifically to the fact that the Turpins' house was sandwiched between two parcels of the site. It also referred to the material considerations in relation to space contained in Draft Local Plan policies. The recommendation was to approve. There was, thus, material before the Commissioner to confirm the assertion of the Chief Executive that space had been considered by the Council when it considered whether to grant planning permission for the developer's proposal.

Once the Commissioner had made his decision Mr Buxton, on behalf of the Applicants, asked the Commissioner to reconsider the matter in August 1996. The Commissioner replied reiterating his refusal to do so on 5th September 1996. In that letter he stated:

"The Council invited comments from Mr & Mrs Turpin. No comments were received and it is my view that the failure to highlight the issue of distance between Mr & Mrs Turpin's house and the new development in the report to Committee Members does not amount to an administrative failing in this particular case. I have therefore decided not to reopen my file."

The decision of June 1996, as confirmed in September 1996, is attacked on the basis that it was irrational. It is said that it was not open to the Commissioner, and not possible for him, to reach the conclusion that there had been no maladministration without at least further investigation. In particular, it is said that the issue whether the reduction in spacing might have been material to the consideration of the Planning Subcommittee merited further investigation, and secondly, the issue whether the significance of that reduction had been acknowledged by Mr Carter, the Planning Officer, when he had allegedly admitted a mistake, itself needed further investigation. If he had, indeed, admitted a mistake it demonstrates the significance of the factor of reduction.

Support for the proposition that it was unreasonable, in a public law sense, to conclude that no investigation was necessary, is sought in documents discovered due to the diligence of Mr Buxton since the refusal of the Commissioner. The Applicants' solicitor has, as an earnest of the concern that the Turpins feel in this case, worked with unceasing diligence throughout this case. He discovered that back in 1991 concern was expressed by a Planning Officer at the juxtaposition of the development and the Turpins' house and that was when the space was much wider than 4 metres, namely 6.4 metres (see page 84 of the bundle). Indeed, so was Mr Carter who made the comment that the distance was not great back in 1991 in relation to a space of 6.4 metres (see page 86). He also discovered that on 7th December 1994, in relation to the application for nine as opposed to eight houses, the recommendation had been to refuse because of cramped overdevelopment (see page 98).

It is said that had he decided to investigate he would have discovered in the light of previous views as to the lack of space, when the distance was greater than 4 metres by some 2.4 metres, that there was greater significance to the factor of reduction than he had at first thought. It was material, it is said, which might have influenced those counsellors sitting on the Planning Subcommittee when they were considering the developer's planning proposal.

At the heart of the criticism made of the Commissioner's decision is the reference he made to the Turpins' own failure themselves to object when they had the opportunity. It is said either the reduction was relevant to planning considerations or it was not, and that it can make no difference whether a neighbour sees fit to object or not. It is said that the error into which the Commissioner fell was to elevate that matter into a principle that Planning Officers, or indeed Council Officers, cannot themselves be guilty of maladministration in failing to draw to a Council's attention matters in respect of which those most directly concerned make no complaint. At the very least it is said that the absence of objection did not remove the necessity to consider, on further investigation, whether the reduction was relevant or not.

Clearly the fact that no objection was made by the Turpins was relevant. If it had been made then it would have bound to have been considered not because of the subject matter of the objection, but because of the very fact that the objection by a person concerned had been made. In my judgment the Commissioner was not saying that the fact that no representation had been made determined the question of whether the alleged maladministration should be investigated; the Commissioner was saying that the Planning Officer was not to be criticised for failing to draw to the Planning Committee's attention the reduction from 6.4 to 4 metres because, absent any objection on that particular point, there was not before him sufficient material to suggest that the reduction itself was material to the planning consideration. There was ample material for his so concluding.

The Council, or the Planning Subcommittee, had considered the question of space and overcrowding as had been put to them in the report on the proposal at page 24 of my bundle. Although the earlier report was not before him, that is confirmed by that report now that it has been discovered by the Applicant's solicitors. He concluded, and in my judgment rightly concluded, that on the material before him the critical question was whether planning permission should be granted to the development in the light of the fact that the distance between the development and the house was 4 metres. That had been considered. Indeed it was plain on the plans before the Planning Committee. It was perfectly open to the Commissioner to conclude that the fact that earlier 6.4 metres was the expected space between the nearest house was not a material consideration.

If the subcommittee thought that 4 metres was a sufficient space on the basis of which to grant planning permission, it was open to him to reach the conclusion that it would make no difference to learn, or to appreciate, the fact that previously 6.4 metres was expected to be in place. It might have been different had those specifically concerned raised the point, a different point, that: "We, the Turpins, had expected the nearest development to be 6.4 metres. Now we discover it is only 4 metres", because their disappointment at that reduction would itself have been a matter that the Planning Committee might have wished to consider had it been brought to their attention by them. However, the Commissioner was entitled to take the view, on the material before him, that if the Planning Subcommittee decided 4 metres was a sufficient space (as I have said, the critical issue) the fact that 6.4 metres had previously been expected would not have undermined the planning judgment as to the adequacy of the 4 metre space.

In the absence of further investigation he failed to discover the earlier expressed concerns, had he done so he might have thought that those concerns as to 6.4 metres could possibly have affected the judgment of the Planning Subcommittee when considering 4 metres. Views as to that point may reasonably differ. However, in my judgment the position must be judged in the light of the material before the Commissioner when he made the decision not to investigate further. It has to be so judged otherwise in many cases the decision not to investigate could be impugned merely on the grounds that once further investigation by those attacking the decision has taken place, more material has been discovered. That, in my judgment, is an erroneous approach.

The Local Government Ombudsman, the Commissioner, just like the Parliamentary Commissioner, has to make the decision at a given point of time, lest he is always driven to investigate to the end. Parliament has decreed otherwise. It has conferred a wide discretion upon a Commissioner to make a decision whether to investigate or not. Such a decision, therefore, inevitably must be made in the light of material made before known to him at the time he makes the decision. It cannot be challenged merely because further investigation has revealed further material.

I am, in any event, far from saying that if he had known more of the material discovered by Mr Buxton (the Applicant's solicitor) he would have decided otherwise. Bearing in mind the Planning Subcommittee had decided that 4 metres was an adequate space, it is a perfectly justifiable view that earlier concerns would make no difference in a case where those most closely affected had not, for one reason or another, taken the opportunity to raise objection.

As to the concessions made during the visit in May 1995 by Mr Carter, and as to the question of whether there was a mistake, the Commissioner had to decide whether resolution of that factual dispute would have made any difference. It was quite open to him to take the view that in the light of the conclusion he had made as to the critical issue before the Planning Subcommittee, the resolution of that factual dispute would have made no difference. That, in my judgment, is the conclusion he did reach. He was entitled to reach it for the reasons he gave.

In those circumstances I am unable to accept the submission that his conclusion that he should not investigate further was irrational.

It is further argued, in the helpful and clear arguments advanced by Mr Jones, that the Commissioner fettered his discretion in that he applied the principle that I have earlier expressed, namely that once there is no objection by a complainant it follows that a Local Government Officer is not to be criticised if the ground of complaint has not been brought forward by those most directly affected. In my judgment, as Laws J said when he originally refused leave on paper:"No such principle has been applied by the Commissioner. No such principle can be discerned in his reasoning in this case." As he made clear, the position in this case related to the facts as they appeared to him at the time he made his decision.

Finally it is asserted that the reasons given for refusing to investigate further were inadequate. As section 30(1) of the 1974 Act provides, the Commissioner is required to give reasons for refusing to conduct an investigation. Those reasons must be adequate and intelligible. In my judgment they were. The reason given was that it would be unreasonable to criticise the Council's Officer for failing to draw attention to the issue of the 2.4 metre reduction in spacing. That was, for the reasons I have already given, a sufficient reason for concluding that further investigation was unnecessary.

The final paragraph of the letter of 24th June has also been criticised. One must be careful not to subject letters such as this to unwarranted scrupulous analysis. Nevertheless, as I commented in argument, I have no doubt Mr White would be the first to accept that these letters are important because they are of great concern to those who make complaints to the Ombudsman. They are of particular concern where the Ombudsman reaches a conclusion not to investigate a matter further. It is possible, with hindsight and certainly if I was a headmaster, to criticise the penultimate paragraph of that letter because it refers to the fact that the Council did not specifically address spacing. However, the complaint was of a failure to draw to the Planning Subcommittee's attention a reduction in spacing; the expression in that penultimate paragraph must be read in that light. The letter was only referring to the complaint of a failure to address the issue of reduction in spacing.

Finally, the reference to injustice is merely a reference to the fact that, in the light of the conclusion that he had reached, it is unnecessary for him to consider further the injustice asserted by Mr and Mrs Turpin.

I recognise that this decision will be bitterly disappointing to the Turpins who are deeply affected by what they regard as too close a development to the home in which they live, but I hope they will appreciate that the decision as to the development, and the decision as to whether there ought to have been further investigation, is not for this Court. The right to make that decision has been conferred upon the Commissioner and his judgment can only be attacked on well-known public law grounds, namely on the grounds that it was irrational or otherwise discloses some error of law. For the reasons I have given, I am quite unable to discover any such error in the approach of the Commissioner in this case and on those grounds this application is refused.

It follows, for the reasons that I have already advanced, that the application for re-amendment, which sought to erect a separate decision in failing to reconsider the matter in the light of the matters discovered by Mr Buxton, on behalf of the Applicants, is refused. It is, in my judgment, unnecessary for that re-amendment to play a part in the case.

MR ASH: Would your Lordship dismiss the application with costs?

MR JUSTICE MOSES: I will dismiss the application. Do you want to say anything about costs?

MR JONES: I would wish to resist an application for costs, my Lord, if I may. Could I begin firstly on the basis, as your Lordship indicated in argument, that there were matters which could have been more felicitously expressed by the Ombudsman decision and one, in my submission, nevertheless----

MR JUSTICE MOSES: I was nitpicking.

MR JONES: I can understand the position of the Turpins in bringing this.

MR ASH: Yes, very much so.

MR JUSTICE MOSES: The real question and the trouble is should you and I, as a taxpayer, pay the costs or should the Turpins?

MR JONES: In the circumstances I wish to say that the Turpins should not have to bear the costs. So far as the reasons given by the Ombudsman are concerned, there was, as your Lordship will have seen, extensive correspondence where those representing the Turpins were seeking further clarification as to those reasons. That could have been dealt with quite simply by the Ombudsman in setting out those reasons. My Lord, I know you refused the application for the amendment but could I just say this -- if I can refer your Lordship to the letter of 24th July setting out the further material, which is found at tab 11 of the bundle----

MR JUSTICE MOSES: I have page 117, yes.

MR JONES: Where the Turpins noticed and took the matter to Mr Carter, planning permission having not yet been granted at that stage. Pursuant to the authority cited, that is the Pentecostal Church, as I recall, my latest submission----

MR JUSTICE MOSES: The point is, as I tried to make clear in the judgment, yes, there was further material that Mr Buxton discovered which Mr White might have discovered, but you will often find that in a case where you are challenging a decision not to investigate -- the known concept that the original decision not to investigate was unlawful in the way you contended.

MR JONES: I will come to that further, my Lord, but the point I wish to make at this stage is that it is accepted by the Ombudsman that if an objection was made there would have been a duty on the local authority to have regard to that.

MR JUSTICE MOSES: It is not the Ombudsman the Council itself said they would have done----

MR JONES: An objection was made, albeit after the resolution to grant planning permission, but before planning permission had been granted. Therefore there was an opportunity to put that objection before the members because the planning permission had not been granted ----

MR JUSTICE MOSES: This is a new case therefore ----

MR JONES: This is part of the amendment.

MR JUSTICE MOSES: Saying, "Here was an objection they failed to consider."

MR JONES: This is part of the amendment. The amendment which has been refused.

MR JUSTICE MOSES: What does that have to do with costs?

MR JONES: It is a matter for discretion for your Lordship. Your Lordship is indicating taking the view that any material that is after the decision taken cannot affect that decision. In my submission, as a matter of discretion, if there is material, which has been put before the Ombudsman by those instructing me, that might have made a difference, and there has been no reason for response to that material----

MR JUSTICE MOSES: I hope I gave a reasoned response.

MR JONES: From the Ombudsman not from your Lordship -- the Committee would have had an opportunity to consider it afresh. I have a copy of the bundle. These are letters which are written, without prejudice, save as to costs which I will refer to, but I will not refer to any other letters. (Same handed)

MR ASH: I do not object certainly to your Lordship seeing them without prejudice save as to costs, because clearly that is highly relevant to this matter.

MR JUSTICE MOSES: What do you want me to look at?

MR JONES: Can I take your Lordship to page 30 which is a letter from those instructing me of 22nd November?

MR JUSTICE MOSES: What do you want me to look at?

MR JONES: It may be fair if I take your Lordship first to the letter from the Ombudsman's instructing solicitors. The offer is made on 17th November without prejudice save as to costs. The proposal of settlement:

"In consideration of your client's agreeing to withdraw this application with no Order as to costs, the Commissioner will undertake a thorough review of your clients' complaint in the light of the new matters which you have presented to us..."

MR JUSTICE MOSES: I have read the head of that letter. I am very pleased to read it. It is a very reasonable letter.

MR JONES: The simple point----

MR JUSTICE MOSES: What a risk you are taking. Go on.

MR JONES: The simple point that I make, my Lord, if we go to page 30, is if the Ombudsman is under a duty to investigate, notwithstanding a view on the settlement of the case, the Ombudsman either considers it appropriate to reconsider in the light of the new evidence or not.

MR JUSTICE MOSES: I am just not following this at all.

MR JONES: If new evidence ----

MR JUSTICE MOSES: Are you saying that because he made a proposal to get rid of the thing then to have a look at it again, the fact that you have now lost involves some concession that it was worth putting in this new stuff, and that ought to be reflected in the costs?

MR JONES: My Lord, yes.

MR JUSTICE MOSES: That completely undermines the whole process by which sensible people try to come to resolution in cases if you are then going to throw back this wholly sensible proposal in the Commissioner's face and say he is not allowed his costs. It is really quite sinister. I mean next time you will never receive any offers.

MR JONES: Can I say why I say that? If the new material is considered the Ombudsman----

MR JUSTICE MOSES: All he is saying is: "You know life is too short to stuff a mushroom. Let us just move and I will have a look at it again and your people will be happy. We will not have to spend a lot of irrevocable costs coming to Court and expensive fees of Mr Ash."

MR JONES: My simple point, I do not wish to labour it, is a point which is important from the Applicants' points of view and they wish it to be made----

MR JUSTICE MOSES: Of course it is. It is disastrous, no doubt, financially for them.

MR JONES:---- is that either the additional material is worthy of itself of reconsideration or it is not. Whether it is linked to the settlement of the original decision and settlement of that or not is neither here nor there. If the Ombudsman says "I am going to reconsider it" he must have his mind still open. It cannot be just a simple exercise of "Let us go through the motions to get rid of these annoying people." If he considers, in the light of the material, that it does raise something considered worthy of reconsideration----

MR JUSTICE MOSES: He is not saying that at all. He is saying: "You put this matter forward", I do not know whether it is worthy of reconsideration. I will look at it again as a bargain in order to avoid coming to Court. We will each bear our own costs.

MR JONES: The matter is further----

MR JUSTICE MOSES: I notice he does not ask for your costs in the matter. He says it is going to cost him, so there is the bargain and you rejected it.

MR JONES: The position was that there was an exception to the reconsideration not on the costs.

MR JUSTICE MOSES: You thought you were not going to lose. That is extraordinary.

MR JONES: The only point I make is, of course, the Ombudsman did go off, as your Lordship will have seen from the additional material, to seek the response of the Council. What we say there was (although not admitting to it) they were, in fact, doing partly what the Applicants had always wanted but without a decision at the end of it. You will have seen that correspondence. I do not need to go through it.

MR JUSTICE MOSES: Anything else?

MR JONES: My Lord, no.

MR JUSTICE MOSES: Do you want to say anything?

MR ASH: I do not think so. I do not think I can add anything.

MR JUSTICE MOSES: I shall order that the Applicants pay the Respondent's costs. I agree that it is a heavy burden that they have to bear but I see nothing in the attitude of the Ombudsman other than one would expect, that in order to avoid having to come to Court he offered to look at it again. In fact it was sort of looked at again because the Council commented and said many of the things in investigation that might have been achieved have been achieved, but alas the bargain fell to the ground because the Applicants wanted, for understandable reasons, their costs. I see nothing in any way to justify that the Applicants should not pay the Commissioner's costs and I so order. Thank you both very much.

MR JONES: Just one application, I am afraid, for leave to appeal on the basis, in my submission, that the case raised a number of important points, and I would just outline briefly the issue of the materiality in such planning decisions of a reduction in spacing; secondly, the general duty of the Ombudsman in giving reasons and the extent to which the Ombudsman is under a duty to give clear and adequate reasons.

MR JUSTICE MOSES: It is accepted that he has to give clear and adequate reasons. There is no problem about principle. You just lost because I thought they were----

MR JONES: The application of the principle to this case is a matter of general concern. The conduct of the Ombudsman when deciding to investigate a matter is a matter of general public concern, and the adequacy, or otherwise, of reasons given in those decisions when no investigation is carried out.

MR JUSTICE MOSES: Thank you very much. I refuse leave. You must go to the Court of Appeal if you wish to seek it.