Neutral Citation Number:  EWHC Admin 503
IN THE HIGH COURT OF JUSTICE CO/981/2000
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Thursday, 28th June 2001
B e f o r e:
MR JUSTICE COLLINS
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THE QUEEN ON THE APPLICATION OF
DAVID TURPIN & LYNDA TURPIN
COMMISSIONER FOR LOCAL ADMINISTRATION
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Computeraided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207421 4040/0207404 1400
Fax No: 0207831 8838
(Official Shorthand Writers to the Court)
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MR C GEORGE QC & MR G JONES (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the claimants
MR B ASH QC (hearing) & MR T CORNER (instructed by Pulvers Solicitors, 114A High Street, Watford, WD1 2BL) appeared on behalf of the defendant
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J U D G M E N T
(As approved by the Court)
MR JUSTICE COLLINS: This is a claim for judicial review of a decision of the Commissioner for Local Administration, otherwise known as the Local Government Ombudsman, given on 16th December 1999 that the Cambridge City Council had not been guilty of maladministration and that he was not proposing therefore to investigate the complaint made by Mr and Mrs Turpin any further.
2. The case has a long and unfortunate history. The claimants live in Cambridge at 2 Malden Close. In April 1991 they were granted planning permission to build a house which they now live in on land which they owned comprising the south east corner of a site which had had planning permission granted in 1985 for a commercial and residential development. That development had been partially implemented. To the west of the Turpins' property it was contemplated that a detached house would be built, because that is what the planning permission had permitted, and that it would be positioned some 6.4 metres from the west edge of the house which they had had permission to build.
3. The principal officer in charge at the Council at all material times was a Mr Peter Carter. The documentation before me shows that concerns were being expressed about the high density on the site and so it was required that the house and garage which the Turpins originally planned to build be moved to the south in the plot so that its north wall was at least 3 metres from the north boundary. On the west there is an accessway over which rights of way for the house anticipated to be built and access for the garage for the claimants could be maintained.
4. The size of their proposed house had in the circumstances to be reduced and some modifications made to the west side so that a window was removed and some opaque windows in the roof were inserted so as to avoid overlooking of the anticipated house which was to be built to the west.
5. When they obtained their planning permission, the claimants knew that the development was likely to take place and, not unnaturally, they assumed that the development, when it took place, would mean that the house to the west remained at a distance of 6.4 metres.
6. In 1994 the Cambridge Housing Society ("CHS") applied for planning permission originally for nine houses in two blocks, three to the north and six to the west, leaving the claimants' house sandwiched, as it were, between them. If the plans were inspected carefully, they showed, when measured, that there was only to be 4 metres between the west end of the claimants' house and the side wall of the six houses which were to be built to its west.
7. The claimants were, as they should have been, notified of the proposed development and, unfortunately, as they accept, they did not notice that the distance of 6.4 metres had been modified to one of only 4 metres. No doubt they assumed that there would have been no change. As it happened, each of them had unfortunate family difficulties at the time and had much on their minds. It is not necessary to go into the details. Suffice it to say that it is perfectly plain that there was every reason why they should have failed to spot the particular measurement.
8. The report to the Council's Planning SubCommittee on 7th December 1994 recommended that the application be refused for two reasons. The second is immaterial: it relates to the proposal to construct a ramp, which in the end was not pursued. The material objection was set out in paragraph 8.4 of the report. Having referred to the relevant policies in the Draft Local Plan dealing with density, the author of the report continues:
On a more detailed level I am particularly concerned about the terrace of 3 houses at the eastern end of the site. The size of this site is actually smaller than the adjacent site upon which 2 Malden Close a detached house is positioned [that is the claimants' house]. In order to try and accommodate 3 houses on this site the end result is very little space either for gardens; the smallest of which is 4.7m X 6.6m; and also very little space, only 1 metre, between the gable wall of the houses and the side boundary. Car parking and manoeuvring space is also positioned too close to these houses. All these factors contribute to a cramped appearance constituting over development of that part of the site."
As I say, the recommendation was to refuse. The recommendation was followed by the Committee and on the two grounds the proposal was refused.
10. CHS accordingly submitted an amended proposal in which they reduced the block at the north from three houses to two, which enabled them to reposition it and give more space, and in addition they removed the ramp. Again, the claimants were notified and were able to make objections. Again, they failed to spot the change from 6.4 to 4 metres. This time the officers recommended approval of the proposal. They say this in the report to the Committee of 1st February 1995:
The other material considerations are the Draft Local Plan policies. Of particular relevance is policy BE8 which provides criteria against which housing applications are assessed. The reduction in the number of dwellings from the previous application has resulted in an improvement to the overall layout, increasing the amount of landscaping space and the size of rear gardens. Though still a relatively dense scheme in terms of the character of the surrounding area, in view of previous permissions on the site this is now acceptable."
The previous permissions there referred to are a number of permissions, including that of 1985, relating to the site other than the permission given to the claimants back in 1991. That was not referred to in the report and was not put before the Committee.
12. The approval was also to be subject to a section 106 agreement and there were conditions imposed. One of those, condition number 4, required the submission of a landscaping scheme before the development could commence.
13. The proposal, of course, did not amount to a formal grant of planning permission, and in a letter of 21st February a Senior Planning Officer wrote to the agents for CHS in these terms:
The application was considered by the Planning SubCommittee on 1st February where it was resolved to grant planning permission subject to the signing of an agreement under Section 106 ... to ensure the housing remains as affordable housing and relevant planning conditions ...
The Section 106 agreement will be drafted shortly by the Council's lawyer who will wish to forward a copy to your client's solicitors."
It then asks for various details and goes on:
The decision notice will be issued when the agreement has been completed. Works on site should not commence until the decision notice has been issued and relevant conditions have been discharged."
Reference is then made to the condition requiring the submission and approval of a landscape scheme and also of samples of materials to be used.
16. Notwithstanding that letter and notwithstanding that they were fully aware that planning permission had not formally been granted, CHS started work. It is not entirely clear precisely when they started, but I have been told that it was some time in either late February or March of 1995.
17. Since planning permission had not then formally been granted, it was open to the Council to rescind it or to vary it at any time before the formal grant. If authority is needed for that proposition it is to be found in a judgment of Woolf J in R v West Oxfordshire District Council, ex parte Pearce Homes Ltd 26 RVR 156. I do not need to cite any passage from that authority; it is not contentious.
18. In April 1995 Mr Turpin noticed that footings were being dug for the side wall of the development. He thought that those footings were in the wrong place because they were too close to his house. He measured and discovered they were only 4 metres away. He spoke with CHS and tried to persuade them to take some ameliorative measures, including hipping the roof. He took the view at that time that there was little he could do because he was shown the planning documents and appreciated that indeed the resolution to grant permission related to those documents. It is likely that at that time he believed that planning permission had actually been granted because he was unaware of the significance of the section 106 requirement.
19. He got nowhere with CHS and so he complained to the Council. A meeting was held on 16th May attended by Mr Carter and by a Mr Durrant, who was, as it happens, the Councillor for the ward in which the Turpins live but who was also the Chairman of the Planning Committee. Indeed, Councillor Durrant, as the Ombudsman discovered when he was making his enquiries, had in January 1995, prior to the decision of the Planning Committee, attended at the site and had formed the view that the proposal was rather too close to the Turpins but had been informed that the Turpins were aware of the development and that no objection had been raised. Accordingly, he did not pursue the matter any further.
20. Mr Carter made a note of the meeting of 16th May. In that he records that the development was discussed with the Turpins. He goes on to say this:
They were both very upset that it encroached too close to their house giving the impression that it was shoved in as an afterthought rather than the reality that it was built first. PC [that is Mr Carter] said that as other development had been given approval first their house was to some extent an afterthought, but also accepted that it did now give the impression of having been squeezed in ...
Conclusion. Great disquiet - Turpins asked what action they could take. PC said he would ring CHS in morning to pursue hipping. He did feel that the impact of the housing moving 2.4m closer to the Turpins was not very satisfactory."
That indicates that Mr Carter was clearly sympathetic to the problem and, on the face of it, was indicating that he shared the misgivings of the Turpins about the closeness of the development. Nonetheless, it is consistent with simply a nice man being sympathetic and does not of itself indicate that he felt that there was anything wrong with the planning permission as granted in the sense that the planning permission was unacceptable because of the proximity. But he wrote a letter the next day, the 17th May, to the CHS, and what he said in that letter, so far as material, was this:
Yesterday I visited with the Chairman of the Planning SubCommittee, the development being undertaken on your behalf at Malden Close, off Newmarket Road, Cambridge, having been invited to do so by the neighbours who occupy the only existing house in the Close. They are distressed by the scale and form of your development and its impact on their own property. Personal circumstances meant that at the time of submission of your two applications they did not raise objection to your scheme. In essence they did not believe that the development would encroach any closer to their own house than the previous approval. It does. Had I been aware of this concern I would have supported their cause and required that all the 6 houses you are building in the terrace were a little smaller. I should be grateful if you could investigate whether it is possible, even at this late stage, and I am clearly conscious that the terrace is up to eaves level already, if you could hip the roof ends of the terrace to reduce a little of the impact on the existing house."
He then went on to deal with an access problem to which I will return shortly.
23. It is to be noted that nowhere in that letter does he indicate that CHS had broken the law and that they had no right to commence or to continue the development work. All he does is to request that they would consider hipping the ends of the roof. CHS's reply was to indicate that it would be too expensive to do that and cost them something in the order of £20,000 and they were not, therefore, prepared to assist.
24. The access problem was that CHS appreciated that they were unable to implement part of the planning approval which involved access to the rear gardens of all the six houses to be developed to the west of the Turpins by means of the accessway, which I have already referred to, running between the Turpins' house and the land to the west.
25. The reason they could not implement it was that that accessway only went a limited way down towards the southern boundary and it was necessary, in order to gain the access, that those using it should go to the southern boundary itself. That was impossible because the Turpins owned that land and there was no right of way over it. Accordingly, there was a need to amend, and what was proposed was that instead of access being to all six from the east end, it should be changed so that the access should be from the west end to five of them, except for the one nearest the Turpins. For that, a gate would be constructed in the fence so that access could be given before the end of the shared accessway and roughly opposite the middle of the Turpins' house. That the Turpins objected to on the basis that any pedestrian movement so close to their house was objectionable. The officer, in the form of Mr Carter, agreed with that objection and when the matter was eventually put to the Committee in July 1995, he said this:
The main issue to consider here is the effect of the pedestrian access upon the residential amenity of No.2 Malden Close. In view of the space between the gable wall of the new development and the front of No.2 Malden Close being only 4 metres, I feel that it would be preferable to have no pedestrian movement in this area. It would be slightly less convenient for the occupier of the specific house, but no more so than had been proposed in reverse by the applicant's previous drawing. I have written to the applicants to put this view to them and will report further at the meeting."
He therefore recommended that the amendment be not approved and that recommendation was accepted. The note on the report states:
Ask applicants to serve all 6 properties from western end of the site."
It is not entirely clear why that refusal was not in the end maintained, for in due course the amendment which had originally been proposed was accepted. Following the completion of the section 106 agreement, the permission was finally granted on 31st July 1995.
28. In the meantime the Turpins had complained to the Council's Internal Ombudsman about what had happened, alleging that there had been maladministration in the failure of the Council to note the change in the 6.4 metres to 4 metres and to resolve to grant planning permission in the teeth of the requirement, which the Turpins said had been applied when they obtained planning permission, to the effect that the distances should be maintained. Those were that there should be at least 3 metres between the house wall and the nothern boundary, and the existing 6.4 metres to the west. The Internal Ombudsman, having made her investigations, decided that there had not been any maladministration, essentially on the basis that the Turpins had been given all the proper notices of the proposed development and had chosen not to object.
29. On 19th February 1996 they complained through Mr Richard Buxton, their solicitor, to the Local Government Ombudsman. He considered the matter but in September 1996 he decided not to investigate, largely because he also relied on the fact that no objections had been raised by the Turpins. Judicial review was sought of that determination. The application came before Moses J on 28th January 1998 and he refused the application. He also awarded costs against the claimants, largely because it seems they had refused to accept an offer made by the Ombudsman to reconsider the whole matter and to decide on the basis of the objections that had been made and raised in the judicial review whether he ought to reconsider the matter.
30. In fact, Mr Buxton had investigated himself and had unearthed a considerable amount of further evidence and further material. That led to a second application for judicial review based upon the need to investigate resulting from that further evidence. In addition, leave was sought to appeal the decision of Moses J. Leave was granted by the Court of Appeal on 22nd June 1998 and on 15th March 1999 there was a full hearing before the Court of Appeal. I am told that argument continued for the best part of a day, but the Court of Appeal then persuaded the parties that the sensible resolution of the issue would be for the matter to be reconsidered by the Ombudsman in the light of the fresh material which had, as I say, been unearthed by Mr Buxton and would reconsider whether he should investigate to say whether maladministration had occurred. The court ordered that each side bear its own costs, thus setting aside the costs order in favour of the ombudsman which had been made by Moses J. Counsel has described the decision of the Court of Appeal as a judgment of Solomon. It seems, sadly, to have been a judgment which in the end probably satisfied neither of the parties because following the reconsideration the matter has come back before me, permission having been granted for the application to be made by Harrison J.
31. The Ombudsman did reconsider and make further investigations. On 16th September he sent to the Turpins reasons why he was minded to decide that he would not investigate further because he took the view that there was no maladministration by the Council. Mr Buxton made observations in answer to that draft letter, but on 16th December the Ombudsman made his decision that he would not pursue the matter any further.
32. Before I consider the points raised in the judicial review, I should remind myself of the statutory provisions under which the Ombudsman operates. I do not need to cite them in detail. Suffice it to say that in the Local Government Act of 1974 Part 3, which deals with the Local Government Ombudsman, Parliament has given a very wide discretion to him as to whether and how he will investigate any complaint. His task is to decide whether there has been injustice cause to any individual complainant in consequence of maladministration.
33. The meaning of maladministration has been considered in R v Local Commissioner for Administration, ex parte Bradford Metropolitan City Council  QB 287. Lord Denning in that case, at page 311, stated that parliament had deliberately left it to the Ombudsman to interpret the word as best he could but indicated that it would cover "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on".
34. Thus, anything done deliberately in bad faith of course would be maladministration, but that is not in the least suggested here. Equally, if an officer erred because he overlooked something, that again would be capable of amounting to maladministration and if injustice resulted from it then the Ombudsman would be entitled to give redress for that injustice.
35. I also am reminded by Mr Ash QC, on behalf of the Ombudsman, of the observations of Simon Brown LJ in the Divisional Court in R v Parliamentary Commissioner for Administration, ex parte Dyer  1 All ER 375 at 382. Again, I do not need to cite it in detail. The essence of it is that because Parliament has given a very wide discretion the court will be reluctant to intervene and it is only in the clearest of cases that such intervention would be proper.
36. It seems to me that if it is clear that the Ombudsman in reaching a decision has misdirected himself as a matter of law, or has failed to have regard to a relevant consideration, or has had regard to an irrelevant consideration, or has given reasons which are so defective that they indicate that his decision is bad in law, then the court can and should intervene. The court will be careful to ensure that it does so only if such errors are clear but, as it seems to me, there is nothing in the legislation to exclude the court's usual power to consider whether a discretion, however widely conferred, has been exercised in accordance with law. In addition, if the Ombudsman has conducted his investigation, or as in this case his investigation as to whether there should be an investigation, in a manner which is unfair, again the court is entitled to intervene if satisfied that there has been a risk of prejudice.
37. Mr George QC, on behalf of the claimants, relies on three grounds; two relate to alleged irrationality, in the sense of that word as applied by Lord Diplock in the CCSU case, on the part of the Ombudsman, the third alleges unfairness. First, he submits that it was irrational not to decide to investigate maladministration in relation to the permission granted on 1st February. Secondly, he submits that it was equally irrational not to reconsider the matter when the problem was drawn to the attention of Mr Carter on 16th May 1995. Thirdly, and this is the unfairness point, in the course of his investigation the Ombudsman had interviewed Mr Carter and Councillor Durrant. The claimants were unaware that that had happened, but in the letter of 16th September the Ombudsman said this:
Formal interviews were conducted by Mr Mindham (accompanied by a second officer of the Commission who took notes) with the Principal Planning Officer (Mr P Carter) and with Councillor Durrant. The Local Government Act 1974 provides that investigations should be conducted in confidence. The interviews with Mr Carter and Councillor Durrant were conducted as if they were part of an investigation under the Act and I therefore consider that it would be inappropriate to copy to you the notes of those discussions. But I can assure you that they have been fully taken into account in reaching my provisional conclusions as set out below."
That, it is said, was unfair, and since it is clear from the letter that reliance was placed on what they had said, the claimants ought to have been shown the notes so that they could comment on anything contained in them and, if necessary, themselves obtain evidence, for example, by themselves approaching Councillor Durrant to clear up anything that they felt needed to be cleared up in what he had said.
39. I go back to ground one relating to the permission of 1st February. It is said that the alteration of distance from 6.4 to 4 metres ought to have been drawn to the attention of members. Specifically, they ought to have been informed of the narrowness of the spacing and, as Mr George put it, that it was smaller than that which had been regarded as "just tolerable" in 1991. There was no reference made to the 1991 permission at all. It was not even clear whether the Committee had seen the plans of the proposal so that they could have, if they wished, identified the actual distance, although it may be that the significance of the distance would not have been apparent without knowing of the change.
40. At page 147 in the bundle, in the letter of 16th September, the Ombudsman says this:
I understand that it was the usual practice at the Council for the main drawings to each planning application on the SubCommittee agenda to be displayed on the walls of the committee room and for the officer to 'present' the item by reference to the displayed plans. The scale layout plan being considered on 1 February clearly shows the position of no.2 (both house and relevant plot boundaries); the relationship of it to the proposed blocks to the north and to the west; and the proposals for pedestrian access to the rear of the terrace to the west. I cannot be sure that this plan was displayed at the meeting but there is, in my view, every likelihood that it was (being perhaps the single most important document describing the proposed development)."
A little further on, at page 148:
The Council has said that Councillor Durrant (who was the Chair of the Planning Committee and who represented the ward in which Malden Close is situated) had visited the site in late January 1995. The officer's report may have been circulated by the time of his visit. He met representatives of CHS and, he told Mr Mindham, expressed to them his opinion that the end of the terrace to the west would be too close to no.2. Councillor Durrant said that CHS's representatives had told him that you knew about the proposals and had not objected."
At page 170 of the bundle there is the second letter, that is the formal refusal of 16th December. The Ombudsman there sets out what was relevant to the Council's consideration of the planning application and under that heading says as follows:
I consider that the general proposed spacing around the new blocks (and including the specific proposed spacing between no.2 and the block to the west) was a relevant factor ie it was what the planners called a material consideration.
The law required the Council to have regard to all material considerations when determining the planning application but the weight to be placed on each factor was a matter for the Council. It is established that a matter can be material but still reasonably be given no weight. The written report prepared for the SubCommittee's meeting of 1 February 1995 did not mention the width of the gap to the west of no.2. In my view, however, that does not mean that the width of the gap was ignored. It was clearly known to the Members of the SubCommittee when they decided that the scheme was acceptable in planning terms and that planning permission should be granted once a legal agreement concerning occupancy of the new dwellings had been signed.
What was, in my opinion, not a material consideration was the change in the width of the gap to the west of no.2
from what you may have expected. Mr Buxton has referred to the Council's handling of your application for no.2 but, of course, there was at that time no building to the west (or to the north) of your plot. The change in width of the gap from that which you had perceived was not material because each planning application must be considered on its own merits and there was nothing binding about the planning approvals issued before your application in respect of the position of any future buildings. There was always potential for the remainder of the site to be the subject of different development proposals and approvals. Furthermore, the problems perceived in relation to the application for your house and its relationship with its boundaries were resolved by the scheme being redesigned. There was nothing in the documentation or elsewhere which implied that a 6.0 metre gap or any other gap was, of itself, unacceptable or the minimum which could be acceptable.
Mr Carter has said that there is no conflict between what he said to you and the Housing Society in May 1995, and his professional opinion that the relationship between no.2 and the adjacent buildings was acceptable in planning terms. Accordingly, I do not accept the proposition put forward by Mr Buxton that the Council or Mr Carter considered the spacing to be unacceptable.
I therefore maintain my view that the local planning authority came to the conclusion (on 1 February 1995) that the proposals were acceptable subject to specific conditions, and that there is no evidence of a failure to have regard to all material considerations."
Mr George has criticised a number of the observations that are there made, saying that they show errors in the reasoning. The important reasons were, first, in the Ombudsman's view a change in the width of the gap was not a material consideration. The actual gap was a material consideration and that, the Ombudsman said, was drawn to the Committee's attention, or, as he put it, was clearly known to the members of the Committee. That, it is true, may be putting it somewhat high in the light of his earlier conclusion that he could not be sure that the plan was on the wall, as was the general practice at the Committee, and that the members would therefore have had access to it, because the actual distance was not referred to in the officer's report. Nonetheless, the main point is that the actual width was capable of being identified. In addition, although Mr George has criticised the observation, there was indeed, as the Ombudsman says, nothing in the documentation or elsewhere which implied that a 6 metre gap or any other gap was, of itself, unacceptable or the minimum which could be acceptable.
44. I have considered the documentation that exists in relation to the application back in 1990/1991 by the claimants. There is an observation that there is a gap of 6 metres between what were then known as plots 2 and 8 and there was an observation that the present proposals would result in a very high density development of the scale of the site, and the concerns were then expressed about overlooking from the proposed house to be built by the claimants of the expected house to be built to the west.
45. The concern was generally with space, but there is nothing to suggest that any requirement was being imposed that there should be a minimum of 6.4 metres, or indeed any minimum, between the Turpins' house and the house to the west. All that was indicated was that there was general concern about density.
46. In those circumstances, as it seems to me, the Ombudsman was perfectly entitled to form the view that he did, namely that the change was not, in itself, a material consideration and that there was nothing to suggest in the original planning permission that there had been any sort of limitation to any particular distance. If there had been, if it had been clear that the original planning permission granted to the Turpins was on the basis that there must be at least 6.4 metres or any other particular distance, then of course it would have been vital to have drawn that to the Committee's attention. Equally, if there had been an objection from the Turpins about the distance and about the reduction in width, that clearly would have been drawn to the Committee's attention. But in regard to the first ground, in my judgment, it cannot be shown that the Ombudsman was clearly wrong in the reasons that he gives for rejecting maladministration at that stage.
47. I turn therefore to ground two. The argument is that following the meeting on 16th May the matter should have been put back to the Committee; in any event, it had to go back to the Committee because of the problems about access which I have already described and the need to seek an amendment to the planning permission because of those problems. That would have given the opportunity to deal with the problem identified by the Turpins about the closeness of the development. There is no evidence that has been discovered by the Ombudsman or indeed by anyone that Mr Carter ever considered putting the whole matter back at all. In the letter of 16th September the Ombudsman sets out the events after 1st February. On page 149 he refers to the evidence that he obtained from Mr Carter in the course of the interview Mr Carter had had with Mr Mindham, and he refers to the note that I have already read which Mr Carter made. He then goes on:
In interview with Mr Mindham, Mr Carter said that his opinion that no.2 did 'now give the impression of having being squeezed in' was not contradictory to his professional opinion that the granting of planning permission was acceptable: Mr Carter was saying that he had agreed that 'a bit more space' to the west of no.2 would have been better for you but that the size of the gap did not give grounds for refusing application C/0995/94. Mr Carter has also pointed out that, as he was not the case officer, he would not have talked (during his conversations with you on 16 May) in terms of having personal responsibility of this case. In interview, Mr Carter said that he was:
'absolutely certain that I never admitted that either I or the Authority had made a mistake'."
That last reference to making a mistake resulted because each of the Turpins had asserted in correspondence, and the assertion has now been put on affidavit, that Mr Carter did indeed in the course of that meeting say that he had made a mistake in not referring to the narrowness of the gap and the proximity of the new development. That, as I say, Mr Carter has denied and apparently he denied it in interview with Mr Mindham.
49. While absent any objection, as I have already indicated, the change was not material, once the objection was known the narrowness and indeed the change became, as it seems to me, material. The reason for that is obvious. If the Committee had appreciated that there was an objection and that that objection was based upon, it would seem, some solid grounds, or at least arguably solid grounds, then it was a matter that clearly they would have taken into account in deciding whether planning permission was appropriate. It therefore became a matter of some importance. It seems to me that it is rendered all the more important by the reaction of Mr Carter as set out in the letter of 17th May, because in that letter he says in terms:
Had I been aware of this concern, I would have supported their cause and required that all the 6 houses you are building in the terrace were a little smaller."
Now if that is to mean anything, it clearly must mean that Mr Carter would have, in putting the matter to the Committee, directed their attention to the narrowness of the gap and have indicated that in his view it ought to be wider and that therefore the housing line should be placed further back, the effect of which might well be that the houses would have to be somewhat smaller by no great amount, but somewhat smaller than was proposed. Whether or not the Committee would have accepted that of course we do not know, but that is not at this stage a material consideration. Suffice it that it was in those terms clearly a material consideration and, in my judgment, having regard, as I say, to Mr Carter's reaction, it is difficult to see that it was not a material consideration if there was a possibility that the whole matter could be reconsidered by the Committee. At the very least, the matter ought to have been thought about and Mr Carter should, in my judgment, have asked himself whether it was appropriate to refer that matter back when the Committee had, in any event, to consider the access problem.
51. Certainly CHS ought not in any way to have been able to benefit from the breaking of the law by the commencement of the development before the permission had been properly granted and in the teeth of the letter which told them that they could not do so. If no development had commenced, it would have been perfectly possible to have reconsidered and, if necessary, to have refused or to have indicated that approval would only be given if the building line were set back by a relatively small amount, some 2.5 metres. Alternatively, the Committee might have decided to maintain the approval but to have required some modifications such as, for example, the hipping of the roof which the Turpins had requested.
52. However, that was not done. The reason that that was not done appears to have been a view taken that enforcement action would not be appropriate. Certainly it is put in the Ombudsman's letter entirely on the basis of the possibility of taking enforcement action. That, of course, starts badly because it recognises the existence of the unlawful construction and effectively gives some advantage to CHS for having broken the law in that way, but this would not have been enforcement which refused any development. If enforcement had been considered desirable, it would have been on the basis that planning permission would still be granted but subject to some modifications which protected the amenities of the Turpins at no.2. That, as it seems to me, is something which ought to have been considered because it is one thing to say that it is expedient to take enforcement action, the result of which would be no planning permission at all, and quite another to say it is expedient to take enforcement action against a particular development when it is clear that with a modification, and a relatively minor modification in the context of the development overall, it could be approved. However, the Ombudsman deals with the matter under the rubric of "The possibility of taking planning enforcement action". He states, at page 156 of the bundle:
As I understand the situation, the building that was commenced before the issue of the decision notice did not differ in any way from that shown on the drawings submitted with [the application] and considered on 1 February 1995. As the breach of planning control was simply premature commencement of acceptable development (rather than the building of a scheme which had not been considered by the local planning authority), the taking of formal enforcement action could reasonably be described as inexpedient.
I therefore consider that the Council's tolerance of the breach of planning control did not amount to maladministration. This conclusion is supported by the fact that the breach of control ended with the issue of the decision notice (which had to occur as soon as the Section 106 agreement had been signed) and that event could have occurred at any time between 1 February and 31 July 1995. The delay in completing the agreement was due to legitimate negotiations about content which related not to the physical characteristics of the development but to the terms of occupation of the completed dwellings. Agreement on this matter might have been achieved within, say, a few weeks of the Sub Committee's consideration of the application. The development would then have been authorised before you raised with the Council your concerns about the proximity of the terrace to the west of no.2."
That reasoning is, in my judgment, very properly attacked on a number of grounds. The development was acceptable in the sense that Mr Carter's evidence, which was accepted, it would seem, by the Ombudsman, was that in his view the development as it stood was acceptable. That may well be and, for my part, I have no reason to quarrel with the Ombudsman's finding that Mr Carter said that in his view it was acceptable and that that was his genuine view. Nonetheless, the question arises as to how he came to indicate that was his view, what questions were asked of him, but, more particularly, the fact that it was considered to be acceptable once granted does not mean that it would have necessarily been accepted at the time had the Committee been aware of the objections of the Turpins, and, more particularly, what it actually looked like on site.
54. This is always one of the problems of dealing with planning applications. One is dependent upon plans. Sometimes there are models, but normally it is not possible to envisage precisely what the effect of the permission is going to be. Mr Carter, when he went on his visit of 16th May, unless he was saying things that he did not really believe in order to be sympathetic, was clearly concerned that it did have an adverse effect upon the Turpins' house which may well not have been entirely appreciated when the matter was before the Committee. It does not mean that it was not still acceptable in planning terms. But, equally, it does mean that the Committee might well have taken the view that in the light of what was then known the matter should be reconsidered. Whether they would have done, again, is a matter of speculation and not a matter which is relevant at this stage. It suffices that they might have done because that is the basis upon which Mr Carter should have operated.
55. He goes on to deal with Mr Carter's honouring his promise to approach CHS. No doubt Mr Carter did honour his promise, but the fact is he could have done a lot more. He could have used the big stick, that being the commencement of the development without permission. He could have put the matter back to the Committee.
56. Finally, the Ombudsman says:
It would have been absurd for the Council to refuse the arrangements described on the plan received on 23 May 1995 [that is the access point] when CHS could instead have simply implemented the original (and approved) arrangements whereby not one but all six dwellings would be accessed via the driveway."
That is, on the face of it, plainly wrong because, as I have already indicated, the original arrangements could not have been implemented because they would involve pedestrians going over the Turpins' land where there was no right of way. However, it may be that those are matters of detail.
58. The substantive reasons are given at pages 171 and 172 of the bundle in the letter of 16th December. They are under the rubric "The possibility of taking enforcement action" and that, Mr George submits, itself discloses an error of approach. The Ombudsman correctly points out that it is a matter of discretion for the Council to consider whether enforcement action should be taken. There is equally a discretion again, this is undoubtedly correct, in an officer deciding whether it is necessary to put to the Committee whether enforcement action should be contemplated. It is not every breach of planning control that has to be put to a planning committee. On the other hand, if there is a breach of planning control, then at least consideration should be given to whether it ought to be put to the Committee, and as I say, there is no indication that Mr Carter ever thought along those lines.
59. The Ombudsman then goes on:
The law allowed the Council to reconsider its stance on the planning application at any time up to the issuing of the decision notice on 31st July 1995 [I am told in fact that date is premature and it may have been later than that, but it matters not]. However, I would have expected the Sub Committee to have been invited to reconsider the planned position of the buildings (notwithstanding their premature construction) only if there had been a significant change in relevant matters. Neither your approach to the Council in May 1995 nor Mr Carter's efforts to secure a hipped roof amounted, in my view, to significantly changed material circumstances. Given that I do not accept that the Council or Mr Carter considered the spacing to be unacceptable in planning terms, I have seen nothing to shake the conclusion that the issue of the width of the gap to the west of no.2, not being the subject of written representations before the grant of planning permission, did not have to be put to Members for consideration."
It seems to me that that wholly fails to grapple with the letter of 17th May and the indication of Mr Carter's view that it would have changed his approach, and the fact that now the Committee would be aware that there were objections from the Turpins, the reasons for those objections, and the fact that in Mr Carter's view they might have affected the decision made. As I repeat, the fact that the permission as it stood was, in the view of Mr Carter, acceptable, does not mean that it would not have been open to the Committee, who after all were the decision makers, not Mr Carter, to have formed a different view because of the unlawful building they were able to see for themselves what the effect was on the Turpins' house and the objections which they now knew had been made by the Turpins, and which unfortunately the Turpins had failed to put forward, since it was necessary to look quite carefully at the plans to spot the change. All those circumstances, in my judgment, add up to it being at the very least arguable that Mr Carter's failures to put the matter back amounted to maladministration.
61. As I have said, it seems to me that the reasoning which is used to justify the failure to investigate the matter is flawed. Accordingly, in my judgment, ground two is made out and the Ombudsman was not entitled to refuse to investigate whether there had been maladministration on the basis of the reasons that he gives.
62. I turn finally to ground three. Section 32(2) of the Local Government Act 1974 provides:
Information obtained by a Local Commissioner, or any officer of either Commission, in the course of or for the purposes of an investigation under this Part of the Act shall not be disclosed except
(a) for the purposes of the investigation and of any report to be made under section 30 or section 31 above."
Section 28(2) provides:
Every such investigation shall be conducted in private, but except as aforesaid the procedure for conducting an investigation shall be such as the Local Commissioner considers appropriate in the circumstances of the case; and without prejudice to the generality of the preceding provision the Local Commissioner may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and may determine whether any person may be represented (by counsel or solicitor or otherwise) in the investigation."
Nothing is there said to prohibit disclosure of information which has been obtained in the course of or for the purposes of an investigation. Indeed, it seems to me to be implicit in section 32(2) that any disclosure considered necessary or desirable of such information can be made. It is perfectly plain that the information in question was obtained for the purposes of an investigation, albeit the investigation was not actually taking place. As I say, it was an investigation whether there should be an investigation. The law as to the requirements of fairness in conducting an investigation is, as it seems to me, clear. The general rule is that a person or body which has to make a decision based on an issue raised by one person against another should normally disclose the material on which it is going to rely or which comes into its possession which may influence its decision to each of the parties so that each party can know what material is available, what matters are likely to be held against them and whether it is necessary for that party to itself put forward material or to make representations to deal with such matters. If that is not done, it is clear that there is a risk - I put it no higher - that injustice will be occasioned to such party.
65. Mr George, in his skeleton argument, has referred to observations made by Elias J recently in R v Chelsea College of Art and Design, ex parte Nash  Ed CR 571 at 583D:
It is a strong principle of English law that a decision making body should not consider the relevant material without giving the affected person the right to comment on it."
The same point has been made by Court of Appeal in R v Secretary of State for the Environment, ex parte Slot JPL 692. At page 701 Swinton Thomas LJ referred to Performance Cars Ltd v Secretary of State for the Environment  34 P & CR 92, where a local planning authority had refused to let the appellants see documents prior to the inquiry and the argument was that the inspector ought to have given them an adequate opportunity of considering them and he had not done so. Lord Denning said at page 97:
It seems to me in those circumstances that he would have a grievance. He would not feel that justice had been done. It is that feeling, I think, which in all our proceedings we should try to avoid. People should not go away from any Inquiry feeling: 'I have not had a fair deal'. It is for this reason that I feel we must, although one regrets it, let the Order go and set the matter aside."
It seems to me, as I say, that the justification given by the Ombudsman in his letter at page 143 for not disclosing the interview notes is no justification at all. He says it was inappropriate to copy the notes to the Turpins because the interviews were conducted as if they were part of an investigation under the Act, but there is nothing in section 32(2) which indicates that documents, and interview notes are as much a document as any other document, obtained in the course of or for the purposes of an investigation should not be disclosed to parties in that investigation merely because they have been obtained in that way.
68. I am far from saying that the Ombudsman does not have a discretion to refuse to disclose. For example, if an individual from whom he was seeking information insisted that he would only give the information if it was kept confidential in the sense that his identity was not disclosed and the statement that he made was not disclosed, then I have no doubt that the Ombudsman would be acting properly to respect that confidence. He must then decide how fairly to deal with the situation. It would be difficult to justify a failure to indicate at least the gist of the information recieved.
69. One cannot deal with every possible situation and it must be a matter left always to the discretion of the Ombudsman, but it is a discretion which ought, prima facie, in my judgment, to be exercised in favour of disclosure unless there are good reasons not to disclose. I see no justification for giving the Ombudsman a general right to refuse to disclose whatever the circumstances. It is not suggested here, no could it be suggested, that there was any good reason not to give the interview notes to the Turpins, no doubt on an undertaking that they would only be used for the purposes of the complaint which they were making to the Ombudsman.
70. Accordingly, I have no doubt whatever that the decision of the Ombudsman in that regard was unfair. It is plain that considerable reliance was placed upon the evidence, in particular that from Mr Carter in which he asserted that the planning permission granted was acceptable. That was relied upon, and indeed it was the central part of Mr Ash's submissions to me that unless I was satisfied that the Ombudsman ought to have found that Mr Carter was lying, his decision could not be impugned. I have already indicated why I reject that particular submission. Nonetheless, it does indicate the importance placed upon Mr Carter's evidence.
71. The authorities to which I have referred again underline the point that if there has been such unfairness, then the question is not whether the case of the claimants had been prejudiced, but whether there was a risk that it had been prejudiced. It is the risk of prejudice that matters. It is not possible for me to decide whether it would, in truth, have made any difference to the outcome or whether there was anything in the notes which the Turpins would have sought to emphasise or to contradict by material of their own. That is not the point. As it seems to me, it cannot possibly be said that there was no risk of prejudice resulting from the failure. Accordingly, that ground alone would, in my judgment, justify the setting aside of this determination.
72. Complaint was made by Mr Ash that this point had not specifically been raised at the time. In fact, a letter was written by Mr Buxton in answer to the provisional findings made by the Ombudsman in his letter of 16th September. What was said by Mr Buxton about this issue was as follows:
We do not believe you are right in suggesting that the notes of interviews with Mr Carter and Cllr Durrant are confidential. We are also concerned that you do not appear to have interviewed the Turpins to obtain their side of the story ...
We trust the above points [there were a number of points raised other than this one] will help you reconsider this matter in a fair way. The terms of the present draft letter are simply inviting continuation of the litigation."
It is, I think, perhaps fair comment that Mr Buxton could have been a little more forceful in his request or in the manner in which he dealt with that and could, and perhaps should, have asked, even at that late stage, for a copy of the interview notes to see whether it was necessary for him to seek to put in any further material to the Ombudsman. The fact that he did not do that does not seem to me in any way to render what was unfair fair. It is clear, in my judgment, that the failure to provide those notes did mean that there was a risk of prejudice and it is not undone simply because Mr Buxton did not specifically request those notes in answer to the draft letter.
74. I make it plain that in reaching the conclusion that I have, I have not sought to decide, and it is no part of my function to decide, whether or not there has in fact been maladministration by anyone in the manner in which matters were dealt with. My only function is to consider whether the Ombudsman has erred in law in deciding that it was not necessary for him to investigate whether there had been maladministration.
75. For the reasons that I have given, in my judgment he did err in law in reaching that conclusion, and accordingly his decision cannot stand and must be quashed. I reach that conclusion with a high degree of regret because this case has been going on now far too long and has cost both sides far too much money. That is thoroughly regrettable. On the other hand, as it seems to me, I have to deal with the matter on the basis of the material before me and if I am satisfied, as I am, that this decision is one which is flawed, then I have no alternative but to set it aside because I am satisfied that there has been a risk of prejudice to the Turpins in what has so far been decided. Whether in the end this will be anything but a Pyrrhic victory remains to be seen, because I emphasise that I am not deciding, nor is it any part of my function to decide, that there has been any maladministration.
MR GEORGE: My Lord, first could I thank your Lordship for extending us the extra time. We are both very grateful for that. Secondly, my Lord, could I ask formally for a quashing order in the light of your Lordship's judgment. As I indicated when I was opening, we do not seek the particular declarations. They are unnecessary.
MR JUSTICE COLLINS: Yes. I think, subject to Mr Corner, a quashing order is probably the appropriate relief.
MR GEORGE: My Lord, secondly, might I mention five small matters in your Lordship's judgment. I put them forward very tentatively, simply I hope to assist, but if your Lordship thinks any of them are out of place will your Lordship please tell me so.
MR JUSTICE COLLINS: No, it is not out of place at all. I am very grateful always. Although it was not quite an extempore judgment it was not exactly reserved.
MR GEORGE: My Lord, they are all very, very minor. The first is in your Lordship's recitation of the history you did not actually mention 31st July 1995 as the date of the section 106 and the issue of the planning permission. It comes much later, but your Lordship may find when looking through, so that one has all the dates in the chronological section
MR JUSTICE COLLINS: I thought you told me that the planning permission had not been issued until September.
MR GEORGE: That is the date when they get their approval of the landscape ;
MR JUSTICE COLLINS: So planning permission was 31st July.
MR GEORGE: I would simply suggest that in the chronological section it might be worth putting that in.
MR JUSTICE COLLINS: I also, incidentally, in that regard it occurred to me that I made a bad point in relation to the decision letter referring to the date of 31st July, because of course the planning permission is issued before the condition is complied with. I think the sensible thing would be to scrub that bit, it did not add to the judgment
MR GEORGE: That was the second matter I was going to mention.
MR JUSTICE COLLINS: Yes. In fact, it was not a point I intended to make. I think the sensible thing would be simply to scrub it.
MR GEORGE: It makes no difference to the outcome.
My Lord, your Lordship referred to Dyer and to the judgment of Simon Brown LJ. You happened to say in the Court of Appeal, it was actually in the Divisional Court. I simply mention that for the record.
Thirdly, when your Lordship had dealt with Dyer and was setting out the various tests and so forth, your Lordship said, and I quote:
If the Ombudsman has conducted his investigation in a manner which is unfair, the court is entitled to intervene if satisfied that there has been unfairness."
My Lord, I think it ought to be "if satisfied that there is a risk of prejudice", that was how your Lordship put it later on. Otherwise someone may start quoting that earlier passage as the test and then everyone is going to say it is inconsistent with what happens later.
MR JUSTICE COLLINS: Yes, you are right.
MR GEORGE: Your Lordship then came onto the grounds and said that my first two grounds were irrationality. My Lord, I hope I made it absolutely plain that I was not, so to speak, solely relying on irrationality. I am sure your Lordship was summarising there.
MR JUSTICE COLLINS: I was.
MR GEORGE: But I would not want it ever to be thought thereafter that I had simply argued on irrationality.
MR JUSTICE COLLINS: I was using irrationality in the sort of generic sense. I think it is a bad label because it really does not apply to that part of Wednesbury which is failure to have regard etc, and it is also subsumed, I think, in giving reasons which indicate or at least tend to indicate that they have not had regard to the proper considerations.
MR GEORGE: Some people try and collect cases and look for pure irrationality cases and I do not think your Lordship would want your Lordship's finding on ground two to be categorised as a pure irrational finding.
MR JUSTICE COLLINS: I have always reckoned there is a distinction to be drawn between irrationality in the Diplock sense and perversity, which is the true, if you like, irrational decision. It is a question of language and I think we could do better. I will try to make it clear.
MR GEORGE: My Lord, the last matter is there was a passage when you were dealing with what Mr Buxton might have put in the letter. Could I just ask your Lordship to look at that rather carefully because it might look as though it was, so to speak, a positive criticism. I do not believe it was intended to be a positive criticism. Can I say no more about it. I simply ask your Lordship to look at it.
MR JUSTICE COLLINS: I think Mr Buxton is being oversensitive.
MR GEORGE: He has not raised that matter, my Lord.
MR JUSTICE COLLINS: Then you are being oversensitive.
MR GEORGE: It simply struck me that it might be read by others as being more critical than I think your Lordship probably intended it to be.
Leaving those matters aside then, I would simply ask that the claimants should have their costs in this matter and, my Lord, subject to what my friend may say, I would initially say we should have all our costs. Your Lordship knows that the matter is to go off to be assessed in any event.
MR CORNER: My Lord, I would certainly say that any costs order should go for assessment.
MR JUSTICE COLLINS: Yes. I had assumed that that was the position.
MR CORNER: My Lord, the point I would make on costs is this. Your Lordship has, of course, considered three grounds brought by the claimants. You found for the Commissioner on the first ground and for the claimants, as I understand it, on the second two grounds. My Lord, I would simply suggest that your Lordship consider making an order that the Commissioner pay twothirds only of the claimants' costs, particularly having regard to the fact that the first ground was the fundamental ground and has been for many years, i.e. matters that occurred prior to their complaint.
MR JUSTICE COLLINS: Yes.
MR CORNER: My Lord, I would submit that, in essence, your Lordship has confirmed the decision of Moses J.
MR JUSTICE COLLINS: I think there is some force in that. On the other hand, the upshot is that this decision, which of course incorporated both that and the subsequent events, I have decided cannot stand. I know that we are nowadays supposed to consider dividing up the elements of a case than we used to. Nonetheless, the substance really is that you have lost. What extra ;
MR CORNER: Of course we have lost. One consideration which may be relevant is that, as I understand it, I will be corrected if I am wrong, the claimants in this case have CFA funding agreement.
MR JUSTICE COLLINS: So I gathered.
MR CORNER: As I understand it, that would mean that there would be a substantial uplift from the normal costs would they succeed. I may be wrong on that.
MR JUSTICE COLLINS: I do not understand that that should make any difference to the quantum. It is, I would have thought, an irrelevant consideration for the purpose of assessing costs.
MR CORNER: My Lord, if it is, it is. My main point of principle is, as I say, that there is here a long standing, long running, saga and your Lordship on that first ground, which has been at the very root, has found in the Commissioner's favour. So for those reasons I would ask you to make an order for two thirds.
MR JUSTICE COLLINS: Yes. Mr George, I would have thought it is not for me to consider CFAs or anything like that.
MR GEORGE: My Lord, that entirely goes off to assessment and is the place where it is raised unless your Lordship was today dealing with another matter to the question of apportionment of costs. That has nothing whatever to do with the matter at all.
My Lord, turning then to the rest of the issue, in my submission we have always been looking at the entire period of the handling of this particular planning application which only crystallises into a permission on 31st July, and we have always been saying that there was maladministration and that has been upheld.
MR JUSTICE COLLINS: No, I have not upheld that.
MR GEORGE: I should have put it another way: the Ombudsman's finding in respect of that matter have been challenged. Now it goes back to be reconsidered. My Lord, if we had not run ground one, the bundle would still have had to have had all that material because it was all relevant to the question when the Turpins did raise those issues later on. So the bundle would have been exactly the same and, in reality, I doubt the argument would have been very much different. We would have had to go through precisely the same material. At the most it has added a little bit of time to the argument, but in a case in which I hope we were reasonably expeditious and we got through the matter in our one day, it certainly does not remotely account to a third of the total cost. It cannot possibly.
My Lord, I would submit to you that the way to approach this matter is to look at the matter sort of realistically, the time taken overall, and say, here in a case such as this it really has not made very much difference and therefore one goes back to the old rule. It would be quite different if that had been, so to speak, the matter which had been at the heart of the matter and then you had actually upheld it on two minor technicalities. My Lord, it is not that sort of case. So in my submission we should have everything.
MR JUSTICE COLLINS: Yes.
MR CORNER: My Lord, if I could just say, I do suggest that this first issue has been at the heart of the matter and has been so for many years.
MR JUSTICE COLLINS: It was that issue which was solely dealt with before Moses J, was it not? Because before Moses J you did not have the information
MR GEORGE: We did, my Lord. We had Mr Carter's
MR JUSTICE COLLINS: I thought that the first judicial review application was not based on the fresh material at all.
MR GEORGE: It was not based on the fresh material. That is absolutely right. But one had already Mr Carter's manuscript note and one had all the arguments that the matter could have been referred back.
MR JUSTICE COLLINS: Of course. You did not get very far with it because Moses J was able to say that that was simply sympathy - I am putting it rather briefly.
MR GEORGE: We did not have the 17th May letter, so our case is much stronger now. But to say it was not there
MR JUSTICE COLLINS: It was there at half cock, if I can put it that way.
MR GEORGE: It was more difficult to argue.
MR CORNER: My Lord, I am not sure that I can add to that. The only one point I should make is that you may want to consider the proportion of time taken on each of the three grounds during the course of this hearing, but I would have said that as a broad estimate the proportion of the total time taken by ground one was at least as much as the time taken by any other ground.
MR JUSTICE COLLINS: Yes, except that the introduction was common to all. It is fairly marginal on time, I think.
As is clear from the judgment I have given, three grounds were argued and on two of them the claimants have succeeded. The first ground which related to the actions of the officers in relation to the 1st February 1995 is the ground which has not succeeded. That, of course, was the ground which was the substantial basis of the argument on the first judicial review because although the second ground was raised and argued, the evidence available for it did not include the letter of 17th May and so, as Mr George recognises, and indeed is obvious, the argument could not be deployed with the force that it has been before me. Indeed it was disposed of by Moses J on the basis - and I am not in any way seeking to indicate the whole of his reasoning - that what was said in the meeting of 16th March by Mr Carter was really sympathy and not a true representation of any views that the planning permission might not have been granted had the true position being fully appreciated.
The question therefore is whether in those circumstances I ought to apportion costs, it being accepted that an order for costs should be made in favour of the claimants and against the defendants, but that in the submission of Mr Corner it should be limited to twothirds of those costs because there were three freestanding grounds.
I do not think it is as simple as that. The reality is that in substance the claimants have succeeded. There is no question but that until the change of approach indicated in the new rules there would have been no argument but that an order for costs and the whole of the costs was the appropriate decision. If one looks at this on the basis of time taken, there was a slight extra time involved in as much as ground one was argued and refuted. I say slight; it certainly was not as much as a third of the argument because, of course, much of the time was taken in introducing the matter, in referring to the relevant documentation and then in producing the argument based, as it was, upon the skeletons which had already been produced.
Mr George correctly indicates that the bundles would not have been any different because it would have been necessary to refer to the material which was relevant to ground one because it was also relevant to the other grounds, in particular ground two, and was all part of the history. So there would have been no difference of any moment there.
It is true, as Mr Corner submits, that ground one was, in the approach taken, a very important ground and indeed it was perhaps the trigger for the application that was originally made. That is the only reason really why I have wondered whether I ought to make some deduction in the costs that I award to recognise that that very important ground, about which there has been very substantial argument throughout the whole of the history of these proceedings, should be catered for.
I am persuaded that it is right to make some small reduction but not as much as one third. What I propose to do is to order that the defendants pay 80 per cent of the claimants' costs. I appreciate that that is very much a broad brush approach but that is all one can do when seeking to apportion costs in a situation such as this and, in my judgment, that is the fair way of reflecting the success of the defendants on that single issue.
MR CORNER: My Lord, there is one other matter. I do wish to ask your Lordship for permission to appeal to the Court of Appeal. Obviously that does not arise in relation to ground one, but it does arise in relation to grounds two and three. My Lord, the judgment, I suggest, does raise important questions on which their Lordships should have the opportunity to give their judgment.
MR JUSTICE COLLINS: It is really fact, is it not? I do not understand myself to have been departing from or indeed deciding any new principle of law.
MR CORNER: My Lord, that could extend at the most to ground two. I suffer from the slight disadvantage in that I did not hear the judgment on ground two, but I would say that even ground two raises important questions of the extent to which an Ombudsman need intervene in matters of this kind. So far as ground three is concerned, that raises for us, frankly, very important questions of principle about which we are really concerned as well being important for the decision and the determination of this matter.
MR JUSTICE COLLINS: What is the concern?
MR CORNER: The concern is this, without wishing to rehearse or repeat the arguments that were made before your Lordship: if one remembers section 28(2) of the Local Government Act with its (inaudible) that investigations be conducted in private and the procedure be at the discretion of the Commissioner, the concern is that the result of your Lordship's judgment may be or is likely to be to, firstly, make the course of investigations more lengthy, if I use the word cumbersome I do not use that pejoratively to your Lordship's judgment. From our point of view that is right. Secondly, a principle that has for long, we consider, been enshrined in the general purpose of the legislation, namely that the Ombudsman's procedure is a recognition by statute that there is a body which is to be trusted to make investigations in a relatively informal and confidential way so that hopefully those who are interviewed and spoken to will be frank, there is a concern that your Lordship's judgment will jeopardise the extent to which that ethos of the Commissioner's jurisdiction will continue.
MR JUSTICE COLLINS: Yes. I understand that. So far as the reasoning on this occasion was concerned, I did press Mr Ash quite hard to justify that and he really was unable to do so. That is to say, the mere fact that it was obtained in the context of an investigation, or what was considered to be equivalent to an investigation so that section 32(2) and 28 applied, was itself a justification for not disclosing. So on the facts of this case, the Ombudsman clearly did not ask himself the right question as to whether or not there should be disclosure. But putting it more generally, what I have decided is that in general if information is obtained upon which the decision maker is going to rely, it must, prima facie, be right to disclose that to the other side, not any wider than that, simply to the other side to enable comment. I recognise and indicated that there might be circumstances where the Ombudsman was not required to, where he would exercise his discretion not to disclose because, for example, the material had been obtained in confidence and it had been made clear by whoever gave it that he did not want it to go further. Even then, the Ombudsman would have to consider whether he should give an indication of the gist without identifying the source or whatever. I do not understand that really to go further than the general law, but what you are saying, I think, is that because of the statutory provision, the Ombudsman may be in a somewhat different position in relation to that.
MR CORNER: Yes.
MR JUSTICE COLLINS: That, as far as I am aware, has never been argued, but it may have been unnecessary to argue it.
MR CORNER: My Lord, it is certainly there at paragraph 51 of the skeleton.
MR JUSTICE COLLINS: Yes, but that is a general point which is raised by many people in the same position and, frankly, an argument with which I am not overly impressed.
MR CORNER: My Lord, we would wish to be able to take before the Court of Appeal the point as to whether it is, as you have just said, prima facie, the norm to disclose such note. I would suggest to you that whether you are right about that or not is, on any view, a matter which is of public importance.
MR JUSTICE COLLINS: Yes, I would agree.
MR CORNER: And also, my Lord, let it not be said that it is not of importance for the determination and the result of this case. It is not just an abstract issue of principle.
MR JUSTICE COLLINS: I am not sure that that is right. This is the problem you are up against, Mr Corner. Whatever you may say about those more general observations, the fact is that in this case the Ombudsman did not base his decision on any right principle. He did not ask himself whether there was any reason not to disclose. He just assumed that there should be no disclosure. It may be, you say, that that assumption is correct.
MR CORNER: My Lord, I would wish to be able to argue that.
MR JUSTICE COLLINS: If you do, good luck to you.
MR CORNER: He did refer to the confidential nature of the proceedings. I would wish to be able to base argument of that in the Court of Appeal.
MR JUSTICE COLLINS: Yes.
MR CORNER: It is, as I say,
MR JUSTICE COLLINS: I do understand.
MR CORNER: We are really seriously concerned.
MR JUSTICE COLLINS: But I wonder whether this is the right case. It may be that the answer is this is the only case and you are stuck with my observations otherwise. You can always say they are obiter.
MR CORNER: My Lord, it is, if I may say so, tempting for a tribunal to say, you may have a point but this is not the case for it, but cases make law.
MR JUSTICE COLLINS: Yes, I know. You are quite right. Judges have a habit of saying things that go beyond the individual case.
MR CORNER: And I am reminded by my solicitor that as a responsible public body if your judgment stands on this matter we are bound to follow it.
MR JUSTICE COLLINS: I am glad to hear it.
MR CORNER: It is a serious point.
MR JUSTICE COLLINS: I know.
MR CORNER: For us it is a very serious point. I would ask you not to make any decision on the basis of, well, there may be another case on which to raise this point but not this one.
MR JUSTICE COLLINS: I do understand that.
MR GEORGE: My Lord, there is no way in which it can be suggested that on ground two there is a realistic prospect of success at the present stage. Your Lordship has made a judgment which depends very much upon the particular facts and I apprehend that your Lordship reached a fairly clear view on ground two.
MR JUSTICE COLLINS: I hope so, yes.
MR GEORGE: It follows that one would hope your Lordship would not be giving permission to appeal on ground two. If that happens, ground three becomes academic because this decision is going to be quashed and the Court of Appeal should not be entertaining an appeal on a point when at the end of the day there is still going to be the quashing order. That is why it is not the right case. Nor can it be right that by a back door leave be granted on ground two as well so that the matter can be canvassed.
My Lord, standing back from the matter, your Lordship has not decided anything which is at all radical in that your Lordship has said simply that generally fairness would dictate that documents should be disclosed, but that there may be exceptional circumstances where different rules apply and, no doubt, at the end of the day if there is a dispute the court can adjudicate upon these matters. My Lord, that should not pose any particular problem.
Here we have a matter which one would have thought this further investigation into whether there should be an investigation should start as soon as possible. If the matter goes to the Court of Appeal we are going to have a delay of about a year until we have a hearing, because noone is going to say that this matter is ultra urgent compared with the other matters which are in their Lordships' queue. We are going to have a massive further delay whereas really the matter ought to go back for a redetermination by the Ombudsman, and all that follows is he has to show us the notes he has of those two witnesses, and if he decides he is going to interview anyone else, then again they will be supplied to us unless there is something particular about it and for some reason it is someone who said, I am not prepared to speak to you unless ...
So, my Lord, there really is not any problem on the facts of this particular case or in future. My Lord, my submission to you would be that this is a case where you should be refusing leave and if my friend wishes to canvass the matter elsewhere he must persuade the Court of Appeal as to why they should be granting this somewhat academic appeal.
If your Lordship were minded to grant permission to appeal, there is something else I would want to say about conditions, but it would depend
MR JUSTICE COLLINS: Presumably you would apply, or would you, for leave to appeal on ground one?
MR GEORGE: I would not need that because I would deal with that by the equivalent of a respondent's notice that the decision be upheld.
MR JUSTICE COLLINS: I am not sure whether you need leave to cross appeal.
MR GEORGE: My Lord, we gave some consideration to this and we have not quite got to the bottom of this rules, but certainly under the old rules where you had a decision, you certainly did not.
MR JUSTICE COLLINS: I am afraid I am not up to date.
MR GEORGE: Perhaps if your Lordship were giving one, if your Lordship could indicate that we would have it too, but that is not the key matter I was going to raise. The key matter is that if this is going to go further on ground three because the Ombudsman is concerned about his general duties
MR JUSTICE COLLINS: There should be a condition that he pay the costs.
MR GEORGE: He should pay the costs of the exercise. My clients are not rich people. That is why we are here on a conditional fee arrangement. They never hoped they would be involved in the litigation. If the matter is to go on, it is highly questionable that we will be able to partake at the next stage. I do not suppose the Court of Appeal would want to deal with this matter on its own. Therefore this must be a case, like the recent Alconbury case, where it was decided that the other parties' costs should be funded by the party who wanted the determination of the court. That would seem to be the case here. If your Lordship were to be giving leave, we would suggest that it should be limited to ground three only and on the condition that they would not seek to appeal ground two and that they would pay all of our costs of the appeal.
MR JUSTICE COLLINS: That makes is totally academic. I cannot imagine the Court of Appeal would entertain an appeal on that basis because the only question is a totally academic one in the context of such an appeal because they would have to dismiss the appeal if there was no appeal on ground two.
MR GEORGE: My Lord, that is right. It is difficult to imagine your Lordship giving leave on ground two or the Court of Appeal giving leave on ground two unless the Court of Appeal felt that your Lordship's judgment was aberrational in some way.
MR JUSTICE COLLINS: That is always possible.
MR GEORGE: That may happen, but it does not happen at this stage. Your Lordship should only be giving to appeal if your Lordship was really troubled.
MR CORNER: I would invite you to give permission on both grounds two and three. My Lord, I would suggest there is a realistic prospect of success on both of them.
My Lord, I would add just this: so far as what was said by my learned friend about what would happen on a reinvestigation, if that simply took place now we would have to reinvestigate the matter, which we do not think we should have to, and we would have also to apply your guidance given on ground three.
MR JUSTICE COLLINS: That does not actually create any problem in the context of this case.
MR CORNER: I would not wish to accept that on behalf of the Commissioner. It is not for me to say. It may or may not.
MR JUSTICE COLLINS: It does not look as if it would judging by what I have seen.
MR CORNER: I make no comment about that because it is not for me to judge.
My Lord, so far as the point that my learned friend made about a conditional permission, if your Lordship did give permission to appeal to the Court of Appeal obviously you would have to consider whether to accede to my learned friend's submissions or not. I would simply say this: (a) my Lord, it is not as though we are a body with unlimited and endless funds, we are a public body with a budget that is used for investigation as best we can, but (b), if your Lordship were to give leave to appeal, I would ask you to bear in mind that the matters at issue here are not simply and abstract interesting matters
MR JUSTICE COLLINS: No, they are practical and real.
MR CORNER: They are practical and real in two ways. They are practice and real of course to the Commissioner and the general way he goes about his business, but they are practical and real, I do contend, as regards this particular complaint. They are not simply irrelevant to this complaint. They are relevant to it and therefore there is no reason for you to apply the guidance on conditional permissions.
MR JUSTICE COLLINS: Remind me.
MR CORNER: If your Lordship looks at the White Book, paragraph 52.3.29. My Lord, if I can just request your Lordship to cast an eye over that.
MR JUSTICE COLLINS: Are you not equivalent to that?
MR CORNER: No, we are not because that is the case where an insurer wants to establish a general point and the insured has no interest in the outcome of the litigation.
MR JUSTICE COLLINS: No, no interest in the wider issues.
MR CORNER: My Lord, this is a case in which the wider issue that is engaged, certainly by ground three, is of relevance also to this case. My Lord, in those circumstances just because an issue which is relevant to on particular case also has wider connotations does not justify conditional permission. That is my point.
MR JUSTICE COLLINS: Thank you, Mr Corner.
Mr Corner applies for leave to appeal on both the grounds which I have found against the Commissioner. As far as ground two is concerned, that was a decision depending on the facts of this individual case. I am perfectly satisfied that the Ombudsman did err in the ways that I have indicated having regard to those facts and it seems to me that, (a), there is no point of importance involved in that ground, but, (b), and more importantly, there is, in my judgment, no reasonable prospect of success on that factual issue.
So far as ground three is concerned, the unfairness ground, Mr Corner makes the point, and I understand it, that this is a matter of some importance for the Ombudsman because he is concerned that if my judgment stands he will be required to adopt a far more cumbersome and time consuming procedure in dealing with complaints made to him. Further, he may find it the more difficult to obtain information which he regards as important for the purposes of his investigation if he cannot guarantee confidentiality to those from whom he seeks it.
I see the force of those points, but that situation applies to very many decision makers who have to decide issues which may be issues of great importance to the individual in question. An obvious example is disciplinary proceedings against individuals, and it may well be that it is often difficult for various reasons to obtain information unless confidentiality can be, at least to a considerable extent, guaranteed, but it would be difficult, I would have thought, to argue that the individual whose future may be at stake is not, prima facie, entitled to know what information is available so that he can meet it.
The general principles which I have stated are no more than the principles that are applied generally and the only argument, as it seems to me, that could be put forward is that the Ombudsman somehow is not bound by those principles. That, as it seems to me is an argument which is unlikely to appeal to any court.
While I understand the concerns, it seems to me that this is a matter which should be put to the Court of Appeal and if the Court of Appeal are persuaded that it is a matter which should go before them, so be it. The problem is that without ground two, ground three is academic because the appeal would still have to be dismissed, and I see no reason to grant leave to appeal on ground two simply because ground three raises matters of concern to the Ombudsman.
Mr Corner, you will have to persuade the Court of Appeal if you wish to take this matter further.