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Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001 - Case No. C920/00, C721/00, C1620/00, C1630/00, C1825/00 and C1421/00
Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001
Volume 4 - 2nd REPORT - SESSION 2001-2002
Chapter 2
DEPARTMENT OF THE ENVIRONMENT, TRANSPORT AND THE REGIONS
Case No: C920/00
Alleged failure to carry out building control inspection duties properly
The Ombudsman did not uphold Mr R’s complaint that the Department of the Environment, Transport and the Regions (DETR) had failed to take appropriate action after he had complained to them (after he had suffered carbon monoxide poisoning at his home) that a building inspector approved by the Secretary of State had failed to carry out building inspection duties in accordance with building regulations. The Ombudsman found that approved inspectors were given a wide discretion to decide how they should conduct their inspections, and that DETR had not known about Mr R’s case until some two years after he had first experienced difficulties. The Ombudsman did not conclude that DETR had been maladministrative in failing to remove approval from the inspector in Mr R’s case, and accepted that they had been presented with insufficient evidence to do so. While the Ombudsman appreciated Mr R’s concerns, he did not find that DETR had been maladministrative under building legislation in not requiring approved inspectors to carry and use flue gas analysing equipment. The Permanent Secretary at DETR explained the method for considering the withdrawal of approved inspector status in situations where that was required. He also said that a revision of regulations made under the Building Act 1984 was planned to suggest that in future, builders should use smoke pellets to check visually the gas-tightness of flues.
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Case No: C721/00
Highways Agency, Valuation Office Agency of the Inland Revenue, and Treasury Solicitor’s Department: neglect and mishandling the compulsory acquisition of land
The Highways Agency took over thirty years to complete the compulsory purchase of some land required for the M5 motorway, from the trustees of an estate. The Ombudsman’s investigation showed some fault by the Valuation Office Agency and the Treasury Solicitor’s Department but, more seriously, the Highways Agency delayed, lost some files and failed to monitor properly the execution of that part of the scheme throughout much of its life. Statutory entitlement to a reimbursement of fees of the trustees’ solicitors falls outside the Ombudsman’s remit. However, the Highways Agency set out a basis on which that could be resolved as well as the issue of reimbursement of additional fees and costs arising through delay and official error. The Highways Agency offered to make the trustees an immediate ex gratia payment of £1,000 for delay and inconvenience. The Ombudsman considered that and the Highways Agency’s apologies (along with apologies proffered by the Valuation Office Agency and the Treasury Solicitor’s Department for their part in the delay) to be a suitable outcome to the complaint
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Case No: C1620/00 and 1630/00
Highways Agency: failure to consult about a planning application and poor handling
Mr and Mrs T and Mr R live on S Road, near to a roundabout. A property developer submitted to the council proposals to build a road leading from the roundabout to a nearby retail park, and to enlarge the roundabout. The council erected site notices and sent notifications to local residents who were affected, but sent nothing to Mr and Mrs T or to Mr R. The Highways Agency (the Agency), who agreed to carry out the works, wrongly assumed that Mr and Mrs T and Mr R had been consulted. Mr and Mrs T and Mr R learned about the road scheme only after construction work had begun. Thereafter they persistently raised concerns with the Agency about, amongst other things, the high speed of vehicles approaching and leaving the roundabout. They said that it was very difficult for vehicles wishing to access or leave their properties to do so safely, and it was hazardous for those leading horses across S Road. Mr and Mrs T and Mr R expressed concern that their properties and the accesses to them had not been shown on various site drawings and plans. The Agency gave assurances that the scheme’s design team had been aware of the properties and their accesses. The Agency arranged for three safety audits to be carried out in accordance with their procedures and considered carefully any recommendations made. They also considered an independent safety report commissioned by Mr R which raised concerns about the design of the roundabout and the road markings. The Agency subsequently agreed to alter the road markings in S Road in an effort to reduce traffic speeds. The Ombudsman found that prime responsibility for arranging appropriate consultation lay with the council, although the Agency should not have made assumptions about the level of consultation. In any event, it was unlikely that the road scheme would have been altered in any significant way even if Mr and Mrs T and Mr R had been consulted. The Ombudsman was content that Mr and Mrs T and Mr R had not been disadvantaged by the use of incomplete drawings; and that the Agency had addressed safety issues in an appropriate way. Nevertheless, the Ombudsman did identify a number of areas where the Agency could have handled things better. Following the Ombudsman’s intervention, the Agency apologised for those shortcomings and offered to make consolatory payments of £300 to each of the two households. The Agency also reviewed and amended their procedures to enable them to assure themselves at a sufficiently early stage that local planning authorities have taken adequate steps to consult local residents in appropriate cases. They also confirmed that all outstanding safety measures identified as part of the final (stage three) safety audit had been implemented.
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Case No: C1825/00
Highways Agency: failure to pay compensation and delay in paying legal costs
In 1988 the then Department of Transport served Mr A with a notice to enter the land fronting his property. They did not inform Mr A, as they should have done, that he was entitled to apply for an advance payment of compensation once his land had been entered. As Mr A’s land and that of his adjacent neighbours became a private means of access, all three parties were required to grant each other legal rights of way. The Department informed Mr A that they would pay the legal costs which he had reasonably incurred and they instructed the district valuer to arrange for the various rights of way to be granted and to negotiate compensation settlements with the neighbours. In 1990 the Department said that Mr A’s legal costs could not be paid until all the legal transactions had been completed. Numerous legal disputes about ownership of land and maintenance liabilities followed, which meant that compensation was not provisionally agreed until 1995. Mr A’s solicitors then refused to transact any further business until their legal costs to date had been paid and they had received assurances that their future (unspecified) costs would be met. The Department took the view that much of the work being charged for by Mr A’s solicitors duplicated work carried out by his surveyor, for which a separate fee had already been agreed. The question of the legal costs remained unresolved and the costs continued to escalate. In the meantime further disputes arose over land ownership and the condition of the access road. In 1998 Mr A sold his property, claiming that he had reserved rights to the compensation. The new owners then became entitled to any advance payment, but a dispute arose as to how much they would be prepared to pass on to Mr A. The Highways Agency agreed, exceptionally, to settle Mr A’s legal costs before the legal transactions had been completed, in order to progress matters. Despite that, one party has still to agree to the document drawing up the legal rights of way. After the Ombudsman’s intervention, the Highways Agency apologised to Mr A for their shortcomings and awarded him a consolatory payment of £500.
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Case No: C1421/00
Planning Inspectorate: mishandling of planning appeal
The Ombudsman did not uphold a complaint from Mr W that the Planning Inspectorate (the Inspectorate) had mishandled his planning appeal. The Ombudsman did not find that the planning inspector had failed to take into account, or give appropriate weight to, evidence in support of the appeal. Nor did he regard as maladministrative the fact that the inspector had not seen, during his site visit, the arboretum with which Mr W’s planning appeal had been linked. The Ombudsman did not make a finding about the disputed length of the inspector’s site visit; the duration of such visits was left to the inspector’s discretion and the Ombudsman found no evidence of shortcomings in the inspector’s decision letter on Mr W’s appeal which might have indicated that the site visit had been of an inadequate length. The Ombudsman found that any misunderstanding between the Inspectorate and Mr W about the planning permission history of his home would have had no bearing on the outcome of the appeal. The Ombudsman also found no evidence of collusion between the Inspectorate and Mr W’s local planning authority. Although the Ombudsman found that the inspector had not been aware of a potentially relevant Court of Appeal decision when he had dealt with Mr W’s appeal, he did not find that that had affected the outcome of the appeal in Mr W’s case. The Ombudsman was satisfied with the Inspectorate’s account of their arrangements for passing on relevant court judgments to inspectors, and of the role that such judgments might play in influencing inspectors’ decisions in other cases.
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