R (on the application of Turpin and another) v Commissioner for Local Administration

Claimants granted planning permission to build house – Council concerned with density of site – Gap contemplated between claimants’ house and other development – Developer seeking planning permission to build near claimants’ house – Developer’s application showing reduction in gap between development and claimants’ house – Claimants failing to notice reduction – Developer granted permission – Claimants alleging maladministration by council – Commissioner deciding no maladministration and refusing to investigate – Commissioner refusing to disclose interview notes – Claimants seeking judicial review – Whether commissioner’s decision irrational and procedurally unfair – Local Government Act 1974 – Claim allowed In April 1991 the claimants (T) were granted planning permission to build a house on their land, which lay at the south-eastern corner of a site. At that time, Cambridge City Council expressed concern over the high density of buildings on the site. It was contemplated that there would be a gap of 6.4m between T’s house and any development in close proximity to it. In 1994 Cambridge Housing Society (CHS) made two applications for planning permission for a housing development on the site. The plans showed a separation between T’s house and the development of only 4m. T was consulted on both applications but failed to notice the change in distance and raised no objection to the scheme. In February 1995 the council’s planning committee considered a report and resolved to approve CHS’s application, subject to a number of conditions and a section 106 agreement, under the Town and Country Planning Act 1990. The council resolved to grant planning permission. CHS began works before formal planning permission had been granted. T became concerned when the foundations for the development were dug. A planning officer visited the site and wrote to CHS indicating that, although T did not raise objections, they did not believe the development would encroach any closer than the previous approval. He stated: “had I been aware of this concern, I would have supported their cause and required that the houses… were a little smaller”. However, no change was made to the scheme. In 1996 T complained to the council’s internal ombudsman alleging maladministration by the council in failing to note the change from a 6.4m to a 4m gap. The ombudsman decided not to pursue the complaint on the basis that T had been given proper notice of the development and had chosen not to object. Judicial review proceedings against that decision were dismissed. T appealed and also made a second application for judicial review on the basis of new evidence. The Court of Appeal ordered that the matter be considered afresh by the defendant commissioner in light of the new material. In September 1999 the commissioner expressed the view that the council had not acted with maladministration and that there was no need to investigate further. T sought judicial review of that decision. It was submitted, inter alia, that: (i) the commissioner’s decision not to reconsider was irrational when the problem was drawn to the council’s attention in 1995; and (ii) there had been procedural unfairness because, in the course of investigation, the commissioner had interviewed a councillor and the planning officer, and although he took the content of those interviews into account, he did not disclose those notes to T. Held: The claim was allowed. 1. The commissioner failed to dealt with the planning officer’s letter. The fact that the planning permission, as it stood, was acceptable in the planning officer’s opinion did not mean that it was not open to the committee to form a different view. It was, at the very least, arguable that the planning officer’s failure to refer the matter back to the council was maladministration. The commissioner’s reasoning for refusing to investigate did not stand. 2. The commissioner’s reasoning for not disclosing the interview notes to T was not justified at all. There was nothing in section 32(2) of the Local Government Act 1974 to indicate that documentation or interview notes obtained in the course of, or for the purpose of, an investigation should not be disclosed because they were obtained for the purposes of the investigation. There was every reason why they should have been disclosed. An ombudsman had the discretion not to disclose information in certain circumstances, however, discretion should be exercised in favour of disclosure unless there were very good reasons to refuse to do so. There were no good reasons suggested in the instant case. The commissioner’s decision was unfair. He placed considerable weight on the evidence he obtained from those interviews. It could not be said that there was no possible risk of prejudice caused to T as a result of his failure to disclose the notes: R v Chelsea College of Art and Design, ex parte Nash [2000] Ed CR 571 considered. Charles George QC and Gregory Jones (instructed by Richard Buxto,n of Cambridge) appeared for the claimants; Brian Ash QC and Timothy Corner (instructed by Pulvers, of Watford) appeared for the defendant. Sarah Addenbrooke, barrister