Highways: Private street

Local administration council failing to require developer of housing estate to provide security to cover provision of private access road council failing to issue exemption certificate ombudsman finding maladministration by council but no injustice whether matter should be reconsidered by ombudsman claim allowedR (on the application of Hughes and others) v Commissioner for Local Administration Queens Bench Division: Administrative Court: Mr Justice Burton:3 May 2001Hartlepool Borough Council granted planning permission for the development of a housing estate.

The claimants purchased houses on the newly developed estate.

They submitted that the price they paid for the properties reflected the fact that they anticipated that an access road, albeit a private road, would be built to a satisfactory standard.

The developer went into liquidation without constructing the access road to such a standard.The claimants complained to the defendant Commissioner for Local Administration (the ombudsman) that the council had failed to require an advance payment under the advanced payments code within the Highways Act 1980, or to secure an agreement and bond from the developer, to enable highway works to be implemented should the developer fail to do so.

Section 219(1) of the 1980 Act provides that a developer is required to provide a security or such sum as may be required under section 220...

in respect of the cost of street works.

Section 220 provides that the sum is to be specified in a notice.

However, section 219(4)(e) provides that, in certain circumstances, the council can make an exemption notice, so that the advance payment requirement does not apply.

In the instant case, the council had not required the developer to provide any advance payment or security and had failed to issue an exemption notice.

The ombudsman found that there had been maladministration on the part of the council but that no injustice had arisen.The claimants sought judicial review with a view to quashing the ombudsmans decision.

They submitted that no reasonable ombudsman could conclude that there had been no injustice caused and therefore that the court should prevent the possibility of any other finding being reached.

The defendant accepted that there had been failings in the ombudsmans report and that her reasons for reaching her conclusion as to injustice were inadequate.

It was prepared to submit to judgment but contended that the matter should be remitted to the ombudsman for reconsideration without any anticipatory fetter imposed by the court at this stage.The defendant submitted that it was open to the ombudsman, upon reconsideration, to hold that there was no injustice, for example, because the cause of the claimants loss was the result of their failure to inquire about the service or otherwise of a notice under section 220 of the Act.

The issue was whether there should be reconsideration and on what basis.Held: The matter was remitted to the ombudsman for reconsideration.

It was not appropriate for the court to fetter the ombudsmans discretion in advance.

The matter was to be reconsidered and no direction was made that the ombudsman should come to any particular findings.The claimants in person; Timothy Corner (instructed by Pulvers, of Watford) for the defendant.