Reference DER0679272.
Formal Complaint of
Maladministration against Bolton Council
Dear Mr Harris,
Following Bolton Council’s
response in the name of Tim Hill, Chief Housing and Planning Officer to the
above complaint, I would now like to appeal to you for your further examination
and judgment.
I would first like to explain
that having made the Complaint to Mrs Gorman (as the Monitoring Officer) and
since the matters concerned involved interpretation of the law, I expected that
after investigation it would be she who independently and dispassionately formed
a judgment based on her legal knowledge and it would be she who formulated the
reply, not the head of the Department I was complaining about.
Notwithstanding the above, I
would like to respond to the points made by Mr Hill.
………………………………………………………………………………………………….
Careful reading of my
original e-mail will reveal that my Complaint was about the actions taken (or
not taken) by the Council between 23rd January and early February
2012 following information of deficiencies in the original Certificate B which
I provided to Mr Allen on the 23rd January 2012. I submitted in my Complaint e-mail that the actions
taken/ not taken were at variance with required procedures and the law and thus
were maladministration.
The subsequent effects on the
validity of the Planning Consent were merely consequences (in my view) of that
maladministration and not the principal of my complaint.
The further point about the
1900 date allocated to Mr Harris’s letter of the 2nd Feb were merely
a correct observation and pointed out what a cynic might construe from this.
…………………………………………………………………………………………..
As further justification for
my Complaint, I submit the following.
Point No 1 – Notice dates.
Mr Hill asserts that neither
the Act nor the Management Procedure expressly or implicitly fix the date when
Notices must be given as predating the submission of the application.
I refute this on the basis of
simple logic as follows:-
1)
Certificate B is
contained within the prescribed Application Form which is of standard form
throughout the country. It appears nowhere else and there is no provision or
mechanism whereby it can be submitted elsewhere or at a different time.
2)
An Application
Form submitted to a Planning Authority without the Certificate section being
completed would be rejected.
3)
Certificate B
states:-
CERTIFICATE
OF OWNERSHIP - CERTIFICATE B
Town and
Country Planning (Development Management Procedure) (England) Order 2010 Certificate under
Article 12
I certify/
The applicant certifies that I have/the
applicant has given the
requisite notice to everyone else (as listed below) who, on the day 21 days
before the date of this application, was the owner (owner is a person with a
freehold interest or leasehold interest with at least 7 years left to run) of
any part of the land or building to which this application relates.
4)
Thus the
Certification states on the Application form that Notice has already been given and
consequently it must have predated the submission of the Application form ( if
only by a matter of hours up to 21 days)
5) We must conclude from the above that the requirements
of the Act & Procedure, the wording of Certificate B - and there being only
one mechanism for submitting a Certificate B (ie the Application Form) that
these, together, IMPLY that the
Notices must predate the submission.
No other conclusion can be reached.
………………………………………………………………………………………………
There can be no purpose for the
requisite Notice referred to in Certificate B other than to pre-inform owners
of the land(s) / building(s) involved that an application is about to be made.
The form of Notice is
prescribed as :-
Town and
Country Planning (Development Management Procedure) (England) Order 2010 NOTICE UNDER ARTICLE 11
OF APPLICATION FOR PLANNING PERMISSION
(Notice 1:
This notice is to be printed and served on individuals if Certificate B or C is
completed
Notice thus cannot be given
by postcard or e-mail etc, it must be on the above form.
Further to this, these
Notices must be sent to the owner(s) even if those people already are aware of
the proposed application.
The wording on the Notice is quite
clear in its meaning.
“Take notice that application is being
made by …………….For planning permission to………Local Planning Authority to whom the
application is being submitted……”
All in the present tense! It does not say “has been made” or “has
been submitted”
This reinforces the by now
clear requirement that the Notices must predate the Application.
………………………………………………………………………………………………
The ability of the applicant
to complete Certificate B requires that he/she identifies who are the owner(s)
of the land/ building(s) on the prescribed date of 21 days before the
application submission.
In reality this would mean
taking reasonable steps to do so. The most obvious and reasonable step to take
would be to examine the Title Register and Plan of the land involved which is
available from the Land Registry online at £8 a throw.
If any part of the land was
not registered and the owner could not be identified, there is a separate
prescribed procedure in the Act to be followed. This does not apply in the case
of 86999/11.
…………………………………………………………………………………………….
Now let us examine what actually happened.
The Application (subsequently
86999/11) was filled in and dated 7th Oct 2011.
The land involved in the
Application was the Bradley Mill site, Crossley St and the Tree Plot south of
and adjacent to Crossley St.
Certificate B identified the
owners of the land as twofold – Mark and Linda Seddon and Bolton Council
Estates and stated that Notices had been sent to these also on the 7th
Oct.
So the Certificate is saying
that these people between them owned the land involved in the development 21
days prior to 7th October (ie
16th
Sept 2011).
The applicant, within the
application, submitted a copy of the Land Registry Title Register for Bradley
Mill (GM 370984). This shows the owners of Bradley Mill as Mark and Linda
Seddon with no lenders or charges against the land.
It is assumed that the
applicant relied upon this register as identifying the owners as the above for
the purposes of Certificate B.
However, this document is
dated 26th October 2010.
I have a copy of GM370984
dated 7th Feb 2011
which now shows a charge against the land in the name of Wayne Seddon. This
charge had been laid on the 20th Dec 2010.
I have a further copy of GM
370984 dated 23rd of January 2012 which shows that charge still
extant.
It is thus clear that the
applicant failed to re-check the Land Registry as he/she was filling in Certificate
B on 7th Oct 2011
to see if there had been any changes and thus in fact had had not taken the
very reasonable and simple check to identify the owners as at 16th
Sept 2011. He/ she was
stating something which he could not have known to be true.
………………………………………………………………………………………………
In relation to Crossley St and the Tree Plot, I have no information as to
whether the applicant checked the ownership of this land as at 16th
Sept 2011. It is not
difficult to surmise that he just assumed all this land was owned by the
Council – indeed it seems not to have occurred to the Council that they might
not own all the land.
Again a simple check on 16th
Sept 2011 with the Land
Registry would have revealed on the appropriate Title Plan that the north half
of Crossley St was in fact owned leasehold by Bolton
at Home. They had registered their ownership on 27th August 2011.
So, again, a check had not
been made by the applicant as to who owned this part of the land as of 16th
Sept 2011.
………………………………………………………………………………………………
Because of this failure to
check both of the above, the applicant couldn’t have and didn’t truly know the
owners of all the land involved in the application as of 16th Sept
2011 yet stated that he did and certified that he had served Notices on ALL the
owners of the land.
Failure to make these checks
thus cannot be described as having taken ‘reasonable steps’ and it is basically
as a consequence of this that the actions/ lack of actions of the Planning
department between 23rd Jan 2012 and early February 2012 are the subject of my
complaint.
……………………………………………………………………………………………..
It is clear that at this
stage in my argument the Certificate B submitted by the applicant on 17th
Oct 2011 was deficient in two
respects.
1)
Not all of the
owners of the land involved had been given notice.
2)
The applicant had
not ascertained who the owners of the land were as at 16th
Sept 2011 (21 days before the
application as required) but certified that he had and had issued Notices to
them.
………………………………………………………………………………………………
From receipt of the
Application until 23rd January 2012, Bolton Council Planning was unaware of these
deficiencies. There is no procedure (or requirement) for the Council to double
check who the owners are (perhaps there ought to be). They take on face value
that what the applicant has certified is true and correct. Validation took
place and the application progressed without any fault on the part of the
Council.
Had I not (for different
reasons) informed Mr Allen of the deficiencies on 23rd January then
the application could have proceeded to decision without anyone being the
wiser.
………………………………………………………………………………………………
However, Mr Allen did become aware of these deficiencies
on 23rd January and the question then arose ‘what ought he to do
about it and what did the law require him to do about it?
……………………………………………………………………………………………..
In his e-mail of 30th January 2012 to the applicants agent Mr Allen acknowledged :- (quote)
“In any event the
Certificate of Ownership is a legal requirement and therefore needs to be
accurate otherwise any future planning decisions could reasonably be
challenged.”
The agent then wrote back to Mr Allen with
the information that Notices had been served to the additional persons on 2nd
February.
Bolton Planning plainly accepted that this
was a legitimate way of correcting the deficiencies in the original
Certificate, everything in the garden was rosy and the application could
proceed.
……………………………………………………………………………………………………
I contend that the deficiencies could not
be corrected in this way. The Certificate remained in its original state and
remained deficient in not listing all the owners of the land as of 16th
Sept 2011.
These additional Notices (presumably sent
on the pro-forma No 1) were sent nearly four months after submission of the application and could not therefore satisfy
the requirement (which I hope I have successfully argued and demonstrated
above) of being sent before
submission of the application.
Bolton Planning (being professional
planners) should have realized and recognized this and ,irrespective of the
embarrassment and inconvenience to the applicant, should have advised the
applicant that the situation could only be remedied by starting all over again
with a new or re-submitted application form where Certificate B was correct,
without deficiencies and thus satisfied the requirements of the Act.
Failure to do this is the complete
substance of my Complaint of maladministration.
……………………………………………………………………………………………………..
I now draw your attention to further assertions
in Mr Hill’s reply.
He states:-
“In relation to the validity of the
Certificate of Ownership and the lawfulness of the current planning permission
(Ref: 86999/11), this is a matter which is ultimately for the Court through the
established process of judicial review.”
I completely accept that
lawfulness of the current planning permission would be (have been) ultimately
for a Court to decide. Case law shows that the Court has discretion in
measuring the effect on that lawfulness of a deficient Certificate by making a
judgement on the degree or seriousness of that deficiency and other factors - resulting
in a range of possible decisions from dismissal of the appeal to declaring the
planning consent unlawful.
Perhaps I should have been
less definite in asserting that the planning consent 86999/11 was unlawful.
All this does not alter, or
is directly connected to, the substance of my complaint.
…………………………………………………………………………………………………..
Mr Hill further draws my
attention to the Case of R(on the application of O’Brien) v West Lancashire BC
(2012).
I am unable to access
(without cost) the full details of this case, but a summary appearing in
“Planning, Local Government
& Administrative Law Case Update July 2012 by Mark C. Mohammed, Advocate”
reveals that the Court referred
to what seems to be the definitive Case Law for this type of situation, ie – the
Court of Appeal decision in the case of Main
v. Swansea City Council
Since this was a Court of
Appeal decision, the Court involved in R v West Lancashire was bound by it – not just to use it as a reference
point.
The ramifications of this
case are perhaps best revealed in the following document from the Law Society
Gazette. This is too long to be reproduced here but can be found at :-
The whole document might make
interesting reading for Mr Hill.
I quote the following passage
from the above which I think is most relevant in this case.
The Court of Appeal held that whilst a
factual error in a certificate may be no more than an irregularity that does
not go to the jurisdiction, it was unable to accept that all factual errors
would be categorised as mere irregularities unless it is so gross as to make
the certificate no certificate at all.
The Court stressed that it was the responsibility of the applicant to ascertain and give notice to all owners if he can do so and, if he cannot do so, then to advertise the application in the local paper. If an applicant, honestly but negligently, failed to do this so that an application is granted without an owner being notified or advertisement made then the court could not see why a prompt application by the owner concerned to have the permission quashed should not succeed.
It is clear that factual errors
in a certificate could affect the
jurisdiction of the LA to deal with the application.
It is not the business or
competence of the LA to make that judgment – it is a matter for the Court.
Thus, upon learning of
factual errors in the Certificate, the only course for the LA (since they no
longer know if they have jurisdiction or not) would be to stop work on the
Application and advise the Applicant that a re-submission with a correct
Certificate was required.
The second quoted paragraph
is quite clear that in the case of 86999/11 the granted permission could have
been quashed since it is equally clear that the Applicant negligently failed to
take reasonable steps (albeit perhaps honestly) to ascertain the Owners as of
16th Sept 2011
It is clear to me that it is
because of all the above that North
Somerset issued the Guidance
that they did and were correct to do so.
The fact that Bolton Council
hasn’t issued similar guidance together with Mr Hill’s insistence that it is
irrelevant, betrays a somewhat cavalier attitude to that which procedures and
the law require.
To further clarify North Somerset’s bases for issuing this guidance I have written to
them for an explanation.
……………………………………………………………………………………………………..
Summary:-
Upon discovering the factual errors in the
Certificate, Bolton Council could no longer know if they had the jurisdiction
to progress the Application.
Without this knowledge of jurisdiction and
in accepting the concept of Additional Notices four months after the
Application had been submitted and thus allowing the application to progress,
Bolton Council failed conform with correct procedures and the requirements of
the Law and are thus guilty of Maladministration.
…………………………………………………………………………………………………..
Final note:-
It may well be that the horse has bolted
and it’s too late to legally shut the door in the case of this application, but
you must know that from the start there was obviously an imperative for this
application to succeed. Rules have been bent in this matter and other parts of
the application’s progress. This strikes at the integrity of the Planning
Process.
I am sure you agree that the Planning
Process should be dispassionate and ( as Caesar’s wife) beyond reproach – just
as much in the case of a large multinational company as it would be for Mr
Smith’s house extension.
Ok – nothing much can be done and there
are no real consequences, but should you agree, a mere admission that the
Planning Department was wrong wouldn’t be amiss.
Should you reject my Complaint, I will take
it to the Local Government Ombudsman.
Yours sincerely and respectfully
Paul Richardson.
