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I am presenting a clear case of maladministration by the
Brecon
Beacons National Park Authority. The Authority acted unreasonably, irresponsibly
and unfairly but refused to react to any complaint until they came up against a
determined solicitor and counsel's opinion. Even then, their actions were late
in coming and quite inadequate. In addition, the cost to me, emotionally,
physically, and financially, was substantial.
The obvious recourse to such behaviour appeared to be the Ombudsman. Little did
I know: I found myself ground under by obtuse procedures, lack of understanding,
ineptitude and general inability to carry out the duties for which the office
was established.
I find myself in total agreement with the councillor who wrote on this site
about the complete and utter incompetence of the Ombudsmen or women. They seem
unable to grasp obvious facts and get caught up in irrelevant issues or those
that they manufacture themselves in order to obscure the real point involved.
There is no complaints procedure, and the only way to attack is to engage in an
expensive, and probably futile court action.
Whether the office-holders are ignorant, incompetent or simply malign, they are
of no value to people who would like to see them fulfil their function of
helping to produce a fairer society. Unless the institution can be improved, we
as a nation would be better off without them.
Unfit for purpose
The Welsh Local Government
Ombudsman
What follows is an account of a case of gross maladministration on the part of
the Brecon Beacons National Park Authority and the way the Ombudsman mishandled
a complaint. Every point made can be documented.
The Facts
I. The Park and unfulfilled duties
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1. In 1989 I was interested in buying a property near Brecon. The adjacent barn already sold, was derelict, and I considered it vital to know how it might be
developed, especially since the distance between the two properties was less
than six metres. I consulted at once with the National Park about the plans that
had been approved, and on the basis of the information they provided, continued
with the purchase. I was told then and subsequently that the files would be
flagged and that I would be notified of any proposed changes.
In addition, the Park's staff were at that time very helpful when violations
were pointed out to them. They took the trouble to investigate, determined that
my complaints had merit, and the owner of the barn at the time, Mr D, was
directed not to proceed with any changes not in the plans that had been approved
by the Park. Moreover, the Enforcement Officer wrote to the estate agents
handling the property, pointing out that they were using building regulations
plans rather than those approved by the National Park.
2. The helpful officers were, unfortunately, replaced in the years that
followed. In late 1997, the barn had new owners, Mr and Mrs X. They proceeded
with the very plans that Mr D had been directed by the then Area planning
Officer, P.M., not to use. We were told by his successor, Mr Y, that nothing
could be done about that.
3. It is highly relevant that at a meeting on site with Mr Y, he stated that
there was nothing to be done about a disputed dormer window that had already
been approved. Taking advice from a planning officer in another authority and
from a solicitor, it appears Mr Y was wrong on that point. At the same meeting,
he said several times that it would not have been permitted under the stricter
rules in force since the decision was made. The statements were to myself and my
partner, and I referred to them on several occasions, to Mr Y's superior
officer, to the ombudsman, and to my solicitor. The point was never challenged
until it became a matter of some import when it appeared that planning
permission would have to be sought a second time. Then Mr Y denied having said
such a thing, and of course his word was accepted despite the evidence to the
contrary.
In fact, it would appear that every effort was made to ensure that the plans
being illegally used would be given approval without anyone being the wiser.
4. Despite having promised that we would be kept informed about developments, we
were told absolutely nothing about what was being done until we received
information about 'a' (singular) development change that Mr and Mrs X wished to
make. The documents attached to the letter showed many other alterations to the
original plan. Indeed, Mr Y's own report to the Committee referred to 'a number
of other changes', changes which were far more important to us, but that fact
was never given to the Committee.
II. The first Committee Meeting
1. An important point is that there was never a formal application for the
changes sought, a fact my solicitor pointed out to the Park's solicitor. The
paper submitted by the Park officers was incomplete and misleading. Counsel
retained by us at a later stage agreed by noting that the paper had been
deficient.
2. That there were two sets of plans on file was admitted even by Mr Y. One was
approved, and the other not, but it was the latter that was being used by the
architect for Mr and Mrs X.
3. The Committee were not informed either verbally by Mr Y or in the papers
presented to the Committee that Mr and Mrs X were working to unapproved plans
and that the document submitted to them was in fact based on the
building
regulations blueprint. The officers appear to have engaged in subterfuge to
persuade the Committee to rubber-stamp their proposal in order to bring the two
sets of plans into accord.
4. The presiding officer (subsequently convicted of dishonesty) failed to
consider both the photographic and documentary evidence we had submitted and a
letter from a Committee member unable to attend that day, supporting our request
for a site visit. At all other meetings I attended, similar pieces of information
were made available to the meeting. The cursory nature of consideration is
indicated by the minutes.
5. We had been in touch with one member, Mrs Z, who had assured us that she
would see that the Committee considered our request. She refused to accept our
invitation to inspect the site, but she had already visited Mrs X. From that
side of the fence there was no way that she could have seen the true nature of
the problem and realise what our solicitor called 'the horrendous invasion of
our privacy'. Not only did she not make any effort to see that the matter was
discussed, but she failed to let the Committee know that she had acted in a way
that indicated bias. When challenged, she simply insisted that he had acted
properly.
III. Lack of Cooperation from the Authority
1. The Park did their best to ignore any additional submissions from us. They
insisted that we had had access to everything on file, despite the fact that we
knew that to be untrue. It took a solicitor's letter to get them to release
documents that proved the validity of points that we had made and that they had
denied.
2. When the Park solicitor (subsequently sacked for a serious offence,
apparently accepting a bribe) said that he had no intention of responding to our
requests, my solicitor was forced to take a more drastic measure. He pointed out
that the planning conditions for the barn had not been adhered to and that the
permission had consequently lapsed. That would mean a new application would have
to be made. The Park solicitor refused to accept that argument, and we asked him
to seek a second opinion. He bluntly refused, so we had to incur the expense of
seeking counsel's opinion. He supported our position and said
that its validity
ought to have been apparent to anyone involved in the field of planning law.
3. I was offered a meeting with the officers of the Authority, but since I felt
it was unfair to ask me to appear on my own in front of a group of people intent
only on denial and cover-up, I refused. However, the Chairman finally agreed to
meet me without the presence of others in the cabal, and the local member of the
Welsh Assembly kindly agreed to accompany me, as I knew I would require a
witness. The Chairman refused to accept that the Park had done anything wrong,
and when I argued how much it had cost me to get any concession whatsoever, he
replied that the matter had been settled when Mr and Mrs X agreed to comply with
my requests. Nothing could have been further from the truth, and in fact they
reneged on their initial oral promises made at an informal consultation in the
presence of the Park's solicitor. It took months of time and effort and a great
deal of money before our solicitor's actions forced the Park to consider a new
application, the permission for which included a proviso that the conditions we
had been seeking would be observed.
Secondly the Chairman argued that we would not have won a legal contest (and he
smugly whispered to me on the way from the room, when my witness was not
present, 'you are not the only one who can have counsel you know') If that were
indeed the case, why did not the Park refuse to accept the opinion of our
counsel and put it to the test?
4. Everyone in the Park continued to be obstructive. They insisted that they
would never make the concessions asked, but having said that for months, they
suddenly caved in on major points. It seems very odd that they surrendered at
precisely the same time that the Ombudsman submitted that we had got a large
part of what we wanted, so he would not investigate. A quid pro quo?
5. The fact that not a single member of the Committee was willing to respond to
any communication would suggest that the Park solicitor was orchestrating the
whole matter from the centre.
6. My protests to the Committee Chairman and Vice-Chairman finally elicited a
response, but a very inept one. I was told after the fact that a 'briefing' had
been held and it was decided that there was no case to answer. I was not
notified of the 'briefing' and was certainly not given a chance to present my
case or counter the evidence of the officers. What kind of justice allows the
accused to act as judge and jury?
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Pictures: Photos 1-3 show the proximity of
the two properties. Photos 4-5 show the view from the main bedroom
of the property into the main bedroom of the barn. The windows are
roughly 8 to 10 feet apart, whereas the Park's rules clearly state
that the distance in such circumstances must be at least 115 feet. |
IV. Dodgy Personnel
It is a fact that two of the people most involved in this affair have
subsequently been shown not to have exemplary characters. The then-chairman was
convicted of dishonesty, and the solicitor was suspended and subsequently,
presumably sacked. Although he has since been replaced, the usual conditions of
secrecy in local government means that the public are unaware of details. He had
been virtually the sole voice of the Park during these events, and the fact that
he was dishonest in one case would seem to have a bearing on whether my own was
properly conducted. Would it not be important to determine whether the
Park's decision could be considered 'safe'?
V. Summary
My solicitor, who worked for a firm with one of the largest planning departments
in the country, said he had never seen anyone receive shabbier treatment and
wondered what I had done to deserve it. He added that he had rarely met such a
hostile environment. These and other points were set out in his correspondence
with the Ombudsman.
The cost of getting the Park to act properly was more than £10,000, and award of
that amount would not begin to cover the worry and mental agony that was
incurred.
Perhaps the most galling aspect of the matter is that I, as a prospective buyer
of a property, had taken the trouble to find out what plans had been approved
for the property. It wasn't as if I had gone in blindly. If it is impossible to
rely on planning permissions and promises made by the Authority, what is the
point of having any rules at all? It is interesting that at a later stage, even
the short-sighted Ombudsman accepted that the Authority appeared to have one set
of planning rules for general use and one for the elect; in that case, a former
councillor.
In addition, it should be noted that the only way out for me was the legal
pathway, which was very expensive. The Authority, on the other hand, had a firm
tax base to pay for their cover-up. I had to pay twice; as a litigant trying to
obtain justice, and as a tax-payer for the Authority's opposition.
The Ombudsman
My struggle with the Ombudsman was, if anything, worse than that with the Park
Authority. I first filled in a very small form issued by his office and asking
for a brief précis. The questions posed were on a very small leaflet and had
roughly three lines for each query. Obviously I couldn't write any detail, and
knowing that I would be asked for more information at the appropriate time I
simply said enough to set the stage. That was to come back to haunt me as the
Ombudsman frequently said that I hadn't mentioned something in my original
submission. (In three lines, on a sheet of paper roughly 12 centimetres wide??)
The first reaction of the Ombudsman was to try to wriggle out of the complaint.
He noted that my solicitor had raised the possibility of a judicial review, and
in that case he would have no authority to investigate. I hastily assured him
that that was a remote possibility and would be considered only if all other
options were to fail.
After months of delay, we were told by the Ombudsman that he would not
investigate my complaint, despite my initial submission and a number of
additional documents sent to him. There was a good deal of further
correspondence which on his part became more and more otiose, arcane, and
obtuse. The gist of his letters, as far as I am able to discern, claimed two
reasons for his decision. The first was that I had got what I wanted. That was
certainly not the case, which I repeatedly pointed out to him, but he continued
to argue in effect that he knew better than I what I wanted to achieve. He
completely disregarded the fact that even what I did achieve was at great cost
to myself to get the Park to act reasonably and responsibly. Secondly he argued
that many of my contentions were beyond his remit.
He was approached on my behalf by a member of the Privy Council, by my local
Member of Parliament, and repeatedly by my solicitor. All of them thought that
there were substantial and self-evident reasons for him to investigate and that
his arguments for not doing so were quite fragile. Nonetheless, he refused to
answer specific queries that were put to him. As an example of those I quote
from my solicitor's letter:
I would like, please, your specific comments as to why the following matters,
originally itemised in my letter of 29th July, are not sufficiently serious to
point to prima facie maladministration, and at the very least further
investigation (sic.)
1. The fact that if it were not for my clients, vital facts and information that
the Park should have known about would not have been taken into account by them.
2. The Park's initial failure to take into account detailed adopted planning
policy, and then their continued disregard of that policy, even after it had
been drawn to their attention.
3. The apparent change in the planning officer's appreciation of the merits of
the conversion from his indication that the dormer window was an 'eyesore' in
February, to the indication in the June planning committee report that all
aspects of the conversion were fully appropriate.
4. The apparent lack of understanding on the part of the officer who prepared
that report of the implications (in terms of setting a precedent, effects on
neighbours, etc) of allowing a totally unauthorised conversion to remain
unregulated, until this error was pointed out to him.
5. The length of time it took for the Park to accept that the planning
permission had lapsed, and, linked to that, their basic failure to administer
their planning powers properly by ensuring the submission of an appropriate
landscaping scheme before development commenced in 1991.
6. The consequent substantial expense and inconvenience, not only monetary but
emotional, that my clients were but should not have been put to.
7. As to the issue of the status of the 1986 consent, I agree that this is a
legal issue. That is not the point. It is the cost that resulted to my clients
from the Park's refusal to accept that the consent had expired, notwithstanding
that this was patently apparent and in my view should have been within the
knowledge and understanding of a solicitor practising in the realm of
planning law. As it turned out, [the solicitor] refused to go to Counsel to test
my view of the law. My clients were therefore forced to obtain Counsel's advice
themselves, which predictably fully endorsed my view, which [the solicitor] only
then accepted.
I am concerned when I read that you believe the dispute was resolved through
[the solicitor's] acceptance of my submissions on this point. This belies a very
serious misunderstanding of the issues and basis of the ombudsman complaint.
Again, I am concerned when you allude to the fact that the officers' appraisal
of the proposal in the light of pertinent planning policies did not accord with
my interpretation. That is not what is being complained about, save insofar as I
do not understand how failure to adhere to a specified standard adopted within a
local plan by such a margin (115 ft, compared to 8-10 feet) can be interpreted
anything other than adversely against the Park.
Finally you refer to the fact that you would not be justified in pursuing the
allegation of unreasonable delay in isolation. If you take the trouble to read
my letter of 29th July again, you will note that nowhere in it is there any
allegation of unreasonable delay. The issues of concern are itemised above and I
would, please, like your appreciation as to why they do not constitute matters
that are worthy of addition investigation.
A letter was also sent on my behalf by an MP who received a crude response in
which he was instructed to tell me to back off. As the MP wrote to me 'the
letter can safely be described as "curt". He is not going to help.' He went on
to say why he thought the Ombudsman was quite wrong but stated that it would be
futile to write to him again. He went on to say, in what I consider to be a
telling indictment of Ombudsmen in general and Elwyn Moseley in particular, 'it
might be counter-productive should I, or you, have need of his services again'.
Click here to read
one
of my letters to the Commission for Local Administration in Wales.
(Then known as the Local Government Ombudsman for Wales but now known as the
Public Service Ombudsman for Wales.)
What a travesty of what might have been an outstanding institution!
The Ombudsman is
not the only Culprit
I have written about this case because it seems to me to show up the utter
failure of an institution established to help the citizen fight unjust behaviour
on the part of governmental agencies. It is quite clear that the institution as
it stands, has failed utterly.
One would like to think that there are ways of getting the Ombudsman to fulfil
his duties and obligations, but judging from my experiences, that is not the
case. I should like to refer to further actions I took.
I. The Media
Attempts to interest the media were totally unsuccessful, and in one case
counter-productive. Welsh broadcasters, as another poster has shown, are too
much a part of the network to blow the whistle. National newspapers find local
issues (particularly Welsh ones) not worth attention. The main source I hoped
would provide publicity was the main national newspaper in Wales. I contacted the local
reporter who was interested enough to call and discuss the issue at length. I
had received in the post on the morning of the meeting two items which were
important to my case. I showed them to the reporter who asked if he could take
them. I noted that I would make copies the next morning and get them to him. He
insisted that he wanted them immediately in order to show them to a person he
was meeting the next day. He said he would be back in touch with me just after,
so there was no need to worry.
To my eternal regret I let him have the papers, and I haven't seen them since. I
heard nothing from him for quite a time, despite telephone calls and e-mails.
Finally, he did respond in order to say that he had been moving house and the
documents appear to have been lost. His reward was to be given a top job on the
same newspaper in Cardiff. I have tried to learn whether the man to whom he was
going to show the letters might have copies, but he refuses to respond to any
e-mails or letters.
II. The Freedom of Information Act
Like the Ombudsman's office, the only point I can see in the working of this act
is that it provides employment for an infinite number of clerks.
The Ombudsman's office claims to be exempt from the requirements of the Act. Any
attempt to clarify the position is only met by repetition from the Ombudsman and
obscurity from the FOI office.
I have also tried to get more information that I know exists from the National
Park. They insist that I have seen everything they have. If that is the case,
they have not kept very good records, since I have never seen notes that would
support many of the claims they have made. For example, the planning officer
refers to a number of telephone conversations, and I know from Mr and Mrs X
themselves that they were in touch many times by telephone. There are early
records of telephone conversations, but strangely those relevant to this dispute
seem not to exist.
My experience with this Act is totally disillusioning. Exemptions and denials
remove all hope of clarification.
IV. The Courts
In a final attempt to obtain justice I went to the County Court. Although my
expenses were two or three times higher, I claimed only £5000 in order to be
sent to the small claims division. I received enormous and dedicated support
from the Brecon Advice Centre, and I shall always be grateful for
that, but the court is a different story.
At the first hearing, the judge seemed to be inclined to give my complaints
serious consideration, and when the arguments put forward by the Park's
solicitor were rejected, she left the room in a huff. Later, when attempts were
made to arrange a further hearing, the Park always found it impossible to
attend, until another judge was brought in and, oddly they were able to make the
time.
The hearing was an absolute travesty. The Park were represented by the solicitor
and a chief planning officer who had not been at all involved in the case until
that time. They were both permitted to speak, but I was told that on my side, it
was either the representative from the CAB or myself;
not both.
The hearing was set to last from 10.0 to 1.0, but nearly all the time was taken
by the Park and the judge in irrelevant conversation. He heard them in full, and
given the time that was available, it was totally unacceptable for the judge to
indulge his whims. When the planning officer mentioned some of the work he had
done, the judge expressed his interest in hearing more because he
too had once
been a planning officer. That was interesting to me, since it showed the kind of
bias that I could expect, but the subsequent conversation had nothing at all to
do with the case. After those reminiscences between the judge and my opponents
the judge announced that he hadn't time to consider my submission, as the
courtroom had to be ready for the next case. Fortunately, I had written a
lengthy submission which I was able to distribute to all present, but I doubt if
they were ever read. There was certainly no mention in the opinion of any of the
legal points I had made or the precedents I had cited.
I think this is the poorest excuse for a court proceeding that I have ever
encountered, either in person or in literature. The judge made a number of
insulting remarks aimed at me personally, so many that my adviser afterwards
said he hoped I hadn't been too offended and that I should disregard them.
IVA. The Commission for Constitutional Affairs
I mention this organisation simply for the sake of completeness, to indicate how
futile is the search for justice. I wrote to the CCA to complain about the
judge's behaviour. The reply, much as I expected, was meaningless. The
department cannot consider particular decisions or how the proceedings were
handled. What then can they do? They can only consider 'the way the judge
behaved when dealing with your case'. Although I had tried to show that in my
complaint, it was clear that any further action would be useless, since it would
be 'a judge's' word against mine. At least I thought that until it was mentioned
to me by a lawyer friend that the hearing would have been recorded. I attempted
to get the recording but was told it would cost a great deal to get it
transcribed, and no one ever got back to me from the court in order to start the
proceedings.
The other option suggested by the CCA was to seek legal advice and go to appeal.
Another contribution to the financial health of the legal profession.
So Much for all the organisations designed to 'help'
L Johnston
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