Tuesday, February 05, 2008

The proof is in the cross sectional plan!

I received some plans recently, including a cross sectional plan, for some planned works about a hundred yards from my property. The developer thought it prudent, as part of neighbour notification, to send me the documents in advance of any construction work being carried out in case I had any objections.

Contrast that with a County Council that didn't during 2001 , and still won't in 2008, let me see the cross sectional plans for works (adjacent to my boundary) that have a serious impact on my property. [The planned works also interfere with my human as well as my property rights.]

So I had a meeting with a Fellow of the Royal Institute of Chartered Surveyors yesterday and he supported my earlier assertions that even a layman, without any technical knowledge whatsoever, would have no difficulty in understanding the necessity for me to see the cross sectional plans for any work being carried out in the vicinity of my property prior to work commencing let alone 7 years after work started.

As a result he was astounded when I told him that an Ombudsman was having difficulty understanding such a simple concept.

So, is it a case of the Ombudsman not able to, or not wanting to, understand such a simple concept?

Adapting the old saying 'You can lead a horse to water but you can't make it drink'

'You can lead an Ombudsman to the evidence but you can't make them take it into account'.

However, their failure to do so does at least allows their decision to be judicially reviewed.

Case Law:

Greater London Council (1985)
Lord Justice Muskil:
Failure properly to marshal the evidence on which the decision should be based. For example ...... failing to take into account a material factor or failing to take reasonable steps to obtain the relevant information.

The Secretary of State for Education and Science v Tameside M B C (1977) Lord Diplock. "the question for the Court is did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

R v Secretary of State for the Home Department ex parte Venables (1998) Lord Justice Hobhouse ; Essential that (the Secretary of State) should be fully informed of all material facts and circumstances", "it is not clear what account the Secretary of State took of this consideration nor that he took any steps to inform himself of the relevant facts",

R v Parliamentary Commisioner for Administration, ex parte Balchin (1998) "..... a consideration has been omitted which, had account been taken of it, might have caused the decision maker to reach a different conclusion"

R v Director General of Telecommunications, ex parte Cellcom Ltd (1999) Justice Lightman "The Court may interfere if the Director has ....... failed to take into account a relevant consideration."

R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment and the Regions (2001) Lord Slynn "It has long been established that if the Secretary of State ............ fails to take into account matters relevant to his decision .......... The Court may set his decision aside".

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