Local Government Ombudsman Supports Contravention of Private Rights

Amberwood, Birdhaven, Sandrock Hill Road, Farnham, Surrey. GU10 4PB.
Telephone 01252 721888.

[1]The following account relates to private sewers. A private sewer is formed when the drains of two or more properties are connected together and thereby drain in combination to the public sewer. Generally speaking each of the then "joint owners" of the private sewer is responsible for bearing a proportion of the cost of maintenance, repair and replacement of the private sewer.

[2] In 2003, Defra, the Department for the Environment, Farming and Rural Affairs, published a "Review of Existing Private Sewers in England and Wales".

Research found that an estimated 50% of homes, i.e. 9,600,000 domestic properties, are served by private sewers. Over £250 million per annum is spent on repairs to private sewers.

Defra also reports, "As a part of every property purchase in England and Wales a CON29DW Drainage and Water search should be undertaken. However it is not always the case that such searches are carried out - exposing both conveyancing professionals and their clients to potentially costly risks and liabilities".

[3] In June this year the Home Information Pack (HIP) comes into force and a CON29DW drainage and Water search, or similar, becomes a mandatory requirement.

My following account shows not the potential, but the actual risks and liabilities that have occurred to conveyancing professionals, and the ongoing liabilities to their clients because of drainage searches carried out by Waverley Borough Council.

[4] In 1996 I submitted a complaint to the Local Government Ombudsman providing indisputable evidence that between 1979 and 1996, Waverley Borough Council passed plans of nine buildings showing nine separate drains were proposed to be connected to my jointly owned private sewer, and subsequently approved the connections for which the builders had not obtained the legally required consents and easements from me or the other three joint owners of the sewer, and the three owners of neighbouring land that would entitle them to lawfully use the sewer.

[5] A direct consequence of the council’s actions was that three builders were allowed to contravene the private law rights of myself and the other six home and land owners concerned, and by deception obtain a financial advantage of an estimated three hundred thousand pounds £300,000, ensuring the initial Title Deeds of the nine unlawfully connected properties do not contain the required details of drainage, which means that my Title Deeds and those of the other six victims have all been rendered irregular.

[6] The council has written advising that the owners of the unlawfully connected properties should either obtain the necessary consent or disconnect their properties from the private sewer. This is not a lawful solution to the situation, which is expressed in Section 36 of the 1984 Act. [See Item 23]. (Details on request).

[7] In June 1997 the Local Government Ombudsman concluded, "Even if the council had misled you earlier, I cannot conclude that this has caused you any significant injustice".

[8] January 1998 from Local Government Ombudsman: "The legal advice which I have received is that the council’s view is not unreasonable".

[9] February 1998 from Local Government Ombudsman: "I did not conduct a formal investigation of your complaint because I concluded that there was insufficient prima facie evidence of maladministration causing injustice to warrant pursuing your complaint".

[10] November 1998. The response to my written request to Secretary of State, John Prescott, asking him to find Waverley Borough Council in default for failing to discharge their duties under Section 21 of the 1984 Act was thus:

"The Secretary of State is unable to declare Waverley Borough Council to be in default under Section 116 because he does not consider them to have acted incorrectly in this case".

[11] The "case" the Secretary of State refers to is the one the Surrey Police investigated six months later (see item [15]) It concerns the last property David Burch connected to the private sewer.

Waverley Borough Council acknowledged receipt of a letter from Mr. E. Hann, an owner of the sewer, stating, inter alia, "It should be noted that I will not agree to any right of easement of soil /sewage for the proposed new property." The Council ignored Mr. Hann’s, stated intent, passed Mr. Burch’s plans and approved his proposed connection to our sewer, thereby permitting Mr. Burch to, inter alia, contravene Mr. Hann’s private rights that he had correctly exercised.

[12] John Prescott’s response categorically "indicates" that he considers Statute Law, made by our Queen’s Parliament, requires local authorities to grant approvals that permits rogue builders to contravene its citizen’s private rights and commit serious offences against its citizens. Although Prescott has, in my opinion, quite correctly been characterised as a buffoon, I do not believe it conceivable that even a buffoon can honestly and truly believe that which he indicates above, so the question that begs to be answered is, why did he express such a ludicrous statement? Perhaps the answer can be found in a letter from his Minister, Nick Raynsford.

[13] 24 June 1999. In response to a letter to John Prescott from my then Member of Parliament, Virginia Bottomley, Nick Raynsford wrote, "Despite being advised to the contrary by Waverley Borough Council, and the Local Government Ombudsman, Mr Hollyer continues to believe that the local authority should not have passed the plans concerned because the drainage of the building was proposed to be connected to his jointly owned sewer, and he had not given consent for such a connection.

[13a] If the proposed provision is to connect the drainage of a building to a private sewer, the local authority has a duty in these circumstances to ensure the builder has the consent of the owner to do so. However in this case Waverley Borough Council considered satisfactory drainage for the buildings had been demonstrated and did not therefore consider they were under this duty".

[14] Raynsford’s explanation analysed simply means, "Because Waverley Borough Council considered the proposed drain was proposed to connect to a sewer, and the site of the building was at a level that makes it reasonably practical to construct a drain to communicate with it, they did not consider they were under the statutory duty in these circumstances to ensure the builder had obtained the consent of the owners of the sewer and owners of intervening land, thereby allowing him to contravene private law rights".

[15] Could it be that Prescott’s irrational support for Waverley Borough Council's actions stems from advice given by persons who desire to cover up both the consequences of the council’s actions and also the fact that the Local Government Ombudsman supported the council’s actions? If not then what is it? I suggest it is the fact that under Section 36 of the 1984 Building Act, under the prevailing circumstances, the council can be ordered by a court to pay compensation. Which in this case could amount to many thousands of pounds.

[16] The Surrey police initiated an investigation into my allegation that Waverley Borough Council, approved plans submitted by one of the builders concerned, David Burch, showing a drainage connection to my jointly owned private sewer. David Burch had previously unlawfully connected seven properties and obtained a financial advantage by deception of an estimated £250,000. This fact led the police to explore whether there had been any collusion between anyone employed at Waverley Borough Council and Mr Burch.

[17] In July 2001 the police confirmed they could find, "No evidence of collusion of a criminal [sic] kind”.

However police enquiries found that Waverley Borough Council confirmed their approval of the plans submitted by Mr. Burch, and allowed him to commit the offence of unlawfully connecting properties to a private sewer.

The Crown Prosecution Service concurred that Mr Burch’s alleged wrongs were in the nature of Torts which are civil wrongs and not a matter for criminal jurisdiction.

The police also confirmed that, "The unlawful connections appear to stem from the council’s openly stated interpretation of section 21 of the 1984 Act", also confirming a breach of the Act would not be a criminal offence, therefore not a matter for the police, but within the jurisdiction of the Secretary of State, currently John Prescott. (Section 116 of the 1984 Act).

[18] In October 2001, I submitted a copy of the police findings to the Local Government Ombudsman. The response was, "The only new information you have provided relates to a police investigation. The Ombudsman would not look at a matter which was in the jurisdiction of the police.

[19] In August 2004, Virginia Bottomley passed my request to Prescott to reconsider his views on the council’s actions. Minister Keith Hill responded saying, "Parliament makes laws, and it is the courts that interpret them. Anything said that is not supported by judicial statement is a view on the subject, not an interpretation or determination".

[20] September 2004. In response to yet another letter sent by Virginia Bottomley on my on my behalf to Prescott, Keith Hill states, "Mr. Hollyer has asked if the Secretary of State is prepared to obtain a judicial statement to resolve contradictory views as to the meaning of section 21(4). The answer to this is ‘No’".

[21] April 2005. Another letter to Prescott sent on my behalf by Virginia Bottomley was answered by Minister Phil Hope in a confusing manner and in total contradiction to his colleague Nick Raynsford (see Item 13a). "Although Waverley Borough Council could have asked for evidence that new developers provide evidence of rights to discharge into the existing sewers at Birdhaven there is no strict duty on them to do so.[sic] This apparent oversight is not sufficient grounds for me to intervene using powers under Section 116 of the Building Act".

[22] What may at first appear to be a simple local dispute between a builder, the council, fifteen home owners and three land owners, made somewhat complex by John Prescott and the Local Government Ombudsman, is not as it seems. It is a national disgrace.

I canvassed by email 100 local authorities in England and Wales, soliciting their unilateral interpretation of Section 21(4). 54 have responded to date. 2 were unaware of any requirement.

[23] Twenty two respondents act in accordance with Waverley’s interpretation, e.g. Horsham District Council:

"The question of permission to connect to the private sewer or drain remains a private matter to be agreed between the parties. I have discussed this matter with the Office of the Deputy Prime Minister, Building Regulations Division and my own legal section, who agree with my interpretation.”

Martin Gentles, Chief Building Control Officer, Horsham District Council.

[24] Twenty respondents act contrary to Waverley, e.g. Birmingham City Council:

"I would expect any Building Regulation application to include a statement that indicates/confirms that the applicant/developer has recognised the necessity and will obtain or has obtained all the relevant permissions from adjoining owners etc. As long as a legitimate statement is attached, this authority would not, generally, require any further legal evidence unless we were aware of any problems/issues with the sites.

If, following our approval, the applicant fails to obtain the permission, then this would result in the work not being completed in accordance with the details shown on the approved plan and allow the authority to pursue action under Section 36 of the Act. [See item [6]]

Obviously, where the development attracts a Planning Application, the planning authority would also require to be satisfied that the drainage proposals are acceptable".

Mike Santy, Area Manager.

[25] On 29 January 2007, I e-mailed Local Government Ombudsman Tony Redmond informing him, inter alia, "The large number of local authorities who, in a private survey, have expressed their view, and whose actions are commensurate with the belief, that Section 21 of the 1984 Building Act is framed to protect the inherent private law rights of the owners of private sewers, and the owners of intervening land, and are therefore diametrically opposite to those of Waverley Borough Council, it appears are, in the eyes of the Local Government Ombudsman, acting in contravention of the law." I am waiting to see if there is any response.

[26] Of one thing I am sure; the failure of Prescott to verify his reason for supporting the council's actions by obtaining a judicial statement and the Ombudsman’s refusal to investigate my complaint without verifying the meaning of Section 21(4) is deplorable, and requires to be placed in the public domain. Any one any suggestions?

[27] I have numbered each pertinent point of my communication so that any reader, specifically one of the 9,600,000 home owners served by a private sewer, or perhaps a potential seller or buyer of a home who would like to receive by fax or post copies of letters or more detailed information by e-mail on a particular point, may for convenience, refer to the item number. Also any conveyancing solicitor who would like copies of drain searches supplied by Waverley Borough Council containing false and evasive replies, with my correct answer attached. Please feel free to telephone or e-mail me. I will be happy to help.

Ron Hollyer.

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