Selected Cases and General Issues
The range of responsibilities of public bodies is vast and so also is the potential scope for complaint to my Office arising from the discharge of these responsibilities. Each year new issues are raised alongside the well-established complaint categories. In this chapter I set out details of cases dealt with during 1999 which raised interesting issues of law and/or of good administrative practice. Some of these issues, for example the protection of public rights of way or difficulties associated with planning application notices, have not featured in recent Annual Reports; other issues, for example problems in the administration of the Higher Education Grants Scheme or with the various headage payments to farmers, tend to recur each year.
A public body's actions must be clearly authorised in the relevant legislation or rules. Actions taken without proper authority are, in effect, an abuse of power.
Department of Education and Science
In two separate cases people complained that their children had been refused Higher Education Grants for a year in which their actual income was within the limit for grant eligibility. In both cases a previously unemployed parent had returned to work and this resulted in an increase in parental income. However, rather than decide on eligibility by reference to the actual parental income for the year, the Department assessed a notional income based on what would have been the case had the parent been in employment for the full year. This notional income brought the parental income over the eligibility ceiling in both cases. But in both cases the actual income for the year was below the income ceiling. Needless to say, the parents concerned were quite aggrieved with this approach and they complained to my Office.
The Department said that, in cases where there was an increase in income which was likely to be permanent, it was policy to �annualise� the higher weekly income and apply the resulting assessment to the year in question. This policy is not mentioned in the grants scheme documentation. The Department, however, pointed out that a similar practice is followed where there is a drop in income and in these cases the practice benefits students. For example, where a parent becomes unemployed in the course of a year, and where the actual income for that year exceeds the income ceiling, a notional income based on the annualised �new� income (usually a social welfare payment) is applied and this is generally to the student�s advantage.
I certainly support the application of flexibility where this is in the interests of students and where the outcome is generally regarded as fair. However, I felt that the outcome in these cases was neither fair nor in accordance with the published rules of the grants scheme. Following discussion, the Department agreed to decide the cases by reference to the actual income rather than a notional income. This resulted in grants being awarded in both cases. The Department also agreed to discontinue the practice of annualising an increase in income where a positive change in parental income takes place. However it will continue to annualise income, where a negative change takes place, in order to benefit students in this category.
Eastern Health Board
A national scheme, which is based on primary legislation and administered on a regional basis, should be administered in a uniform way across the country. Regional variations in the administration of national schemes result in inconsistency and inequity.
A man applied under the drugs refund scheme (DRS) for a refund of expenses incurred in the rental of an oxygen machine. The Eastern Health Board (EHB) told him that the DRS did not cover such expenses but that it might be able to assist financially, under a separate scheme, if meeting these expenses was causing financial hardship. This would involve conducting a means test. The applicant was not happy with this as he believed the DRS - which is not means-tested - did in fact cover his situation.
In complaining to my Office this man made the point that, in at least one of the health boards, the DRS covers the expense of renting an oxygen machine. He complained that he was �being treated less favourably [by the EHB] than a person in similar circumstances living in another health board area�. I checked the practice in all of the other health boards and found that the complainant was correct; they each covered oxygen machine rental under the drugs refund scheme. Indeed, my Office had dealt with similar complaints in the past and found then that an oxygen machine, obtained on the prescription of a registered medical practitioner, is a medical appliance covered by the Health Act, 1970. The DRS was clearly intended to cover the ongoing costs of medical appliances. Surprisingly, the EHB itself had been correctly including such expenses in refund claims as far back as 1985 when my Office first had occasion to enquire into the issue. Following discussion, the EHB accepted that the rental of an oxygen machine constituted medical expenditure which was eligible for a refund. However, the EHB refused to backdate the refund to 1997 when the man began to use the machine. I advised the complainant to appeal this decision to the EHB's internal appeals office. He did so, arguing in particular that �[t]here is an obligation on all public sector organisations to treat like cases in a like manner.� His appeal was upheld and his refund application was backdated to 1997.
It is an accepted principle of good administration that public bodies be open and transparent in their dealings with people. Furthermore, where an agreement is made between a public body and an individual, it is important that the public body does not abuse its position as the more powerful party to renege on the original terms of the agreement.
Kildare County Council
A woman complained that she had applied to Kildare County Council for housing and, despite frequent contact with the Council, had been unable to find out where she was placed on its housing list.
The Council told my Office that its Scheme of Letting Priorities for allocating housing did not operate on a �points system�. For this reason it was not in a position to advise the complainant of when she might be housed or of her relative position on the housing list. I drew the Council's attention to the contents of a 1993 Circular from the Department of the Environment on the subject which provides: � ..[housing] authorities should have all their approved housing applicants listed in order of priority and be in a position to advise any applicant, accordingly, of their position on the list�. According to the Circular, housing authorities were to have arrangements in place to meet this requirement by September 1993.
I felt that applicants for housing are entitled to know the criteria used in determining housing allocations and, in addition, how these criteria affect their own applications i.e. where they stand on the housing list. Following a number of contacts from my Office, the Council agreed to introduce a system which would enable it to inform applicants of their approximate position on the housing list.
Eastern Health Board
Mrs. A. was asked by the EHB to provide a short-term foster placement for a six year old girl in need of emergency care. She agreed and was presented with a contract which provided that the EHB would pay her a standard allowance and that any additional costs in looking after the child would be paid by the Board. Mrs. A. complained to my Office that, in practice, the EHB was paying only a portion of the costs of bus fares incurred in sending the child to school. Mrs. A. felt this practice was contrary to the terms of her contract with the Board.
When I examined the matter I discovered that, whereas the EHB was actually refunding the costs of school transport for the child, it was also deducting an amount of �3 per week from the standard weekly allowance. (In the case of children attending secondary school, the deduction was �5 each week.) This meant that Mrs. A. was effectively paying the first �3 per week of the school transport costs. To my surprise, I discovered that had Mrs. A. been living beside a suitable school, and where there would be no school transport costs, she would have been paid the full standard allowance of �60.25 per week. This meant that Mrs. A.'s standard allowance was reduced by �3 per week on the apparently arbitrary grounds that her foster child had to travel to school by bus. All of this, according to the EHB, arose from a policy decision it had taken some years previously.
I was most concerned that in the foster care contract, the terms of which were drawn up by the EHB, there was no reference to this policy. The agreement stated that the EHB would pay Mrs. A. an allowance and �such additional financial or other assistance ....as the Health Board considers necessary to enable foster parents to take care of the child�. Mrs. A. quite reasonably supposed that, on foot of this contract, she would receive the standard allowance paid to foster parents and, furthermore, that any additional costs in looking after the child would be met by the Board.
I felt, for a number of reasons, that the EHB's actions were not justifiable. Its policy on school transport costs was not transparent; it had not adhered to the ostensible terms agreed with Mrs. A and its actions, accordingly, resulted in unfair and inequitable treatment. Following contacts with my Office, the EHB agreed to change its practice and decided to pay the full transport costs for children in foster homes with effect from early 1999. The EHB initially refused to pay arrears of transport costs to Mrs. A. but, following contact from my Office on this point, it relented and she received full arrears. The EHB also paid appropriate arrears to other foster parents who had lost out under the same practice.
Mayo County Council
In 1994 a couple bought a house along with Mayo County Council under the Shared Ownership Scheme. The Council billed the couple for legal fees incurred by it, amounting to �340, which the couple paid. Three years later the couple received a further legal bill, amounting to �950, from the Council in relation to the house purchase. They disputed this additional legal bill as they believed their obligations in relation to legal costs had been fully covered by the payment of �340 in 1994. However, the Council sought to recover the additional �950 in legal costs by increasing the rent element in the repayments being made by the couple to the Council. The couple complained to my Office both about the additional bill for legal costs and also about the manner in which the Council was attempting to collect these costs.
My examination showed that the Council's solicitors provided the additional bill to the Council in 1995 but the Council did not notify the couple of it until 1997. I also established that the couple were not told at the time of purchase that there would be other legal costs in addition to those billed at the outset. I felt it was a reasonable expectation, on the couple's part, that no other legal costs would arise following their payment of the 1994 account. I was unhappy with the Council's attempt to recover the amount by a unilateral increase in the couple's repayments. It appeared that, having failed to be open in its dealings with the couple, the Council was using its position as the more powerful partner in the Scheme to obtain an additional and unagreed payment.
For the Council's part, it argued that the legal fees already paid did not represent the actual legal costs incurred. It also pointed to the fact that the information leaflet on the Scheme clearly referred to there being legal costs (though the leaflet gave no indication of the amount of such costs). The Council maintained that it had told the couple at an early stage that the legal costs would amount to �1,200. However, the couple totally rejected this assertion and I could not find any documentary evidence to support it. Ultimately, the Council accepted that there were difficulties with its administration of the Scheme and agreed to waive the additional charge of �950.
A public body's actions may well be authorised, in terms of having a clear statutory basis, but this does not always mean that such actions are fair and equitable. Fair administration acknowledges that rules and regulations should not be applied so rigidly as to create inequity. When instances of inequity arise, involving either the rigid application of rules or inadequacy of the rules in meeting particular situations, administrators must be prepared to review and amend rules and regulations to meet the demands of equity.
Department of Education and Science
The rules governing the Higher Education Grants Scheme frequently give rise to complaints of inflexibility in decision-making resulting in unfairness. This Scheme does have a legislative basis but the detailed rules are drawn up by the Department of Education and Science. In some instances the rules require that decisions are based on irrelevant circumstances rather than on the actual circumstances of the applicant student and her family. Inevitably, the public finds it difficult to accept that decisions may be taken which ignore the reality of the student's actual circumstances. One such complaint became the subject of an investigation under Section 4 of the Ombudsman Act, 1980.
The complaint concerned the handling of a grant application from a mature student. A mature student is defined as a person of 23 years, or older, on January 1st of the year of entry to a third level institution. The grant entitlement of a mature student is subject to a means test and the nature of the means test, in turn, depends upon whether the mature student is regarded as being �dependent� or �independent�. In the case of a �dependent� mature student, the means test takes account of the means of the parents as well as of the student herself. In the case of an �independent� mature student, the means test is based only on the student's own means (except where the student is married or cohabiting, in which case the partner's means are also taken into account). The problem in this case arose from the method used in determining whether a mature student is dependent or independent.
The legislation does not define the term �dependent�. The Department's administrative rules however define it, in the case of mature students, by reference to place of residence in the year prior to going into higher education. Where, in the year prior to starting college, the applicant lived with her parents then she will be treated as being �dependent� for grant purposes; and, where the applicant lived away from home in that year, she will be treated as being �independent� for grant purposes. The issue of dependency is relevant not only in determining which means test applies but also, in many instances, in determining whether the student will get the higher, �non-adjacent�, rate of grant or the lower, �adjacent� rate of grant. (This refers to the practice of paying a lower rate of grant to those who live �adjacent� to the college - defined as within 15 miles - and a higher rate in �non-adjacent� cases, i.e. more than 15 miles from college.) The residence of a mature, �dependent� student is taken to be that of her parents irrespective of where she actually lives; and the residence of a mature, �independent� student is taken to be where she is actually living.
The mother of a 24 year old mature student complained that the lower �adjacent� rate of grant was being paid to her daughter. The student had been financially independent prior to entering a Dublin college but became dependent on her mother, who lives in Mayo, on becoming a student. The student lived in rented accommodation, for which her mother paid the rent and otherwise supported her. Under the rules of the Scheme, the student was treated as being independent (which had actually been the case prior to going to college) and, as she lived within 15 miles of the college, was awarded the lower rate of grant. The Department, which dealt with the case on appeal, refused to assess the student as being dependent on her mother. Had this been accepted, and given that the mother's means were within the limit for grant eligibility, the student would have qualified for the higher, �non-adjacent� rate of grant. This is on the basis that her normal residence would have been taken to be that of her mother who lived more than 15 miles from the college. The Department did not dispute that, in fact, this student was dependent on her mother. However, it contended that under the rules of the Scheme, the sole factor determining her dependency status was that she had been living in Dublin during the year prior to going to college. Other factors were irrelevant.
My investigation showed that, whereas the rules of the Scheme had been applied in the usual way, this resulted in an unfair and inequitable decision in the particular case. Furthermore, the outcome was somewhat absurd in the context of the family involved. The student's younger sister also lived in rented accommodation while attending college and at one point the two girls even shared accommodation. They both lived within 15 miles of their colleges, yet the younger sister, as she was not classified as a mature student, received the higher rate of grant. This was on the basis that the younger sister was treated as being normally resident with her mother in Mayo and thus entitled to the higher, �non-adjacent� rate of grant. The difference between the higher and lower rates of grant amounted to a total of �2,932, over three years, in this case.
The rationale for the distinction between the two rates of grant appears to be based on an acceptance that students, whose normal place of residence is more than 15 miles from college, are likely to have to pay for rented accommodation. Nevertheless, the Department defended its handling of this case even though it did not dispute that the student was dependent on her mother and had to rent accommodation because her mother lived in Mayo. In other words, the higher rate of grant was designed to benefit this type of case but, because of the way the Scheme was constructed, this rate could not actually be paid in some of these cases.
During the course of my investigation, the Department decided to pay the higher rate of grant to eligible, mature students regardless of their distance from college. This change was made with effect from the 1999/2000 academic year. However this general improvement, while very welcome, did not deal with the earlier years of this student's college career. Accordingly, I proceeded with my investigation of the complaint.
At the conclusion of the investigation I found that:
(1) the definitions of �dependent� and �independent� mature students, contained in the administrative rules, do not correspond with the provisions of the legislation. The legislation provides that grants be made to mature students subject to certain conditions relating to means. However, the definitions in the administrative rules are expressed by reference to the student's place of residence rather than by reference to financial status as a dependant or otherwise. The case investigated showed that this system results in decisions based on irrelevant factors and which, ultimately, are contrary to fair or sound administration.
(2) the rigid application of the rules in this case resulted in inequity for the student involved in that she was paid a lower rate of grant than other students who were in similar financial circumstances.
I recommended that the student's grant application be re-assessed on the basis that she was a mature student dependent on her mother, with normal residence at her home in Mayo. I also recommended that the Department review the Higher Education Grants Scheme with a view to ensuring the equitable treatment of mature students with decisions based on their actual financial circumstances rather than on notional, or out of date, circumstances.
The Department accepted my recommendations. The student has since been paid �3,028 which comprises arrears of grant and compensation for the delay in making the payment.
The implications of my investigation extend beyond the cases of mature students. For example, I have come across cases of young people, under the age of 23, who are living independently and, indeed, may have families of their own, yet who are assessed as dependent on their parents. In these cases, the parents' address is used to determine the rate of grant payable. There are also cases of students, over the age of 23 years, who were dependent on their parents when they commenced their studies but who marry while still at college. The Department, however, continues to regard such students as being dependent on their parents. This is unacceptably inflexible administration and needs to be addressed without further delay.
I understand that the Department is undertaking the review, which I recommended, of the Higher Education Grants Scheme. I look forward to seeing significant changes for the better in this area in the coming year.
Department of Agriculture, Food and Rural Development
I received two similar complaints regarding the date from which the Farm Retirement Pension should be paid. Normally, these pensions are paid from the date of receipt of a valid application. However, in cases where applications are submitted without the required specified documentation (e.g. evidence of land transfer), the Department does not regard the application as being valid until that documentation is supplied. The problem raised in these two complaints was that the Department, having received applications which did not have all the necessary documentation, was very slow to point out that the applications were defective. This meant that the applications were not treated as valid until the farmers had supplied the missing documentation. Thus, it was from this later date that the pensions were actually paid.
For example, in one of the cases the farmer lodged the application in February 1997. In June 1997 the Department wrote to say that certain documentation was missing. The additional material was supplied in August and the Department decided to treat the application as having been made in August 1997. This meant that the pension was payable from August 1997 rather than from February 1997.
In the two cases I examined, the original applications were undoubtedly incomplete. However, I felt that there had been undue delay on the part of the Department in informing the applicants of this. In fact four and five months, respectively, had elapsed before the Department informed the farmers concerned that their applications were incomplete. In both cases it then took a further five weeks for the applicants to supply the documents required. While the applicants should have known that these documents must accompany the application, the Department should have notified them of the defect much earlier.
I felt that the Department�s practice in relation to these cases amounted to an unreasonable and inflexible reliance on its own rules. I pointed out to the Department that its own 1995 Charter of Rights for Farmers actually anticipated this type of problem. The Charter promised that the �response time to farmers when problems with applications arise will be improved considerably in 1995 and, from 1996, farmers will be informed in writing within 2 - 4 weeks of problems that arise.� Had this commitment been met in these cases, the applicants could have had complete applications re-submitted very much earlier than was actually the case. I felt that, where the Department fails to check such an application within one month of its receipt, and where it subsequently transpires that the application is incomplete, the farmer should not be penalised, beyond the initial one month, for any delay on the Department�s part in checking the application.
The Department reviewed its position on these two cases and agreed to apply the logic of my general argument to them. This resulted in the award of the pensions from earlier dates, three and four months respectively, than had been the case. Because I believe that all such applications should, at the very least, be capable of being screened by the Department within one month of receipt, I have asked the Department to apply the procedure eventually accepted in these two cases to all such cases in the future. In this way, farmers will not suffer unreasonable financial loss because of delays within the Department.
Department of Finance
Another area, in which the failure of legislation to keep pace with actual circumstances may give rise to unfairness, is that of tax relief for medical expenses. I am greatly concerned that no apparent progress has been made by the Department of Finance in terms of proposals to modernise this legislation. My predecessor, Michael Mills, drew attention more than seven years ago to the need to update the law in this area. It was apparent at that stage that the system in place does not take account of the developments in medical practice since it was introduced over 30 years ago. This was shown to be the case in a number of complaints about tax relief for the treatment of mental health problems. In Annual Reports for 1993 and 1995, my Office drew attention to complaints about the refusal of tax relief for the cost of psychotherapy. Tax relief only applies where the psychotherapist is a registered medical practitioner or where the therapy is provided on the advice of such a practitioner. In 1995 my Office withdrew from an examination of a specific complaint in this area on the understanding that the relevant legislation was being reviewed within the Department of Finance and that it was reasonable to anticipate legislative changes thereafter.
In 1995/96 a review of the legislation was undertaken by the Department of Finance, in consultation with the Revenue Commissioners, but no provision was made for tax relief. During the last year the issue was again raised and I looked into the matter once more with the Revenue Commissioners. My examination showed that the review of legislation which had taken place was inconclusive and no action was taken on foot of it.
In my view it is inequitable that income tax relief is available for fees incurred for psychotherapy treatment when provided by, or on the advice of, a registered medical practitioner but not when the same treatment is provided directly by a qualified psychologist. I again suggested to the Department of Finance that it should be possible to amend the relevant legislation to provide income tax relief in this area. Initially, the Department said that it would look at the issue constructively in the context of the Finance Bill, 2000. However, the recently published Finance Bill, 2000 does not contain any proposal in this area. The Department commented as follows on the reasons for not including such a proposal in the Bill:
� While the Department of Finance agrees in principle that tax relief should be available for treatment by a qualified psychologist, it believes this would not be possible in the absence of a suitable register of psychotherapists. The Department of Health and Children ...had stated that they were considering producing such a register. However, they indicated recently that they do not expect to have such a register before the end of 2000.�
This is quite similar to the position adopted by the Department in 1996. It is disappointing to find that this issue has not been comprehensively reviewed in the light of developments over the past 30 years. As a consequence, entitlement to tax relief for medical expenses continues to be determined on the basis of a system which may have been appropriate to the 1960s but is hardly appropriate for the year 2000.
Department of Social, Community and Family Affairs
The continued application of old and out-of-date legislation can give rise to unfairness and several examples of this have been reported in Ombudsman Annual Reports over the years. One such instance, on which my predecessor Michael Mills reported in detail in his Annual Report for 1987, relates to the social insurance treatment of part-time workers. It is disturbing to see the same type of problem still arising 12 years later.
A man who was employed for one day a week claimed an unemployment payment for the rest of the week. This situation prevailed over a number of years. Social insurance legislation did not allow him to be covered by the full Class A contribution as he was not mainly dependent on his earnings from the employment. However, neither was he entitled to a Class A credited contribution, along with his unemployment payment, as he was not unemployed for the full week. This meant that he was excluded from the protection of social insurance with all the implications this carried particularly in relation to old age pension and invalidity entitlements in the future. The matter came to a head when this man claimed Invalidity Pension and was refused because of an inadequate social insurance record.
It was clear that the decisions taken in this case were in accordance with the relevant regulations. However this man was actually worse off, from the point of view of accruing title to benefits, by virtue of having worked one day a week than if he had been completely unemployed. This seemed an inequitable situation and I asked the Department if it could be remedied by way of an administrative decision. The Department agreed to allow credited social insurance contributions for each week the man had registered as unemployed. On this basis the man qualified for Invalidity Pension. However, while this particular case may now have been resolved, the general legislative position remains unchanged.
In his 1987 Annual Report my predecessor, in this context, commented: �... in the light of new and changing work practices there is need for a constant review of legislation and administrative procedures'. In 1987 the Department's position was that appropriate legislative provisions were being considered in order to deal with this type of anomaly. However, by 1999 the Department's consideration of the need for amendments to the regulations appears not to have advanced greatly. In responding on this present complaint, the Department told me that �... the legislative and policy implications associated with the treatment of part-time workers vis à vis unemployed workers, insofar as entitlements under the social insurance system are concerned, are being considered by the Department...�. I find it unacceptable that the Department's response on this issue in 1999, essentially that the matter is under consideration, is identical with its response 12 years earlier in 1987. I have informed the Department of my views on this.
Department of Agriculture, Food and Rural Development
The principle of force majeure is a feature of European Union law and generally applies in the case of EU schemes relating to agriculture. The principle may be invoked in circumstances where there has been a failure to act within a specified time frame and where this failure carries with it a penalty (for example, in terms of lost benefit). Force majeure relates to circumstances which are outside the control of an individual and where the consequences cannot be avoided. This principle is related to that of proportionality which operates to provide that any penalty imposed is in proportion to the detriment caused by, for example, any failure to act on time. These principles enable flexibility in the application of rules with a view to avoiding the creation of an inequity. Whereas good administration requires consistency in decision-making, this should not be at the cost of failing to have regard to the discretion provided, in the interests of fairness, by these principles. I understand that the Department invokes the force majeure concept rarely and only in exceptional cases. In a complaint concerning the Area Aid scheme, the Department advised my Office that �force majeure ...can only be used in cases where unforeseen circumstances prevent an applicant from submitting an application on time. Unfortunately, the addition of land to an application cannot be covered by force majeure.�
In this case a farmer had failed to include a parcel of land in his Area Aid application. This would result in a reduced level of payment to him. He realised his error only after the date for submitting amendments had passed. He asked the Department not to impose a penalty in his case as, he contended, his failure to amend the details in time was directly related to problems within his family. He contended that his family had undergone great distress as his mother, who lives with him, had been diagnosed as suffering from Hepatitis C, an illness which was the subject of much media attention at the time.
It appeared that the Department had not taken the unusual circumstances of the case into account and had not considered the application of the force majeure principle in this case. It had evolved a practice of limiting its use to certain types of cases, which appeared to amount to a fettering of its discretionary power. Following contact from my Office, and receipt of medical evidence in relation to the farmer's mother, the Department agreed that the late amendment to the application could be accepted in view of the exceptional circumstances of the case. The farmer was then paid the full range of grants on foot of this new decision.
Local authorities have long had a responsibility for ensuring the protection of public rights of way. This is currently provided for in the Roads Act, 1993. I received complaints from people who believe that their local authority has failed to protect such public rights of way.
Mayo County Council
Access to Uggool Beach in Co. Mayo was effectively closed in 1989 with the erection of fencing by a local landowner. The County Council received complaints that the fencing was an unauthorised development and it was asked to ensure that access to the beach was restored to the public. The complainants believed there was a public right of way to the beach. The landowner, on the other hand, claimed that there never had been such a right of way. Complaints were eventually made to my Office that the County Council had not taken action to resolve the situation.
Under the Planning Acts local authorities have discretion in deciding whether to take enforcement action in cases of alleged breaches of planning legislation. In deciding whether or not to take enforcement action, they take into account the extent of the breach as well as the likelihood of success in going to court. In this case, the Council contended there would be difficulties in obtaining a successful resolution through the courts. Enforcement action of this kind must be taken within five years of the event and, by the time the Uggool issue was raised with my Office, this five year period had or psed. This meant that Mayo County Council was already legally precluded from taking enforcement action. However, I was not happy with the Council's handling of the issue and, accordingly, I decided to pursue the matter.
The Council was aware of the fencing of the beach in 1989 and my examination of its files showed that it received over 25 complaints on the matter from individuals and organisations, including semi-state bodies. The fencing is of such an extensive nature, continuing at certain points on to the foreshore and beach, that it is difficult to see it solely as a means of protection of agricultural land. The conclusion that the fencing was intended to prevent access to the beach is unavoidable - nor did the Council dispute this conclusion. The landowner was contacted by the Council on a number of occasions since 1989. In 1992 the Council sought legal advice on the case; however, no action was taken either then or in the following years.
Following detailed contacts with my Office over a period, Mayo County Council gave me an assurance in 1999 that it was now determined to ensure safe public access to the beach. The Council says it intends to do this either by a compulsory purchase order or by the compulsory creation of a public right of way. I welcome this development. However, I am disturbed that it has taken ten years to reach this point and I am greatly concerned that this delay on the Council's part has resulted in the loss of access rights for members of the public over a ten year period. I trust that the Council will now act resolutely and speedily to restore access to the beach for the public.
Bray Urban District Council
I received a complaint from a residents' association that Bray Urban District Council intended to extinguish a public right of way across a field in its area. When I contacted the Council it maintained that the paved footpath in question was not a public right of way and, consequently, that the terms of the Roads Act, 1993 did not apply. (The Roads Act provides for a public consultation mechanism in the event that a local authority plans to extinguish a public right of way.)
When I examined the complaint, including a visit to the site involved, I found it difficult to understand why the Council maintained there was no public right of way at the location. The pathway was a physical structure, in place for more than ten years, on which public moneys had been spent and was habitually used by the public. I was concerned by the Council's contention that the Roads Act did not apply as this would mean that the statutory right of appeal, available under the Act, would not apply. I asked the Council to review the case, taking into account a number of different factors, including relevant case law. The Council reconsidered its position and eventually decided, at a meeting of elected members, that the issue of the public right of way should be dealt with under the mechanism provided by the Roads Act, 1993. A notice of its intention was published in the local newspapers which gave the public the right to object to the proposal.
I am satisfied that this procedure, currently underway, means that the views of the public will be taken into account before any decision to extinguish the public right of way can be taken.
A number of cases have brought to light difficulties in the implementation of planning regulations which have led to the loss of, or diminution in, the public's statutory rights of notice and appeal.
South Dublin County Council
Mr. B. lodged an objection in connection with a planning application submitted for a development in his neighbourhood. Permission was granted by the Council and Mr. B. appealed the decision to An Bord Pleanála. While the appeal was being considered, the Council accepted a second, but identical, application from the developer. Mr. B. was unaware of this second application. South Dublin County Council granted permission for the second application, as it had done with the earlier one. The appeal on the first application was successful - permission for the development was refused by An Bord Pleanála. However, this had no practical effect as a valid planning permission still existed consequent on the second application. By the time Mr. B. discovered the existence of the second planning application, it was too late to appeal to An Bord Pleanála. Mr. B complained to my Office regarding the Council's handling of the second application.
The Council acknowledged it was aware that the applications were identical; it was also aware, when processing the second application, of the nature of Mr. B's objections. The Council pointed out that there is no provision in current legislation requiring that objectors to a first application be notified when a second, identical application is received. Accordingly, it felt that it had acted correctly in the matter. The Council mentioned that it had itself written to the Department of the Environment and Local Government (DOELG) suggesting that a change in the regulations is needed to prevent a recurrence of this type of situation. I am aware that the Minister subsequently commented on the matter in the Seanad and gave a commitment that the regulations will be amended.
I am seriously concerned about the implications of this case. I consider that the strict, legalistic approach of the Council, in dealing with the second application, may have facilitated a blatant circumvention of the planning regulations. This complaint is only one of a number I received relating to difficulties with the planning regulations and, in particular, the adequacy or otherwise of site notices displayed as required by the regulations. For example, the site notice in this case is unlikely to have alerted Mr. B. to the fact that a second planning application had been made in relation to the site. I wrote recently to the DOELG giving details of some problems encountered with site notices which, in addition to the present case, include:
- - a Kilkenny case where the site notice for a communications mast was placed in the top section of a window behind frosted, reinforced wire glass at a Garda station, thus rendering the notice effectively unreadable;
- - a Cork case where the planning authority twice inspected the site and found no site notice in place but nevertheless proceeded to grant planning permission for the development;
- - a Fingal case in which an objector felt that the completed development was considerably different from that described in the site notice;
- - a Drogheda case in which it is alleged that a site notice was completely covered with an aluminium shutter at 6.00 p.m. each evening and that the notice was covered all day on Sundays.
In writing to the Department, I made specific proposals for the display of site notices which, if included in the regulations, should make circumvention of the planning law less likely while also making the procedures more open and transparent for the public.
Donegal County Council
In another case involving planning regulations, the actions of Donegal County Council had the effect of depriving members of the public of their statutory right to appeal to An Bord Pleanála. This was a complex case in which a developer was given permission in 1992 to build a house in accordance with a particular plan. However the house, as planned, was not built. In 1996 the developer submitted an application for a different design of house on the same site. The Council granted permission; but this decision was appealed to An Bord Pleanála which upheld the appeal. It appears that in making its appeal decision, An Bord Pleanála was under the mistaken impression that the 1992 planning permission had lapsed.
The developer then contacted the Council to say that he proposed to build in accordance with the existing 1992 permission, but that he wished to modify the plans. The revised plans, which proposed a house very similar in type to that for which An Bord Pleanála had refused permission, were accepted by the Council as being a non-material amendment to what was permitted in 1992. The Council told the developer that he had permission to build in accordance with the modified plans. The Council's decision to accept revised plans was not made under the planning regulations but was based on the so-called de minimis rule, viz. that the law does not concern itself with trivialities. Under this rule, local authorities permit the alteration of accepted plans where the alterations are seen as minor.
When I examined the case in detail, I concluded that the application of the de minimis rule was inappropriate. In effect, I believed the Council was wrong to have consented to the building of the house on the basis of the modified plans. The extent of the modification of the 1992 plans was such that they bore little resemblance to the original; rather, they quite closely resembled the 1996 plans which had been rejected by An Bord Pleanála. I also concluded that, while a planning authority may decide not to take enforcement action against a developer where development is unauthorised, it has no statutory authority to approve such a development - as happened in this case - without the grant of planning permission. I asked that the Council review its position in relation to this practice and it agreed to do so.
I reluctantly accepted that, as the Council had given written approval to the development, its chances of success in an action to prevent the developer from proceeding would be weak. In any event, the house had been substantially completed by the time my examination began. But as a result of the Council's decision, third parties, including the complainants, were deprived of their statutory right to object to the development and to appeal to An Bord Pleanála. As it was not possible to restore these rights to the individuals concerned, the Council offered compensation of �200 to them, a figure which I accepted as reasonable in the particular circumstances involved.
Notwithstanding the outcome, I am very concerned about the procedures followed by Donegal County Council in this particular case. Financial compensation cannot adequately compensate where the opportunity to object to a proposed development - which is a fundamental aspect of our planning system - has been lost. I will take a very critical approach in future if similar practices come to light in this or any other local authority.