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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gresty & Anor, R (on the application of) v Knowsley Metropolitan Borough Council [2012] EWHC 39 (Admin) (19 January 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/39.html Cite as: [2012] EWHC 39 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		Date Handed Down: 19 January 2012

His Honour Judge Stephen Davies:

Introduction

1. By these judicial review proceedings, issued on 26 August 2011, the claimants, Mr and Mrs Gresty, seek to challenge the defendant's decision, communicated in a letter dated 27 May 2011, to refuse to accept responsibility to rectify structural problems in their house at 33 Briar Drive, Huyton, Liverpool, and to put it into a sound and habitable state.
2. Permission to bring these proceedings was refused on paper by His Honour Judge Pelling QC sitting as a Judge of the High Court on 4 October 2011, but the claimants, as they are entitled to do, have renewed their application to an oral hearing, which came on before me on 20 December 2011.
3. In short, Mr Speaight QC for the claimants contends that Judge Pelling was wrong to conclude that the claimants' claim, founded as it is solely on Article 8 of the European Convention on Human Rights, is unarguable by reference to the European jurisprudence and domestic case law relied upon by the claimants. Mr Hunter for the defendant contends that Judge Pelling was right so to conclude. He also supports Judge Pelling's further reason for refusing permission, namely that the claim has not been brought promptly and in any event not later than three months after the grounds to make the claim first arose, as required by CPR Part 54.5(1). Mr Speaight however submits that since the claim was brought within three months of the defendant's decision letter, it is one which should be permitted to proceed.

The factual basis for the claim

4. The claimants have owned their house at 33 Briar Drive since 1993. In around 2000 they decided to have an extension constructed and, in the usual way, had plans drawn up and submitted to the defendant, as the relevant local authority, for Building Regulations approval. The plans indicated that the foundations and the lintels should be to the satisfaction of the building control officer. The plans were approved in July 2001, and the claimants appointed a building contractor to have the work done. The works were undertaken from July to November 2001, and were inspected by the defendant's building control officer as they proceeded.
5. The claimants were dissatisfied with the works, and it is clear from the correspondence that as early as May 2002 they were contending that the defendant had failed in the performance of its building regulation duties. By a letter dated 20 May 2002 the defendant wrote to the claimants, refuting any allegation of negligence, denying that it was responsible for the standard of work undertaken by the building contractor, and asserting that even if it had been negligent it had no liability in law to the claimants following the decision of the House of Lords in Murphy v Brentwood DC [1991] 1 AC 398.
6. The claimants were dissatisfied with that response, and made a complaint to the Local Government Ombudsman in July 2002 that the defendant's building control officer had "failed in his statutory duty and duty of care" (section 5 of the complaint form). In section 6 Mr Gresty stated that "our health has suffered. Our children are suffering. Our eldest son is seeing a counsellor at school. Our second son stays at his nan's whenever he can. Living on bare boards, no decoration. It's as if time has stood still. Unable to go forward and enjoy our family home. Doctors note to follow". In section 6 he said that he thought that the defendant should admit responsibility, and "sit down and talk about finance to enable me to carry out building work, bearing in mind that two builders have said that to take the job on they would first have to knock it down and basically start from the beginning".
7. The complaint was rejected by the Ombudsman in August 2002, who concluded that the defendant had not been guilty of maladministration. The claimants were dissatisfied with that decision and requested a review, but in September 2002 the Ombudsman refused to alter his earlier decision.
8. In July 2002 the claimants obtained a report from an engineering consultant, who concluded that there were "serious failures to comply with current building regulation standards together with some inferior quality workmanship" and that "substantial remedial measures will be required in order to return the property to a mortgageable condition". In a further report in January 2005 he suggested that the total work required to the property would be "around £30-40,000 plus costs, fees etc".
9. The claimants commenced proceedings against the building contractor in the Liverpool County Court, and obtained judgment against him in the sum of £79,775.64 in March 2005. Unfortunately, however, the claimants have been unable to recover any monies pursuant to that judgment.
10. The claimants' case is that they do not have the financial means to undertake remedial works themselves. They say that their house has remained in substantially the same state as it was when the building contractor left site, as was recorded in their complaint to the Ombudsman, a period of some 10 years. They have obtained a further report in June 2010 from the chartered surveyor who has been involved throughout, confirming that the property is dangerous, in that it is only being kept safe from collapse by the use of acrow props which have been fitted on either side of the front entrance door, in the hall, in the dining room and the kitchen. He also expressed concerns as to the safety of the stairs and as to the long term safety of certain areas of brickwork.
11. The claimants say that the house has for the last 10 years remained like a building site. It is clear from the photographs they produce that the ground floor is still not carpeted or tiled, although I am not entirely sure why the claimants say that they have been unable to put down some floor covering, even if only on a temporary basis.
12. The claimants say that their four children have all been affected by the state of the house. They say that their eldest son, aged 22, and their third son, aged 18, who still live with them, are so ashamed of the state of the house that they will not invite friends back. They say that their second son, aged 20, left home last year because of the state of the house. They say that their daughter, aged 16, is particularly embarrassed by the state of the house, and that this has adversely affected her socially and educationally. The claimants say that they have been unable to enjoy their house as a family home due to its continuing condition. They say that the stress of living in these conditions and, I am sure, the uncertainty of knowing whether or not the situation will ever be resolved, has taken its toll of their health, particularly their psychological health, which has suffered as a result over the last 10 years.
13. On 8 March 2011 the claimants' present solicitors sent a detailed letter of claim to the defendant, the purpose of which was to require it to undertake responsibility to rectify the structural problems in the house and to put it into a sound and habitable state. They asserted that the defendant was under a duty to do so for reasons which they summarised as follows:

"1. The Gresty family is now living in intolerable conditions.

2. Those intolerable conditions are the consequences of unsatisfactory and potentially unsafe building works carried out in 2001-3.

3. The Council was careless, or worse negligent, in the discharge of its building control functions: if the Council had exercised proper care the building works would not have been left in an unsatisfactory and potentially unsafe condition.

4. Although there is no duty in tort owed by a local authority in respect of the discharge of its building control function, such carelessness amounted to both maladministration and a failure properly to discharge a statutory function.

5. Although Article 8 ECHR is primarily directed at the prohibition of direct interference by the state with a person's home, a negative provision, in some circumstances it can impose positive obligations on an organ of the state to take some affirmative action.

6. Such affirmative action can involve a positive obligation on a local authority with a housing responsibility, by building works or cash payments, to restore a property to a sound and habitable condition.

7. In striking the balance to determine whether a positive obligation arises in a particular case any culpability on the part of the Council is highly material.

8. In the Grestys' case the balance comes down in favour of the council taking positive steps to restore the Grestys' home".

14. The letter provided full supporting details for each of those eight propositions.
15. The defendant's detailed response dated 27 May 2011 refuted the allegations of negligence in some detail. It disputed that article 8 was engaged, and denied that the defendant was under any positive obligation to restore the property to an acceptable state of repair. There followed further correspondence, including a formal pre-action protocol letter of claim, and then these proceedings.
16. The claimants' factual contentions, as set out above, are all supported by evidence served with the claim form. In particular, in relation to their case that the defendant's building control officers were culpable in relation to the performance of their duties, they have obtained a witness statement from their chartered surveyor who states that he believes that they were "severely let down by the Council" for a number of reasons, which he explains in some detail in that statement.

The legal basis for the claim

17. Mr Speaight has submitted that there is a sufficiently arguable case by reference to article 8, and that it is supported by domestic and European case law.
18. Article 8.1 provides that "everyone has the right to respect for his private and family life, his home and his correspondence". Although article 8.2 prohibits interference by a public authority with the exercise of this right other than in specified circumstances, article 8.2 is not in issue in this case, because - as is accepted in the letter of claim - this is not a case where the claimants are complaining of direct interference by the defendant with the exercise of their article 8 rights.
19. Mr Speaight referred me to two decisions of the European Court of Human Rights in which the Court held, in the context of claims that the applicants' article 8 rights had been infringed, that positive obligations could in certain circumstances arise, namely Guerra v Italy (1998) 26 EHRR 357, a case of toxic emissions from a chemical plant affecting the applicant's home, and Mazari v Italy (2000) 30 EHRR 218, a case of a failure to provide works to make a publicly provided apartment suitable for a severely disabled applicant. I also found useful the observations of the Court in paragraph 33 of its decision in Botta v Italy (1998) 26 EHRR 241, a passage cited by Sullivan J (as he then was) in R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), because it stresses the need to strike a fair balance between the general and the individual interest when deciding whether or not the right to respect for private family life compels the organ of the state to take positive steps, and because it also emphasises the margin of appreciation which the state has in such cases.

"33. In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation."

20. So far as the domestic authorities are concerned, I was first referred by Mr Speaight to the decision of Sullivan J in the Bernard case. That was a case where the defendant local authority was obliged to provide suitably adapted accommodation for the severely disabled second claimant under section 21 National Assistance Act 1948, but had failed to do so over a period of two years, during which the second defendant and her family had to live in what the judge described as "deplorable" circumstances. Sullivan J awarded damages under section 8 of the Human Rights Act 1998 on the basis that article 8, but not article 3, had been contravened. After referring to Botta he said this:

"32. I accept the defendant's submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J. in Morris v London Borough of Newham [2002] EWHC Admin 1262, paragraphs 59 - 62. However, those entitled to care under s. 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act. Whether the breach of statutory duty has also resulted in an infringement of the claimants' article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants' family and private life?"

21. It can be seen from this passage that Sullivan J was particularly influenced by the fact that the defendant was under a statutory duty to make provision for a particularly vulnerable group, but had failed to do so. Even then, whether article 8 was infringed or not would depend on all of the circumstances, specifically the effect of the breach upon family and private life.
22. I was also referred to the decision of the Court of Appeal in Lee v Leeds City Council [2002] EWCA Civ 6. In that case the court was asked to re-consider the issue of local authority liability for design defects in its housing stock causing them to be unsuitable for occupation by their tenant in the light of the provisions contained in the Human Rights Act 1998. Chadwick LJ, giving a judgment with which both other members agreed, accepted that section 6 HRA did in principle impose on the local authority a (positive) obligation to take steps to ensure that the condition of a dwelling house which it had let for social housing was such that its tenant's article 8 right was not infringed. However, he continued:

"48. … But that begs the question whether, in the particular case the condition of the dwelling house is such that the tenant's Convention right is infringed. And, in addressing that latter question, "regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole": see Lopez Ostra v Italy 20 EHRR, 277, 295, paragraph 51, and Hatton v United Kingdom (2002) 34 EHRR, 1, 23, paragraph 96. As it was put in Abdulaziz, Cabales and Balkanali v United Kingdom (1985) 7 EHRR 471, 497, paragraph 67 in relation to the "positive obligations inherent in 'respect' for family life" which may arise under article 8: "However, especially as far as those positive obligations are concerned, the notion of 'respect' is not clear-cut … the notion's requirements will vary considerably from case to case."

49. The steps which a public authority will be required to take in order to ensure compliance with article 8 - that is, to ensure "respect" for private and family life - must be determined, in each case, by having due regard to the needs and resources of the community and of individuals. And, in striking the balance between the resources of a local housing authority (and the need to meet other claims upon those resources) and the needs of the individual tenants, regard must be had to the observation of Lord Hoffmann in Southwark London Borough Council v Mills [2001] 1 AC 1, 9-1 (to which I have already referred). The allocation of resources to meet the needs of social housing is very much a matter for democratically determined priorities. That observation is as pertinent in the present context as it was in the context in which it was addressed - the implication of a contractual term at common law. I find no support in the Strasbourg jurisprudence - or in the jurisprudence which has been developing in these courts since the advent of the 1998 Act - for the proposition that section 6, in conjunction with article 8, imposes some general and unqualified obligation on local authorities in relation to the condition of their housing stock."

23. Again, one sees the reference to the need to strike a fair balance, and the margin of appreciation afforded to the state in deciding where that balance is to be struck.
24. Mr Speaight observed, correctly, that Chadwick LJ was recognising that a claimant's article 8 rights might be infringed even in circumstances where the claimant could not establish a breach of any private law duty owed by the defendant local authority. A situation, he submitted, similar to the present where, as he accepted, the decision of the House of Lords in Murphy v Brentwood DC precluded the claimants from advancing any claim in private law against the defendant for its alleged culpable failure to perform its obligations in relation to building regulations.
25. Finally, I was referred to the decision of the Court of Appeal in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406. In that case the Court determined conjoined appeals in three cases involving claims for damages under section 8 HRA for breach of article 8 rights. Lord Woolf, CJ, giving the judgment of the court, concluded in paragraph 43 that Sullivan J was correct to have accepted in Bernard that article 8 is capable of imposing on a state a positive obligation to provide support, in circumstances which Lord Woolf described as "hideous". Lord Woolf continued, in a section entitled "in what circumstances does maladministration constitute breach of article 8?", to give valuable guidance on that question. As relevant to this case he said as follows:

"45. In so far as article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to article 2 in Osman v United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J in N [2003] EWHC 207 (Admin) at 126-148. Where the domestic law of a state imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the elements of culpability necessary to establish a breach of article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.

…

48. … In considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice."

26. Mr Speaight argued that this decision confirmed that as a matter of principle a local authority might come under a duty to take positive action under article 8. He accepted that it also showed that the decision would very much depend on the facts of the instant case.

The claimants' argument

27. Founding himself upon these authorities, Mr Speaight submitted that it was at least arguable, which is all that he needs to show for present purposes, that on the facts of this case, which he submitted were exceptional, a positive duty had arisen. In particular, he submitted that:

(1) This was a case where the claimants were the owners of their existing house; they were not asking the defendant to provide them with a house, only to provide them with the ability to enjoy their family life in that house.

(2) At the very latest by the date it received the claimants' detailed letter of claim in March 2011 the defendant had knowledge of the interference with the claimants' family life due to the state of the house. Even before that there had been a whole catalogue of complaints by the claimants to the defendant about the condition of the house and the defendant's responsibility for that state of affairs.

(3) This is a family home, occupied by the claimants and their four children over the last 10 years or so.

(4) The house is, and has been, in a dangerous and deteriorating state, and its condition was, he submitted, properly to be described as "hideous" (to echo the description used by Lord Woolf of the conditions in Bernard).

(5) The claimants had a strong case, or at the very least an arguable case, that the defendant had been culpable, that its culpability extended not just to approving plans when it should not have done so, but also the repeated inspections of the house during construction and failure to discover or to take action on the serious non-compliances with Building Regulations, and that its culpability was a cause of the claimants' plight.

(6) The impact of the condition of the house upon the claimants was particularly significant; it had effectively ruined their happy enjoyment of the family home over the last 10 years or so, with serious consequences for the whole family.

The defendant's argument

28. Mr Hunter began his submissions by emphasising the domestic regime, in particular that there was no private law duty upon the defendant in relation to the performance of its building regulations functions, nor was there any public law duty, comparable to that owed to tenants in relation to local authority housing stock, or to persons facing homelessness, or to persons with severe disabilities, owed by the defendant to the claimants in relation to the state of their privately owned house, where its state was not referable to any direct interference by the defendant.
29. He pointed out, in the context of the balancing exercise referred to in the authorities, that one of the rationales for the decision of the House of Lords in Murphy was that it was for the legislature, not for the courts, to decide whether or not the general public, through the local authority, should bear the financial burden of providing what would, in effect, be consumer protection. As Lord Oliver said in a passage at page 491H – 492B:

"There may be very sound social and political reasons for imposing upon local authorities the burden of acting, in effect, as insurers that buildings erected in their areas have been properly constructed in accordance with the relevant building regulations. Statute may so provide. It has not done so and I do not, for my part, think that it is right for the courts not simply to expand existing principles but to create at large new principles in order to fulfil a social need in an area of consumer protection which has already been perceived by the legislature but for which, presumably advisedly, it has not thought it necessary to provide."

Similar sentiments were expressed by Lord Mackay, by Lord Keith, by Lord Bridge and by Lord Jauncey.

30. He submitted that since it would be only in exceptional circumstances that article 8 would have the effect of imposing a positive obligation upon an organ of the state then in this case, in the absence of any private law duty imposed by the domestic courts, and in the absence of any public law duty imposed by the domestic legislature, it was clear that the state must be taken to have decided that the balance should be struck against requiring local authorities to accept responsibility for the condition of privately owned housing stock even where it could be said that a cause of that condition was its culpability in passing plans and/or supervising work. He submitted that in those circumstances it was "inconceivable" that a positive obligation could be imposed upon the defendant.
31. He also submitted that the claimants had, and had utilised, the alternative remedy of pursuing a complaint to the Local Government Ombudsman. However, he accepted that the powers of the Ombudsman were limited to recommending payment of compensation if he found that there had been maladministration, and he also accepted that the defendant was not obliged to accept any such recommendation, although he pointed out that there was in such circumstances in principle the availability of judicial review. Furthermore, as Mr Speaight submitted, it was difficult to see why this should be held against the claimants, in circumstances where they were entitled to say that by raising this matter before the Ombudsman they had exhausted the other procedures available to them before making this judicial review claim.

Conclusions

32. In my judgment it is clear from the authorities to which I have referred that there may in certain cases be a positive obligation imposed on a local authority such as this defendant by reason of Article 8 to take steps to deal with defects in a house occupied as a family home, but that:

(1) Whether or not such a positive obligation will be imposed will depend very much on a close examination of the relevant circumstances.

(2) In particular, the legal and statutory framework is extremely important. Is there a private or public law obligation to act? Is there a public law power to act? Is any obligation absolute or discretionary? What remedies are available to the claimant to seek to enforce compliance with any duty? How has the domestic legislature decided to strike the balance between the individual demands of the particular claimant and the other demands upon the public purse. Is that a balance which is within the margin of appreciation which it enjoys?

(3) The extent of any culpability will be extremely significant: the greater the culpability the stronger the basis for imposing a positive obligation under article 8 duty and a breach of that obligation; continuing breach to perform an obligation imposed by statute with knowledge both of the breach and the effect is more likely to ground an obligation and a breach than are isolated instances of carelessness, however egregious.

(4) The severity of the alleged consequences, and the degree of connection between the defendant's failure to take positive steps and those consequences, will also be extremely significant: the more serious the consequences and the stronger the link, the more likely an obligation will be held to arise.

33. In this case, considering those points in turn, I consider that the following points are of relevance:

(1) There is no private law remedy, because there is no contractual relationship between the owner and the local authority in relation to the discharge of its building regulations functions, and because the domestic courts have decided that it would not be appropriate to impose tortious liability on a local authority for negligence in the performance of its building regulations functions, one reason being that they have taken the view that any decision to impose such a liability should be one for the legislature and not for the courts.

(2) There is no public law duty, because the legislature has decided, in the context of privately owned dwellings, that the balance should be struck against imposing on local authorities either a positive obligation to undertake repairs, or a positive obligation to fund the cost of such repairs. Decisions such as the availability of local authority housing grants to assist in funding remedial works are also matters for the legislature to decide upon.

(3) If the condition of the house was so intolerable that the owners were unable to continue to occupy it and hence enjoy a private family life there, then the local authority would in principle come under a duty to take positive action to re-house the claimants in suitable accommodation under the homelessness legislation. In other cases, such as claimants with severe disabilities, the local authority might also come under a duty to take positive action.

(4) On any view this is not a case of a failure to perform a private or public law duty imposed on the local authority over a prolonged period with full knowledge that the failure was having serious continuing consequences for the claimants. At most it was a negligent failure to pass plans and a negligent failure to observe or act upon defective workmanship in the course of construction. What is more, the culpability, if it was such, occurred over a limited period, it would appear from July to November 2001. In short, this is very close to the class of "isolated acts of carelessness" identified by Lord Woolf in Anufrijeva as being unlikely to be sufficient to found a positive obligation.

(5) Whilst I do not seek to minimise the impact on the claimants of living in a "building site", I do not consider that it can sensibly be said that the impact is anywhere close to the conditions, rightly described as deplorable and hideous, as pertained in the Bernard case. I must not lose sight of the facts that: (i) the claimants and their children have the use of a house which has all the necessary amenities, and which is sufficiently large for all of them to live in; (ii) the house is not actually dangerous, because the major risk of structural collapse is addressed by the presence of the acrow props which, although unsightly, and no doubt inconvenient are no more than that; (iii) there is no indication that the other risks or defects – the stairs and brickwork and the like – are not matters which by themselves could not be remedied by the claimants, and again it is not said that they are or have been so dangerous as to prevent the claimants and their family from occupying the house as a family home. This brings me on to what I consider to be a very significant point, which is that notwithstanding the difficulties, the family can live there together as a family unit. They may, understandably, not wish to entertain guests there because they are embarrassed by the condition of the house. They obviously do find the condition of the house immensely aggravating. They no doubt find their situation intensely stressful. However, whilst I am not saying that the right to entertain the extended family or friends in the family home cannot be one aspect of the right to private family life, I do not consider that an interference with that facility could by itself be regarded as a serious or substantial interference with private family life.

(6) Furthermore, it must be borne in mind that the direct cause of the structural defects is undoubtedly the poor workmanship of the builder, and his supervening inability or unwillingness to honour the judgment against him. Whilst I accept that the claimants have a perfectly respectable case to the effect that the defendant's building control officer was also culpable and, that such culpability either caused or contributed to the presence of the structural defects (subject to the issue as to whether or not anything said or done by the building control officer would actually have ensured compliance by the builder), that is still in my judgment essentially a secondary responsibility.

34. Accordingly, whilst I remind myself that it is not for the court at this stage to reach a concluded view on disputed facts, and that I am only considering the case at the level of arguability, the firm view I have arrived at is that this case is unarguable, so that I should refuse permission.
35. Although not directly relevant to my determination, I am conscious also that if I were to grant permission the end result would probably be a trial of some length with contested factual and expert evidence. That is because in order to decide this case the court would need to determine contested evidence, including expert evidence, in relation to the culpability issue, and there would also need to be a careful examination of the claimants' circumstances, financial and otherwise, to see whether or not they are correct in saying that they have had no alternative but to live in what they say is in effect a building site for the last 10 years or so, and to see to what extent the consequences they complain of (a) have occurred, and (b) are the defendant's responsibility. Although I accept, as Mr Speaight submitted, that the Administrative Courts do on occasion have to undertake this function, and although I also accept that it would also be possible to transfer the case to a more suitable forum, such perhaps as the Technology and Construction Court, if the case was to proceed further, nonetheless it is obvious that the likely consequence of granting permission would be to require both parties to incur further substantial cost and effort, and lead to continuing further uncertainty.

Delay

36. Since it was raised, I should also mention the issue of delay.
37. At the hearing I raised with counsel the question as to the applicable limitation period for this claim. Mr Hunter submitted, and Mr Speaight did not dissent in his reply from the proposition, that this appears to be a claim to which s.7(1)(a) HRA applies and which, thus, must pursuant to s.7(5)(a) be brought before the end of one year beginning with the date on which the act complained of took place or such longer period as the court considers equitable having regard to all of the circumstances, but subject to any rule imposing a stricter time limit in relation to the procedure in question. Here, of course, the stricter time limit is provided for by Part 54.5(1), to which I have already referred.
38. However that answer invites the further question, in a positive obligation case such as the present where the complaint is that the defendant failed to take positive steps, what is the 'act complained of'? In my judgment it must be the date of the failure to take positive steps. Mr Speaight submitted that the defendant could not be said to have failed to take positive steps until it had received and responded to the claimants' detailed letter of claim, so that the claim was brought promptly and in any event within 3 months of the date of its reply. Mr Hunter submitted that the failure must date back to 2001-2002, when on the claimants' case the defendant acted culpably and the claimants first began to suffer the consequences of which they complain. His alternative argument was that even if the date was receipt of the letter of claim, that was still more than 3 months before the commencement of these proceedings, and even if the date was the letter of reply, the claim had still not been brought promptly, even if just inside the 3 month period.
39. There is no authority to which I have been referred on this point. In the absence of authority I would be inclined to think that the failure dates back to the date of the complaint to the Ombudsman in 2002, because at that point the claimants were seeking financial remedy from the defendant to enable them to put right the defects at their house which they attributed to the defendant's culpable conduct and which they were contending were causing them severe consequences. It would follow that the claim should not be allowed to proceed on the grounds of delay which, if I am right in my analysis, would be extremely substantial and incapable of being cured by extension, because it would appear to be seriously prejudicial to the defendant who would now have to contest allegations dating back 10 years when in the meantime the building inspector whose conduct has been criticised has died. Alternatively, since the claimants in their letter of claim invited a request within 21 days, I would have thought that a failure to accept responsibility within that period would crystallise the date, which would also mean that the claimants had failed to commence proceedings within the 3 month limit. However, since I do not need to decide these points, and since they did not feature prominently in the submissions of either counsel, I do not propose to express a final opinion on them.

Conclusion

40. Despite my sympathy for the claimants, I must therefore refuse permission.

Costs

41. In my draft judgment I invited counsel to make written submissions about the form of order, costs and any other consequential matters, which they have done. The only issue on which they disagree is costs. Mr Hunter submits that the claimants should pay the defendant's full costs of defending the claim. Mr Speaight accepts that in accordance with usual practice the claimants must pay the defendant's costs of filing the Acknowledgement of Service, assessed by Judge Pelling in the sum of £1,050 plus VAT. However he disputes that there is any basis for requiring the claimants to pay the defendant's full costs.
42. Mr Hunter accepts that such an order should only be made in exceptional circumstances, following the observations of Carnwath LJ in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, at paragraph 76(3). Here he contends that such circumstances exist, and are that: (a) the claim was hopeless; (b) the claimants elected to renew notwithstanding the reasons given by Judge Pelling when refusing permission on paper; (c) the claim was an abusive attempt by the claimants to obtain a private law remedy which was not permitted by law and which was in any event well out of time; (d) the claimants failed to draw to the attention of the court the decision of the ombudsman.
43. Mr Speaight challenges these contentions. He submits that: (i) there was no need for the defendant to attend the oral renewal hearing, not least because it was clear from the renewal notice and skeleton that the claimant was not seeking to introduce new arguments; (ii) although the claim was found to be unarguable, that was only after the court had conducted a careful examination of the law and facts; (iii) the reasons why the court refused permission on renewal were not precisely the same as those given by Judge Pelling; (iv) there is no abuse in seeking to invoke a claim under Article 8 simply because there was no (or no other) private law remedy available; (v) the decision of the ombudsman was not a point of central importance in the case, and there is no question of the claimants having improperly sought to conceal it from the defendant or the court.
44. I prefer Mr Speaight's submissions on this issue. It is apparent from my principal judgment that I did not regard the claim as hopeless, in the sense that upon any analysis of the facts it was doomed to fail as a matter of law, and that the reasons why I refused permission were not precisely the same as those given by Judge Pelling. I do not consider the claim to have been an abuse, either in itself or by its failure to refer in terms to the ombudsman's decision, and I agree that there was no particular need (as opposed to desire) for the defendant to attend the oral renewal hearing.
45. Finally, the defendant's solicitor has advised the court that since the defendant is registered for VAT the costs payable by virtue of Judge Pelling's order of 4 October 2011 should be net of VAT, so that they should be summarily assessed in the sum of £1,050.
46. Accordingly, I will formally hand down this judgment at a hearing on a date which will be notified, without any need for attendance by the parties, on which date I will make an order as follows:

Upon the claimants' renewal of their application for permission

And upon hearing leading counsel for the Claimants and counsel for the defendant

It is ordered:

(1) The Claimants' application for permission for judicial review is dismissed.

(2) The order of Judge Pelling QC made 5 October 2011 in relation to costs is varied in that the Defendant's costs of preparing and filing the Acknowledgement of Service, which the Claimants must pay, are summarily assessed in the sum of £1,050 (not subject to VAT). Otherwise there is no order as to costs.