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Annual Report of the Ombudsman 2002

Chapter 4 - Selected cases

Department of Education and Science

Tax Relief for Superannuation Payments

A pensioner complained that he had lost out on tax relief to which he was entitled. He felt his complaint lay with the Department of Education and Science rather than the Revenue Commissioners. He was a retired teacher who, in October 1997, applied to the Department to purchase service retrospectively for superannuation purposes. But it was not until January 2001 that the Department advised him of the details of the amount of service he could purchase and the costs involved. In November 2001 the Department sent him a statement of the superannuation contributions which he had paid for this service and he forwarded it to the Revenue with a claim for tax relief. The Revenue, however, told him that no claim for repayment of tax can be allowed unless it is made within ten years after the end of the year of assessment. Relief could not be given for the full period for which he had claimed, but had to be restricted to the years 1991/92 to 1996/97 (1991 being ten years prior to the date of his claim).

The complainant felt that this was unfair as the four year delay in issuing the statement of superannuation contributions paid was the fault of the Department. For its part, the Department explained to my Office that over 10,000 applications for the retrospective purchase of service by retired teachers were received following the introduction of the scheme in May 1997. The work of processing these applications was time-consuming and complex.

The Department contacted the Revenue on behalf of the complainant to supply more information about its role in the delay in processing his claim and to request that a more lenient view of the matter be taken. While it did not initially concede the case, the Revenue did come round to the view that tax relief for the full period could be granted. This was done on the basis that the complainant could be regarded as having made a claim to the Revenue in 1997 at the time of his application to the Department. The Revenue, while indicating that its decision was on a concessional basis within income tax legislation and should not be taken as a precedent for any future claims, also said that the decision would apply to all other pensioners who found themselves in a position similar to the complainant in this case. He was granted an additional refund of taxes of over €4,000.

I was pleased that, having been notified of the complaint by my Office, the Department of Education and Science assumed an active role in contacting the Revenue Commissioners in this case and that the Department’s willingness to acknowledge its part in the loss of tax relief to the complainant paved the way for his obtaining full redress. I would also like to acknowledge the flexible approach adopted by the Revenue Commissioners in granting a concession not only to the complainant but to others who found themselves faced with a similar situation.

Office of the Revenue Commissioners

Failure of communication between Revenue Commissioners and Motor Tax Office

I received a complaint from a used car dealer that he had suffered financial loss and damage to his business as a result of the Revenue Commissioners’ failure to notify the motor tax authorities of a registration discrepancy relating to a particular car.

When I examined the case I found that it involved a car which the used car dealer bought in 1988. He was not aware at the time that the vehicle had been seized by the Revenue on two occasions in the past nor that the date of manufacture of the vehicle was incorrectly recorded in the registration book for the car. The car had been illegally imported into the Republic in 1982. It was then re-registered using a forged importation document. There were several errors associated with the re-registration by the motor tax office of Louth County Council, the main one being the date of manufacture of the vehicle. The registration book issued by the motor tax office listed the year of manufacture as 1981, whereas the actual year of manufacture was 1977.

In 1982, a Customs & Excise Investigation Branch Surveyor issued a list of vehicles imported into the Republic on the basis of forged documentation together with an instruction that they were to be seized if seen. The vehicle at the centre of the complaint was on the list and was seized in May 1983 and released in June 1985 on payment by the then registered owner of a sum to cover import charges. In spite of the fact that the importation of the vehicle had now been regularised, the Revenue did not notify the relevant motor tax authorities of the discrepancy in the registration details. Neither did it take steps to remove it from the list of vehicles to be seized, although there was no reason for the vehicle to remain on this list after its seizure in 1983. It was seized and released again in 1986 but still remained on the vehicle seizure list after its release.

In 1988, my complainant, the used car dealer, bought the vehicle and then sold it on. In November 1988, the Revenue seized the vehicle for a third time. When the vehicle was released, the new owner initiated court proceedings against the complainant on the grounds that, because the information contained in the registration documents was incorrect, the age of the vehicle had been misrepresented in the sale of the vehicle. The case was settled out of court and resulted in the complainant paying compensation of €1,905 to the new owner together with legal fees amounting to €635. In addition, the complainant claimed that the incident had adversely affected his reputation in the motor sales business.

The problems which occurred in relation to the vehicle sold by the complainant were the result of two separate factors - the incorrect entry for the year of manufacture of the vehicle when it was first registered and the retention of the vehicle on the seizure list of vehicles after its importation had been regularised. I accepted that the Revenue was not responsible for the error in the vehicle’s registration book regarding the date of manufacture - this clearly was the fault of the local authority concerned, Louth County Council, and the Council acknowledged this fact. However, the actions of the Council predated the commencement of the Ombudsman’s Act and could not therefore, be examined by me. For the same reason, I did not have the authority to recommend redress for any fault on the Council’s part.

The Revenue argued that it did not have a statutory obligation to pass information about the registration of the vehicle on to the motor tax office. I accepted that there was no statutory requirement on the Customs and Excise to advise the motor tax office of the discrepancy in the registration details. However, it is my view that in a situation like this a public body should take corrective action in accordance with the principles of good administration. I have criticised public bodies in other cases which have come before me where complainants have been adversely affected by the failure of two public bodies to communicate or co-operate with each other. I believe it is reasonable to expect public bodies to engage in such communication. It can only enhance the overall quality of customer service which Revenue and the public service generally are committed to delivering.

The outcome of my investigation of this case was to recommend a payment of €3,000 to the complainant. The recommendation was accepted by the Revenue.

Independent Review system

Sometimes my examination of a complaint does not reveal evidence to support the complainant’s case but does reveal a flaw in the body’s administrative system. In one such case, a man complained about the Revenue Commissioners’ handling of his tax affairs.

When I examined the case I concluded that there were insufficient grounds on which to pursue most of the issues arising from the complaint. However, I noted that at one point the complainant had asked for an independent review. Revenue had passed his case to its law agent, a firm of solicitors, to pursue the collection of outstanding taxes. The law agent subsequently issued a civil summons in relation to the sums due. However, the complainant’s request for an independent review was not dealt with promptly or appropriately by the law agent. I considered that this was a serious flaw in the system and I asked Revenue to consider putting a mechanism in place for ensuring that where tax demands are passed on to a law agent for collection, such agents are made aware of the taxpayer’s right to appeal or review.

In response Revenue agreed to take immediate steps to ensure that all its agents are aware of the proper procedure to follow where a taxpayer indicates a desire to avail of internal or external review procedures.

Department of Social and Family Affairs

Social Welfare Appeals Office

A number of cases which I examined during the year highlighted the need for public bodies to ensure that their administrative practices are consistent. One such case involved a man who had Disability Allowance and Unemployment Assistance claims turned down by the Department of Social and Family Affairs. On appeal, he submitted the same evidence about his finances for both claims to the Social Welfare Appeals Office. This evidence was considered by three Appeals Officers at various stages in the decision making process. In relation to the claim for Unemployment Assistance one Appeals Officer was not satisfied that the complainant had made a full disclosure of his circumstances and this position was also maintained by a second Appeals Officer. The claim for Unemployment Assistance was therefore refused on the grounds that the complainant’s means were not properly disclosed. In relation to the claim for Disability Allowance the third Appeals Officer was satisfied that a reasonable picture had been given of the complainant’s financial position, thus allowing him to assess the means for the purposes of the application. The complainant was awarded Disability Allowance. The critical issue was the fact that the same evidence had been considered by the Appeals Officers on each occasion.

I brought the inconsistency to the attention of the Chief Appeals Officer. I expressed the opinion that it was critical that the material relied upon by the decision makers was capable of supporting their decision, and that in exercising decision making powers they must act in a reasonable manner, taking all relevant factors into consideration and ignoring irrelevant facts. I asked him to compare and contrast the three decisions made by the Appeals Officers, with specific reference as to whether all relevant factors were taken into consideration in the first two decisions. I was subsequently advised that the decision to disallow the complaint’s entitlement to Unemployment Assistance had been revised on the basis of an assessment of weekly means and the allowance granted, with arrears of almost €11,000 paid.

Child Benefit Refused

A man complained that the Department of Social and Family Affairs had refused his claim for Child Benefit. He felt that this was unfair as he had been in contact with the Department over a number of years and had never been advised of his entitlement.

The complainant had separated from his wife in the United Kingdom and returned to Ireland in early 1991 from which time he was paid Unemployment Assistance. His daughter came to live with him in September 1991. He applied for a Child Dependent Allowance which was granted following his provision of a long birth certificate and other details in relation to his daughter. He continued to receive Unemployment Assistance or Unemployment Benefit payments, which included a Child Dependent Allowance, until 1996. In August 1995, the complainant applied for a One Parent Family Payment, which was eventually awarded with effect from May 1996. It was not until June 2001 that the complainant applied for Child Benefit for his daughter at which point his claim was refused as his daughter ceased full-time education in 2001.

It was clear to me that the complainant, as he claimed, had been in contact with the Department over a number of years and the fact that he had not claimed the Child Benefit to which he was entitled went unnoticed. I asked the Department to review the decision to refuse the benefit on the grounds that it should have availed of a number of opportunities to advise the complainant of his entitlement to Child Benefit in the course of its dealings with his other applications for payments. The Department revised its decision and awarded the complainant Child Benefit with effect from the same date in 1991 from which he had been paid Child Dependent Allowance with his Unemployment Assistance. He received payment of arrears for the 10 years, which amounted to €3,958. | Top |

Department of Agriculture and Food

Control of Farm Pollution Scheme

A farmer complained that she had submitted two applications to the Department of Agriculture and Food for grant aid under the Scheme of Investment Aid for the Control of Farm Pollution (the CFP Scheme) and was unhappy that both applications had been refused.

The first application was made on 15 July 1999, a week after the applicant had applied to have the herd number for her cattle changed from her husband’s to her own name. She told the Department that the reason for the request for the change of name was that her husband had employment with a private company and she was operating the farm. The herd number was registered in her name on 19 July 1999. However, the complainant’s application for grant aid was refused on the basis that she was not the farm operator at the time of her application (as the herd number was in her husband’s name on that date and the previous year’s area aid and premia payments had also been made in his name).

The complainant was subsequently told by the Department that she could make a fresh application for grant aid under the scheme. She did so in June 2000 but this time the application was refused on the grounds that her investment works were almost complete. The Inspector reported that he had visited the farm in November 1999 in relation to the first application and found on that occasion that a slatted effluent tank had been constructed.

It is a condition of the CFP Scheme that aid is not given for works commenced before written approval has been given to the applicant. It was clear to me when I examined the case, that the first application should have been refused on these grounds. However, this factor was not mentioned in the original decision made by the Department. In addition, when I raised questions about the handling of the applications, the Department acknowledged that it was not a condition of the scheme that the area aid application for the year concerned had to be made by the CFP Scheme applicant (although this had been cited as a relevant factor in the decision to refuse the application in this case).

At my request, the Department reviewed the case. It decided that, as the applicant had not been informed of the pertinent reason for refusal of the first application that it would be equitable to return her to the position that would have obtained had it been dealt with correctly, that is, the application for grant aid for the slatted effluent tank would have been refused as the work on it was commenced prior to approval from the Department. However, had the applicant been informed that she should not have commenced the work prior to obtaining approval she might have gone about her second application by attending to the rules of the scheme. The Department accepted that additional construction work commenced after the refusal of the first application was a separate unit of work and reconsidered the grant aid application for this work. The applicant was found to meet the eligibility requirements and the Department indicated that it would provide the grant aid following the satisfactory completion of the additional construction work.

I considered that the Department’s resolution of this case demonstrated a willingness both to acknowledge mistakes made and to find an equitable form of redress.

Health Boards

Northern Area Health Board

Charges for long-stay care

I received a complaint from a woman about the level of contribution which she was expected to make toward her husband’s nursing home costs. The complainant’s husband suffered from Alzheimer’s Disease. He had been in care in a private nursing home since 1993, in a bed contracted by the Northern Area Health Board (NAHB). Both she and her husband had medical cards. Her husband was in receipt of an Old Age Pension, which included a Dependants Allowance in respect of herself. She complained that although the NAHB was meeting the bulk of her husband’s maintenance costs in the nursing home, it was also enforcing a contribution from her, which she found a considerable financial burden.

There are two sets of regulations governing the levelling of charges on patients in long-stay care. The Institutional Assistance Regulations, 1954, which the NAHB was applying in this case, allow health boards to assess a maintenance charge towards the cost of a patient’s care. But these regulations are only applicable in cases where a person is being admitted to a county home or similar institution for long term care, respite care or where the lack of support at home, rather than medical need, is the reason for the admission. The other regulations, the Health (Charges for In-Patient Services ) Regulations, 1976 apply to patients who are receiving the full range of medical and nursing care either in a hospital or nursing home designated by the health board.

When I examined the details of the complainant’s case, I found that the NAHB had applied the incorrect set of regulations in determining her husband’s obligation to make a contribution. I pointed out that the assessment should have been made under the Health (Charges for In-Patient Services ) Regulations 1976 since her husband was receiving the full range of medical and nursing care. These regulations provide that a patient is liable for charges only if he or she has not full eligibility, has no dependants, and has been an in-patient for thirty days or for periods aggregating thirty days in the last twelve months. As the complainant’s husband was a medical card holder (therefore with full eligibility) and she was his dependant, he was not liable for charges under these regulations.

The Board reviewed the case and accepted that the complainant’s husband was not liable for charges. The Board refunded almost €25,400 to the complainant, being the amount of contributions made by her since her husband’s admission to the nursing home in 1993.

At my request, all of the health boards undertook to review the basis for the charges made on patients in nursing homes, in similar circumstances, within each board area. This was to ensure that the appropriate legislative charges were being applied correctly having regard to the circumstances of each case.

East Coast Area Health Board

Charges for in-patient hospital services

Another case involving charges for in-patient hospital services raised questions about the interpretation of the relevant legislation.

A man complained about the maintenance charges raised by the East Coast Area Health Board in respect of his late father who was a long stay patient in a public hospital.

The charges were raised under the Health (Charges for In-patient Services) Regulations 1976 and 1987 and were levied on the basis of his father’s income and level of savings. The regulations provide that where a patient holds a medical card, in-patient services are free of charge. They also provide that where a patient does not have a medical card, but does have a dependant, no charges may be raised. The complainant’s father was not the holder of a medical card but claimed that his wife was his dependant. At the time the charges were raised, the Board did not consider the question of whether his wife was his dependant.

When I asked the Board to review the case on this basis it identified the absence of a definition of "dependant " in the regulations as a difficulty in determining the matter. I drew the attention of the Board to advice given by the Department of Health and Children, in the course of the examination of another complaint some years previously, which was as follows:

"These regulations do not permit the levying of charges on patients with dependants and this Department has consistently advised health boards that to do so is in breach of them...........Legal advice obtained by this Department was that any attempt to levy a charge on a patient with a dependant was in breach of the regulations, and that a dependant did not cease to be such if a portion of income was assigned to him/her."

After consideration the Board concluded that, as there was no evidence to suggest that the complainant’s mother was anything other than a dependant of his late father, charges should not have been raised under the regulations. The Board subsequently arranged for the refund of the charges raised.

Given that a similar problem could arise in any of the other health boards I intend to pursue this issue further with them and the Department of Health and Children so as to ensure consistency of treatment in similar cases.

South Western Area Health Board

Blind Welfare Allowance

A man complained to me that he was being underpaid Blind Welfare Allowance (BWA) by the South Western Area Health Board (SWAHB). The purpose of BWA is to provide supplementary financial support to unemployed blind persons receiving Disability Allowance, a Blind Pension or an Old Age Pension. It is payable provided the person is unemployed, medically certified as to visual impairment and is not being maintained in an institution. Applicants must undergo a means test to decide eligibility. The calculation of this allowance is governed by the Department of Health and Children Circular 4/79, the relevant part of which states that -

" any supplementary blind allowance payable is reduced by the excess of a blind person’s total income over the sum of the appropriate maximum blind pension plus supplementary blind allowance " (my emphasis ).

My examination of the case revealed that there was a problem with the interpretation of this circular. The SWAHB and a majority of the other health boards interpreted it to mean that any BWA payable is reduced by the excess of a blind person’s total income over the appropriate blind pension. The last four words of the sentence quoted above "plus supplementary blind allowance", were ignored in making the calculation. This, in my view, was incorrect and resulted in the complainant, and many other applicants, receiving a lower rate of the allowance than if the calculation was made in accordance with the stated terms of the circular.

Following extensive discussions, the SWAHB agreed to reassess the complainant’s application for the allowance in accordance with the stated terms of the circular. As a result of this reassessment he received an increased allowance with appropriate arrears. In addition, as the SWAHB operates a shared service appellate function in respect of the other boards in the eastern region, all other individuals in receipt of the allowance in the region were reassessed on the same basis with effect from 1 January 2002. I subsequently contacted all of the other boards and asked them to undertake a similar review in their areas, so as to ensure consistency in the correct interpretation of the circular across all of the health boards. In total almost 700 blind persons benefited as a result of my examination of this single complaint.

Midland Health Board

Domicilary Care Allowance

I received a complaint from a representative of a support group for parents with autistic children in relation to Domicilary Care Allowance (DCA) entitlement. When I examined the complaint I found that there were different practices operating within the same health board in relation to the payment of DCA.

The complaint was that members of the support group who had applied to Community Services in Laois/Offaly for DCA in respect of their autistic children were awarded the allowance from the date of application. However, members of the group living in the Longford/Westmeath area were awarded the allowance from their child’s date of eligibility. The complainant considered that the parents living in the Laois/Offaly area were being treated in a discriminatory manner and that arrears should be paid to them from the time that their children became eligible for the allowance. The complainant also contended that, in all of the cases she represented, the children had involvement with the Board and its staff in relation to their condition prior to being awarded DCA. However, the parents had not been advised of their possible entitlement to the allowance. This was the reason why they had not submitted their claims at an earlier date.

I contacted the Board about the complaint and pointed out that there was an onus on health board staff to inform their clients of the existence of various welfare entitlements. I considered it reasonable to expect in cases of this nature, where there had been contact between the Board’s staff and the children, that the staff would have brought the possible entitlement to DCA to the parents’ attention. In fact, in 1996, I had sent a memorandum to the Chief Executive Officers of all health boards in relation to claims for retrospective payment of DCA, which dealt with the general issue of the provision of information in the light of prior professional involvement by health board staff generally. The principle had been accepted at the time.

The Board reviewed the applications involved and agreed to pay arrears in each of the 17 cases. The arrears were backdated in each case to the child’s second birthday, which was in accordance with the conditions of the scheme for applicants who applied prior to April 2001. The arrears amounted to €76,445 in total.

Local Authorities

Offaly County Council

Suspension of Planning Application Process

In November 1999 I received a complaint against Offaly County Council alleging that a local developer was quarrying in an area for which he did not have planning permission.

The Council had the quarry inspected following a complaint to it. It found that the quarry was being extended beyond the approved site and asked the developer to stop encroaching on the area in question and to apply for planning permission. He was also asked to submit an Environmental Impact Statement (EIS) as the area of the overall site to be developed was in excess of 5 hectares. The Council said that the developer complied with the request to cease work at the unapproved site and submitted a planning application in April 1999 for permission to extend the existing quarry. He did not submit the required EIS. In May 1999, the Council sought further information, including a copy of the EIS, in relation to the planning application. This is provided for under Article 33(3) of the Local Government (Planning and Development) Regulations, 1994 (S.I. 86 of 1994) which states as follows:

"(1) Where a planning authority receive a planning application they may, by notice in writing, require the applicant -

(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land) which they consider necessary to enable them to deal with the application,

((2) not relevant here)

(3) Where there is a failure or refusal to comply with a requirement under any of the foregoing sub-articles within one month of such requirement, the planning authority may, if they think fit, determine the application in the absence of the information or evidence specified in the requirement." (my emphasis).

Following an exchange of correspondence between my Office and the Council, it became clear that the Council took the view that the planning application process was suspended indefinitely in the absence of the information which had been requested by it. The Council did not, however, press the developer to submit the required information until July 2001 and it was not until September 2002, following numerous contacts from my Office, that a decision was made to refuse planning permission in the absence of sufficient information to determine the impact of the development.

I am of the view that the handling of this planning application was seriously deficient. The Council had an incomplete planning application on hands since April 1999 yet, for no good reason, a decision was not made on it until September 2002 when, in the absence of the information requested over three years previously, it was refused. In the meantime, the developer had recommenced work on the site and the Council itself sourced material from it via the developer. It is important to note that the Council’s dilatory approach in this case was at odds with the relevant legislation which allows it the discretion to determine a planning application, in the absence of required information, within one month of requesting the information.

In my opinion, where a local authority without just cause allows a developer an unduly generous amount of time to furnish information required for a planning application it not only carries the risk of encouraging unauthorised development, it is also contrary to the spirit of the planning legislation.

Westport Town Council

Disabled Persons Grant

An elderly woman who lived alone in a Council house and had a mobility impairment complained about a decision of Westport Town Council to refuse her application for a Disabled Persons Grant which she wanted in order to install a central heating system.

There was already a solid fuel heating system in place in the complainant’s two-bedroomed home but it did not heat the radiators. In addition, the complainant was finding the system difficult to maintain as she was unable to do the physical work involved in lighting her range, carrying fuel etc. The Council stated that it was not its policy to install central heating systems in such dwellings and that the solid fuel system in question had been inspected and was in working order.

I was not satisfied with this response and I asked the Council to have an Occupational Therapist assess the difficulties caused to the complainant by her mobility impairment. I also asked it to consider an alternative, less labour-intensive heating system and I put it to the Council that the complainant had told me that her family might be prepared to contribute towards the cost of such a system. The Council arranged for an Occupational Therapist to visit and her report stated that the pensioner’s physical difficulties were such that an alternative heating system was warranted. The Council decided that it would install a storage heating system which would be economically viable as the complainant was in receipt of a Free Electricity Allowance. At this point however, there were long delays, not all of which were the fault of the Council. The complainant was hospitalised and there were difficulties in obtaining entry to her house. Then, the complainant’s family decided to install an oil-fired central heating system which they paid for themselves as they did not wish the complainant to return home from hospital to an inadequately heated home. The Council indicated that it would not pay a grant for this work as it had been undertaken without its approval.

I contacted the Council and pointed out that two years had passed since the complainant’s initial request for help from the Council. I suggested that in the circumstances of the case the decision to refuse a grant at this stage could be considered contrary to fair or sound administration. The Council responded that while it would not normally recoup the costs of improvements undertaken by tenants, without its prior approval, it acknowledged that in this case it had intended carrying out the work itself and in the circumstances agreed to refund 50% of the cost of the heating installation. I accepted this as an equitable solution to the case and I felt that the Council had adopted a reasonable approach. In addition, the Council said that it had reviewed its policy in relation to such cases and it was going to undertake a maintenance programme which would include the provision of central heating in its own housing stock occupied by the elderly.

Galway County Council

Domestic Water Supply Grant Refused

I received a complaint against Galway County Council about the refusal of an application for a Domestic Water Supply Grant.

The complainant said that his application was refused on the basis that a Group Water Supply Scheme (GWSS) had been proposed to serve his area. He felt that this was not a fair basis for refusal of the grant to him as there were doubts about the economic feasibility of the GWSS and the length of time it would take to become operable.

In its initial report to me the Council indicated that it was not in a position to decide on the grant application until such time as the proposed GWSS had been decided upon. At the same time, the Council was not in a position, because of cost factors, to say when the GWSS would be constructed. Accordingly, it took the view that it would not approve the grant application as there was a proposal to undertake a GWSS in the vicinity of the complainant’s home.

In examining the case I took the view that, if the GWSS was not due for completion within the foreseeable future or indeed if it was not economically feasible to undertake it, then it was unreasonable of the Council to postpone the complainant’s grant application indefinitely, particularly as he did not have access to a potable water supply.

I took note of condition 2.1(b) of the Council’s explanatory memorandum on the grant scheme which stated that: "a person is eligible for a grant if he or she is ...

(b) carrying out improvements to a seriously deficient existing piped supply of water to a house where the supply of water concerned is a supply other than a public or group scheme supply".

In addition, condition 2.2(c) stated that:

"A person is not eligible for a grant if, in the opinion of the local authority....

(c) the area in which the house is located is or is about to be served by a public water supply or a group scheme water supply"

It was clear that the complainant’s application qualified under condition 2.1(b). In relation to condition 2.2(c), I asked the Council for an estimate of the expected timescale for completion of the proposed GWSS.

My own view was that, if the proposed project was at preliminary design stage or earlier, and no capital allocation had been committed to the construction of the project, then it would be unreasonable for the Council to decline the complainant’s grant application under condition 2.2(c) of its memorandum. If the project was at such an early stage of development then it was unlikely that it would come to fruition within three years. I asked the Council to review the grant application with these considerations in mind.

The Council acknowledged that it was unlikely that the GWSS would come to fruition within three years and agreed to process the complainant’s grant application for his domestic water supply. The Council subsequently confirmed that it had approved payment of the grant, subject to confirmation that the water quality was of the standard required under the Drinking Water Directive.

Wicklow County Council

Ineffective Planning Enforcement Procedures

In 1996 Wicklow County Council granted planning permission for a b ungalow and septic tank but, following an appeal, the decision was overturned by An Bord Pleanála. Two years later the landowner (developer) opened an entrance to the site. At least three letters of complaint about the entrance were made to the Council. Twenty months later it issued a letter to the developer requesting him to cease work and restore the land to its original condition, within a month. This was not done and, in fact, a further report was made to the Council that there was recent evidence on the site of intention to install electricity. A short time later a mobile home was moved on to the site.

In August 2000 an Enforcement Notice was issued to the developer and, in September, he submitted an application to the planning authority to retain a mobile home and septic tank on the site. Objections were lodged to the application and four months later the application was withdrawn. In April 2001 a further letter issued to the developer from the Council requesting removal of the mobile home and, two months later, another application for retention was lodged. An objection was again made to the application and, nine days later, the developer asked the planning authority for an extension of a year which was granted in August 2001 without question or justification. (The planning laws give a planning authority discretion to extend the decision period which in this case meant the Council did not have to decide on the application until August 2002). At this point (November 2001) a complaint was made to me by an objector some three years after he first complained to the Council.

In his complaint to me the objector pointed out that by allowing an extension of a year in which to make a decision on the application for retention, his right to object and have his objections considered were effectively "frozen" by the Council for a year. He had also pointed out to the Council that the relevant legislation provided for the exercise of such discretion only in a situation where the planning authority requested the extension of time, not the other way round. In examining the papers I noted that while the Council’s Environmental Health Officer had no objections to the development, Dublin City Council (formerly Dublin Corporation) had opposed the development because "of proximity of the septic tank to a feeder stream which flows into the Poulaphouca Reservoir from which Dublin abstracts water for drinking purposes... and...the purity of the water source is vital to the Corporation."

In responding to the complaint the Council advised my Office that it had revised its policy in relation to extensions of time and had decided that an extension of time would no longer be allowed in the case of an application for retention; meanwhile my Office continued to pursue the Council in relation to the unauthorised development. An Enforcement Notice issued in February 2002 and the developer’s response was to carry out further works by removing the original fence and erecting "suburban-style fencing". In May 2002, following a further site inspection a decision was taken by way of a Manager’s Order to authorise the Council’s Law Agent to initiate legal action against the developer for opening an illegal entrance, placing a mobile home on site, as well as a septic tank and associated works. As I understand it, the current position is that the developer has applied for and been granted permission for a bungalow and septic tank, but the decision has been appealed to An Bord Pleanála and, pending the outcome, the Council has not proceeded with the legal action.

The complainant was pleased with the Council’s decision to take legal action and with the improvement in procedures regarding applications for retention. However, the case illustrates how, in the absence of effective action by the planning authority, the planning laws could be circumvented and flouted. Where the public brings an alleged breach of the planning code to its attention and where a breach is confirmed, a planning authority should be seen to take effective action in a timely way. In this case the complainant argued that if the Council had been more effective at the outset the issue of the mobile home might not have arisen. Under the enforcement section of the Planning and Development Act, 2000 which came into effect in March 2002, a planning authority is obliged in law to take action and make a decision in relation to unauthorised development within a given timeframe. This case was not dealt with under the new legislation but I wish to put all planning authorities on notice that I intend to monitor closely their effectiveness in the application of the new legislation with regard to complaints to my Office about planning enforcement.

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