‘Misfeasance in Public Office’ is a term frequently used when a public official does his job in a way that is not technically illegal, but nevertheless he is mistaken or wrong.

Parliament intended that statutory powers were exercised in good faith and for the purpose for which they were conferred.

The tort of Misfeasance in Public Office was designed to target ‘the deliberate and dishonest abuse of power’ in the event of a person suffering loss or damage as a result of administrative action known to be unlawful or carried out with reckless disregard or indifference to the consequences.

The offence of ‘Malfeasance’ takes the reckless element a stage further and is when a public official intentionally does something either legally or morally wrong which he had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. It is conduct in violation of the law.

The tort of Misfeasance in Public Office is an intentional tort that can be committed only by a public official and the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose.

Power is granted to a public official for a public purpose. It is an abuse of that power for him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self-advancement.

If an act is done deliberately and with knowledge of its consequences the official cannot argue that he did not intend the consequences of his actions or that they were not aimed at the person who he knew would suffer loss.

In a legal system underpinned by the rule of law, administrative power must be exercised in good faith and not for ulterior or improper purposes. Where it can be shown that a body or official was not acting in good faith, liability in the tort of misfeasance in public office might exist.

The constituent elements of the tort of misfeasance are as follows:

• That the act or conduct has been committed by a public officer.
• The act or conduct must have been done by him in the purported exercise of his power as a public officer.
• That the act or conduct must have been done either:

a) maliciously; or

b) knowing that the impugned act or conduct is invalid/unauthorised and knowing that it will probably injure the claimant.

• The act or conduct must cause loss or harm to the claimant.

There are two forms of liability for misfeasance. The first form of the tort involves targeted malice by a public officer, or in other words, conduct specifically intended to injure a person. Where a public officer had this intention, it is irrelevant whether the public officer exceeded his powers or acted within the letter of the law.

The second form of liability applies where the public officer acts knowing he has no power to do the act complained of and that the act will probably injure a person or persons. The element of bad faith arises, as the public officer does not have an honest belief that his conduct is lawful. In this scenario, it is not necessary to show that the public officer acted with the purpose or object of inflicting harm on the claimant.

Misfeasance does not require a claimant to identify a legal right that is being infringed or a particular duty owed to him, beyond the right not to be damaged or injured by a deliberate or reckless abuse of power by a public officer.

The tort of Misfeasance in Public Office is concerned with preventing public officials from acting beyond their powers to the injury of the citizen, not with compelling them to exercise the powers they do have, particularly when they have a discretion whether to exercise them or not.

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I do accept that if there has been a breach of planning regulations then it is the Council’s duty to regularise it. But it should only be done if necessary and in an open, honest and fair manner. The Town & Country Planning Act provides clear and precise steps for remedying any alleged breach but it does not give Dover District Council DDC the authority to go beyond what is necessary.

It is not the Council’s duty to deceive, employ dubious tactics or punish people.

Various people who have taken an interest in my case have suggested that Dover District Council DDC must be waging a vendetta against me. That could be the case but I’m not sure, as it may merely be a need to cover up the original unlawful action carried out by the previous administration. I can think of no other reason why the Council would pursue an action that is so disproportionate and blatantly unjustified.

If Dover District Council DDC is waging a vendetta against me then it might have started as far back as June 1984 when I purchased my bungalow. Within days Mr Richards, an Area Planning Officer with Dover District Council, visited me. He was an extremely abusive and aggressive little man who made veiled threats before leaving. It was impossible to engage in a civil conversation with him so I immediately wrote a letter to David Sturt, the Chief Planning Officer, requesting a meeting in order to discuss the matter. He did not grant me a meeting but merely referred me back to Richards. Things did not get off to a good start!

There is overwhelming evidence to prove that DDC acted unlawfully when they demolished my bungalow and that may explain why their various reports and press releases have more to do with trickery than they do with the truth.

It does seem strange that Dover Council are not concerned with the truth, but seem more interested in being adversarial in order to disguise their original, unlawful action. They continually suppress any evidence that supports my case while their various reports are written in a biased, prejudicial way with their evidence being tainted as a result.

There are numerous examples of the Council’s ongoing deceit and dubious tactics and I have listed a few, as follows:

Dover District Council was hell-bent on destroying my home and in 1989 they succeeded. To achieve that, the Planning Department deceived the Planning Committee by falsely stating that I had erected a new bungalow. Evidence proves that the Planning Committee’s decision to demolish my home was based on false information presented to them by the planning department. This is confirmed by the findings of the Council’s own Professional Standards Investigator. In his report into my complaint he states:

6.10     After careful consideration of all the files and documents relating to the history of this site I have come to the conclusion that the Planning Committee reached the decision to demolish the complainant’s home based on inaccurate and misleading advice.

6.11 This was maladministration.

Before Dover District Council DDC demolished my bungalow I legally sited a mobile home adjacent to it. This made it exempt from enforcement action because it was ancillary to the primary use of the land and continued, uninterrupted, the lawful residential use of the land. Despite that the Council unlawfully issued an enforcement notice on the 27 February 1990, ordering its removal.

In 2001 I submitted a planning application and whilst this planning application was being processed I sent a letter, dated 8 May 2001, to the case officer Mr J. Peall, informing him that I wanted my representative to attend the forthcoming planning meeting. I also requested a copy of his planning report. I did not receive a reply to this letter, thus both requests were ignored. I wrote again on 21 May 2001 and sent this letter by recorded delivery but this letter was also ignored. On Friday 25 May 2001 I telephoned DDC planning department to request answers to my enquiry. I explained my concerns to Mr Wallace and he stated that my planning application didn’t go to planning committee but had been refused by delegated decision. Mr Peall knew full well, when I wrote to him, that he had no intention of presenting my application to the Planning Committee and chose not to inform me but to blatantly ignore my letters.

During the course of events between 2002 and 2004 Dover District Council DDC Planning Officer, Mark Mortimer, prepared a ‘report’. Tim Flisher, the Council’s Development Control Officer, instigated the saga of the ‘Mortimer report’ and I requested a copy because he placed great emphasis on its importance and explicitly gave that as a reason why he could not progress matters. There were no less than fifteen letters exchanged with the Council relating to Mark Mortimer’s ‘report’ and in view of such extensive correspondence over this specific document it is reasonable to assume that it did in fact exist. If it did not exist why did Tim Flisher refuse to release the document to me and why did Lee May (Council solicitor) quote relevant sections and subsections of the Freedom of Information Act in order to support his refusal to release this document to me? It didn’t make sense for the Council to go to such great lengths to refuse something that didn’t exist. Why did such a critical document never materialise? It might lead one to conclude that the document has been suppressed or destroyed because it contained information, which if released, could compromise the Council’s position.

In 2005 I submitted a planning application and Dover District Council DDC started their dirty tricks again. The planning department tampered with the wording of my application and their planning report contained incorrect statements, misleading information and was written in a biased way designed to ensure a refusal. I withdrew my application for those reasons and submitted a formal complaint to the Council’s Professional Standards Department.

The Professional Standards Investigator upheld my complaint and found Dover District Council DDC guilty of maladministration with injustice on a number of counts. The Council’s Chief Executive, Nadeem Aziz, refused to accept his Investigator’s findings and informed me that that no further action would be taken in connection with the investigation or, indeed, in connection with my complaint, probably because of the calamitous implications its acceptance would have for the Council. The Professional Standards Investigator has not worked for the Council since.

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Sworn statement of truth by the carpenter who worked on the bungalow:

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Sworn statement of truth (2 parts) by my immediate neighbour who has lived next door for over 50 years.

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Sworn statement of truth by Kevin Elks, a near neighbour, who observed the repair work being carried out.

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The Human Rights Act 1998

The Lord Chancellor introduced the Human Rights Bill 1998 into Parliament on 23 October 1997. It incorporates into domestic law the rights and liberties enshrined in the European Convention on Human Rights, a treaty to which the United Kingdom is signatory but which until 2000 had no application in domestic law. The Act received Royal Assent on 9 November 1998 and came into force in October 2000.

The Act applies to Dover District Council as they are a public authority. It makes it unlawful for them to violate the rights contained in the European Convention on Human Rights. DDC pays lip service to the Act, but does not heed it in practice.

Any person who is a victim of a violation can use the Human Rights Act.

A victim includes anyone directly affected by the actions, or the inactions, of the public authority. Where there has been a breach of the European Convention on Human Rights, or even where there is about to be, the victim can take proceedings in court under the Human Rights Act. They may be able to take judicial review proceedings, obtain an injunction to stop the violation, force the public authority to take action or obtain damages and compensation.

Although the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, it is still possible to take cases to Europe.

Note: Before the incorporation of the Convention, individuals in the United Kingdom could only complain of unlawful interference with their Convention rights by lodging a petition with the European Commission of Human Rights in Strasbourg. The events surrounding Dover District Council’s unlawful destruction of our bungalow were prior to the Human Rights Act 1998, but their  action did come under the jurisdiction of the European Convention on Human Rights (although at the time I was not aware of this). However, the Council’s Legal Department were aware of my rights and their own obligations, but chose to ignore them.

The Human Rights Act 1998 ensures observance of the principle of peaceful enjoyment of possessions and denies the Council any right to deprive a person of their possessions except in accordance with law.

The Human Rights Act introduces an obligation on Dover District Council to act consistently with the European Convention on Human Rights. It is evident that Dover District Council’s continuing actions are disproportionate and violate Article 8 of the Convention.

I had a long-standing property right with which Dover District Council interfered and its interference was both unlawful and disproportionate.

Public authorities, which include local planning authorities by definition, are prohibited from acting in a way, which is incompatible with any of the human rights described by the Convention, Section 6(1), unless legislation makes this unavoidable.

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right. If an authority acts in a way, which is incompatible, then separate proceedings can be brought against it under Section 7(1).

7. Proceedings

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may:

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

Therefore the Act creates rights of action and grounds of appeal whether civil or criminal by a ‘victim’ of the unlawful act. Dover District Council’s Protocol for Good Practice in Planning Procedures 2003 says it aims to ensure and to demonstrate that it takes its planning decisions openly and impartially and for sound, justifiable planning reasons. (None of which appear to have been the case in my situation) The same protocol quotes the Human Rights Act 1998 Article 6 which is concerned with…and I quote from the council’s own web site:

“Guaranteeing procedural fairness in the determination of civil rights and obligations, especially entitlement to a fair and public hearing within a reasonable time by an impartial and independent tribunal. These principles are at the heart of the planning system. Should any councillors, staff or public have any queries about the operation of the Protocol, they should contact the chief planning and building control officer or the monitoring officer.”

However, in my particular case the opposite is true, because they have not taken their decisions openly but often held meetings in secret. This has resulted in unilateral decisions being made because I have not been given the opportunity to put my side of the case. Consequently I have not received a fair hearing as required by Article 6.

Nor have the Council acted impartially but rather they have acted with blatant bias and their own Professional Standards Investigator has confirmed this. In his report he concluded that the Council’s planning and enforcement reports were written in a style that presented them in a very favourable light and in so doing presented me as being troublesome with my various applications and appeals as having no, or limited, merit. The Investigator recorded this as maladministration.

The Investigator also expressed concern that the planning departments conclusions reached since 1984 were based on assumptions that were not sufficiently tested and that contemporary evidence supporting residential use was ignored or glossed over.

In section 6.10 of his findings the Professional Standards Investigator stated:

“After careful consideration of all the files and documents relating to the history of this site I have come to the conclusion that the Planning Committee reached the decision to demolish the complainant’s home based on inaccurate and misleading advice”.

He added at 6.11

“This was maladministration.”

The Human Rights Act 1998, and in particular Article 6, is concerned with guaranteeing procedural fairness in the determination of civil rights and obligations, especially the entitlement to a fair and public hearing within a reasonable time by an independent and impartial tribunal. The Act puts the rights of the individual first, on the basis that the rights of the individual are paramount unless there is justification in the public interest.

Primarily it is Article 8, Article 6 and Article 1 of the First Protocol that impact on most planning situations.

ARTICLE 8: Right to Respect for Private and Family Life. 

Article 8 guarantees the substantive right of respect for a person’s home.

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 6: The Right to a Fair Trial.

Article 6 relates entirely to procedure and it applies wherever there is a determination of a person’s ‘civil rights’. These rights encompass property rights, thus affecting planning law. Article 6 gives everyone the right to a fair hearing, both criminal and civil. This not only means in the courts but also in tribunals, inquiries and administrative decision making of a semi judicial nature, which includes the planning decision making processes.

ARTICLE 1 of the First Protocol: Protection of Property. 

This guarantees a person the right of peaceful enjoyment of their possessions, which includes their home and other land. In my case the Council are denying that right and this amounts to an interference of that right.

The Act states: Every natural or legal person is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The Court has consistently held that the terms ‘law’ or ‘lawful’ in the Convention do not merely refer back to domestic law but also relate to the quality of the law, requiring it to be compatible with the rule of the law.

In many cases there is likely to be a significant overlap between Article 8 and the First Protocol, Article 1. However, this right is wider than Article 8 in the sense that it applies to the peaceful enjoyment of all of a person’s possessions and not merely to his home. This could include land, curtilage property, fixtures and fittings.

In simple terms the Act requires that a person’s interests be balanced against the interests of the community. This is something that is supposed to happen with the present planning system, in particular the reports to Planning Committees, but more often than not failing. Committee members should specifically bear human rights issues in mind when reaching decisions on all planning applications and enforcement action (but they don’t!).

In considering the application of Article 8 a 5-stage test can be applied:

1. Does a right protected by Article 8 apply?
2. Has an interference with that right taken place?
3. Is the interference in accordance with the law i.e. is there a legal authorisation for the interference?
4. Does the interference pursue a legitimate aim?
5. Is the interference necessary in a democratic society?

The fourth stage of the test: Does the interference pursue a legitimate aim?

The legitimate aims are listed in Article 8(2) and they are:

• National Security
• Public Safety
• Economic Well Being of the Country
• The Prevention of Disorder or Crime
• The Protection of Health or Morals
• The Protection of the Rights and Freedoms of Others.

A decision made by a public authority must not be irrational, or ‘unreasonable’ and many years ago a test, commonly called the “Wednesbury test”, was formulated for the purpose of determining whether a public authority had acted outside its statutory powers.

A decision is ‘Wednesbury Unreasonable’ if it is:

“so unreasonable that no reasonable authority could ever have come to it”.

The test derived from: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] and was defined by Lord Greene as:

“so unreasonable no reasonable body could have come to the decision”.

Lord Diplock gave a vivid explanation of ‘Wednesbury unreasonableness’ in Council of Civil Service Unions v Minister for the Civil Service [1985] when he stated:

“Wednesbury applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

What is ‘unreasonable’ will depend on the circumstances of the case. As a general rule a decision will be unreasonable if it goes:

“beyond the range of responses open to a reasonable decision maker”. R v Ministry of Defence, ex p Smith [1996]

Proportionality. The Human Rights Act 1998 has added a new dimension to local authorities decision-making and a tougher test than the test of reasonableness – one of ‘proportionality’ – looks at whether the action is proportionate to its aim. If a local authority’s decision interferes with human rights then the courts generally require stronger proof that the decision was reasonable.

Government guidance states that when taking enforcement action, the issue of proportionality must be at the fore of all decision making, as such action will by definition regulate the way in which an individual uses, develops or occupies his land, and may well affect his home and personal life, offending Article 8 and the First Protocol.

Proportionality means that the action taken must lead to the minimum interference with those rights that is necessary to achieve the authority’s wider aims. In other words, to reformulate a test that has been at the heart of government guidance on enforcement for many years, the action taken must be commensurate with the seriousness of the breach.

Deprivation of property. The European Convention has regarded the payment of compensation, or the lack of it, as an important feature in deciding whether the action of the State was proportionate or not. The lack of compensation will lead more easily to a conclusion that there was a lack of proportionality. This will be especially relevant in cases of deprivation of property.

I fully recognise and respect the need for planning control in the countryside but disproportionate enforcement action should never have been used to wage a personal vendetta against me because of a technical breach of the planning regulations, which was all that occurred when I carried out works of improvement to my bungalow.

However, I was never allowed the opportunity to remedy the technical breach and Dover District Council went far beyond what was necessary to satisfy planning policy.

Procedural Impropriety. The process whereby a decision is made by a public authority must not be undermined by ‘procedural impropriety’ and this includes a failure to follow procedural rules, a failure to observe the rules of “natural justice” or to act fairly towards someone.

Lord Justice Muskill, Greater London Council (1985) identified four ways in which a decision might be procedurally improper, namely:

1. Unfair behaviour towards persons affected by the decision.
2. Failure to follow a procedure laid down by legislation.
3. Failure properly to marshall the evidence on which the decision should be based. For example, taking into account an immaterial factor or failing to take into account a material factor or failing to take reasonable steps to obtain the relevant information.
4. Failure to approach the decision in the right spirit, for example, where the decision maker is actuated by bias or where he is content to let the decision be made by chance.

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My bungalow had been in continuous lawful residential use for 56 years
at the time I purchased it in 1984

1928 was the year ‘The Bungalow’ was built and a Transfer of Legal Charge, attached to the property’s deeds, states the following:

THE SCHEDULE

2. A piece of land with bungalow in course of construction thron situate in Lydden afsd being the premises firstly convd to the Testator by Deed dated 13th August 1925 and made between Henry Gray (1) and the Testator (2)

DULY EXECUTED by the Borrowers and the parties thrto of the 2nd, 3rd, 4th, 5th and 6th parts.

TRANSFER of Legal Charge of this date (endorsed on before abstd Legal Charge) between within-named Ernest Edward Pain

At the time of purchase the use of the land was lawful for residential purposes and the bungalow was deemed to have planning permission by virtue of the fact that it was built before the 1st July 1948 (the ‘Appointed Day’ for the Town & Country Planning Act 1947).

This is a Statutory Right that applies to every building in England which was built before 1st July 1948, and thus does not require a specific permission from its District Council.

The ‘Appointed Day’ is sufficient evidence by itself to confirm the lawful use, but is further substantiated by indisputable evidence from DDC’s Head of Legal Services, the Planning Inspectorate, by statements from neighbours and from Mr Grieve, the Professional Standards Investigator, who concluded:

“There is a record of residential use of the site from 1928 to 31st July 1989”

The Investigator also stated:

“After careful consideration of all the files and documents relating to the history of this site I have come to the conclusion that the Planning Committee reached the decision to demolish the complainant’s home based on inaccurate and misleading advice.”

He added:

“This was maladministration.”

Further evidence can be found in conveyance documentation, sales particulars and by the fact that the property was rated as a residential bungalow at the time of purchase.

On file there are a number of  letters from nearby residents, which all confirm the long-standing residential use of the bungalow. Please click here to to read them.

Additional confirmation and acceptance of the lawful residential status of the bungalow came from the Planning Inspector, Richard W. Pratt, who stated:

“A bungalow was built on the site in about 1928, and remained in use as a dwelling house up to the time of the appellant’s acquisition of the land in 1984… I accept that, at that time, the residential use of the building would have been lawful, because it pre-dated the Appointed Day, 1 July 1948”.

The deeds categorically prove that my bungalow was constructed in 1928 and this is confirmed in written evidence from the late George Kirby of Chalksole Farm, Warren Lane who remembered the property being built. Mr Kirby was a member of Alkham Parish Council for 45 years, 30 years as its Chairman.

Mr Kirby, who farmed the land adjoining my property, also gave written evidence, along with other neighbours, that my bungalow was lived in from 1928 until 1981 albeit for the latter few years for holiday periods and at weekends. However, even if only used latterly for holiday accommodation, planning law confirms that this would still constitute a residential use.

Mr and Mrs Pickard and their daughter lived in the bungalow from 1934 until 1956 and rented the property from a Mr Pearce. In 1956 the Pickards moved out and the new tenant, Mr Gibbs, moved in and lived there until 1967 at which time Miss Dickinson purchased the bungalow.

Miss Dickinson lived there until 1981, although latterly only at weekends and holiday times. According to the neighbours Miss Dickinson was slightly eccentric and for one thing she painted the bungalow pink!

It is absolutely clear that at the time I purchased my bungalow it benefited from lawful residential use and there is no doubt that the residential use had not been abandoned. This guaranteed me specific statutory rights, which Dover District Council blatantly, and knowingly, ignored.

It is clear that both the Council’s legal department and planning department were fully aware of the lawful residential status of my property. Despite that, they went ahead with their intended action under the pretext that the residential use had ceased. The Chief Planning Officer gave deceptive and confusing advice to the Planning Committee, and later to the Planning Inspectorate, with the result that my bungalow was unlawfully demolished.

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