East Riding of Yorkshire Council (04C07641 Further report)

Planning advice                          Further report

12 April 2006

‘Mrs Smith’ (not her real name for legal reasons) alleged that the Council wrongly advised the executors of her father’s will about how to go about lifting an agricultural occupancy condition on a house. The house had been left to her and her sisters and was worth less with the condition in place.

The Ombudsman found maladministration by the Council. Specifically, it failed to make clear that its policy in the relevant area had changed giving rise to the clear possibility that the condition could speedily be removed. As a result, the executors felt constrained to sell the property with the condition still in place and hence at below its market value. This was an injustice to Mrs Smith and her sisters.

In August 2005, the Ombudsman recommended that the Council to approach the District Valuer to obtain a figure for the value of the house without an agricultural occupancy condition at the time of the sale. It should then pay into the estate the difference between this and the actual sale price, together with appropriate interest. It should also pay Mrs Smith £250 in recognition of her time and trouble in pursuing this complaint.

The Council’s Cabinet has not accepted these findings. It claims that there are significant implications for councils about giving advice over the telephone, and that there is an alternative remedy available through the courts.

The Ombudsman refutes these arguments. First, she points out that the circumstances of the case are not generally applicable. Mrs Smith’s solicitors wrote to the Council about the agricultural condition on the property, and the Council’s reply failed to mention the recent change in policy that meant the Council would lift the condition on application, and instead gave misleading and unhelpful advice about an application for a certificate of lawful use. Mrs Smith subsequently telephoned and asked for, and believed she was being given, specific advice about the property. She was not told that the advice she was given was general or that it was incomplete.

Secondly, the Ombudsman points out that she has discretion to investigate this type of complaint under Section 26 of the Local Government Act 1974, and that she considers it would be unreasonable to expect someone in Mrs Smith’s circumstances to have to take expensive court action instead.

The Ombudsman says “There has clearly been maladministration by the Council leading to injustice to Mrs Smith. The Council should accept my report and pay the recommended remedy.”

Date Updated: 03/02/09