Summary: Mr X complained about delays in arranging the sale of council land he offered to buy. There was no fault in how the Council dealt with Mr X’s request to buy land from it.

The complaint

1. Mr X complains about delays in arranging the sale of Council land he offered to buy. He says the Council:
1. changed the information it gave him about road maintenance costs;
2. wanted to renegotiate previous agreements over the terms of the sale;
3. refused or ignored his requests for meetings with the Council; and
4. failed to impartially investigate his complaint about the sale.
2. As a result, Mr X says he has incurred extra costs, missed out on possible business opportunities and experienced significant frustration. He wants the Council to continue with the negotiations around the sale in good faith and give him the information he has asked for.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

8. I have investigated the Council’s actions in relation to the land sale from April 2022 onwards.
9. I have not investigated what the Council did before this. Mr X complained to the Ombudsman in April 2023 so his complaint about events before April 2022 is late. There are no good reasons why Mr X could not have complained to the Ombudsman sooner about those events. Therefore, I cannot investigate the Council’s actions before April 2022.

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How I considered this complaint

10. I considered the information Mr X provided and discussed the complaint with him.
11. I also considered the Council’s comments on the complaint and the supporting information it provided.
12. Mr X and the Council had an opportunity to comment on my draft decision. I consider any comments I received before making a final decision.

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What I found

Background (events before April 2022)

13. Mr X approached the Council in June 2021 with an offer to buy some council land near an existing industrial area. He told the Council he wanted to do this to relocate, and later expand, his business.
14. Following a conversation with Mr X in late August 2021, the Council agreed to open discussions about selling the land to him. The Council consulted with several teams within the Council, including its planning team which advised Mr X to ask it for pre-application planning advice about his plans. Mr X did this and received the advice in late January 2022, which confirmed that his plans for the site might be acceptable in planning terms.
15. The Council looked at similar land it had sold in recent years and suggested a price it would seek from Mr X. Following some discussions with Mr X’s surveyor, the Council reduced the price and sent Mr X an outline of the terms it would consider for the sale in early April 2022. This included a clause that if the value of the land increased after Mr X bought it because of a successful application for planning permission, he would pay the Council a share of the increased value. The Council referred to this as an “overage” payment.

What happened from April 2022

16. Mr X replied to the Council, proposing some different terms including a lower contribution to the Council’s costs of the sale and removal of the overage payment. Mr X told the Council he was “looking to purchase industrial land, for industrial use” so he considered the overage payment was not necessary.
17. The Council responded to Mr X the following day saying it might be willing to reduce the fees slightly but considered the overage clauses should stay. It clarified it would not expect a payment unless future planning permission was given for residential or retail use.
18. In early May, Mr X’s surveyor proposed several changes to the terms offered by the Council. The included removing terms restricting use of the land for specific industrial purposes and the overage terms, and allowing more time for Mr X to start development on the site following the sale.
19. Later in May Mr X’s surveyor proposed further changes including restricting the use of the land to ‘commercial’ purposes and that the Council would adopt and maintain the access road to the site.
20. The Council responded to these proposals at the end of May 2022 saying it would, in principle, agree to remove the overage terms if the use of the land was restricted to commercial. However, the Council said “we need to make sure though that this is worded correctly… as the most important thing for us is to make sure that [the Council’s] future interests are covered.” It explained “this will need to be approved at a later stage”.
21. It also explained the access road did not meet the Council’s requirements to adopt and maintain. It offered to give Mr X a right of access over the road but this would involve him being responsible for maintaining it.
22. Throughout June and July 2022, Mr X and his surveyor had discussions with the Council about similar right of way agreements and with the Council’s highways team. The highways team told Mr X its view was that it was not in the public interest for the Council to adopt the road.
23. Mr X’s surveyor sent further suggested revised terms to the Council in late July 2022. These were mostly the same as the earlier suggestions, but this time included a section saying that Mr X would have to make no contribution to the costs of maintaining the access road.
24. Two days later, the Council told Mr X the officer responsible for the negotiations so far was leaving the Council and the case was being transferred to a different officer. The Council again set out its position that it would not agree to a further reduction in fees and that it would not agree to Mr X having no responsibility for the access road.
25. Mr X’s surveyor asked the Council for an update in early September 2023, around six weeks since the Council’s last email. The Council responded a few days later, setting out the Council’s disagreement to the terms suggested by Mr X’s surveyor, including the fees, road maintenance, the restricted uses of the land and removing the overage terms.
26. Mr X called the Council, disagreeing with its proposed changes. Mr X claimed that many of the points had already been agreed with the previous officer (something the Council denies) and told the Council about a legal agreement involving the land which he believed meant it was responsible for maintaining the access road. The Council agreed to seek legal advice about that agreement.
27. In mid-September, Mr X asked the Council for a face-to-face meeting to discuss the terms and the access road. The Council replied saying it was still waiting for advice about the agreement Mr X told it about, but agreed to some provisional dates for a meeting if it received the advice in time.
28. Around three weeks later, the Council passed on a summary of the advice it had received. It told Mr X that “the [agreement] means that [the Council] cannot pass maintenance responsibility to a third party”. Mr X’s solicitor took this to mean that Mr X would not be required to make any contribution to the maintenance of the road.
29. In mid-October 2022, the Council sent a detailed response to Mr X’s surveyor about their proposed changes. It also said it was having further internal discussions about maintaining the access road. This was followed by further correspondence and a phone call between the Council, Mr X and his representatives about the original valuation of the site (which Mr X said at this stage was always for commercial purposes) and a possible staged purchase of the land. The Council told Mr X it would not be able to carry out the revaluation exercise until mid-December 2022.
30. Mr X chased the Council for a response in mid-to-late December 2022. He told the Council what his current position was and that if there was no process by the end of January 2023, he would consider withdrawing from the purchase.
31. The Council responded two days later saying it had arranged an internal meeting to discuss the Council’s position in early January 2023. That meeting was subsequently rearranged twice and took place in mid-January 2023. Mr X’s solicitor asked for Mr X and his representatives to attend that meeting. The Council declined that request and it would not be appropriate for third parties to be present at an internal meeting.
32. The Council wrote to Mr X again shortly after the meeting. It explained its position was that although it could not pass on the responsibility for the road maintenance, it had a duty to safeguard public funds. Therefore, it would expect Mr X to contribute towards those costs as a condition of the sale. It told Mr X it would explore how much it would ask Mr X to contribute and that, in the meantime, it would bring forward some consultations which would usually happen later in the sale process to try to save time later.
33. Between January and April 2023, Mr X made several complaints to the Council about its approach to the sale. The involved both informal complaints to senior officers at the Council and through the Council’s formal complaints procedure.
34. The Council suspended negotiations while it was investigating Mr X’s complaint. When Mr X’s surveyor asked to have an ‘off the record’ conversation during this time, the Council said this would not be appropriate and it would resume negotiations after the complaints process.
35. The Council sent its stage one response to Mr X in mid-February 2023. That response addressed several of the points Mr X had raised, including the Council’s approach to the road maintenances costs and Mr X’s requests for meetings. The Council did not uphold Mr X’s complaint.
36. Mr X asked the Council to escalate his complaint to stage 2, which the Council responded to in mid-April 2023. Again, the Council did not uphold Mr X’s complaint. As part of its response, the Council sent Mr X its current terms for the sale and set out that Mr X would need to agree with these if he wanted to proceed with the purchase.
37. At the end of the complaints process, the Council agreed to arrange a face-to-face meeting with Mr X, which the officer dealing with the sale started to arrange the following day. This was originally arranged for mid-May, then rearranged for late-May 2023.
38. In the meantime, Mr X complained to the Ombudsman.
39. Shortly after we notified the Council of our intention to investigate Mr X’s complaint, the Council wrote to Mr X saying it had decided to end any further negotiations because it believed it would not be possible to reach an agreement.

My findings

40. Mr X complained about the Council’s actions as part of a commercial negotiation with him. It is not the Ombudsman’s role to review the terms the Council offered or intervene in such a negotiation. Therefore, my investigation has been limited to the Council actions in terms of communicating with Mr X and whether there was any avoidable delay on the part of the Council.

Delay

41. The negotiations between Mr X and the Council took a significant time. However, I am not satisfied the evidence shows there was undue delay on the part of the Council. The negotiations with Mr X were clearly complex, dealt with a legal agreement from more than 30 year ago (before the Council existed as a corporate body) and involved significant disputes about what the terms of the sale would be.
42. There were some occasions of longer gaps between communication from the Council. However, I am satisfied each of these occasions were explained by the situation at the time. For example, when there was a change of Council officer, or the Council was seeking legal advice.
43. I appreciate the negotiations proceeded at a slower pace than Mr X wanted. However, in my view this was not fault. The Council was entitled to manage the responsibilities within its team and decide how much priority to give Mr X’s offer.

Information about road maintenance costs

44. At first, there was no mention of the access road in the Council’s proposed terms for the sale. This was first introduced by Mr X’s surveyor with their suggested comments.
45. From that point onwards, my view is the Council was clear about its position that it did not intend to adopt the road and maintain it at public expense, and it would expect Mr X to at least contribute to this.
46. When Mr X brought the legal agreement to the Council’s attention, it confirmed it could not pass the responsibility for these costs on to Mr X. Although Mr X’s solicitor took this to mean Mr X would not have to contribute anything, I am not satisfied this is what the Council said or intended to say. I believe the Council was passing on the advice it had received. This did not prevent the Council from seeking a contribution from Mr X as part of the commercial sale of the land to offset some of the costs it accepted it was responsible for.
47. Even if the Council had changed its mind about asking for a contribute to the road maintenance costs between October 2022 and January 2023, it would have been entitled to do so as part of the negotiation. The Council made it clear throughout the process that any negotiations were subject to changes and even if it agreed the sale terms at this stage, these might be changed later during the stages of authorising the sale.

Negotiations

48. Mr X said he had agreed various terms of the sale with the first Council officer, before the change in August 2022. While Mr X may believe he had agreed various terms, I am not satisfied the correspondence between Mr X and the Council shows any firm agreement.
49. The first officer did say they would agree to removing the overage clauses and restrict the land use to what Mr X wanted. However, they qualified this by explaining this might be subject to further authorisation and changes later in the sale process. I am not satisfied the Council said anything that reasonably led Mr X to believe that a firm agreement had been reached.
50. The evidence shows there was clearly no agreement on the other terms Mr X and his representatives had proposed and that even at the end of the Council’s complaints procedure, there remained significant disagreements about the terms.
51. In any case, the Council was entitled to change its negotiation position, or end the negotiations, at any time, and any agreement reached at this stage in the process might be changed during later stages of the sale or be affect by planning applications/restrictions.

Meetings with the Council

52. The evidence shows the Council met with Mr X at the beginning of the negotiations, that it had many telephone conversations with him and exchanged many emails with both Mr X and his representatives.
53. Mr X specifically asked the Council for a meeting in September 2022, while the Council was seeking legal advice about the road agreement. The Council provisionally agreed a meeting date but had not received the advice at the planned time. When it did receive the advice, it explained its position to Mr X by email.
54. When Mr X asked to attend an internal meeting with the Council in January 2023, the Council explained why it did not consider that to be appropriate. I am satisfied with the Council’s explanation for that decision.
55. The Council also agreed to meet with Mr X following its investigation and response to his complaint. The Council cancelled his meeting when it decided to end negotiations about the sale.
56. The evidence shows the Council considered Mr X’s requests for face-to-face meetings and, when it decided not to meet with him, it explained why.
57. I am satisfied the Council did not ignore requests to meet with Mr X. In any case, the Council did not have any obligation to meet with Mr X as part of the sale process.

Council’s investigation of Mr X’s complaints

58. Having considered the Council’s responses to Mr X’s complaint, I am satisfied the Council followed its complaints procedure when investigating Mr X’s complaint.
59. The first response was sent from the manager of the team responsible for negotiations over the sale. There is no evidence the investigation at this stage was carried out by the officer Mr X had been dealing with. Even if that officer had some input to the investigation, the decision was made and sent from a manager of the team, in line with the Council’s policy.
60. The second stage response was sent from the Council’s corporate complaints team, which was independent of the team responsible for the sale. Again, this was in line with the Council’s complaints procedure. The response at this stage was sent slightly later than the Council’s complaints policy said it should have been. However, given the complexity of the issue I do not consider that delay to amount to fault.
61. Mr X also said he believed the Council ended the negotiations with him effectively ‘in retaliation’ for complaining to the Ombudsman. I have carefully considered the timing of events and the Council’s reasoning for ending the negotiation. The Council said it decided to end the negotiations after reviewing its files in advance of the meeting. I am satisfied there was enough time for the Council to do this before it made its decision to cancel the meeting and negotiation. There is no evidence to show the Council ended negotiations with Mr X because he complained to the Ombudsman.
62. I appreciate Mr X feels the Council withdrew from the sale because he complained. However, on the balance of probabilities, my view is the Council make a commercial decision based on the history of the negotiations and its assessment of the likelihood of agreeing terms with Mr X.

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Final decision

63. I have completed my investigation. There was no fault in how the Council dealt with Mr X’s request to buy land from it.

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Investigator's decision on behalf of the Ombudsman