Summary: Mrs E complained about the Council’s processes and decisions regarding the change of use of the land near to her house. She says the Council failed to conduct an environmental impact assessment and it has not demonstrated how it will protect the biodiversity of the site. She also says it failed to properly secure the site and it has now increased the number of organisations that have access to it. We find the Council was at fault not having a robust system to secure the site. The Council has taken steps to resolve this matter, and so I do not recommend anything further. The Council was also at fault for failing to keep sufficient records to demonstrate its decision making. Although this did not cause Mrs E a significant injustice, the Council has agreed to our recommendation to review its record keeping procedures.

The complaint

1. Mrs E complained about the Council’s processes and decisions regarding the change of use of the land near to her house. She says the Council failed to conduct an environmental impact assessment and it has not demonstrated how it will protect the biodiversity of the site. She also says it mismanaged the consultation process, it failed to properly secure the site and it has now increased the number of organisations that have access to it.
2. Mrs E says the matter has made her stressed and anxious. She is concerned about the impact the Council’s decisions will have on the environment.

What I have and have not investigated

3. I have not investigated Mrs E’s complaint that the Council mismanaged the consultation process for the management and monitoring plan. She has confirmed she received the consultation letters, and she sent in her comments. Therefore, any alleged mismanagement of the consultation process has not caused her a significant injustice. If other residents did not receive the consultation letters, it would be for them to make their own complaint to the Council if they are unhappy.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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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How I considered this complaint

7. I considered information from Mrs E. I made written enquiries of the Council and considered information it sent in response.
8. Mrs E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. This chronology provides an overview of key events and does not detail everything that happened.
10. The Council owns and manages some land near to Mrs E’s house. It received a request for an educational federation (Organisation B) to hire the land for environmental education. The land had previously not been used by any organisations.
11. The Council’s biodiversity officer visited the site and carried out a visual inspection. They decided the impact of local schools using the site would not adversely affect the natural habitat. Another officer carried out a tree survey to ensure the health and safety of the tree stock.
12. The Council wrote to Mrs E and other residents and said it had granted Organisation B one licence (for up to two schools) to use the land. It said it would write and implement a management and monitoring plan to ensure the site and surrounding gardens would not be adversely affected. It said it would review the matter in the first six months and then every year.
13. Organisation B did not use the site for two years because of the COVID-19 pandemic. The Council also did not create a management and monitoring plan because of the pandemic.
14. The Council received an application from another organisation (Organisation C) to temporarily use the site. The Council sent the application to local councillors, who agreed they were happy for Organisation C to use the site. The Council approved the application as a one-off hire because there was a defined end date.
15. Organisation C sent a letter to Mrs E and other residents and told them how it intended to use the site.
16. Mrs E complained to the Council about its failure to properly secure the site. She said the gate remained open when children were on site. She asked it to install a key fob system that allowed authorised people to access the site at agreed times.
17. The Council responded and said it did not have the budget and it was not possible to install a key fob system. It said it would contact users to ask them to make sure they locked the access gate when they left the site. It said it recognised the concerns of residents and it would create a management and monitoring plan to help better oversee activity on the site.
18. Mrs E remained dissatisfied. She said fob systems were widely available. She said if the site was not properly secured it could lead to burglaries and increased levels of unauthorised access. She raised a further complaint and said officers failed to honour their previous commitment to provide a management and monitoring plan.
19. The Council responded to Mrs E’s complaint and agreed the gate lock system was not robust enough. It said it would replace it with a new secure system. It apologised officers failed to honour their previous commitment to provide a management and monitoring plan. It said this was due to an oversight and the COVID-19 pandemic meant it had to realign its resources.
20. The Council published a draft management and monitoring plan on its website for residents to comment on. It also hand delivered consultation letters to residents who lived near to the site.
21. Mrs E raised further concerns with the Council that it failed to conduct an environmental impact assessment and it mismanaged the consultation process for the management and monitoring plan. She also said officers did not install a new lock in a timely manner which meant another organisation accessed the site.
22. The Council responded and said there were some concerns raised about who received a consultation letter. It corrected this and extended the consultation date. It also said officers conducted an environmental impact assessment. Finally, it said it changed the lock to stop unauthorised access.
23. The Council considered the responses it received to the draft management and monitoring plan. It produced a final plan and confirmed it would grant a maximum of three licences for access to the site.

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Analysis

24. Mrs E is concerned the Council failed to conduct an environmental impact assessment and it has not demonstrated how it will protect the biodiversity of the site. When the Council responded to my enquiries, it provided me with a tree survey which shows an officer inspected the health and safety of the tree stock. The Council also said its biodiversity officer visited the site, but it has no records. It said it did not keep any records as the potential for negative impact was low, and safety had been covered by the tree survey. It also said the outcome of the assessment work was communicated verbally between officers, and this is not uncommon where the site assessment work does not identify any substantive issues or risks.
25. The Council should have kept a record of the inspections and the biodiversity assessment. I do not accept that just because the potential for negative impact was low, it was appropriate for it not to keep any records. It is important the Council can evidence its decision making. It should change its record keeping procedures to ensure it keeps records of such matters even when officers do not identify any substantive issues or risks.
26. Although I do have any records, I consider it is more likely than not the Council did consider the biodiversity of the site before granting a licence to Organisation B. Therefore, I do not consider the Council’s failures in record keeping caused Mrs E a significant injustice. The Council has records of the tree survey, and although I accept this is different to a biodiversity assessment, shows the Council had cast its mind to the environment. It also has provided me with the precise dates of when the biodiversity officer inspected the site, and it is unlikely it would have this information if the inspections did not happen.
27. The Council also stated in the management and monitoring plan officers will inspect the trees, grassland, and the scrub habitats to ensure the area remains in a favourable condition. It will also commission a local wildlife trust to survey the site. Therefore, I am satisfied the Council has set out how it will protect the biodiversity of the site.
28. The Council was at fault for its delay in producing the management and monitoring plan. It took over two years to do this. The Council apologised to Mrs E for this when it responded to her complaint. I do not consider the Council’s fault caused Mrs E a significant injustice. The site was not used very often for two years because of the COVID-19 pandemic.
29. The Council accepted in its response to Mrs E’s complaint the system it had in place to secure the site was not robust enough. I accept this would have caused Mrs E some worry as she lives near to the site. The Council has now taken action to resolve this issue, and it now has a robust system where it has a record of those who have access to the site. This is a suitable remedy for Mrs E’s injustice.
30. Finally, Mrs E says the Council has unreasonably granted a maximum of three licences. She says this will lead to an increased footfall.
31. The Council has explained officers decided granting three licences was proportionate to balance the risk of environmental harm against the local education value. That was down to the professional judgement of officers, and I have no grounds to criticise their decision, even if Mrs E strongly disagrees. The Council has also restricted the maximum size of the groups that can use the site at any one time, the length of the visit and the number of visits per week. This shows it is aware of the increased footfall and it has taken steps to address the impact of this. It has also confirmed it has only issued one licence. If it receives any further applications for additional licences, it will assess whether the site can accommodate them based on capacity.

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Agreed action

32. The Council will change its record keeping procedures by 17 May 2023 to ensure it keeps records of biodiversity assessments and inspections even when it does not identify any substantive issues or risks.
33. The Council should provide us with evidence it has complied with the above action.

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Final decision

34. There was fault by the Council, which caused Mrs E an injustice. The Council has taken sufficient steps to remedy this injustice. However, the Council has also agreed to implement a service improvement to prevent a recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman