Summary: On behalf of an environmental trust, Ms X complained the Council terminated a lease agreement without following the correct procedures and processes. Ms X says without the lease the trust will be wound up. We have discontinued our investigation as the law says we cannot usually investigate a complaint when it is reasonable for the matter to be taken to court.

The complaint

1. On behalf of an environmental trust, Ms X complains the Council terminated the trust’s lease agreement without following the correct procedures and processes. Ms X says the Trust exists to nurture the field and without the field the trust will be wound up. Ms X says residents are appalled by the Council’s decision. Ms X would like the Council to withdraw the notice of termination, consult with residents and comply with its legal obligations and demonstrate it has correctly considered its decision.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

3. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
4. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

5. Ms X is part of an environmental trust which has been leasing a local field from the Council. The 21 year lease was granted to the trust in 2007, and the trust improved the open space and made the field available to the public, local schools, nurseries and charities.
6. The subjects at the centre of this complaint are the Council’s decision to end the lease early and its intention to award the lease to another party. The trust could have appealed these decisions to the court.
7. During the initial stages of my investigation Ms X told me the trust is a charity with limited funds which relies on support from volunteers and therefore it did not intend to appeal as it did not have the funds to pursue court action. For this reason, I did not consider it was reasonable to expect the trust to go to court.
8. In response to my first draft decision Ms X provided a copy of a letter which shows the trust has now instructed a legal team to issue pre-action proceedings against the Council. Although the issuing of a pre-action protocol letter is not making an application to the court, it does show the trusts position on pursuing a legal appeal has changed. I now consider it is reasonable for the trust to pursue an appeal through the court. The law says we cannot normally investigate when someone could take the matter to court, so I have discontinued my investigation.

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Decision

9. I have discontinued my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman