Summary: Ms X complained about the Council’s handling of her request to use its land for car parking. We found no fault in the Council’s substantive decision making. But its poor communication caused Ms X avoidable distress and frustration, which it had suitably put right with its apologies and offer to waive its £250 legal costs. The Council also agreed to formally adopt and publish a policy about use of its land for car parking.

The complaint

1. Ms X said the Council delayed dealing with her request for approval to three car park spaces on its land. The Council then told her she had to pay for and sign a licence agreement to use its land for car parking. Ms X said this was unfair and biased as the Council had not asked her neighbours to sign and pay for a licence to park on its land. Ms X also said the licence included unsuitable and unreasonable terms and an annual fee.
2. Ms X said what happened caused her much stress and inconvenience, delayed her house extension, and dealing with the Council took up much time. Ms X wanted the Council to formally consent to her car park spaces without signing a licence agreement. Ms X also wanted the Council to discipline the officers that dealt with her case and to change the way it dealt with residents’ requests.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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 may investigate complaints made on behalf of someone else if they have given their consent. Ms X’s complaint was brought to the Ombudsman by her representative (‘R’) acting with her written consent. (Local Government Act 1974, section 26A(1), 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 the written complaint and supporting information provided by R about Ms X’s complaint;
• asked for and considered further information sent by R and provided by Ms X;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared, where possible, the Council’s comments and supporting papers with R; and
• shared a draft of this statement with R and the Council and considered any comments received before making a final decision.

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What I found

Background

8. A property licence is usually a formal written agreement setting out the terms on which a landowner allows someone to use or occupy their land. A licence or other legal agreement, for example, a lease, is necessary as someone using or occupying another person’s land without their consent may be trespassing. It is common practice for the licensor, the landowner, to charge the licensee, the occupier, for preparing the formal licence agreement. The licence agreement will also usually require the licensee to pay the licensor an annual fee for their use of the land. It is also important for the licensor and licensee to agree in their licence how they will deal with issues affecting the land. For example, the licence may cover legal liability and insurance matters should any third party be injured while on the land.

What happened

9. Councils have many different powers, which they must use in line with the relevant legal and other rules. Here, Ms X’s aim to extend her home involved the Council in three separate roles. Ms X needed planning permission for the extension. The Council was the local planning authority (LPA) with responsibility for deciding whether to grant planning permission for the extension. Most development affects local roads and traffic, including parking provision. So, the LPA normally seeks specialist advice on such impacts from the local highway authority (LHA), which here was also the Council. As LHA, the Council wanted access works and to secure increased off-road parking for Ms X’s extended home. The Council was then identified as owning the land providing off-road parking for Ms X’s home. Ms X’s complaint concerns the Council as a landowner.
10. People may seek planning permission for land they do not own. However, legal rules say the planning applicant must first send a formal notice to the landowner telling them about the planning application. When sending the application to the LPA, the applicant must confirm they have told the owner. The notice gives the owner 21 days to comment. The landowner does not have to respond to the notice. It is the landowner’s choice whether to send any comments on the application to the LPA. But, even if the owner objects to the application, this does not stop the LPA from granting planning permission. If the LPA grants planning permission, this does not give the planning applicant any right to enter and build on the owner’s land. The planning applicant needs a separate legal agreement with, or other formal consent from, the owner to develop and use the owner’s land in line with the planning permission.
11. In practice, LPAs will usually continue processing planning applications where a previously unknown owner is identified. But the LPA will want to ensure the owner is then told about the application and asked to comment to avoid a legal challenge to any later grant of planning permission. Here, Ms X’s agent wrote to the Council about her planning application in December 2020. The agent referred to the Council as a ‘leaseholder’. The Council as owner said it did not have a legal interest in Ms X’s home, although it owned adjoining land. The correspondence that followed led to Ms X’s agent sending the formal notice about the application to the Council on 23 December. The Council as owner replied saying it would not object to the planning application. But, normally, it would not transfer or consent to such development on its land.
12. At the end of January 2021, Ms X wrote to the Council as owner saying she understood it refused to agree to the off-road car park spaces. Ms X set out the need for the extension and off-road parking due to her family’s personal circumstances. Ms X asked the Council as owner to resolve the problem quickly as it had already delayed her planning application and extension. Ms X also asked if it had consented to all the other nearby homes using its land for parking.
13. During February 2021, the Council as owner told Ms X it understood that, as LPA, it did not grant planning permission where an owner was unlikely to consent to the development. However, the LPA was considering the matter. (Later, as LPA, the Council said the land issue ‘was a legal/civil matter and not a reason to hold up the planning decision’.) And, as owner, the Council said it was aware of Ms X’s personal circumstances and trying to find a ‘defendable’ way forward for her case consistent with other similar cases.
14. By mid-February, the Council, as owner, said it could “agree in principle” to Ms X developing its land subject to approving details of the car parking work (‘Email One’). Ms X then sent the Council, as owner, details of the car parking work.
15. During the first two weeks of March 2021, the Council, as owner, considered the details for the car parking work. And, as LHA, the Council also visited the site to assess both the parking and access proposals. The Council, as owner, then emailed Ms X, saying its site visits had raised some issues about possible remedial works that it needed to check with (itself as) the LHA.
16. About a week later, the Council as owner, again emailed Ms X (‘Email Two’) saying it would tell the Council’s legal team to prepare the written consent that would provide for:

• access by the Council to carry out any repairs and maintenance to the land;
• protection of services, including drains, underneath the car park spaces; and
• the works meeting the Council’s, as LHA, work standards.

17. Ms X started chasing for progress about a week later. The Council, as owner, provided updates before confirming in mid-April the licence had been prepared and “hopefully should be issued next week”. Ms X replied that she was “not familiar with the terminology licence agreement” but if it granted permanent permission for her three car park spaces she would be happy.
18. In late April 2021, the Council as owner sent Ms X a licence agreement for approval and signing. The Council, as LPA, also granted planning permission for Ms X’s extension.
19. Ms X emailed the Council as owner saying she was “shocked and appalled” at receiving the licence agreement. Ms X asked why the agreement included so many restrictions and an annual fee when Emails One and Two had set out the Council’s terms. Ms X said the licence agreement was unfair and unrealistic. Ms X again pointed to other nearby homes that had developed the Council’s land without its consent as owner.
20. The Council as owner replied about two weeks later after officers had met to discuss development of its land by residents. It apologised for not telling Ms X in advance that a licence agreement would give its consent. It confirmed that using a licence agreement was the most suitable way to formalise matters and protect both party’s rights. It was standard practice to charge a licence fee, and necessary to cover its costs of preparing an agreement. It accepted cases existed where residents had developed its land without its knowledge or consent. It would develop a policy to deal with those cases consistently; to regularise the position; and to prevent further cases arising.
21. During May 2021, Ms X continued her correspondence with the Council and made a complaint about it as owner. In summary, Ms X’s main points were the Council as owner:

• had taken four months to action her request for consent to the off-road car park spaces;
• acted in bad faith by agreeing in principle to consent to the car park spaces but then sending a licence agreement;
• discriminated against her for being honest and seeking consent when so many other residents failed to do so before using its land for off-road parking; and
• acted unfairly in applying a licence policy to her case that did not exist when she had asked for consent for the off-road car park spaces.

22. In summary, the Council’s corporate response to the complaint was:

• it was standard practice to have a licence agreement where people wanted to use and or occupy its land;
• to accept it did not refer to a licence agreement in February 2021 (for which it had apologised (see paragraph 20)) when it agreed in principle to Ms X’s car parking works;
• it was willing to approve Ms X’s use of its land for car parking through completion of the licence agreement;
• to accept delay with some of its responses to Ms X’s correspondence;
• to accept it took four months to send Ms X the licence agreement and, while it faced pressures caused by the COVID-19 pandemic, she had received poor customer service;
• to accept there were many examples of unauthorised development on its land, and some might have received informal consent;
• it was not appropriate for such unauthorised development on its land to continue and it would use licence agreements in the future; and
• it was developing a policy to address both existing unauthorisied development on its land and future applications for such development.

23. The Council apologised for its delay and resulting poor customer service and offered to waive its £250 preparation fee for the licence agreement. Ms X did not find the Council’s offer acceptable and brought her complaint to the Ombudsman.

The Council’s comments to the Ombudsman

24. The Council repeated that it had not expressly referred to a licence agreement early in its correspondence with Ms X. But it pointed to comments in its emails with Ms X about ‘consent’ and ‘agreement’ and contacting its legal team that pointed to there being a formal document. The Council also referred to Ms X being ‘happy’ with a licence agreement provided it made clear it covered three car park spaces (see paragraph 17).
25. It had not yet adopted a policy for handling existing and future cases where residents used its land for car parking. The continuing need to focus resources on responding to COVID-19 matters was affecting progress with the policy. However, it intended to consult affected residents on the proposed policy and then present it to councillors for consideration before its adoption. The Council also provided details of other recent cases where it had completed licence agreements with residents for use of its land for car parking purposes.

Consideration

Introduction

26. I carefully considered all the information available to me, including the detailed comments made by Ms X, about the complaint. My role was to decide whether the Council acted with fault and, if so, whether that fault caused Ms X an injustice that I should now make recommendations to put right. In carrying out this role, this statement does not, and does not need to, address every point raised in the correspondence between Ms X and the Council. My focus was how the Council, as owner of the land next to Ms X’s home, dealt with her request to use that land for car parking, and the time it took to do so.

Consent

27. While it may be unusual, Ms X does not own the land immediately to the front of her home. The Council is the legal owner of that land. As owner it was for the Council to decide if, and on what terms, any other person might use its land.
28. Occupying land is a serious matter and brings with it legal responsibilities and liabilities. I did not therefore criticise the Council for wanting to put Ms X’s use and occupation of its land on a formal legal footing by using a licence agreement. But it is easy to forget that most people do not share the routine or knowledge of officers working within a council’s housing and property department. So, while such officers may know a licence or lease will normally control ‘consent’ to occupy land, residents may not.
29. Ms X may have expected a letter, or similar, simply confirming she could use the Council’s land and listing the points raised in Emails One and Two. So, Ms X’s concern in April 2021 at receiving a written licence agreement with detailed terms for use of the Council’s land was understandable. However, if the Council had told Ms X in February 2021 it would use a licence agreement, that would not have affected the contents of the licence. Ms X would therefore most likely have found herself in the same position: concerned on receiving and reading the terms of that licence.
30. Ms X said the Council went back on its word and acted in bad faith in asking her to sign the licence agreement. I recognised Ms X’s view. However, what went wrong here was a failure to communicate clearly. Once the Council decided it would ‘consent’ to Ms X’s use of its land it should have set out what form that ‘consent’ would take. The Council had apologised for not telling Ms X sooner than it did that its ‘consent’ would be through a licence agreement. I found the Council’s apology suitably addressed the distress receipt of the licence agreement caused Ms X.
31. Ms X also pointed to many other nearby homes whose residents were using the Council’s land seemingly without its licensed consent. I recognised Ms X’s feelings of injustice at being treated differently to such residents because the Council asked her to sign a licence agreement. However, the Council was now aware that residents were using its land, probably without proper consent. It therefore needed to address the matter. As the unauthorised use of its land appeared widespread, developing a policy to ensure consistent case handling was a sound and sensible approach to take.
32. The Council also provided evidence that it did seek, and had secured, signed licence agreements from residents that now want to use its land. Ms X was not therefore the only resident the Council had asked to sign a licence agreement.
33. Ms X had concerns about the terms of the licence agreement, including the Council’s preparation costs of £250 and the annual, index linked, £120 fee. Councils generally need to get the best available financial return in their property transactions as they have an overall duty to get good value for all their residents. Fees are invariably payable on property transactions and the Council would incur costs preparing legal agreements. The Council could seek payment of those costs from any buyer, lessee or licensee wanting to buy or use its land. However, here, the Council had offered to waive its £250 preparation fee for Ms X’s licence.
34. Similarly, the Council could seek an annual payment from a lessee or licensee as they have the benefit of using its land. The Council, though its estate surveyors, would have practical experience and knowledge of the local property market. And its officers would use their professional judgement to reach a view on what fee was commercially sustainable and suitable for use of land for car parking. As the licence is an agreement, it is for the proposed licensee to decide whether they will accept the Council’s terms, including any fees and charges.

Time

35. It took the Council, as owner, about four months from receiving notice of Ms X’s planning application for it to issue the licence agreement. However, the Council first said it would not normally give consent to develop its land. It then changed its ‘normal’ position, which was of benefit to Ms X as it said it would ‘consent’ to her car park spaces in February 2021. This change of position took place after about six weeks and with Ms X having written to the Council, as owner, explaining her family circumstances.
36. It took around another two months to issue the licence agreement. The evidence showed the Council was progressing Ms X’s case, including visiting the site, and its housing and highway officers liaising about site specific matters. However, the Council accepted there were delays resulting in poor customer service for Ms X. The Council had already apologised for such delay and waived the licence preparation fee to address the resulting poor customer service.
37. Overall, while I recognised the four months would have seemed a long time to Ms X, I did not see evidence of substantive avoidable delay by the Council. I therefore found the Council’s apology and waiver of the £250 fee suitably and reasonably addressed any frustration to Ms X arising from the time taken to issue the licence agreement.
38. Ms X also raised the Council’s complaint handling. The Council’s complaints policy says it will usually send a stage one reply in 15 working days and a stage two reply in 20 working days. The Council met its stage two response time target. However, it took about 30 working days to provide its stage one response. During this time, Council officer dealing with the stage one complaint was absent due to poor health. And, later, the Council told Ms X it needed more time to respond but then missed its new target date. This would have been frustrating for Ms X. However, overall, the Council took less than the 12 weeks the Ombudsman considers should normally be enough to complete a council complaint procedure. And I saw no evidence to suggest the time taken by the Council affected the outcome of Ms X’s complaint.

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Agreed action

39. I found fault causing injustice (see paragraphs 30 and 37), which injustice was suitably put right by the Council’s apologies to Ms X and the waiver of its £250 licence preparation fee. As the Council had not yet formally adopted a policy about the use of its land by residents, it also agreed, within six months of the date of this statement, to:

• progress its draft policy through to adoption and make it available to the public on its website; and
• provide the Ombudsman with evidence of the adoption and publication of that policy.

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Final decision

40. I found no fault in the Council’s substantive decision to ask Ms X to sign a licence agreement to use its land for car parking. And the Council’s apologies and offer to waive its £250 licence preparation fee provided proportionate and appropriate redress for the distress it caused Ms X by its poor customer service. I completed my investigation on the Council agreeing the recommendation at paragraph 39.

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Investigator's decision on behalf of the Ombudsman