The Ombudsman's final decision:
Summary: The Council has not yet made a final decision on the matter Mr B complains about, as it has not decided the planning application and it has not advertised the intention to dispose of the Council owned land. So, the investigation of this complaint has been discontinued until the decisions have been made.
- The complainant, whom I shall refer to as Mr B, complains the Council proposes to sell a piece of amenity land in the village where he lives to an adjoining landowner rather than take enforcement action against this landowner for encroachment and unauthorised development. The landowner is a Council employee.
- As a resident of the village, he worries about the loss of the amenity land.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- The Ombudsman has the power to start or discontinue an investigation into a complaint within her jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8))
How I considered this complaint
- I read the papers sent by Mr B and discussed the complaint with him.
- I considered the Council’s comments about the complaint and the supporting documents it provided.
- I gave the Council and Mr B the opportunity to comment on my draft decision.
What I found
- The Council granted planning permission in 2013 for a house on a plot of land, with a narrow access. Next to this narrow access, is a piece of land Mr B has called ‘the copse’.
- In 2014, a potential buyer of the building plot asked the Council if it owned the copse and if it would consider selling it.
- In 2015 the Council wrote to the potential buyer to say that it would sell the copse. The sale of the copse did not go ahead, as the potential buyer did not buy the building plot.
- Mr B says the new owners of the building plot have encroached on to the copse when building the house with an oil tank on a concrete base and hardstanding for car parking. The owner of the plot is a Council employee.
- The Council has now agreed to lease most of the copse to the Parish Council for a peppercorn rent, which Mr B agrees with. However, Mr B complains the Council has agreed to sell the area of land encroached on to the owners of the building plot. Mr B says that it is wrong of the Council to sell the land and he wants the unauthorised development (an oil tank) removed.
- In response to my enquiries, the Council has said the sale of the land is still a current matter. There are still two outstanding matters to settle before any sale can happen. These matters are:
- The result of the planning process, if the application for encroached land is approved, then
- Advertising the intention to dispose of the open space (Section 123 (2A) of the Local Government Act 1972).
- The Council has said that only when the two processes are concluded will it be in a position to make a final decision on the sale of the open space and encroached land. If either of these processes results in a refusal, then the sale will not happen.
- The Council received a planning application for the encroached land in August 2016, which it validated on 19 December 2016. The Council publicised the planning application and Mr B has put his comments to the Council.
Decision taken in 2014
- Mr B complains about the Council’s decision to sell the land in 2014 and that the Council did not follow the correct procedure when deciding the land was surplus to requirements. While I understand his concerns, as the sale did not go through at this point I do not intend to investigate the events of 2014.
- Mr B has complained to the Council about encroachment into the copse. In response, the Council has invited the owner to put in a planning application for the change of use of the encroached areas to garden land. The Council has not decided this planning application. Mr B and other residents can put their objections to this planning application as part of the planning process.
- Council’s do not have to take enforcement action, it is discretionary. As a first step it is usual to invite a planning application to decide if the use is acceptable. This is what the Council has done and so I can find no fault in the Council’s actions so far.
Proposed sale of land
- At the moment, I do not know whether the Council will approve or refuse the planning application. If the Council refuses the planning application, then the Council says the sale of the land will not go ahead and it will be able to consider whether to take enforcement action to ask the owner to remove the oil tank.
- However, the Council has said that if it approves the planning application, then it will publicise the intent to sell the land according to the law. At this point, Mr B and other residents will have a further opportunity to put any objections to the Council.
- Mr B complains the Council has already decided to dispose of the small area of land where the oil tank sits, subject to planning permission, before advertising its plans.
- The law says that a Council may not dispose of any land forming part of an open space unless before disposing of the land they give notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed disposal which may be made to them.
- Mr B argues there is case law that says that ‘the failure to publicise the intention before the agreements were entered meant that it would not be possible for the Council to consider any objections to the property agreement’. He has put several objections on this point to the Council in response to the planning application.
- As the Council has not decided the planning application and no sale of the land has been agreed I cannot say there has been fault by the Council. To avoid future complaints I consider the Council should ensure the process followed is transparent and robust given the circumstances involved.
- Once the Council has made a final decision on the planning application and then the sale of the land, Mr B will be able to put in a further complaint to the Council and then the Ombudsman if he remains dissatisfied.
- I have discontinued my investigation of this complaint. This is because the Council has not yet made a final decision on the matters complained about.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman