Summary: Ms C complains about the Council's refusal to sell land to the rear of her property. Ms C says she has spent unnecessary time, trouble and professional fees in pursuing the matter. The Ombudsman has found fault by the Council but considers the agreed actions of an apology and written decision about the sale of the land are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains about the Council's continuing refusal from 2016 onwards to sell land to the rear of her property. Ms C says she has spent unnecessary time, trouble and professional fees in pursuing the matter.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’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 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If we are satisfied with a council’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

6. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.
7. I have not investigated events before 2016 for the reason set out at paragraph 4 above. Ms C contacted the Ombudsman about her complaint in October 2017 and I have exercised the discretion available to me to investigate events from 2016 onwards as the matter was ongoing.

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What I found

Background

8. The Council’s Asset Disposal Policy says market sale assets are those which do not make a strategic contribution to the Council’s business and social objectives and the Council will generally use a straightforward disposal process. The policy says for surplus areas of land such as grass verges the Council will consider disposing to the owners of adjacent properties if there is a clear indication the transfer will not be locally contentious.
9. Ms C had sought to buy an area of land to the rear of her property from the Council. The Council says this land lies between the rear of several houses and a canal and was previously used as a boat clubhouse by a local school.
10. The Council emailed Ms C on 9 October 2014 to set out the terms of its proposed sale of the land subject to contract and approval. This gave an indicative value of £10 per metre. The email contained various conditions including the land could only be used as domestic garden and stated, “The Purchaser shall be responsible for obtaining any statutory consents/permissions for use of the land prior to Transfer.” The Council’s disposal of the land to Ms C did not proceed.

Key events

11. The Council agreed terms with Ms C’s neighbour to sell an area of land to the rear of their property. This sale was completed in March 2016. The terms for transfer had the same standard wording about the need for any statutory consents/permissions for use of the land prior to transfer. The Council sought a planning application from several residents including Ms C’s neighbour in January 2015. The Council has not received an application from Ms C’s neighbour. The question of whether it is expedient to take enforcement action for any potential breach of planning control is a matter for the Council. I have seen no evidence that Ms C has been treated differently by the Council in this regard.
12. Ms C obtained planning permission in October 2016 for the continuation of the use of the land to the rear of her property as residential curtilage including the erection of boundary fencing and two timber sheds and a green house. The case officer’s report for the application refers to an objection from Ms C’s neighbour about the red line site plan being incorrect and an amended site plan was received. Ms C’s neighbour still considered the site plan was incorrect, but the case officer recorded the amended plan had been checked with the Council’s Assets and Property Manager who was in the process of selling the land to Ms C who confirmed the amended site plan was correct. The relevant plan was dated 8 September 2016.
13. The Council says the above site plan does correctly show the boundary line but incorrectly showed the position of existing outbuildings as being within the application site when this was not the case. The Council says some outbuildings were wholly or partly on land the Council had sold to her neighbour. Ms C disputed this.
14. 
    The Council says Ms C erected fencing around the land to the rear of her property before there was a contract and approval for her to purchase the land. Ms C had also erected outbuildings which it says encroached on land the Council had sold to her neighbour. The Council required Ms C to move the outbuildings and remove the unauthorised fencing. The Council says Ms C has only more recently moved these buildings. Ms C says the fencing was a joint venture between her and her neighbour at the time and the neighbour decided the boundary line to ensure there would not be an issue. Ms C says her neighbour removed the fencing causing damage. The Ombudsman cannot investigate the actions of Ms C’s neighbour and ultimately this would be a matter for Ms C’s insurers. The boundary would also be a matter for the original landowner.
15. Ms C made regular contact with the Council raising issues about the boundary. The Council understands Ms C considers it has put the boundary in the wrong place and she should have some of the land now sold to her neighbour. The Council says it suspended the instructions for the sale to Ms C due to her objections about the boundary until it was satisfied there were no outstanding boundary issues.
16. The Council took the view that once the boundary fencing for the land it had sold to Ms C’s neighbour was completed the land under consideration for sale to Ms C subject to contract and approval would be clearly defined. However, the Council says that Ms C raised objections about the location of the boundary during the period her neighbour was trying to erect the boundary fencing. This remained incomplete. The Council visited and confirmed the boundary being erected was in the correct location.
17. Ms C has moved the outbuildings and says she is happy to proceed based on the Council’s determination about the boundary as a continuation of the partial boundary fencing. However, the Council required the fencing to be complete before it would consider proceeding. This requirement was not something within Ms C’s control. Ms C could not complete the fencing as she does not currently own the land and the fencing was being erected by her neighbour.
18. In response to an earlier version of this statement, the Council advised it had re-visited the site in May 2019 and confirmed the required fencing was now complete.
19. Ms C says she has also incurred unnecessary costs in obtaining planning permission and professional survey fees. Ms C has provided various 2018 quotes for survey work but no invoices. Ms C has provided payment details which she says were for a topography report for £495 and £1,800 to a chartered surveyor. However, I have seen no evidence the Council required such a survey and see no obvious reason why one would be required given the circumstances of this disposal. Ms C has not provided any information about the costs involved in obtaining planning permission. However, it is clear the requirement for planning permission and any necessary consents was part of the terms to both Ms C and her neighbour and I have seen no evidence the Council treated Ms C differently. It may also have been prudent for Ms C to wait for matters to proceed to a contract before incurring planning fees and other costs.
20. In the circumstances, I do not consider there are grounds for me to ask the Council to provide a financial remedy to Ms C for any planning fees or professional survey fees she has incurred.
21. 
    However, I consider the Council was at fault in making the completion of the fencing by Ms C’s neighbour a condition of proceeding with any sale to Ms C for the reasons explained above. I do not accept the Council’s argument the boundary was not completed solely due to Ms C’s objections. It was within the Council’s control to mark out the land it was prepared to sell to Ms C to allow her to decide if she wished to proceed on that basis. I consider the Council’s failure to do so has caused unnecessary delay and raised Ms C’s expectations.
22. Although the boundary fencing is now complete the Council has advised the Ombudsman it is now considering how to obtain best value for the disposal of this land and the options available. The Council does not say if it has contacted Ms C to advise her of this position.

Agreed action

23. The Council will within one month of my decision write to Ms C to apologise for making the completion of the fencing by Ms C’s neighbour a condition of proceeding with any sale to her when this was not within her control.
24. The Council will within three months of the date of my final decision write to Ms C to confirm if it remains willing to sell her the land. If so, the Council should set out the terms of sale and proceed accordingly. Alternatively, if the Council decides it no longer wishes to sell the land to Ms C it will provide its reasons.

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Final decision

25. I have completed my investigation as I have found fault by the Council. I consider the agreed actions are enough to remedy the injustice to Ms C.
26. If Ms C is unhappy with the Council’s new decision about how to dispose of the land it would remain open to her to make a fresh complaint to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman