The Ombudsman's final decision:
Summary: Mr C complains the Council did not properly consider the status of an area of land as open space. Mr C says the Council appropriated the land for planning purposes without serving the required notice. Mr C says he lost his opportunity to object and his use and enjoyment of the land. The Ombudsman has found no evidence of fault.
- The complainant, whom I shall refer to as Mr C, complains the Council did not properly consider the status of an area of land as open space. Mr C says the Council has appropriated the land for planning purposes without serving the required notice. Mr C says because of the Council’s fault he lost his opportunity to object and his use and enjoyment of the land.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and have considered the comments received before reaching my final decision.
What I found
- The Council granted planning permission for a park and ride scheme in 2016. The Council received representations during the planning process that it could not lawfully decide the planning application. It was asserted the Council by granting planning permission had appropriated the land without complying with the statutory appropriation procedure under section 122 (2A) of the Local Government Act 1972 (LGA 1972).
- The Council says the planning permission was gained before acquiring the freehold of the land. The Council says further appropriation under section 122 of the LGA 1972 was only possible where it held title to the land to be appropriated. The Council sought its own legal advice and provided a detailed response to the above concerns at the time with reference to relevant case law and a previous Ombudsman decision.
- The Council made an Executive Decision in May 2017 to acquire the land. It acquired the freehold interest in the land in February 2018. The Council has confirmed it acquired the freehold interest in the land by agreement from its private owners using Section 120 of the LGA 1972. This was for the purpose established by the 2016 planning permission to use as a Park and Ride. Section 120 states:
Acquisition of land by agreement by principal councils
(1) For the purposes of—
(a) any of their functions under this or any other enactment, or
(b) the benefit, improvement or development of their area,
a principal council may acquire by agreement any land, whether situated inside or outside their area.
(2) A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council’s functions.
- The Council received further complaints about the status of the land. The Council does not accept the affected land is open space and says it has not held any land interests at the site under Section 10 of the Open Space Act 1906 or Section 164 of the Public Health Act 1875.
- The Council has provided the Ombudsman with a copy of the registered title documents. The Council accepts it held an interest in a small part of the site enclosed by a bund when it granted planning permission which was next to the roundabout and was to be used to build an access road. The freehold for the remainder of the site was privately owned.
- The Council says land held by local authorities for the purposes of open space is normally expressly held for those statutory purposes and this would be cited on the tile which is not the case here. The Council also highlighted the land was not designated as open space in its Local Plan but rather for development purposes as either office/commercial use or a Park and Ride. The Council has confirmed the land was already partly developed with associated parking. The Council arranged an inspection of the land before acquiring it which found evidence of rough sleeping and fly-tipping and the area was overgrown.
- The Council has provided a detailed explanation of how it has treated the land and for its view the land is not open space and did not engage the notice requirements cited in the complaint. I am satisfied the Council has considered the relevant factors in reaching its view and see no obvious fault in the Council’s decision-making process which would allow me to question its decision. However, this is a complex area of law and how it is applied to this site in these circumstances would ultimately be a matter for the courts.
- Mr C made a formal complaint to the Council in early December 2017 explaining he intended to refer the matter to the Ombudsman. The Council provided a response at the end of December but did not confirm its complaints procedure was completed or advise Mr C of his right to refer the matter to the Ombudsman. This led to a delay in the Ombudsman accepting the complaint and I would remind the Council of the importance of confirming when its complaints procedure is completed.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman