South Holland District Council (17 015 270)

Category : Other Categories > Land

Decision : Upheld

Decision date : 12 Sep 2018

The Ombudsman's final decision:

Summary: Mrs X says the Council is at fault for saying her former home might be on contaminated land. The Ombudsman has found some evidence of fault by the Council however he considers the actions taken by the Council have adequately addressed the injustice caused to her. For this reason he has ended his consideration of this matter.

The complaint

  1. Mrs X says the Council was at fault for stating her home was on land that might be contaminated. She says this amounted to it blighting her land and resulted in her losing a property she wished to buy as she could not sell her home. Mrs X also says the Council did not assist her with this matter, constantly misled her and gave delayed responses. This caused her and her family distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. As part of my investigation I discussed the complaint with Mrs X and considered information she provided. I made enquiries of the Council and considered its responses. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mrs X’s comments in response.

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What I found

  1. This legislation came into effect on 1 April 2000 and placed a duty on local authorities to identify and inspect land its area to identify any contaminated land.

Key events

  1. Mrs X bought her home in 1999 and I understand she did not carry out any searches regarding contaminated land at that time. The Council says the area was a site of potential concern before Mrs X bought her home.
  2. In the early 2000s the Council instructed consultants to identify possible contaminated land within its boundaries following the introduction of legislation requiring it to do so.
  3. The consultants found that Mrs X’s home might be located on land that was contaminated. I understand this was because of its proximity to a historic landfill site used for farm and road waste such as a tarmac.
  4. The Council updated its own internal records to show the area as a potential concern on its GIS mapping system. It did not class the land as being contaminated as defined in Part 2A of Environmental Protection Act 1990 and so it was not on the public register of contaminated land.
  5. Mrs X became aware of the Council’s concerns about the land when she was trying to sell her home as they were identified in searches carried out by a prospective buyer.
  6. Mrs X contacted the Council for assistance. She says the Council told her it had obtained the information from the Environment Agency (EA).
  7. Mrs X sought to challenge the Council’s view and provided details of historic maps and an aerial photograph in support of her view. However, the Council did not alter its position. It advised Mrs X that the only way to clarify if the land was contaminated was for her to carry out a land survey.
  8. I understand that a land survey was carried out by Mrs X at a cost of around £3000; the Council funded £480.00 which was 50% of the cheapest quote received.
  9. Following the survey (which did not find any evidence of contamination) the Council removed the site from its list of potential concerns. It says it did so because of the findings of the survey but also because of a lack of any other information demonstrating a risk to health.
  10. Nevertheless Mrs X was unhappy with the Council’s handling of the matter. She says the Council provided her with conflicting and misleading information and did not reply when it said it would. She says because she was unable to sell her home until the matter was resolved she lost a property that she had been in the process of purchasing and lost the £60 survey fees she had paid.
  11. For the above reasons Mrs X complained to the Council. The Council did not uphold her complaint and she remains unhappy.

Analysis

  1. The Council was acting in accordance with the Contaminated Land Regulations 2000 when it instructed consultants to identify contaminated land. I do not find the Council at fault for acting to meets its legal obligations.
  2. In response to my enquiries the Council clarified how it acquired information about Mrs X’s home. It had previously stated that it had received this from the EA. While I appreciate the information provided by the Council’s consultant refers to landfill data from the EA, the Council’s earlier responses to Mrs X appear to suggest the information was provided to it directly by the EA. Because of this confusion, I understand Mrs X spent time trying to obtain details from the EA directly.
  3. I also note that the Council has been unable to provide copies of the EA data referred to by its consultants as the file only contained a map of the relevant area. I would have expected the Council’s file to contain the details of all information relevant to its decision to classify an area as a potential concern.
  4. Mrs X says the map referred to above was provided to her by the Council and the EA in different formats. I do not consider this is a cause for concern as there is no suggestion that Mrs X’s home was only shown in one format of map.
  5. Mrs X suggests the Council’s decision to place her home on its list of land of potential concern amounted to it blighting her land. I do not agree. This is because the Council did not define Mrs X’s land as being contaminated. It did however have reason to believe it might pose a risk and accordingly it was correct to have it on its list of sites of potential concern.
  6. Mrs X says that she has been put to the expense of carrying out a land survey to establish the level of risk. While I recognise that she has incurred such an expense, I do not consider this is the fault of the Council. As set out above, the Council had reason to believe the area might pose a risk.
  7. I have identified that the Council has not been able to provide all the records relevant to its decision. While I consider the information supplied supports the Council’s actions, this does not negate the need for it to keep complete records. I also appreciate the lack of records means that Mrs X will continue to have doubts about the Council’s decision to place her home on its potential concern list.
  8. I also recognise the Council provided Mrs X with contradicting information and this has put her to additional time and trouble in pursuing clarification of these matters.
  9. I am aware the Council funded some of the cost of Mrs X’s land survey. I consider this gesture addressed any injustice caused to her by the failings identified above.

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Final decision

  1. I have ended my investigation of this complaint. This is because I consider the injustice caused to Mrs X as a result of the fault I have identified has already been remedied.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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