The Ombudsman's final decision:
Summary: Mr and Mrs B complain about the Council’s sale of land near their house to a neighbour which they say means they have lost the opportunity of the use the land and are concerned about private access rights. The Ombudsman has found delay by the Council but considers the apology the Council has already provided is enough to provide a suitable remedy.
- I shall refer to the complainants as Mr and Mrs B. Mr and Mrs B’s legal representative complains on their behalf about the Council’s sale of land near their house to a neighbour. Mr and Mrs B say the Council ignored the objections it received to the proposed sale and did not consider properly their access rights over the land. Mr and Mrs B also say the Council failed to obtain best consideration for the land as there was a higher offer from another party. Mr and Mrs B also complain about the size of land their neighbour is now excavating and the transfer document only provides an estimated size of the land area sold. Mr and Mrs B also complain about the date of the transfer document in October 2018 despite the Council advising them it sold the land in June.
- Mr and Mrs B say because of the Council’s fault they have lost the opportunity of the use the land and have concerns about private access rights.
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 and Mrs B’s legal representative. I have considered some information from the Council and provided a copy of this to Mr and Mrs B’s legal representative after removing some third-party details. I have explained my draft decision to Mr and Mrs B’s legal representative and the Council and provided an opportunity for comment.
What I found
- Mr and Mrs B previously complained to the Ombudsman about the Council’s decision to sell some land. Mr and Mrs B had sought to purchase an area of land from the Council in the 1980s without success. They became aware in 2014 that the Council intended to sell the land to their neighbour. The Council said it had decided in principal to sell the land to the neighbour, but had not actually disposed of the land. It would now start the statutory process of consultation needed before the final decision could be made. The Council had started the process, but not yet made a final decision. The Ombudsman exercised his discretion not to investigate the complaint from Mr and Mrs B as the Council had not made a final decision. Mr and Mrs B were advised they could make a new complaint to the Ombudsman once the Council had completed the process.
- The Council received a request from Mr and Mrs B’s neighbours to buy a small area of land. The land is 54 square metres and the Council considers it suitable for hard standing for car parking which was the proposed use. The Council has provided a photograph of the land which is next to the western boundary of Mr and Mrs B’s neighbour. It sits between the neighbour’s property and a larger area of unregistered highway verge. The land does not adjoin Mr and Mrs B’s property.
- The Council has provided a copy of its policy for the disposal of surplus land and property dated 5 December 2012. This highlighted the Council regularly received requests from property owners to buy adjacent small miscellaneous areas of land to include within their own curtilage. If the Council land had no strategic or operational purpose the Council would assess the market value of the land and offer it for sale to the adjoining landowner. The policy also noted it would be reasonable to consider factors such as future maintenance liability when assessing the price for the land which could result in a disposal at a nominal consideration.
- The Council obtained two independent valuations for the land in March 2014 and October 2016.
- The Council published notices of its intention to dispose of land held for open spaces purposes in January and February 2015. These notices generated over 100 objections most of which were in the form of a petition from Mr and Mrs B’s representative. The Council accepted all the representations as valid and provided responses. The response to Mr and Mrs B was not until June 2017. The Council apologised for the delay and explained this was due to the number of objections and wide areas of concern covered.
Even in these circumstances, I consider the time taken to respond was unacceptable. However, I do not consider this fault caused Mr and Mrs B an injustice requiring a remedy over and above the apology already provided as the land use did not change during this period.
- The Council considered the objections received to the sale could be dealt with satisfactorily through contractual obligations. The resulting contract deals with issues raised during the consultation process including obligations about no damage to the open space land abutting the plot; restricting the use of the plot to hard standing for domestic vehicles ancillary to their property; no parking on the area of open public space; no fencing or boundary that would encroach outside the property and no building on the land. The Council also wrote to Mr and Mrs B’s representative in September 2017 about their claimed private rights of access and confirmed the sale would be subject to any existing rights. A purchaser buys land subject to any existing rights and the contract sets out the sale is subject to prescriptive rights which would include any rights Mr and Mrs B may have. I am satisfied the Council properly considered Mr and Mrs B’s objections to the sale including their concerns about any access rights they may have over the land.
- The Council formally decided to sell the land which had been independently valued at £4,000 to Mr and Mrs B’s neighbour for £7,000 in October 2017. Mr and Mrs B question why a higher offer from a third party for £35,000 was not accepted. The Council has explained this was based on a much earlier valuation from 2006 when it was considered the plot may be large enough to sell for development purposes. The Council has confirmed this is not the case.
- In terms of whether best consideration has been achieved the courts have held that the deliverability or credibility of a bid, or the care with which it has been prepared, are commercial factors which are relevant to an assessment of whether the ‘consideration’ offered is the best reasonably obtainable. Likewise, the highest offer on the table need not represent best consideration, because an authority may conclude that ‘a bird in the hand is worth two in the bush’. A realistic valuation of the land to be disposed is enough. I see no fault by the Council here.
- The contracts were exchanged in June 2018 and the sale completed in October 2018. The period between exchange of contracts and completion is not particularly unusual and does not constitute fault.
- Mr and Mrs B reported that works had started before the sale of the land was completed and about the size of the excavation. The Council has explained it allowed works to the land following exchange of contracts but before legal completion to retain ownership of the land until it was satisfied the works could be completed within the plot boundaries. I see no fault in the Council’s approach here.
- The Council surveyor visited the site on 22 June 2018 to agree the boundary with the purchasers. The Council surveyor visited again on 3 October and was satisfied all the works were within the boundaries of the property. The Council has provided the detailed measurements of the works to demonstrate they were within the boundaries of the land sold.
- I have completed my investigation. Although there was some fault by the Council, I consider the Council’s action of an apology is enough to provide a suitable remedy and the Ombudsman would not seek more.
Investigator's decision on behalf of the Ombudsman