Summary: There was no fault with the way the Council dealt with the disposal of some land in its area.

The complaint

1. Ms B complains about the way the Council has dealt with the disposal of some land. In particular, she complains about the way the site was marketed, the way the Council dealt with enquiries from potential bidders, the Council’s failure to properly consult and consider the views of the community and its failure to properly consider all the bids it received.

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What I have investigated

2. I have investigated Ms B’s complaint about matters which she considers have affected her as a member of the public. The last section of this statement explains why I have not investigated Ms B’s complaints about matters relating to her position as a councillor.

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The Ombudsman’s role and powers

3. We can only accept complaints from members of the public or their authorised representatives. This means we cannot accept complaints from councillors complaining about something relating to their position as a councillor. (Local Government Act 1974, section 26A, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

7. Local authorities are given powers under the Local Government Act 1972 to dispose of land in any manner they wish, including sale of their freehold interest, granting a lease or assigning any unexpired term on a lease, and the granting of easements. The only constraint is that a disposal must be for the best consideration reasonably obtainable, unless the Secretary of State consents to the disposal.
8. Circular 06/03 conveys the Local Government Act 1972: General Disposal Consent 2003. It says that the Secretary of State gives consent to a disposal of land in the following specified circumstances:

“a) the local authority considers that the purpose for which the land is to be disposed is likely to contribute to the achievement of any one or more of the following objects in respect of the whole or any part of its area, or of all or any persons resident or present in its area;

i) the promotion or improvement of economic well-being;

ii) the promotion or improvement of social well-being;

iii) the promotion or improvement of environmental well-being; and

b) the difference between the unrestricted value of the land to be disposed of and the consideration for the disposal does not exceed £2,000,000 (two million pounds).”

Background to the complaint

9. The land in question has been vacant since late 2013. In 2014, the Council accepted a bid from a developer on behalf of a supermarket chain but the sale fell through. In 2016, the Council accepted a bid from another developer which also failed.
10. Ms B says that since the failure of those bids, the Council has failed to properly market the site and has not entertained all potential bidders.
11. In September 2018, it was decided at a meeting of the Council’s Cabinet to approve in principle an offer to buy the land. The offer was from a company which wanted to build a care home on the site. The decision was upheld by the Overview and Scrutiny Committee later that month.
12. Ms B says that the community’s preferred option was for a medium sized supermarket. She considers the Council failed to properly consult the community and dismissed the economic needs and objectives of the community when reaching its decision.
13. The Council says it was bound by law to obtain best consideration for the site.
14. Ms B says that she will be personally affected if the site is not used to best improve the environment and promote the improvement of economic and social well-being.

Analysis

15. I have considered the way the Council marketed the site. Ms B considers the Council should have used a commercial agent and actively marketed the site.
16. The Council says that it has an ‘in house’ estates team, who are managing all current land disposals. The Council’s records show that it produced marketing particulars and sent emails out to potential interested parties. It also advertised the site on its website and on an advertising board on the hoarding. The Council was entitled to decide how it marketed the site. I have found no evidence of fault here.
17. Ms B believes the Council turned away two interested parties in 2018 because they had already identified a preferred bidder. One individual, Mr X, says that he asked for details to be sent to him in January 2018 but they were not forthcoming and the Council officer dealing with the site did not return his calls. The other, Mr Y, says that he received details in late 2017 but his later request for a site visit was refused and no further information was provided. He says that he was then told in April 2018 that the Council had identified a preferred bidder and would no longer be accepting offers.
18. The Council’s records do not include Mr X’s request for details in January 2018. However, they do show that the Council provided details to someone else that month. I do not consider the Council was disregarding new interest in the site from potential buyers because it had already identified a preferred bidder.
19. Mr Y says that in 2018, the Council told him that it would not be offering meetings or conducting viewings of the site, in order to offer a ‘level playing field’. The Council’s records do not show that any other parties were provided with more information, or that they were offered site viewings. I have found no evidence to suggest Mr Y was treated unfavourably, or that the Council had already identified a preferred bidder when it refused his request for a site viewing.
20. Ms B says that councillors only became aware that the preferred bid was for the development of a care home when the agenda for the meeting to be held on 4 September 2018 was published. She considers that even if the population could not be consulted, the Council should have consulted those councillors representing the town.
21. I am satisfied that the Council had no legal duty or policy requirement to consult the community or parish or town council. The intention to make a decision on 4 September to dispose of the site to the preferred bidder was recorded on Forward Plans published on 29 May 2018, 4 July 2018 and 2 August 2018. The Council could not provide details of the bids or who they were from for commercial reasons. I have found no evidence of fault here.
22. Ms B says that the officer’s recommendation to the Cabinet did not take into account the economic needs and objectives of the community. She considers the Council should have given more consideration to the retail bid it received and it was wrong to accept the highest bid. She has referred to Circular 06/03 which allows councils to dispose of land for less than the best consideration in certain circumstances.
23. The Council requested legal advice on the disposal, and on Circular 06/03 in particular. The advice, which was provided to the Cabinet, was that as there were no specific proposals in place to direct the Council to take into account non-financial factors, it was required to dispose of the land for best consideration.
24. This was also considered by the Overview and Scrutiny Committee. The report to the Committee stated that in the absence of any demonstrable justification for accepting a lesser consideration, such action would be deemed unlawful. The Committee decided to uphold the original Cabinet decision.
25. Circular 06/03 says, “…this guidance is not exhaustive and does not purport to be an authoritative interpretation of the law. It remains the responsibility of each authority to seek their own legal or other professional advice as appropriate.” It is also not the Ombudsman’s role to interpret legislation.
26. As explained in paragraph four, the Ombudsman will not criticise decisions which have been made without administrative fault. The Council has taken legal advice, and it has followed the advice it received. I have found no evidence of fault here.

Final decision

27. I have completed my investigation and do not uphold Ms B’s complaint. I have found no evidence of fault by the Council.

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Parts of the complaint that I did not investigate

28. Ms B is a parish councillor. She attended a meeting in her capacity as a councillor and complains about the way she was spoken to and comments which were made by a council officer. As explained in paragraph three, the Ombudsman can only investigate complaints by members of the public. We cannot accept complaints from councillors where the only injustice claimed relates to their position as a councillor. For this reason, I have not investigated this aspect of Ms B’s complaint.

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Investigator's decision on behalf of the Ombudsman