Summary: The Ombudsman will not investigate Ms X’s complaint that her land should not be designated as a local wildlife site. Ms X can return to the Ombudsman should her complaint not be resolved by the survey and review suggested by the Kent Nature Partnership. The original designation of the land is outside the Ombudsman’s jurisdiction because the complaint is made late on the 12 month rule.

The complaint

1. Complaint 1: Ms X complains Kent County Council has failed to accept responsibility for the designation of her land as a ‘local wildlife site’ (LWS) and has therefore not dealt properly with her communications about the matter. Ms X says that although the selection of a site is formally done by the Kent Nature Partnership (KNP) it is the Council that is responsible. She says the Council funds the arrangements and its officers are closely involved in assessments. Ms X says the designation of her land as a local site allows interference with her land and causes additional costs. Until accountability is clear she cannot effectively challenge the designation.
2. Complaint 2: Ms X complains that her land was wrongly designated in the 1980’s as a local site (then called a site of nature conservation interest or SNCI). Ms X says there is no documentary evidence to support the inclusion of her land and she believes the original decision was flawed.
3. Complaint 3: Ms X complains that the Council and Kent Nature Partnership has refused to remove the designation of her land as a Local Wildlife Site because it might be possible to restore the land to its original condition. She says it is not reasonable to expect restoration of the habitat. The land did not meet the criteria at the time and there is no documentary evidence to show what the land was like in the 1980’s.

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The Ombudsman’s role and powers

4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. 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)

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How I considered this complaint

6. I have considered Ms X’s information, comments, reply to my draft decision statement and discussed the complaint with her by telephone. I have considered replies to my enquiries from Kent County Council and Sevenoaks District Council. I have considered national planning guidance and Sevenoaks District Council’s local plan. I have considered policy documents explaining the role of Kent Nature Partnership and Kent Wildlife Trust. I have considered Kent Nature Partnership information on the decision in Ms X’s case. I have considered internet photographs of the area.

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What I found

7. Ms X’s land is part of a larger local wildlife site (LWS). Ms X tells me she became aware of the status of her land, as a LWS, in 2017 following a planning application to Sevenoaks District Council. The District Council later applied planning conditions requiring a management plan due to the status of the land, acting on the recommendation of Kent County Council’s Ecology Advice Service. Ms X appealed one of those conditions to the planning inspector who removed the condition.
8. The Kent Nature Partnership (KNP) Board has had responsibility for the designation of LWS’s since 2014 following approval of the partnership by the secretary of state at DEFRA. On 15 October 2018 the KNP Board wrote to Ms X and refused her request to remove her land from the register of local wildlife sites (LWS’s). The decision says that although the site is relatively poor in terms of biodiversity there: ‘remains the potential to restore the site with appropriate management’. The letter says the status of the land should not place undue restrictions on the use of the land: ‘if you apply land management measures’. The letter does not say how Ms X might challenge the decision of the Board.
9. On 9 May 2019, the Kent Nature Partnership (KNP) Board considered Ms X’s case again. The minutes of the meeting outline the position explained in its letter to Ms X, dated 30 November 2018, that it will reconsider the designation of the land if Ms X agrees to a further survey. The letter says surveys are normally done by the Kent Wildlife Trust. However, KNP Board will accept and pay for an independent survey of the land.
10. A local wildlife site is identified and protected via the local planning system:
11. The Government’s National Planning Policy Framework (NPPF) 2012 and its update 2018/19, paragraph 174, requires planning authorities to ‘identify, map and safeguard components of local wildlife rich habitats and wider ecological networks’. This includes locally designated sites of importance for biodiversity and areas identified by national and local partnerships for habitat management, enhancement, restoration or creation.
12. Sevenoaks District Council is the planning authority responsible for implementing planning law and guidance where Ms X lives. Its local plan (core strategy SP11) states:
1. ‘Opportunities will be sought for the enhancement of biodiversity through the creation, protection, enhancement, extension and management of sites…’
2. ‘Local Wildlife sites will be managed through agreements with Natural England, the Kent Wildlife Trust and local groups to maintain and improve diversity’. The plan has a performance indicator: ‘the number of local wildlife sites in positive management’.
13. Kent County Council told Ms X that it is not responsible for designating her land as a LWS and its officers were not involved in the decisions of the KNP Board. The Council when it wrote to Ms X, at stage 1 of its complaint procedure, apologised for delay in replying. It tells me it has not required Ms X to take any action regarding her land.
14. The Council says its Ecological Advice Service is a paid for service. It gives advice to the district council planning authorities according to its service level agreements with them. It reviews planning applications on their behalf. Kent Wildlife Trust, which gathers evidence on LWS’s, has service agreements with local councils (including the County Council).
15. We do not have a complaint against Sevenoaks District Council. It tells me it believes that Kent Nature Partnership is responsible for the designation of sites. The KNP Board minutes (paragraph 9 above) say that it is to review the question of legal responsibility. Some of its members believe that ultimate legal responsibility rests with the district councils planning authorities.

Analysis

16. I will not consider this complaint further for the following reasons:
17. Complaint 1: The key question is whether the KNP Board’s decision on the LWS status of Ms X’s land is made on behalf of one of the two council’s mentioned. If yes, the complaint is in the Ombudsman’s jurisdiction assuming there is not a legal remedy. I do not consider a definitive answer necessary now because:
1. The first step to challenge the decision is for Ms X to allow a survey of her land (see below).
2. We do not have a complaint against Sevenoaks District Council which as the planning authority has responsibilities relevant to the complaint (see paragraph 11 and 12 above).
3. The KNP Board is to review the question of legal responsibility.
4. Should the KNP Board refuse to deselect the land a second time, Ms X will need to complain to both councils about the ‘on behalf of’ nature of the decision before returning to this office. In my view, it is a matter of public interest that a public authority should fully explain its responsibility and how its decisions can be challenged.
5. Kent Council apologised to Ms X for some delay in replying to her complaint. It has generally communicated with Ms X appropriately and has tried to answer her points. There is no reason to investigate the communication part of this complaint.
18. Complaint 2: Ms X’s complaint about the designation of the land in the 1980’s is outside the Ombudsman’s jurisdiction on the 12 month rule (see paragraph 5). Ms X complains late. She knew her land was a designated LWS by 2017 and did not complain to this office until 21 January 2019.
19. I will not exercise discretion to investigate the earlier period because:
1. Ms X could have complained to the Ombudsman sooner.
2. There is nothing to achieve by investigating. The Ombudsman has no power to decide that the land is not a designated local site. It appears evidence from the 1980’s is not available or incomplete.
3. Ms X moved to the problem and ‘Buyer Beware’ applies. Ms X could have established the status of her land before she purchased it by an enquiry to the planning authority.
20. Complaint 3: The way to challenge the refusal to rescind the LWS status is to accept the offer of the KNP Board to pay for an independent survey of the land. That may resolve the matter to Ms X’s satisfaction. If not, then she may ask the Board to clarify how she may challenge its decision. She may complain to this office again (having first complained to the two councils).

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Final decision

21. The Ombudsman will not investigate Ms X’s complaint that her land should not be designated as a local wildlife site. Ms X can return to the Ombudsman should her complaint not be resolved by the survey and review suggested by the Kent Nature Partnership. The original designation of the land is outside the Ombudsman’s jurisdiction because the complaint is made late on the 12 month rule.

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Investigator's decision on behalf of the Ombudsman