Summary: A Residents Association complains at the Council’s decision to market land for sale without carrying out public consultation. We do not uphold the complaint finding that officers were not under a duty to carry out such consultation.

The complaint

1. Ms B is the secretary of a Residents Association. The Association campaigns to preserve and retain a field owned by the Council. In September 2017 the Council Cabinet agreed proposals to dispose of the land, having identified it as suitable for housing. The Association opposes this. Ms B complains for the Association that the Council failed to carry out “extensive public consultation prior to marketing the sale” of the land. A Cabinet decision implied such consultation would take place.
2. Ms B says because of this, residents feel ignored and frustrated.

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The Ombudsman’s role and powers

3. 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)
4. We must also consider whether any fault has had an adverse impact on the person (or organisation) making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or

it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), 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. Before issuing this decision statement I considered documents provided to us by Ms B. These included:

• Background papers considered by the Council Cabinet in September 2017 and the minute of its decision.
• Letters sent by the Council to the Residents Association in February and June 2019 in response to their complaint and after meetings with officers following that complaint. Also, minutes of the Residents Association of their meeting with Council officers on the land in question.

7. I also researched local planning policies and press articles online relevant to the complaint.
8. I sent both Mrs B and the Council a draft decision statement setting out my proposed findings and invited their comments. I took account of Mrs B’s comments before completing this statement. I received no comments on the draft from the Council and so assume it accepted my proposed findings.

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What I found

The key facts

9. I take the beginning of events covered by this complaint as September 2017. A Council Cabinet committee received a paper about its ‘General Fund Capital Receipts Programme’. The paper asked Cabinet to approve a four-year programme of ‘asset disposals’, including selling various parcels of land. One of those parcels of land is that which the Residents Association formed to protect. It is a field comprising grass and woodland used by residents for activities such as walking, horse riding, and exercising dogs. Residents also value wildlife and flora found on the land. Local Ward Councillors had some advance notice of the Cabinet paper, but only under embargo meaning it could not be discussed or shared with residents before the meeting took place.
10. The land appears in a list of sites under policy PH1 forming part of the Council’s ‘unitary development plan’ (UDP) published in 1998. The plan describes sites listed in PH1 as those “capable of accommodating 10 dwellings and over”. This policy remains part of local planning policy, even though some elements of the UDP are no longer current.
11. The September 2017 paper asked Cabinet to approve the managed four year programme of property asset disposals as part of the Council’s Capital Programme. It also asked for authority for the Assets and Property Team to “action the disposal of the property assets contained within this report”. The report listed the use of this land as for “new housing growth”.
12. The Cabinet approved the recommendation. The minutes recorded the following:

• Members spoke of the importance, prior to marketing the sale of all assets, of an extensive consultation exercise being undertaken with the public. Cabinet acknowledged that some of the land and asset sales could potentially affect members of the public and wanted to ensure this was done appropriately and legally in order that interested parties had the opportunity to comment on the proposals. Cabinet also spoke of the importance of ward members being consulted, so that they could work with residents who may have a concern in relation to particular elements of the proposals and that the Council should monitor this closely.

13. The Council says that after the cabinet meeting officers contacted local ward members in December 2017 advising they would soon advertise the land at the centre of this complaint for sale. This followed in January 2018 and I am satisfied from local press reports there was awareness of this in the wider community. The sales particulars included details such as the number of houses which might be built on the site as well as relevant planning considerations such as the need for a traffic survey. The Council said it would want 15% of the land retained as open space and referred to rights of way running through the site.
14. In January 2019 the Residents Association made a complaint to the Council. Having noted the Cabinet minute above, it noted a lack of consultation with residents. In its reply the Council said that it recognised that “to date [consultation] has not happened to the level that would satisfy your concerns”. The Council offered an apology for this. It also arranged a meeting between the Association and an officer from its Asset and Property Team. A second meeting then followed at the site. These meetings took place in April and May 2019.
15. Minutes of these meetings provided to me by Ms B say they have included discussion of:

• The procedure rules used by the Council when selling land and clarity about whom monitors that.
• Concerns around the identification and protection of wildlife on the site.
• Concerns about the potential impact of construction of new houses on neighbours.
• Concerns about the potential impact of increased traffic flows on the locality.

16. In June 2019 the Council sent the Residents Association a second letter which answered a question about the rules followed for selling land. It clarified that any consultation envisaged in September 2017 was “to gather views on the future use of the land post-disposal and not whether there should be a disposal”. It said the Council would consider concerns about the impact of development at the time it received any planning proposals to develop the land. But it would also “fully consider” these in ongoing discussions with the successful developer. The Council rejected the suggestion it put a hold on the sale further to the complaint.

My findings

17. To consider if the Council has been at fault in this case, I have studied closely the background paper given to Cabinet in September 2017 and the record of its decision. I consider this clearly gave consent for officers to begin selling off the land in question. I am also satisfied Cabinet members knew the land would be marketed for housing. I note that for over 20 years the Council has considered the land suitable, in principle, for a housing development subject to the normal planning procedure as set out in local planning policy.
18. The question arises did Cabinet also expect officers to carry out consultation before they marketed the land for sale for housing. I can see that if they did that could have a potential impact on matters included in the sales particulars. For example, a meaningful consultation may have led to a limit on the desired number of houses for the land. Or what percentage of land the Council may want kept as public open space. This would not have met the Residents Association’s stated aim of preventing development on the site. But the sales particulars would still have potential influence on the scale of housing development for the plot.
19. However, I do not find the record shows the Cabinet intended such consultation take place. The minute recorded members wanting ‘extensive consultation’ before marketing. But the minute reads that as a collective decision making body the Cabinet did not agree to this. So, I am satisfied the reference to ‘members’ must be to some members present, not all. I am further satisfied the Cabinet did not agree to extensive consultation before marketing the land for sale.
20. Instead it agreed to the less ambitious target of consulting ward Councillors and using them as the conduit for residents’ concerns. There was also a commitment the Council “should monitor this closely” but with no statement of how or when this would be done. Nor who would undertake such monitoring and what purpose it would serve. It recorded no action points for officers to take forward beyond the recommendations they had asked for; i.e. that they be empowered to sell the land and could begin straight away.
21. It flows from the above, that I cannot find there was fault therefore in the Council’s decision to proceed with the marketing of the land without consultation with local residents. Because officers were under no such requirement to undertake that. They were under a lesser expectation to consult with ward members and monitor any feedback they received on residents’ concerns. I am satisfied some further limited consultation with ward members followed. Although, it is not clear what further monitoring then took place. I consider this reflects the vagueness of the record which did not describe what monitoring consisted of.
22. I consider the record of the Cabinet meeting therefore fell short of best practice. It raised expectations among residents that consultation might take place before the marketing of the land. The minutes serve as a useful reminder that all meetings should record clear action points and avoid ambiguity.
23. A failure to follow best practice does not equate to a finding of fault. But even if I was to take a different position on this and say the Council did act with fault I cannot see I could ask it to do more than it has already. It has given the Residents Association an apology that recognises its frustration. Perhaps more importantly it has also met with its representatives so that officers are aware of its concerns.
24. I note those meetings have covered two main themes. First, the detailed procedures followed by the Council in selling off land. I have not addressed those in this decision statement as the complaint made by Ms B has not asked us to consider if there is any fault in how those procedures operated on this occasion.
25. The second theme is the Residents Association has raised various concerns about the impact of housing development both on the land in question and neighbouring residents. I consider these are matters capable of detailed scrutiny during the planning process, should the Council complete sale of the land and a developer put forward their proposals for housing. It is again therefore not appropriate to address these matters further in this decision.

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Final decision

26. For reasons set out above I do not uphold this complaint. I do not find fault in the Council’s decision to market land for sale without carrying out public consultation. As I am satisfied with the Council’s actions and reply to the complaint, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman