Summary: Mr K complains the Council failed to consider all relevant matters and ignored residents concerns when it decided to appropriate land. He also complains it did not properly deal with his complaint. The Ombudsman has found no fault.

The complaint

1. Mr K complains that the Council:
• Did not take all relevant considerations into account as required by Section 122 of the Local Government Act 1972 when it agreed to appropriate land in a park for highways purposes. As a result, this decision was unlawful.
• Has ignored and failed to address residents’ ongoing concerns about the highways scheme. Mr K says as a result the Council has put the health safety and welfare of park users and local residents in jeopardy
• Has not properly considered or responded to his complaint and has refused to engage with him, causing him time and trouble.

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The Ombudsman’s role and powers

2. 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)
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

4. I spoke to Mr K about his complaint and considered the information he sent and the Council’s response to my enquiries. The length of our investigation was affected by the coronavirus pandemic.
5. Mr K and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Appropriation of land by councils

6. The Local Government Act 1972 gives councils the power to “appropriate” land. This is a legal process that allows a council to change the purpose for which it holds land. The main requirements for valid appropriation are:
• The council should own the land.
• The land should no longer be required for the purpose for which it was held immediately before the appropriation.
• The purpose for which the land is to be appropriated must be an authorised one, for example it has planning permission for the use.
7. The Act says the council must advertise its intention to appropriate land for two weeks in a local newspaper and must consider any objections sent by the deadline.
8. Caselaw has established that it is for the council alone to decide that the land is not required for the purpose for which it is held. The land is not required to have fallen into disuse and the authority is entitled to strike a balance between comparative local needs. (Dowty Boulton Paul v Wolverhampton Corporation (1973) & R (Maries) v Merton LBC (2014) EWHC 2689 (Admin)). The Courts have found that, when making decisions, councils must take into consideration all relevant factors and disregard irrelevant ones.

What happened

Background

9. In July 2018 the Council’s Cabinet considered options for a major road improvement scheme to reduce congestion and increase capacity. The Cabinet considered the matter in private because the report contained legally confidential information that was exempt from publication. In response to our enquiries, the Council sent the report to the Ombudsman.
10. The report noted that existing congestion and future growth meant capacity needed to be increased. It considered whether changing from car usage to public transport or walking and cycling could create sufficient capacity but determined it could not. It then considered eight possible road schemes including the preferred proposal, which was to construct a new gyratory and road through Penny Pie Park.
11. The report says this scheme would increase capacity and reduce journey times the most. It also did not require demolition of any residential properties. However, of all the options the preferred scheme had the greatest impact on green space as it would result in the loss of 1.133 hectares of green space from within the park. A greenspace appraisal had therefore been undertaken. This had recommended enhancements to existing facilities, such as play areas and paths, to compensate for the impact of the scheme. The preferred scheme also required the appropriation of land for highway purposes.
12. The Cabinet approved the scheme and the Council made a planning application for the road improvements which was considered in December 2018.
13. The planning officer’s report noted that the proposed enhancements could not fully compensate for the harmful impact on the park. The proposed scheme therefore failed to comply with the Council’s core strategy and local plan. However, the planning committee decided that the benefits of the scheme outweighed the adverse impacts and approved the application.
14. The planning decision was published in February 2019 following the Secretary of State’s decision not to call in the planning application. The Council advertised its intention to appropriate the land in March 2019.

Cabinet decision July 2019

15. On 10 July 2019 the Council’s Cabinet considered whether approximately 1.133 hectares of Penny Pie Park was no longer required for the purposes for which it was currently held and may be used instead for highway purposes. The report set out:
• the objections that had been made to the Council’s appropriation notice.
• the park usage surveys carried out in May 2019 and the proposed new usage, including the anticipated benefits of the road improvement scheme.
• the proposals to mitigate the impact of the loss of green space and the impact on air quality.
• the alternative options that had been considered, including no change and increased walking/cycling and public transport.
• the consultations that had taken place.
• the risks of the project and health and safety issues.
16. The Cabinet agreed to appropriate the land for highways use. The Council’s Overview and Scrutiny Committee called-in the matter but supported the Cabinet’s original decision.

Mr K’s complaint

17. Mr K emailed the Council on 28 October 2019 about the decision, his query was passed to the planning department which sent him details of the planning decision. Mr K also contacted the Council’s monitoring officer. He asked to meet and said he was concerned that the Council’s decision was unlawful as the Cabinet had not taken all the relevant considerations into account, these were:
• The implications for local people and park users, including how it was determined the park was no longer required.
• The impact of removing 1.133 hectares of publicly accessible green space.
• The impact on air quality.
• The "significant adverse impacts" of the scheme and its non-compliance with the development plan.
• Its public sector equality duty.
• Other options to reduce congestion to prevent the need for a gyratory.
18. The monitoring officer replied on 1 November 2019 that he was satisfied the matter had been properly considered by the Cabinet. Mr K approached the Ombudsman but it was too soon for us to investigate as he had not completed the Council’s complaint procedure.
19. Mr K sent his concerns to another senior officer and also contacted the Chief Executive. He again asked for a meeting. The officer replied on 19 November 2019. He said:
• Mr K’s concerns were addressed in documents on the Council’s key projects website
• The Council had considered the responses received from members of the public following the appropriation consultation procedure
• It was recognised that the scheme significantly encroached into the park, the facilities would therefore be enhanced and “a high quality, functional and attractive environment for the neighbourhood area” would be created.
• There were currently 239 trees in the park, the scheme proposed a minimum of 243 trees after completion of the works
20. Mr K remained dissatisfied and continued to correspond with the Council. The Council’s complaints team advised Mr K his complaint had not yet been investigated and asked him to clarify what outcome he was seeking. Mr K explained and in response the Council said the response from the monitoring officer had dealt with the matter and that Mr K’s queries would not be taken forward as a complaint. Mr K was dissatisfied and said he had not yet received a response from the Chief Executive. He wrote to the Council on 18 December 2019 again setting out his concerns; he also asked for his complaint to be escalated to the review stage.
21. The Council said on 23 December that, as his concerns had not been dealt with as a complaint, it was not possible to move to the next stage of the complaint process. The Chief Executive wrote to Mr K on 8 January 2020. She repeated the Council’s view that it had responded to Mr K’s concerns in previous replies and directed him to the Ombudsman.
22. In January 2020 there was a meeting between Mr K, other residents, councillors, officers and a local MP to discuss the issues. Mr K says at the meeting the Council did not accept it had not considered all the relevant factors and wrongly claimed all planning permission conditions had been met.
23. Mr K complained to the Ombudsman in February 2020. He said the Council had failed to address residents’ ongoing concerns with the scheme, which were:
• The environmental impact of the tree removal
• Road safety
• Noise - the noise assessment had not complied with guidance as most of it was done during the school holiday
• No alternative sites have been considered and there has been no consultation with residents about proposals for a footbridge or enhancement of alternative recreation areas.
24. He said the Council had fenced off the park, had started to fell trees, had removed the children's playground and was progressing the civil engineering works, all probably unlawfully. In October 2020 the Council agreed to award the contract for the works and approved additional funding for the scheme.

My findings

25. The Ombudsman 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. I have therefore examined how the Cabinet made its decision in July 2019 and how it addressed the issues Mr K has raised.
26. The Cabinet report contained information about existing usage and the proposed new usage. In deciding how to use the land, the Council was entitled to strike a balance between comparative local needs. This means that even though residents were still using the park, the Council was entitled to decide that the overriding local need was for highways use. The park did not need to have fallen into disuse for it to have made that decision.
27. The Council was aware there was an impact on park users, residents and green space. It had proposed improvements to local facilities to compensate for this. I realise Mr K does not consider these are sufficient, but this does not mean the Council had not considered the matter.
28. The Cabinet report addressed air quality issues, noting that whilst in some areas air quality would worsen it would remain within permitted levels.
29. The proposed scheme was not in line with the core strategy or local plan. This had been previously considered by the planning committee. It had determined the benefits of the scheme outweighed the adverse impacts of it when it approved the planning application. This was a decision it was entitled to make.
30. The Equality Act 2010 requires councils to have regard to whether a policy has a disparate impact on persons with protected characteristics. Councils must therefore assess the impact on equality of proposed changes to policies, but any impact does not mean the policy cannot be implemented. In response to my enquiries, the Council said equality impact assessments had been undertaken.
31. Mr K says the Council did not consider alternative options. The Council had considered seven other road scheme options in 2018, it also considered not taking action or whether capacity could be increased through changes to public transport or walking.
32. The Cabinet was aware trees would be lost but that the plans were to end with at least the same number.
33. Mr K was concerned about road safety. The scheme increases the number of crossings and includes footways and cycleways. Road safety audits are being undertaken and I have seen no evidence that road safety was not considered. The process for consulting with residents on the proposed footbridge started in July 2020.
34. Mr K says the 2018 noise assessment did not comply with guidance as it took place in the school holiday. The assessment took place during school holiday and term time and I have seen no evidence of fault.
35. The Council followed the correct process for appropriation of land to facilitate the approved development. It advertised a notice in accordance with the Local Government Act 1972 and considered the responses it received. It considered the existing usage and decided there was a local need to change this to highways use. This was a decision it was entitled to make and it had relevant information before it when it made that decision.
36. Because the Council followed the procedure correctly, it acted without fault. I cannot therefore criticise its decision.
37. Mr K complains the Council did not fully respond to his complaint. Whilst there was some confusion at the start about whether his queries were being dealt with as a formal complaint, this was clarified later. The Council was entitled to decide not to take his concerns through its complaints’ procedure. I can see that officers replied to his queries and whilst Mr K was not satisfied with the responses, this is not evidence of fault.

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Final decision

38. There was no fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman