Summary: Mr X complained about the Council’s decision not to list local playing fields as an Asset of Community Value. The Ombudsman finds there was fault in the Council’s actions when it failed to send a letter to Mr X following a review. The Council has already remedied the injustice arising from this fault.

The complaint

1. Mr X complained about the Council’s decision not to list local playing fields as an asset of community value. He said the Council based its decision on irrelevant and factually incorrect information. He said this resulted in the community losing access to the playing fields.
2. Mr X would like the Council to review its decision without considering information which is not required by law.

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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. 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

5. Before completing my investigation and issuing this decision statement I considered:
• The detail of the complaint presented to us by Mr X.
• Separate correspondence exchanged between Mr X and the Council, before he made his complaint to the Ombudsman.
• Comments and further information provided by the Council in reply to written enquiries.
• Relevant law and guidance as referred to in the text below.
6. Mr X 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

Legal background

7. Councils must keep a list of ‘assets (land and buildings) of community value’ (ACV). People can ask their council to add an asset to the list. The council then has eight weeks to decide whether to list the asset. (Localism Act 2011)
8. Briefly, the law says land and buildings are of community value if, in the councils’ opinion:
• their current use furthers the social wellbeing or social interests of the local community, and
• it is realistic to think a use can continue that will further the social wellbeing or social interests of the local community, and
• there is a time in the recent past when the use furthered the social wellbeing or interests of the local community, and
• it is realistic to think, in the next five years, there could be a use that would further the social wellbeing or social interests of the local community.
9. The law does not define ‘recent past’ so councils have some discretion about what this means when considering applications for currently unused assets.
10. When the council receives an ACV nomination it must take all practicable steps to tell landowners of the application and invite their comments. If the council lists buildings or land as an ACV, the landowner has a right to ask the council to review its decision. The review must be completed by an officer of appropriate seniority and who did not take part in the initial decision. If not satisfied with the outcome of the review, the landowner has the right of appeal to first tier tribunal. The nominating applicant has no equivalent rights right of appeal against a council’s refusal to list an asset.
11. If a council decides not to list an asset, it must write to the nominator giving reasons for its decision. The council must also publish its decision and reasons for not listing an asset on its ACV register.

What happened

12. Mr X nominated his local playing fields to the Council to include on its ACV list.
13. The Council reviewed his nomination and told Mr X the fields met all the criteria and that it would include them on the Councils’ list.
14. The Council informed the landowner of the local playing fields of the ACV nomination. They asked the Council to review its decision and remove the playing fields from the ACV list. The landowner provided supporting information which included photographs of the playing fields. They said:
• the playing fields had been fenced off and the public had no access to the land for the past 5 years; and
• he had no intention in allowing the public future access to the land.
15. The Council considered the evidence provided by the landowner and decided to remove the playing field from its ACV list. The case records show the Council was persuaded the land had not been used by community groups in the recent past and the site and buildings had fallen into disrepair. It considered it would take a significant investment to bring the site back into use that would further social wellbeing.
16. The Council sent a letter to the landowner telling him about the decision, but it did not tell Mr X.
17. Mr X learnt the Council had decided to remove the fields from the ACV list following a conversation with a local councillor. He made a Freedom of Information (FOI) request and asked the Council to provide the information the landowner provided. After early refusal, in September the Council sent a redacted version of the information to Mr X.
18. Mr X complained to the Council about the way in which it reviewed its first decision. He was specifically unhappy that the Council did not invite his comments on the evidence submitted by the landowner. He said it was inaccurate. He also questioned the information that the Council took into account during the review and said that it was irrelevant.
19. At the final stage of investigating Mr X’s complaint, the Council’s complaint panel agreed the Council did not follow its own procedure. The panel explained that after the decision to remove the playing fields form the ACV list it did not send a notice letter to Mr X, and it should have done that. The panel ordered a review of the decision.
20. The Council reviewed its decision but decided to keep the playing fields on the unsuccessful ACV list. The Council wrote to Mr X with the result few days later. In that letter the Council said that:
• it considered the land had not been used by the community for the past four years,
• the building was in state of disrepair,
• the site was located close to other amenities,
• that the landowner said he had no intention of allowing the community access to the playing fields, and
• the landowner applied for planning permission to develop the land.
21. It said, the playing fields were remaining on the unsuccessful nomination list because the asset did not meet the criteria required by the Localism Act 2011.
22. Mr X was unhappy with the Council’s decision and he complained to the Ombudsman.

Analysis

23. The Ombudsman is not an appeal body. Our role is to investigate how a decision is made. If a decision is made without fault, we cannot criticise it.
24. Mr X complained about the way in which the Council carried out the review of its decision following the request from the landowner. He was unhappy that the Council did not tell him about it and did not provide him with opportunity to comment on the information given by the landowner. The Localism Act 2011 does not require the Council to engage with the nominator in the process of carrying out the review at the request of the landowner. Therefore, the Council did not have to consult with Mr X as part of the review process. The Council was not at fault.
25. Mr X also complained about what information the Council considered when it carried out the review. Mr X said that the Council considered irrelevant information when it decided that the playing fields did not meet the ACV criteria. After the request from landowner, the Council reviewed its decision in line with legislation and its own policy. It considered the evidence provided by Mr X and the landowner. The Council was persuaded by the information provided by the landowner that the land had not been used by the community in the recent past. Mr X said the Council was wrong to consider the condition of the buildings and the proximity of the site to other playing fields. However, it is not for the Ombudsman to decide what information the Council considered relevant in making its decision. Only that it considered the requirements posed by the legislation. The Council did that without fault.
26. Mr X can nominate the playing fields again and supply new evidence to support his nomination.
27. The Council has already accepted it was at fault when it did not send Mr X a decision letter after the first review. That was fault. The Council ordered a fresh review of the decision. I consider the Council’s actions have already remedied any injustice this fault may have caused.

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Investigator's decision on behalf of the Ombudsman