The Ombudsman's final decision:
Summary: There was some fault by the Council when it sold a strip of land Mrs X uses to access a field. This has not caused significant injustice to Mrs X, so no remedy is recommended.
- The complainant, whom I refer to as Mrs X, complains about the way the Council sold a strip of land which has created a boundary dispute. Mrs X says the Council should not have sold the land as it did not own it and by selling the land and creating a title the Council did not follow the correct process to sell. Ms X wants the sale reversed.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
How I considered this complaint
- As part of this investigation I considered the complaint by Mrs X and the responses from the Council. I considered the information provided by Mrs X. I made enquiries with the Council and considered the response received. I sent a copy of this decision to Ms X and the Council and considered comments received in response.
What I found
The Council’s procedures
- The Council’s Constitution gives authorisation to property services to dispose of freehold land when the market value does not exceed £30,000.
- The Council’s asset disposal policy allows the Council to sell land as a special purchase where there is one purchaser. The Asset Management Group (an internal group of Council officers from different areas) are required to authorise the sale. In addition, an internal consultation should be carried out to determine whether there are reasons not to sell land and gain any further information which should be considered as part of the sale.
- In May 2018 the Council received an application to buy a strip of land which forms part of a wider track and provides access to arable land. Mrs X owns one of the fields which is accessed by using the track and the purchaser owns another field. Mrs X also says she owns the access track.
- After receiving the application to purchase the strip of land the Council consulted with its planning and legal teams. The planning team responded with no objections to the proposed sale, but noted there was an ongoing planning application from the purchaser which included the site in question.
- The Council’s Asset Management Group (AMG) met in June 2018. The meeting notes show the AMG were consulting on the purchase and legal services were checking the historical information and legal implications of selling the land. The AMG also noted the Council had refused the purchaser’s planning application.
- In October 2018 the AMG agreed in principle to negotiate the sale of the land with the purchaser. The AMG decided there was no value in the Council keeping the land. It also requested the Council obtain a valuation of the land and check to see whether it needs to advertise the land for purchase.
- The Council said it decided there was no legal requirement to advertise the land for sale after a discussion between Officers, who concluded the land was not amenity land. However, there is no record of this decision being recoded in the documentary notes.
- In January 2019 the Council obtained a valuation of the land from a professional valuer. The Council offered the purchaser the land at the amount specified in the valuation report.
- The Council’s legal team and corporate property officer decided against including an uplift clause in the sale despite previously telling the purchaser the Council would include this. The decision reasoning was based on the fact the purchaser had planning permission refused for development on the site she already owned which was accessed by the track. The Council also considered the work involved in inserting a clause would increase the legal fee to above the value of the land.
- In June 2019 the Council completed the sale of the land to the purchaser.
- Mrs X says she found out about the sale of the land in June 2020 after the purchaser had felled two trees on Mrs X’s side of the track. The purchaser also told Mrs X she owned a third of the track and the Council had sold this to her.
- Mrs X contacted the Council’s planning department in June 2020. The Council forwarded Mrs X’s request onto its legal team. Mrs X said she did not receive a response to this so made a freedom of information request in July 2020.
- After receiving the Council’s response to her freedom of information request, Mrs X sent her MP a letter detailing the following concerns about the sale of the land:
- The maps supplied by the purchaser were inaccurate and included land owned by Mrs X.
- The purchaser made inaccurate statements to the Council about their rights to access to the field at the end of the track.
- The Council did not follow its own legal procedures as it did not advertise the sale of land or contact the other owners of nearby land.
- The valuation of the land was inaccurate as it relied on incorrect plans provided by the purchaser.
- The Council sold land it did not own.
- The Council relied on information supplied by the purchaser to make its decision to sell the land.
- The purchaser was an employee of the Council and used her work email to communicate with Council officers.
- Council officers and solicitors did not act in the best interests of the Council.
- There was collusion between officers to benefit the purchaser.
- There were several maps with different boundary positions and the purchaser provided the majority of these. However, the investigator found this did not influence the decision to sell the land as the decision making process did not focus on maps but whether there was a reason why the Council could not sell the land.
- The investigator agreed the purchaser made some inaccurate statements about access to their field, but this was not a consideration in the decision making process.
- The Council did follow its legal processes as the AMG approved the decision to sell. But the Council could have gone further to promote transparency when it became clear the purchaser was a member of staff. Council officers used the correct process by instigating an external consultation when the purchaser asked to buy the land. The Council then made its decision based on whether there was a reason not to sell the land.
- There is no evidence the valuation was inaccurate, and the valuer appointed was independent and appropriately qualified.
- Evidence shows the Council only transferred its own title deeds to the purchaser, therefore it has not sold land it did not own.
- The purchaser was an employee of the Council and used their Council email address. This should have been challenged to ensure the decision making was completely transparent. The investigator said this could have created the perception of favouritism but decided there is insufficient evidence of collusion.
- Reviewing its asset disposal policy to include requests to purchase ad-hoc land with no development value, and to ensure consideration is given to other external interests when selling land.
- Ensuring decisions are properly recorded with a documented record. In this case the investigator found the decision not to advertise the land was not properly recorded.
- Reviewing policies regarding Council systems being used for personal business so staff and the Council are protected from perceptions of impropriety.
- Providing a series of learning sessions using this case as an example to focus on the importance of record keeping, decision making and transparency.
- We cannot question councils’ legal rights to sell or otherwise dispose of land or question the merits of their decisions about whether and how to do it. We therefore cannot consider whether the Council was legally entitled to sell this land. Mrs X should challenge this point through the Courts. In addition we cannot recommend the Council reverse the sale of the land as Mrs X is seeking. We can however look into complaints about administrative fault in the Council’s decision-making process.
- In this case, after receiving Mrs X’s concerns the Council appointed an independent investigator to carry out an investigation into the sale of the land. The independent investigation did not uphold Mrs X’s complaints. Having considered the findings of the independent investigation I do not consider this investigation was flawed therefore will not re-investigate Mrs X’s complaints.
- Although the independent investigation found the Council followed its procedures for selling the land as the AMG approved the sale and it carried out a consultation process, it did find shortcomings in how some decisions were recorded. This related to the decision to advertise the land. In addition, the investigation found the Council should have done more to question the purchaser’s use of the Council’s email system to discuss the sale.
- While this does amount to fault in the decision making process I do not consider the fault identified in the independent investigation would have changed the Council’s decision to sell the land to the purchaser. The Council decided to sell the land after considering whether there were any reasons not to sell it, not based on the information put forward by the purchaser. Therefore I do not consider Mrs X has suffered injustice as a result. Mrs X says she now has a dispute with the purchaser about where her boundary is, however this is a matter between Mrs X and the landowner who is not the Council.
- I have completed my investigation and found there was fault by the Council, however this has not caused injustice to Mrs X so no remedy is recommended.
Investigator's decision on behalf of the Ombudsman