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East Riding of Yorkshire Council (20 012 466)

Category : Other Categories > Land

Decision : Upheld

Decision date : 19 Sep 2021

The Ombudsman's final decision:

Summary: Mr C complained about the Council’s handling of his request to buy an area of land and says he spent unnecessary time and trouble in pursuing the matter and cannot now use the land to build a garage. We have found fault by the Council in terms of delay and poor communication but consider the agreed action of an apology is enough to provide a suitable remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complains about the Council’s handling of his request to buy an area of land to the side of a property he owns.
  2. Mr C says because of the Council’s fault, he has spent unnecessary time and trouble in pursuing the matter and cannot now use the land to build a garage.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

  1. Local authorities are given powers under section 123 of the Local Government Act 1972 to dispose of land in any manner they wish. This includes sale of a council’s freehold interest, granting a lease or assigning any unexpired term on a lease, and the granting of easements. The only constraint is that a disposal must be for the best consideration reasonably obtainable, unless the Secretary of State consents to the disposal.

Key events

  1. Mr C asked the Council in February 2019 if it would be willing to sell a small area of land to the side of a property from his late father’s estate. Mr C explained he was preparing to sell this property and the additional land would be used to extend the garden. The Council asked Mr C for a plan of the approximate area of land he was interested in purchasing so it could check the ownership first and then make further enquiries about whether it could be declared surplus. Mr C responded the same day with a photograph of the land he was interested in purchasing and that he understood the land was owned by the Council as he had made previous enquiries but decided not to proceed at that time. The Council confirmed it would make enquiries.
  2. The Council wrote to Mr C in mid-February to say it had completed its enquiries and provided a copy of a letter it had sent to Mr C’s late father in 2008 which confirmed the Council was not willing to sell the land. The Council further explained the land was classed as amenity space and it would not normally dispose of such land. The Council also noted the highway department had expressed concerns at the time about the potential impact on visibility splays and sight lines onto the highway. The Council did not consider there would be a different view about disposing of the land now and confirmed it did not intend to progress Mr C’s request further.
  3. Mr C contacted the Council again in mid-April to confirm he still wanted to pursue the matter as he had been told the Council was keen to stop maintenance of these small areas of land. The Council responded at the end of April to say it would investigate the matter further. The Council provided an update to Mr C in early May to say it had contacted the highway department about the issue.
  4. Following advice from its highway department, the Council wrote to Mr C in mid-May to confirm the Council was not prepared to sell the land and noted highway concerns about the possibility of the land being enclosed and affecting visibility. Mr C sought the name of the highway engineer and the Council provided contact details in mid-May.
  5. Mr C contacted the Council in early July to say he had spoken to the highway engineer who had advised the area could be sold subject to a section being kept clear for sightlines. The Council confirmed it had sought further instructions and would revert once this information had been received which would not be until early September due to officer leave. Mr C asked for the matter to be progressed in the officer’s absence but was advised that as the Council was waiting for advice from its client department the matter would need to wait for the officer’s return in September.

  6. Mr C sought an update from the Council in early September. Mr C confirmed his brother was to live in their late father’s house and use the land as extra garden with the possibility of putting a garage to the side of the house which may require some of the land.
  7. The Council sought a plan of the land Mr C wished to purchase and confirmation of his intended use in early October. The Council provided its own plan to Mr C and highlighted the area that the highways department was concerned about for his information. Mr C provided further information in mid-October.
  8. The Council identified that part of the land Mr C was seeking to purchase had been subject to unauthorised encroachment by a neighbour. The Council contacted the neighbour about the issue. The Council considered the possibility of granting Mr C a licence to use the land. Mr C emailed the Council towards the end of November 2019 and early-January 2020 for an update.
  9. The Council wrote to Mr C in mid-January 2020 to say it was willing to provide a licence for him to use the land highlighted on an attached plan for recreation purposes only but no buildings or structures could be erected.
  10. Mr C complained to the Council towards the end of January 2020 about its decision. The Council responded to Mr C in early February and accepted it would have been helpful to have advised him in October 2019 that it was considering a licence rather than sale. The Council confirmed the land was still available to Mr C on the basis of a licence which was consistent with the offer made to his neighbour.

My consideration

  1. It was open to Council to dispose of the land as it wished, provided it accepted the best offer it could reasonably obtain if selling the land. The Council has provided cogent reasons for its decision not to sell the land to Mr C but to offer a licence with conditions about its use. This is a decision the Council was entitled to reach. There was no requirement for the Council to negotiate further with Mr C or sell him the land and I cannot compel the Council to do so.
  2. There is a delay between July 2019 when the Council advised Mr C it was seeking further instructions and January 2020 when it offered Mr C a licence agreement. The Council has explained this was due in part to officer availability as explained to Mr C at the time and the time taken to confirm the land was not held as highway land. The Council also says there was a lack of clarity from Mr C about the extent of land required and its proposed use. The Council says this information was needed as the proposed use would impact the value of the land and give rise to potential planning issues if the land was sold. The Council refers to Mr C’s emails in February, September and October 2019 which variously stated the land was to extend the garden, provide extra garden space and a possible garage and a potential bedroom over the garage.
  3. Based on the information provided, I consider there was some avoidable delay during this period particularly between October 2019 and January 2020. It would also have been good practice for the Council to have advised Mr C in October that it was considering a licence agreement as Mr C had not sought such an agreement. On balance, I consider taken together this constitutes fault by the Council which led Mr C to have a raised expectation of being able to purchase the land for his intended use. However, such an expectation is tempered by the Council’s initial correspondence with Mr C that it did not wish to sell the land. It was also in response to Mr C’s own direct contact with its highways department in an effort to overcome the highway issues that the Council agreed to look again at whether it was possible to meet Mr C’s request. In these circumstances, I do not consider Mr C was put to any significant additional time and trouble requiring a remedy beyond an apology.

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Agreed action

  1. The Council has agreed to write to Mr C to apologise for the raised expectations and his time and trouble caused by its delay in dealing with his request to purchase the land and failure to advise him earlier of its intention to offer a licence agreement only within one month of my final decision.

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Final decision

  1. I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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