The Ombudsman's final decision:
Summary: Mr D complains about the Council’s decision to remove land near his home from the list of assets of community value. We have found no fault.
- Mr D complains about the Council’s decision to remove land near his home from the list of assets of community value. He says the Council was biased, did not properly consider relevant case law and failed to give reasons for its decision.
- As a result, the community has been denied the right to bid for land it uses for recreation. Mr D says the process has caused uncertainty, stress, deep unhappiness and expense for himself and other members of a local community group.
The Ombudsman’s role and powers
- 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)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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
- I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
- The Localism Act 2011
- The Assets of Community Value (England) Regulations 2012 (“the Regulations”)
- Community Right to Bid: non-statutory advice note for local authorities, DCLG 2012 (“the Guidance”)
What I found
Community right to bid
- The Localism Act 2011 requires councils to maintain a list of “assets of community value” (ACV) which have been nominated by the local community. If the asset (building or land) comes up for sale or change of ownership, the Act gives the community time to bid to buy the asset on the open market. It does not give the community group right of first refusal, nor require the owner to sell the asset to the community. Giving a building or land ACV status does not protect it from development or sale but it is a relevant planning consideration if any planning application proposed development of that building or land. Properties remain on the list for five years, unless they are sold following a moratorium being triggered.
- The Act says that an asset will be of “community value” if, in the opinion of the council:
- The current or recent actual use of the asset, that is not an ancillary use, furthers the social wellbeing or social interests of the local community, and
- It is realistic to think that there can continue to be non-ancillary use of the asset which will further (whether or not in the same way) the social wellbeing or social interests of the local community.
Process for listing an asset of community value
- A voluntary or community body may nominate land or a building as a local asset. The Regulations set out what a valid community asset nomination must contain. This includes:
- A description of the nominated land / buildings and its boundaries.
- The names of the occupants of the land and those holding a freehold or leasehold interest.
- The reasons why the land or buildings are considered to be of community value.
Owner's right to review of decision
- The Regulations allow for an owner to request a review of a local authority's decision to include their asset on the register within eight weeks of the decision being notified.
- As soon as is practicable following the written request for the review, the council must notify the owner of the procedure to be followed. The review must be completed within eight weeks of the date of the request or such longer period agreed with the owner in writing. The review must be carried out by a senior officer who did not take part in the decision to list the asset. The asset remains on the list during the review.
- If, following the review, a decision is made to remove the asset from the list, the decision notice must state the reasons for the removal.
- Following a review, owners have the right to appeal to the first tier tribunal in respect of either a decision to include the property on the Asset Register, or a refusal to provide compensation for loss of value as a result.
The Council’s ACV process
- The Council’s process is that community groups can submit applications to list an asset of community value on the Council’s website. The application is reviewed and a recommendation made to a panel of officers. The panel assess the nomination and make a recommendation to a senior officer who has delegated authority to make the decision within eight weeks. Since 2020 this has been the Service Director for Localities & Strategic Partnerships.
- Reviews are carried out independently; since 2020 by the Service Director for Legal & Democratic Services.
- In 2019 a community group Mr D is a member of applied to the Council to list an area of land (Land 1) as an asset of community value (ACV). Land 1 comprises fields and woodland near Mr D’s home. It is used for agriculture (grazing and arable), is crossed by public rights of way, and is in the Green Belt. It has been allocated for housing in the Council’s draft Local Plan.
- The nomination said Land 1 had been used by local residents for decades for informal outdoor recreation, including rambling, bird watching, jogging and community activities such as cricket. The activities were not confined to the public footpaths but residents had “full unrestrained freedom to enjoy all the land”. It said that a recent court decision had upheld that land should be registered as an ACV even though some uses had (in that case) constituted trespass. The nomination was supported by photographs, statements from over 50 residents and a previous petition to keep Land 1 in the Green Belt.
- The Council decided to list Land 1 as an ACV on 5 July 2019. Its decision notice said:
“Whilst the land is currently used for agriculture, there is also "significant community use" of the land so this actual use is not ancillary to the agricultural uses but coexistent with it (as defined in the Banner Homes vs St Albans City and District Court of Appeal case 2018).”
- The Council considered the use furthered the social wellbeing of the local community and would realistically continue as there had been no planning applications and Land 1’s removal from the Green Belt had not been decided. It notified the owners, who had until 30 August to request a review of the decision.
- Owner 1 requested a review on 1 August and submitted the details on 12 September. Owner 2 requested a review on 29 August. On 23 October, Owner 2 said its detailed submission would not be made until 19 November. The owners and Council therefore agreed that the review should be completed by 3 December.
- The owners said that Land 1 was agricultural land; there was no planning permission for any other use and Land 1 could not in any case always be used for the community uses described in the ACV nomination due to the cultivation of crops. They sent photographs and other evidence showing the agricultural use. The owners said there were no informal footpaths and no evidence of the fields being used for community activities. They said the recreational uses were ancillary to the agricultural use.
- The owners said that even if the public rights of way were used to further social wellbeing, this did not qualify the whole of Land 1 to be an ACV. However, there was case law which said the purpose of a public right of way was to pass and repass, and this was not a social use. In addition, air quality, pleasant views and whether development of Land 1 was desirable were not relevant to the decision as to whether Land 1’s actual use furthered social wellbeing. The owners challenged the Council’s and Mr D’s interpretation of the Banner Homes case. They said that case meant it was irrelevant whether the recreational use was permitted and therefore Mr D’s statement that residents had full unrestrained use of Land 1 was irrelevant.
- The Council received legal advice from counsel. It then emailed Mr D on 15 November advising the ACV decision was being reviewed and asking for more information by 21 November about land use and whether the community group could realistically raise funds to purchase Land 1. Mr D considered the deadline unreasonable and asked for more time to respond. The Council granted an extra week.
- Mr D’s reply on 29 November said up to about 300 people per day used Land 1 from spring to autumn, based on observations and surveys Mr D had carried out. He said large areas of the fields were left fallow for long periods, the agricultural uses had not prevented public access and there were informal well-trodden paths across Land 1.
- The Council’s Head of Legal & Democratic Services reviewed the ACV decision, taking into account the documents submitted by the owners and Mr D, the legal advice and various case law.
- On 3 December the Council decided to remove Land 1 from the asset register. It said the current actual use of Land 1 was agricultural and this was not a qualifying use for ACV status as it does not further the social wellbeing or social interests of the local community. The Council said the community uses described by Mr D’s group were ancillary to the actual agricultural use. It also found that in the future Land 1 would either be redeveloped (in line with the draft Local Plan) or remain in agricultural use (in line with existing planning consent), so there was no realistic prospect of a social use continuing.
- The decision notice set out the reasons for the Council’s decision as:
- The evidence clearly showed Land 1 to have been in consistent and thorough use as agricultural land, associated with a working farm.
- Land 1 had hedgerows dividing it into 'fields' and gates preventing members of the public from using it. The Council was therefore not satisfied all of Land 1 could be accessed.
- Land 1 was crossed by public rights of way; their legal purpose was to pass and repass so any social use of the footpaths was ancillary to this main use.
- The Council had not seen any satisfactory evidence that the social uses such as rambling and jogging had been carried out other than along the footpaths. Community uses such as cricket would not be possible while the fields were under cultivation or when animals were present.
- The Council considered the social uses described were minor, in terms of how much of Land 1 was used and how often.
- Land 1 would continue to be used for agriculture as this was the only authorised land use, or it would be developed. The Council therefore considered it was not realistic that there could continue to be non-ancillary use which would further the social wellbeing or social interests of the local community.
Mr D’s complaint
- Mr D complained on 24 March 2020. He said the decision not to list Land 1 was unfair and inadequately explained. He said the Council had misunderstood the evidence and incorrectly applied the law in relation to whether the community use of Land 1 was ancillary or a separate actual use. In addition, the community group had not been given a proper chance to respond to the owners’ arguments or comment on whether the social use was ancillary. Mr D also complained that confidential financial information had been published.
- Mr D asked the Council to agree to compensate the community group for the costs of submitting another ACV application, so that the evidence could be properly considered.
- The Council responded on 29 June. It apologised for the delay. It said:
- The owners had requested a review within the statutory eight-week deadline; there was no statutory requirement to notify Mr D of these requests.
- The review process had been fair; the Regulations did not require the Council to seek Mr D’s comments during the review.
- There was no statutory requirement, or a requirement in the Council's procedures, to seek the community group’s view about ancillary use.
- Mr D had been given an opportunity to expand on matters in the nomination; whilst the timescales for this were short, they were not unreasonably so.
- The officer had worked over the weekend to consider the extra information provided by Mr D before making the decision. The Council had taken into account all the information it had and relevant case law. The Council did not agree that the decision notice had to rebut every point made by Mr D. It was intended to be a summary of the decision-making process and give the key reasons for the decision taken.
- The original ACV decision was based on the evidence available at the time. The owners had submitted persuasive evidence to rebut the community use both in factual terms and as to whether it was ancillary to the main use of the land.
- The financial information was a broad summary given to demonstrate that the community group could potentially purchase Land 1, which was relevant to the statutory test of realistic future community use.
- The Council noted the community group’s intention to re-nominate Land 1.
Second request to list Land 1 as an asset of community value
- On 2 October 2020 Mr D’s community group submitted a second ACV nomination. This included new information about the use of Land 1, including photographs, the number of people observed using the land, and information from applications to amend the public rights of way map.
- The Council’s panel considered the application. On 1 December the Council decided not to add Land 1 to the asset register. Its decision notice said:
- Land 1 was agricultural land (associated with a working farm); that use is not a qualifying use for ACV status.
- No evidence had been submitted which changed the conclusion that the current actual use of Land 1 was agricultural.
- It was not realistic to think that there was a time in the next five years when the use of the land would further the social wellbeing or social interests of the local community.
- The Ombudsman is not an appeal body. It is not my role to determine whether Land 1 qualifies as an ACV. It is the Council’s role to decide on a nomination. Nor is it our role to determine disputed points of law; that is for the courts. My role is to determine whether there has been administrative fault in the way the Council made its decision.
- When considering an application to list an asset as an ACV it is for the applicant to show the community value of the asset and provide evidence to support their case. The Council must apply itself to the tests set out in law at paragraph 10 above.
- After the Council listed Land 1 on its asset register in July 2019, the owners had a statutory right to request a review of that decision. They did so within the eight-week limit and, in line with the Regulations, agreed a deadline for the review with the Council. Mr D is concerned the Council did not inform the community group of the review or ask it to comment, but the Council was not required to do so, so there is no fault.
- A senior officer who had not been involved in the original listing decision carried out the review. This is in line with the Regulations. The Council sought advice from counsel, which I have seen. The review considered the original nomination and extra information Mr D sent, the owners’ submissions, the legal advice and case law.
- Mr D complains the Council was biased and had a pre-determined view. I have seen no evidence of this. The Council had previously considered Land 1 was an ACV, so it did not have a pre-determined view that it should not be listed. The decision notice sets outs the arguments and refers to relevant information. I do not find any bias in its consideration.
- Mr D complains the Council did not properly consider his evidence. He says this because the decision notice does not detail all his points and the decision was made three days after he submitted his information. He also complains the reasons in the decision notice are inadequate.
- The Regulations and Guidance are silent on what needs to be in a decision notice. They only say if the asset is removed from the register “reasons must be given”. This means it is for the Council to decide how much explanation to put in the decision notice. The 3 December 2019 decision notice lists the information the Council had taken into account. I am satisfied it sufficiently explains why the Council did not consider Land 1 met the definition of an ACV set out in the Localism Act.
- The crux of the decision rests on whether the social use of Land 1 is an actual use or whether it is ancillary to the agricultural use. In reaching its view that it is ancillary the Council has considered relevant information and has made its decision in line with the Regulations, Guidance and Act. It was a decision the Council was entitled to make and I have seen no evidence of fault in the way it was made. I therefore cannot challenge it no matter how much Mr D disagrees with it.
- Mr D complains the Council’s second decision, on 2 December 2020, was inadequately explained. The Regulations say reasons must be given only if an asset is removed from the register. The Council was therefore not required to provide detailed reasons for not listing Land 1, so there was no fault.
- The Council considered the extra information it had received did not change its view that the actual use of the Land 1 was agricultural. I have seen no evidence of fault in the way it reached this decision.
- There was a delay in responding to Mr D’s March 2020 complaint. The Council has already apologised for this, which is an appropriate and proportionate remedy for the injustice caused.
- There was no fault. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman