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Buckinghamshire Council (20 013 942)

Category : Other Categories > Land

Decision : Upheld

Decision date : 09 Sep 2021

The Ombudsman's final decision:

Summary: Mr C complained about the Council’s handling of an application to register an area of land as a village green. He considered the Council had not followed the proper process and had delayed. As a result, the application had not been considered as it should and he had been put to time and trouble in pursuing the Council. There was fault which caused injustice to Mr C. The Council will apologise, make a payment to Mr C and start the formal consideration of the application.

The complaint

  1. I call the complainant Mr C. He is represented by Mr D. He complained about the Council’s handling of an application to register an area of land as a village green. He considered the Council had not followed the proper process and had delayed. As a result the application had not been considered as it should and he had been put to time and trouble in pursuing the Council.

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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 considered the complaint and documents provided by Mr D and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr D and the Council and considered their comments.

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What I found

Summary of the relevant law, guidance and good practice

  1. Anybody may apply to the relevant body (in this case the Council) to register land as a town or village green if it has been used by local people for lawful sports and pastimes ‘as of right’ (without permission, force or secrecy) for at least 20 years. (Commons Act 2006, section 15)
  2. The right to apply for the registration is excluded where a trigger event has occurred in relation to the land. The exclusion remains in place until a terminating event occurs. Trigger and terminating events broadly relate to whether land is identified for potential development in the planning system. (Commons Act 2006, section 15C and Schedule 1A)
  3. The Government has produced guidance on the process. (Guidance to Commons Registration Authorities in England on Sections 15A to 15C of the Commons Act 2006)
  4. I will refer to the above as the Act and the Guidance.
  5. During the events relevant to this complaint there was reorganisation of local government in the area. This meant that this Council became the responsible body. I will refer to the Council throughout but that also includes the predecessor authority that was in place before 1 April 2020.

What happened

Outline of events

  1. In August 2019 Mr C applied to have an area of land near to his then home registered as a village green. The Council acknowledged the application and in December it wrote to Mr C to say it was not an excluded application and gave the reference number. It said the next step was for it to be advertised by a site notice and in a local newspaper.
  2. The Council was then contacted by one of the bodies consulted about the application to ask that it not be registered as it was seeking legal advice. At the end of January the Council instructed legal services to advertise the application.
  3. At the end of March Mr C submitted a formal complaint because the application had not yet been advertised.
  4. The Council responded towards the end of April. It apologised for any inconsistent communication but it considered there had been a trigger event. It said it would be writing further. A few days letter the Council wrote again to Mr C explaining the trigger event was the publication of the local plan in August 2019. It also said that it held the land for highways purposes which would be another factor in meaning the application could not proceed.
  5. Mr C quickly replied refuting the Council’s position. The Council then referred the matter to legal counsel for advice. It told Mr C of that at the end of May and sent updates over the following months. At the beginning of September the Council responded. It accepted that the trigger event it had referred to happened after the application had been made so was not relevant. But, it said, there was another trigger event which was the publication for consultation of the draft local plan. It rejected the other argument advanced by Mr C and referred in more detail to the Council’s acquisition of the land and the purpose for which it was held.
  6. Mr C again replied swiftly and refuted the Council’s points and asked for further clarification and comment.
  7. After a month Mr C had not received a reply so made a stage two complaint about the continuing delay in dealing with the application and the failure by the Council to start the process by publicising the application.
  8. In the middle of November the Council replied both to Mr C’s correspondence about the consideration of the application and to his complaint. In summary the Council’s position was that the application was invalid. It could decide how to determine the application given its findings that it could not succeed. The intention was, therefore, to refer it to committee.
  9. Mr C responded immediately. He reiterated his views on the trigger event and that it would be procedurally wrong to take the application to committee as there was a statutory process laid down which should be followed.
  10. There were exchanges between the Council and Mr C over the first six months of 2021 but the Council did not provide any substantive response to him.
  11. In responding to my enquiries the Council provided more information. It said it took legal advice on Mr C’s point that there had been a terminating event. It received the legal advice in early February 2021. That supported Mr C’s view there had been a terminating event. The Council said the highway authority and the local planning authority argued there was a further trigger event. It did not provide any detail about what was considered to be a further trigger event or when that was raised. It had sought further legal advice on the point.

Analysis

  1. Mr C argued that because the Council had accepted and registered his application it could not go back on that position. He used the term ‘functus officio’ to describe the legal principle he believed applied.
  2. It is not our role to decide on the law – that is for the courts. But we can decide whether there has been fault.
  3. The Guidance sets down the process to be followed in dealing with an application for registration of land as a green. If there has been a trigger event the right to apply is excluded and the authority cannot accept an application. When an application is received the Council must check with the relevant local planning authorities and the Planning Inspectorate whether there have been any trigger or terminating events. The advice strongly recommends authorities should use the standard letter that is included in the Guidance. That letter asks for a response from the consulted bodies within two weeks.
  4. The Guidance says that authorities should check whether the right to apply is excluded before accepting or even acknowledging receipt of the application. It advises against sending even a written acknowledgement of receipt of the application. The reason for this approach is to avoid time and money being spent advertising and making representations in relation to an application where it subsequently turns out there was no right to apply
  5. Here the Council received the application in mid-August 2019 and acknowledged it in late September. The acknowledgment explained it could not be registered as the Council needed to check whether there had been trigger events. Three months later in December the Council wrote to Mr B saying it was not excluded, it was duly registered and the next step would be to advertise the application.
  6. But the Council did not do that. Instead it argued there were trigger events that excluded the application. This approach was clearly not in accordance with the Guidance which is explicit on the need not to register an application that should be excluded.
  7. I will refer to another issue the Council raised which is of ownership of the land. Before making the application Mr C checked and the land was unregistered so he made the application on that basis. The Council said in its correspondence with Mr C that it owns the land and it is held for highway purposes. If the Council wished to say it was invalid because the statement of landownership was incorrect then it should have done so before registering it.
  8. There was considerable delay. There was a gap of four months from the Council registering the application and then saying there had been a trigger event. It then took a further four months to accept it was not a trigger event but to then suggest there was a further trigger event. It then took five months for the Council to obtain legal advice that Mr C was right and there had been a terminating event in respect of that trigger event. But it did not tell Mr C of that outcome but instead considered whether there are other trigger events without giving any substantive response to Mr C. So in addition to the delay there was a failure to communicate adequately with Mr C. In coming to that view I considered the Council’s comments on the impact the COVID-19 pandemic had on its services. I accept that will have been a factor but nonetheless the delay here was excessive.
  9. I considered what was the correct way forward here. There is no provision laid down for withdrawing a registered application once it is made, so the Council should now proceed with the formal consideration of the application.

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Agreed action

  1. The Council will apologise to Mr C for the faults found and will pay him £150 to acknowledge the time and trouble he has been put to in pursuing this matter. It will also send him at least monthly updates of the progress of the application.
  2. It will also proceed with the next stage in the process and advertise the application.
  3. These actions should be completed with one month of the final decision.

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Final decision

  1. There was fault which caused injustice to Mr C.

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Investigator's decision on behalf of the Ombudsman

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