The Ombudsman's final decision:
Summary: Mr B complains about the way the Council handled issues arising from access rights to his property. He says that as a result of the Council’s failings he has not been able to get a mortgage to build the new house for which he has planning permission or to sell the whole parcel of land with the rights necessary to complete the development. There was fault by the Council in how it responded to Mr B’s request to lift the restrictions in his deed limiting rights of access to one dwelling. The Council did not consider properly the information it held about rights the property already had. Had it done so it should have shared that information with Mr B and not asked for the sum of money it did. The Council has already paid to Mr B £750 which remedies the injustice caused him.
- Mr B complains about the way the Council has handled issues arising from access rights to his property. Mr B considers the Council knew, or should have known, that it was not necessary for him to enter into a deed for vehicular access when he bought his property in 2006. Mr B approached the Council for variations to the deed, or a new deed, because he wanted to build another property. The Council asked him to pay over £50,000. Mr B considers the Council should have known what rights there were and had it considered the matter properly it would have established that he already had the necessary rights.
- Mr B considers it was wrong for the Council to time limit its offer of the new deed and to then refuse to correspond further with him, withdraw the offer and declare him to be an unreasonably persistent complainant.
- He says that as a result he has not been able to get a mortgage to build the new house or to sell the whole parcel of land with the rights necessary to complete the development because the existing deed does not show that it has rights of access for the new house.
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 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)
- 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 considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments
What I found
- Mr B bought his house in May 2006. Pedestrian and vehicular access to the property is over an area of common land owned by the Council. Shortly after he bought he entered into a deed with the Council for vehicular and drainage access over the Council’s land.
- In early 2015 the Council granted planning permission for a separate house to be built on part of the garden of Mr B’s land. Mr B started negotiating with the Council for a deed for the new property to have drainage and vehicular rights over the common land. These negotiations culminated in Mr B agreeing in November 2015 to pay £37,250 for the agreements. That did not happen as Mr B started to question the basis for the sum and whether it was necessary.
- In early 2017 Mr B found among his documents a statutory declaration which showed the property had prescriptive rights of access over the common land and those rights were established in 1976. Mr B sent evidence of this to the Council in February 2017. The Council accepted this showed the property had prescriptive rights over the common land both for Mr B’s existing home and for the development for which he had planning permission.
- In response to Mr B’s requests the Council, in June 2017, offered to enter into a further agreement with him granting vehicular and drainage rights to both the existing and proposed house. That was to be at no cost to Mr B and to refund, with interest, the amount he had paid for the original vehicular access rights in the 2006 deed.
- There was considerable contact between Mr B and the Council but agreement was not reached.
- In September the Council said the offer of the deed and the refund were time-limited and if Mr B did not enter into the deed then it would be withdrawn. The Council said it would not enter into further correspondence with him about the matters. Later in September the Council deemed him to be an unreasonably persistent complainant and limited his point of contact to one officer for six months.
Summary of the law relevant to the complaint
- Case law established that if someone had access to their property which was over common land then they could not acquire vehicular rights to their property by showing they had used the access as of right (prescriptive rights). This resulted in the Government including provisions in the Countryside and Rights of Ways Act 2000 (CROW section 68) to provide that a landowner must enter into a deed of easement if the homeowner could show that they would have had prescriptive rights were it not for the fact that the land was common land. A court case in 2004 held that homeowners could still acquire prescriptive rights even where the land was common land. This meant the provisions in the CROW act were now redundant and were repealed on 1 October 2006.
Events of 2006
- Mr B bought the house in 2006. Before he did so the Council had granted licenses to previous owners for vehicular and pedestrian access over its land. Just before the property was sold to Mr B the Council had agreed an easement with then owners for vehicular access under the terms of the CROW act. When Mr B bought the property he asked the Council for a deed for vehicular access and drainage rights over the Council’s land. The deed was dated October 2006.
- When the Council agreed to the easement to the previous owner, Ms X, the provisions of CROW had not been repealed but the judgement in the House of Lords which made them redundant had happened two years before. This meant the owners of properties who could demonstrate prescriptive rights no longer needed a formal agreement to demonstrate those rights. It would, therefore, be inequitable for a council to charge for the granting of rights which the property already had. The Council could charge for its time and expenses in entering into a formalising agreement.
- In responding to a draft of this statement the Council commented that the information submitted by Ms X in support of her application for a deed did not prove prescriptive rights. But in granting the easement the Council said it was as stipulated in S68 of the CROW Act which would mean the Council had to have been satisfied there were prescriptive rights.
The request for a new deed
- Mr B had planning permission to build a house on his garden. That property would need access over the Council’s land. Mr B asked the Council in May 2015 to lift the restrictions in his 2006 deed that limited it to one dwelling. He asked it to agree a price for so doing.
- The Council set out its position to Mr B in August. It said it had granted the 2006 deed (to Mr B) pursuant to the CROW Act. It said the deed was limited to one house and the CROW Act and case law did not apply to new houses. The Council said that its usual approach was to ask for 50% of the increased value of the land. The Council’s first estimate of the consideration it would expect for granting the new deed was £50,000. This was later reduced to £37,250. Mr B initially agreed to this but then undertook further research.
- The Council has commented that the August 2015 email may have caused some confusion by referring to the CROW act. But the crux of the Council’s position is that it did not have evidence of prescriptive rights to the land until Mr B provided the statutory declaration in February 2017. So its negotiations and engagement with Mr B throughout 2015 and 2016 was on the basis of renegotiating his deed which restricted access to one property.
- The issue here is whether there was fault in how the Council proceeded with the negotiation with Mr B in 2015 onwards. The Council was looking at varying the deed with Mr B from 2006. This limited the access rights to one dwelling. As Mr B wanted to develop a second dwelling then the Council was seeking to get the best possible price for a renegotiated deed. The Council must seek to obtain the best price. But it is also a public body and as such it must be fair and transparent in its dealings with its citizens. In deciding what a fair price for the land was the Council had to know what rights and limitations applied to the land. The Council was aware of the Ms X easement but did not have regard to that and based its valuation solely on renegotiating Mr B’s deed. That was wrong. The Ms X easement confirmed there were access rights to the land which were not limited to one property. The Council should have taken that into account when setting an asking price for a renegotiated deed with Mr B.
- The Council has suggested that the Ms X easement might have been granted in error because it did not have evidence of prescriptive rights which would have been necessary. But regardless of whether that was the case the easement existed and as such showed the access rights the land had. This means the issue about the statutory declaration is not key as I consider the Council was at fault purely based on the information it had about the Ms X easement.
- Mr B spent much time in trying to provide a basis for arguing the Council should reduce the asking price for a new deed. He did not know about the Ms X easement until September 2017 when he received documents from the Council. At the time of the 2015/16 negotiations he was trying to establish how the Council had dealt with similar applications and the history of his property. As part of this he made a number of freedom of information requests. One on 6 April 2016 asked for full details of any grant of right of access (including the permission worded in different terms) over the common land to his property. In its response the Council did not refer to the Ms X easement, only to the earlier licence agreements.
- Failure to disclose information following a FOI request is a matter for the Information Commissioner. The Council has not provided any comment on why it did not disclose this information in response to Mr B’s request.
Events of 2017
- Mr B sent the Council the statutory declaration in February 2017. In May the Council wrote to Mr B. It said it agreed the statutory declaration appeared to indicate there was a prescriptive right for vehicular and pedestrian access to the property. And that those rights were likely to be as shown on a plan attached to an earlier licence. It said the right would be likely to extend to a further dwelling. It said before the Council would accept the prescriptive right of way and permit the use of the access for the new dwelling Mr B needed to register the benefit of the prescriptive right at the Land Registry. This would formally confirm the prescriptive right of way and would regularise the use of the access. The email pointed him to information about how to go about approaching the Land Registry. The Council said that if the Land Registry accepted he was entitled to have the deed registered, they would serve notice on the Council. The Council said it would give the Land Registry any relevant documentation in respect of the use of the access and it would not raise any objections to the application.
- Mr B did not make an application to the Land Registry but wrote to the Council asking that the rights were regularised in a deed. In June the Council wrote to Mr B saying there were two options for his 2006 deed. If Mr B maintained his position that the 2006 deed could not be varied because it was never valid then he could present his evidence to the Land Registry and request that reference to the deed was removed. But this would have an impact on the continuation of other rights referred to in the deed. The officer suggested Mr B should take legal advice about that. The other option was to vary the 2006 deed removing reference to the rights being granted for a single dwelling. This would mean the rights of way would be unrestricted and the drainage rights would be preserved. The Council would not ask for any consideration and it would apply to register this deed with the Land Registry. The officer said the Council considered this the best way forward as it meant all rights were preserved. The Council asked Mr B to say which option he preferred.
- In July the Council confirmed its position. It noted Mr B’s position that he considered it was not possible to vary the 2006 deed because he considered it not to be valid. The Council did not agree but it said it would enter into a new deed to replace the 2006 one. It said there would be no limit on the number of properties the rights of way could serve and drainage rights would re-granted. It sent a copy of a proposed draft deed and confirming it would refund the charge Mr B had paid in the original deed for vehicular and pedestrian access. That was £625 plus interest coming to £875. The Council said Mr B would not have to make any payment for the new deed.
- The Council imposed certain conditions on the offer. It said Mr B must agree to withdraw any outstanding or future claims for compensation for any matters covered by the deed. He must unconditionally accept the offer within 14 days. If he did not do so the offer would be withdrawn and no alternative offer would be made or discussed. This was because the Council considered it had made reasonable efforts to resolve the matter. A further condition was that Mr B should agree to withdraw all outstanding data subject access requests and to make no further data access requests for the matters covered by the deed. And to agree to stop all contact and correspondence with the Council about matters covered by the deed.
- Mr B was very concerned about the restrictions and requirements the Council had attached to the proposed deed. Following correspondence and conversations between officers and Mr B the Council agreed to lift the restrictions it had imposed on the proposed deed.
- It was wrong the Council sought to impose these restrictions on entering into a new agreement but nine days later the Council removed the condition. The Council had understood from speaking to Mr B that he was content with the proposed deed so officers believed that the deed proposed met Mr B’s requirements. Mr B disagrees and says that was not his position.
- Mr B wanted to get legal advice. Because of his disabilities, and the history of the matter, he requested the Council to pay for that advice. The Council declined. It said it did not consider the request Mr B was making was a reasonable adjustment as defined in the legislation and it would not use public funds to pay for his private legal advice. I do not consider there was fault in the Council’s consideration of this request.
- Over August there was further correspondence between the Council and Mr B. In the middle of August the Council wrote to Mr B. It said the offer as set out for a new deed was still open. It would as an alternative, if he wanted to rely on his prescriptive rights for vehicular and pedestrian access, grant a deed just for drainage rights. This again would be with no requirement for payment from Mr B. The Council said that it would refund the money from the payment for access rights from the 2006 deed (£873 including interest) but that was conditional on his withdrawing any current or future claims for compensation in respect of any matter covered by the draft deed.
- At the beginning of September the Council wrote to Mr B confirming its position was as set out in the August email but that he had 14 days to confirm he would proceed on that basis. After that point all offers would be withdrawn and the Council would cease to communicate with him.
- Of relevance here is Mr B’s request for information to be released to him under a subject access request. The Council should have responded by 13 August being 40 days from the date of the request. It had not done so but had promised the information by 18 September, a Monday. Mr B received the information on 15 September. This contained the information Mr B had not previously seen about the Ms X easement.
- I recognise the Council’s wish to bring this matter to a conclusion. It had made a number of offers to Mr B for agreements that would, in its view, remedy the issues and provide the formalities he was seeking to enable him to proceed with the development, or sale, of his land. Mr B did not proceed because he could not afford to take legal advice and considered he needed to see the information the Council was going to provide under his information request. There had been considerable contact between Mr B and the Council. So I consider the Council was right to want to bring focus and a conclusion to this matter but I can see no good reasons for it time-limiting the offer for a new deed as it did in its correspondence of 4 September. Moreover I do not consider there were good grounds for the Council seeking to make entering into the new deed conditional on Mr B agreeing not to make any further claims in respect of the 2006 deed. The Council could simply have made clear to Mr B, as indeed it did, that these were its offers, it would make no further offers and would not enter into further correspondence with him on matters which it had already commented.
- The Council then decided Mr B was an unreasonably persistent complainant and invoked its policy to restrict his contact with the Council. It did so on 25 September. There had been a lot of contact from Mr B over 2017 and this increased after the conditions were imposed on 4 September. I do not consider the decision to deem Mr B to be unreasonably persistent was flawed but I consider his behaviour stemmed, in part, from the decision by the Council to condition its offer for a new deed which was flawed.
Injustice and remedy
- Where there has been fault by the Council we look to the Council to put the person back in the position they would have been had the fault not occurred. There is likely to be fault in 2006 when the Council entered into the deed with Mr B because this did not take into account the Ms X easement. But the deed was at Mr B’s request. Mr B was legally advised at this point and also had the statutory declaration.
- Mr B considered his 2006 deed was void and the Council should therefore return to him the payment he made for the access rights element of it. I cannot say whether Mr B’s view on this point is correct in law and is something the Courts would need to determine. During the consideration of the complaint Mr B made it clear that he did not want the amount the Council had previously agreed to return to him (£873) as part of the remedy of this complaint. In responding to the draft of this decision the Council sent a cheque in that sum to Mr B. It is for Mr B to decide whether he wishes to accept the payment.
- What should have happened in 2015 when Mr B approached the Council was it should have made a proper examination and analysis of its own records and what that meant for the rights over the land. Had it done so it would have identified that the Ms X easement confirmed there were access rights to the land. It should have explained this to Mr B and sought to resolve the issues. This would have meant there would have been no basis for the Council’s valuation of over £50,000 for a new deed.
- It is difficult to say what would then have happened. Mr B considers his 2006 deed is void. The Council considers it would be possible to amend the deed. I cannot say who is right here as that would require a ruling on questions of law which is not our role. Mr B needed legal advice but was not able to afford to pay for that. Mr B considers that is linked to the Council not returning the amount he paid in 2006 for the access part of the deed. As I say above I cannot conclude the Council should have returned that sum to him and I cannot say that it was because of some failing by the Council that Mr B could not afford to take the legal advice he needed. Mr B needed to resolve issues about access rights to his property and it would be reasonable to expect to have to pay for such advice. But, had there been no fault by the Council, Mr B would have known in 2015 or early 2016 what the position was. It would have spared him undertaking his own research over the course of 2016. And he would have been able to proceed negotiating with the Council on the correct basis. To recognise these failings and the consequence for Mr B the Council should pay him £500.
- It is for Mr B to decide what agreement he would like from the Council to regularise the rights that his land has and which the Council are willing to grant. Mr B has recently put a proposal to the Council of the form of a deed he would like. The Council said it would consider that once this complaint was concluded. I hope the Council will now respond promptly to Mr B on his proposal. Agreement should not be unreasonably withheld or conditioned. If there was further dispute or disagreement Mr B can make a further complaint to the Ombudsman about matters that happened after this decision.
- It was fault by the Council to impose conditions on the offers made over the summer of 2017. That caused distress to Mr B as he considered the Council’s withdrawal from negotiations meant he could not sell or develop his land as he had no way of regularising the rights attaching to the land. I cannot say Mr B had no other options but I understand that was his view. In recognition of the distress the imposition of conditions by the Council had on Mr B it should pay him £250.
- There was fault by the Council in how it responded to Mr B’s request to lift the restrictions in his deed limiting rights of access to one dwelling. The Council did not consider properly the information it held about rights the property already had. Had it done so it should have shared that information with Mr B and not asked for the sum of money it did. The Council has already paid to Mr B £750 which remedies the injustice caused him.
Investigator's decision on behalf of the Ombudsman