Cornwall Council (18 000 639)

Category : Planning > Other

Decision : Not upheld

Decision date : 01 Oct 2018

The Ombudsman's final decision:

Summary: Mr X complained about the actions of the Council’s planning department. His concerns included a council officer contacting an estate agent acting for Mr X, and incorrect information on the Council’s website. The Council was at fault because some of the information it sent to the estate agent was wrong. But this did not cause Mr X any significant personal injustice.

The complaint

  1. The complainant, whom I shall call Mr X, complained:
    • A council planning officer abused his power by contacting Mr X’s estate agent to seek unjustified changes in an advert for land Mr X had advertised for sale.
    • The Council posted a potentially fictitious request for pre-application advice about one of the plots of land Mr X wanted to sell.
    • The Council’s planning department failed to act over a neighbour’s planning application which claimed access rights over Mr X’s land. This was despite Mr X showing the Council there were no access rights. The neighbour had not served a notice on Mr X as the land’s owner.
    • A map of Mr X’s land on the Council’s planning website contained incorrect references, including two enforcement notices.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
  1. 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)
  2. 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. During my investigation I have:
    • considered Mr X’s complaint to the Ombudsman and discussed it with him over the telephone;
    • sent enquiries to the Council and considered its response;
    • considered relevant legislation, guidance, and information on the Council’s website;
    • given Mr X and the Council the opportunity to comment on my draft decision and considered their responses.

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What I found

  1. I have set out below an overview of Mr X’s complaints to the Council and its responses. They provide a useful summary of what happened and Mr X’s concerns.
  2. On 24 January 2018, Mr X complained to the Council. Mr X explained he was selling plots of land he owns to fund the restoration of a property. Mr X said that on 22 January 2018, he amended the wording of one of the ‘for sale’ ads to say the land was ‘previously developed’ (‘brownfield’) and that it had many uses - subject to planning permission.
  3. He said a council officer (Officer B) had contacted Mr X’s estate agent. Officer B had said they should amend the for-sale ad. They should tell potential buyers the Council would not grant planning permission for the land. He said Officer B had told the estate agent ‘gypsies’ were living on the site – but this was not the case. The family in question lived on their own plot, next to Mr X’s, which they accessed using land owned by Mr X (but which was not for sale). Officer B’s email to the estate agent said:

“I would suggest that the current wording of your advert seems to be somewhat misleading…we would request that the current advert should be amended, removing reference to it being previously developed land (Brownfield), reference to it being used for tourism or camping use, and that it is suitable for a number of uses, as these are generating interest and enquiries from members of the public - when there seems to be extremely limited potential for development. To avoid any further action taking place from the Council, could you please remove the information from your listing”.

  1. Mr X also said that on 22 January 2018, the Council’s website showed it had been approached for pre-application (‘pre-app’) planning advice. This related to a piece of land Mr X owned. He said it was “rather coincidental that a pre-app has been submitted to site a cabin on the sale plot that would clearly be refused due to the size of the proposal.” He was also concerned the ‘pre-app’ used the ‘brownfield’ wording Mr X had sent to his estate agent on the same day. This had been quickly removed following Officer B’s involvement. Mr X had not told anyone else the land was brownfield. He was surprised the Council had validated the pre-app so quickly. He asked if the pre-app had been submitted so that potential buyers would see the Council had refused a planning application for the land Mr X was selling.
  2. Mr X also said the Council’s website wrongly showed an enforcement notice on land he was selling. An enforcement officer had agreed this was a mistake, but Mr X was concerned it would show up to potential buyers. Another enforcement notice showed a caravan site on land Mr X had for sale. He said this was “a lie”.
  3. The Council responded to Mr X’s complaint on 15 February 2018. It said:
    • Officer B had been sent details of the for-sale ad on 21 January 2018. He viewed it the following day and did not believe the details in the ad were correct. He contacted Mr X’s estate agent to “prevent unnecessary planning enquiries”. Officer B had no personal involvement with the land.
    • The Council made the Gypsy / Traveller reference in good faith and to be helpful to potential buyers.
    • The Council could not control what pre-application planning advice enquiries it received. It could not say why the applicant had described the land as brownfield or why they had sent an application.
    • The Council had corrected the errors on its website and apologised for its mistake.
  4. Mr X raised further concerns with the Council linked to the complaint set out above. He also referred to a further planning application approved by the Council. The applicant had said they owned a track which gave access to the site the application related to. Mr X had told the Council this was not the case, and that he owned the land used for access. There was no right of easement or even a track. But the Council had ignored this and granted planning permission. The applicant had then used a digger to create a track across Mr X’s land.
  5. The Council provided a final response on 14 March 2018. It said that:
    • The Council had become involved in a private sale to ensure an accurate reflection of the planning issue.
    • It again said it could not explain why somebody would ask for pre-application planning advice. But details of the applicant were on the Council’s website.
    • When processing the planning application referred to in his second complaint, the Council had asked the applicant to confirm they had access rights. They had said they did. It explained anyone can apply for planning permission, even if they do not own the land. But they would need the owner’s consent before starting work.
  6. Unhappy with the Council’s response, Mr X complained to the Ombudsman.

Analysis

  1. I have addressed each of Mr X’s complaints in turn.

A council planning officer abused his power by contacting Mr X’s estate agent to seek unjustified changes in an advert for land Mr X had advertised for sale.

  1. In response to my enquiries, the Council said a member of the public had sent Officer B a copy of the for-sale ad. The Council sent me supporting evidence. The Council said Officer B discussed the situation with managers. As the Council has already said to Mr X, Officer B decided to contact Mr X’s estate agent to “help provide a more accurate reflection of the planning issues on site”. I asked the Council what action it would have taken if the estate agent had not amended the for-sale ad. The Council said it would have considered sending details to the Advertising Standards Agency (ASA).
  2. As part of my investigation, I considered the email Officer B sent to Mr X’s estate agent. The email asked the estate agent to amend the ad to reflect the land’s “extremely limited potential for development.” Officer B explained why the Council no longer considered the land to be brownfield, and he set out the history of the site. He set out the possible planning constraints and asked the estate agent to remove the references to it being used for tourism or camping. Officer B also said a parcel of land for sale was currently occupied by a Gypsy / Traveller family.
  3. There is no specific planning law or legislation I am aware of that deals with a situation like this. The Council also said its own policies did not cover the decision to contact Mr X’s estate agent. I cannot therefore say the Council was at fault because it failed to follow legislation, statutory guidance, or its own policy.
  4. The information Officer B sent to the estate agent would seem to be ‘matters of fact’ rather than opinions. Any potential buyer of the land would have been required to carry out their own checks on the land. These would have highlighted the issues Officer B raised with Mr X’s estate agent. So, even if I were to say the Council was at fault for contacting Mr X’s estate agent, I could not say it caused him any injustice. This is because the buyer would have discovered the information in question during the conveyancing process.
  5. The exception to the above finding would seem to be the Council’s claim that a Gypsy / Traveller family occupied the land being sold by Mr X. This was not the case, and so the Council was at fault for saying this. But I cannot say this caused any injustice to Mr X. This is because I could never say with certainty that it dissuaded any possible purchasers.
  6. Mr X is unhappy the Council used the term Gypsy / Traveller. The Council has explained this was used as a previous planning decision referred to the Gypsy / Traveller background of the family. Because the use of the term itself will not have had any direct impact on Mr X, I will not consider this point any further.

The Council posted a potentially fictitious request for pre-application advice about one of the plots of land Mr X wants to sell.

  1. Mr X is concerned this ‘application’ was created to show the Council was unlikely to grant planning permission for the land he was selling. In response to my enquiries, the Council provided the personal details of the applicant, including their telephone number, address, and email address. The application itself is on the Council’s website. The Ombudsman has no reason to believe this application was not legitimate. I will not consider this issue any further.

The Council’s planning department failed to act over a neighbour’s planning application which claimed access rights over Mr X’s land. This was despite Mr X showing the Council there were no access rights. The neighbour had not served a notice on Mr X as the land’s owner.

  1. A Council must not entertain an application for planning permission unless the applicant has completed the relevant ownership certificate.
  2. The applicant completed ‘Section 25 – Certificate B’ as part of their planning application. This is completed when the applicant does not own the land to which the application relates. Completing this section confirms the applicant has given notice of the application to the owner / agricultural tenant of the land or building to which the application relates.
  3. There is no requirement for Council’s to check Land Registry records when determining planning applications, particularly as covenants or rights of access disputes are not material planning considerations.
  4. When deciding a planning application, a council must only consider material considerations. Land ownership and private access rights are not material considerations. A developer needs to secure any permission needed directly with the landowner. The Council has no role in this. Any disputes arising are civil law matters.
  5. In this case, the applicant correctly served notice on the owner of the land. The applicant was not required to notify Mr X, because the application was not for land he owned. When deciding the application, the Council could not consider who owned the land used for access. This is because it was not a material planning consideration. The Council was not therefore at fault.
  6. Mr X is unhappy because his land is being used as access. He says it has been damaged. But this would not seem to be due to any fault by the Council. It is instead due to the actions of private individuals. If Mr X does not believe they have access rights over his land, or have caused criminal damage, these are civil issues or matters for the police. It is not the role of the Council, or the Ombudsman, to adjudicate over such matters.

A map of Mr X’s land on the Council’s planning website contained incorrect references, including two enforcement notices.

  1. My understanding is the Council has now corrected these issues on its website. It has told me that enforcement reports are no longer on its website unless a formal enforcement notice is served and action is taken. Consideration of this matter could not achieve anything further for Mr X.

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Final decision

  1. The Council was at fault when it sent incorrect information to Mr X’s estate agent. But this did not cause Mr X significant personal injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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