Summary: We will not investigate Mr X’s complaint that the Council has failed to say whether it will keep the restrictive covenant on New Addington green which prevents housing being built on it. Investigation will not achieve the outcome Mr X wants. The Council has explained its position and apologised for the delay in communicating with him.

The complaint

1. Mr X complains that the Council has failed to answer his question regarding its approach to Addington New Town green and whether it will comply with the existing restrictive covenant on the land. He says the Council owns the green open space and the covenant prevents housing development. Mr X says in other areas the Council has not overturned covenants but its regeneration proposals suggest it wants to allow housing on the green.
2. Mr X complains the Council failed to answer the main point of his communications sent over several months from October 2019. It did not reply to his complaints of May and June 2020. When it wrote in October and November it again failed to clearly answer his concern.

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The Ombudsman’s role and powers

3. 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, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I have considered Mr X’s information and comments and discussed the complaint with him by telephone. I have considered the correspondence between Mr X and the Council.

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What I found

5. On 5 March 2020, the Council wrote to Mr X. It says it is considering representations on a new draft local plan review due to be issued in the Autumn. Restrictive covenants are not a material planning consideration. Should development of the area be supported then the Council would consider the position regarding the covenants. Any change would require consultation with local people.
6. On 29 September 2020, the Council wrote to Mr X replying to his communication from March and April. The Council apologised for the delay referring to the impact of the covid virus. The Council says it is considering the next phase of regeneration in New Addington.
7. On 20 November, the Council wrote to Mr X and repeated its position. It says it is committed to having a good quality green on central parade and it will work within ‘the spirit’ of the restrictive covenants.
8. Mr X says the Council has failed to say that it will respect or comply with the restrictive covenant. He wants it to guarantee that the green open space is maintained as originally intended by the conveyance of the land which happened in the 1930’s.

Analysis

9. I will not investigate Mr X’s complaint for the following reasons:
10. There is nothing to achieve by investigating. The Council is consulting on plans for regeneration of the area and has not made decisions. The Council has indicated that it would need to follow a formal procedure if it wanted to change the restrictive covenant which would give Mr X and others the opportunity to comment. Again, there is no decision.
11. There is no injustice because there is no decision. Although the Council did not give Mr X the ‘yes or no’ reply he wanted, I am satisfied that it answered his query in its communication of March 2020.
12. The Council apologised for the delay in replying to Mr X’s communication. There is no reason to investigate the complaint handling. However, I will remind the Council that it needs to signpost complainants to the next stage of its complaint procedure and to this office on completion.

Final decision

13. The Ombudsman will not investigate Mr X’s complaint that the Council has failed to say whether it will keep the restrictive covenant on New Addington green which prevents housing being built on it. Investigation will not achieve the outcome Mr X wants. The Council has explained its position to Mr X and has apologised for the delay in communicating with him.

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Investigator's decision on behalf of the Ombudsman