The Ombudsman's final decision:
Summary: Mr B complained that the Council wrongly approved the transfer of public open space on the estate on which he lives to a management company despite the transfer document providing no means for the company to recover the costs of maintaining the land from residents. The Ombudsman found no fault on the Council’s part.
- Mr B complains that the Council wrongly approved the transfer of public open space on the estate on which he lives to a management company despite the transfer document providing no means for the company to recover the costs of maintaining the land from residents. He is concerned about the future management of the open space and the impact on his property if the company fails to maintain it.
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)
- 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 have considered all the information provided by Mr B together with documents provided by the Council.
- Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- In 2018 Mr B bought a house on a new housing estate. When planning permission for the estate was granted, the developer had entered into a legal agreement with the Council. This agreement included an obligation on the developer to transfer the public open space on the land to an open space management company approved in writing by the Council.
- In October 2019 the Council wrote to the developer confirming it had no objections to the proposed management company.
- In November 2019 solicitors acting on behalf of residents wrote to the developer expressing concerns about the enforceability of the proposed transfer to the management company in relation to the costs of maintaining the public open space. They were concerned that the transfer document did not allow the management company to enforce payment of service charges by residents to cover its costs of maintaining the open space.
- On 2 December 2019 the developer transferred the public open space to the management company but failed to obtain the Council’s consent to the transfer.
- On 4 December 2019 the developer’s solicitors responded to residents’ solicitors stating that the costs of maintaining the public open space were recoverable under paragraph 4 of part 1 of schedule 6 of the transfer. Residents’ solicitors responded arguing that paragraph 4 did not cover maintenance of the open space and pointing out that the developer’s solicitors had previously suggested paragraph 6 provided authority to charge, not paragraph 4.
- In April 2020 Mr B informed the Council that the developer had transferred the land to the management company without consent and asked what action it was taking to resolve the matter.
- The head of development control took legal advice on the situation in June 2020. In July 2020 he wrote to Mr B stating that, in light of the legal advice, he did not consider it would be reasonable to withhold consent to the transfer of the open space to the management company. He also wrote to the developer giving retrospective approval for the transfer.
- Mr B responded requesting details of what arrangements were in place to ensure the management company would be able to maintain the public open space. He said he was concerned that the company had no power to require residents to pay a service charge to fund works for the maintenance of the open space.
- Mr B was not satisfied with the response he received and made a complaint to the Council. Having completed the Councils complaints procedure, Mr B complained to the Ombudsman.
- The legal agreement between the developer and the Council states that the open space should be transferred to a management company previously approved in writing by the Council. It stated, “such approval not to be unreasonably withheld or delayed and to be determined solely on the basis of the suitability of the Open Space Management Company to implement the Open Space Management Scheme in Perpetuity (125 years from the date of the agreement)”.
- When the developer transferred the open space to the management company without the Council’s prior approval this was a breach of the legal agreement. It was then for the Council to decide what action to take to regularise that breach.
- The head of development control took legal advice and sought information and assurances from the developer to enable him to decide whether the management company was “suitable”. He was satisfied agreements were in place with residents for the payment of service charges to cover the costs of ongoing maintenance of the open space and the legal advice he received was that the management company could legitimately charge. In reliance on this advice, he was satisfied it would not be reasonable for the Council to withhold approval, so he approved the transfer.
- I am satisfied the head of development control acted appropriately by seeking legal advice and further information from the developer. In the absence of administrative fault, there are no grounds to question his decision to give retrospective consent to the transfer. This was a matter for his professional judgement having considered all relevant information.
- Mr B says the Council has failed to take any action about the developer’s breach of the legal agreement in transferring the public open space without the Council’s prior approval. As the Council gave retrospective permission, there is no longer a breach of the agreement so there are no grounds for the Council to take any action in this regard.
- I do not uphold Mr B’s complaint.
- I have completed my investigation on the basis I am satisfied with the Council’s actions.
Investigator's decision on behalf of the Ombudsman