Summary: Mr X complained about the Council’s decision to replace a local leisure centre with an unsuitable alternative. We have not found the Council to be at fault because it consulted with the local community and followed the correct procedures before making its decision.

The complaint

1. Mr X complains about the Council’s failure to follow the correct procedure when approving the replacement for a local leisure centre. He says the Council failed to properly consider objections, alternative proposals and the decision was based on incorrect information.
2. Mr X represents a local sports club committee (“the Committee”).
3. Mr X says the replacement leisure centre fails to provide adequate facilities that will have a detrimental impact of the local community, including members of the Committee he represents.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
6. 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

7. I spoke to Mr X and reviewed the information provided, including the complaint correspondence and a transcript/audio recording of a Council meeting.
8. I made enquiries with the Council, considered its response, including relevant Council reports and consultation documents.
9. Mr X and the Council were given an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legal Background

Duty to consult

10. The Council has a public law duty to exercise fairness in the exercise of its functions. One aspect of this is the duty to consult.
11. The general principles on consultation derive from case law but are commonly known as the Gunning Principles. These are:

• consultation should occur when proposals are at a formative stage;
• consultations should give sufficient reasons for any proposal to permit intelligent consideration; and
• consultations should allow adequate time for consideration and response.

12. There must be clear evidence that the decision maker has considered the consultation responses, or a summary of them, before taking its decision.

What happened

13. In 2016, the Council undertook a community engagement exercise about future development of the area, including its leisure facilities. Arising from this was a proposal to demolish an existing leisure centre (“the Leisure Centre”) because it was expensive to run and no longer economically viable due to its age. The plan was to replace it with a smaller, but higher quality new centre (“the New Centre”) on part of the same site. New housing was to be built on part of the site of the Leisure Centre once it has been demolished.
14. In 2018, the replacement project was the subject of a procurement exercise. A private company was awarded the tender for construction of the New Centre and associated matters.
15. In the spring of 2019, the Council further engaged with the local community about this proposal. It held four drop-in sessions, including two at the Leisure Centre itself. It also sent out a newsletter to 15,000 households promoting these sessions.
16. The Council provided information about the New Centre including the cost, its facilities, and the reasons why it was necessary and beneficial to the local community.
17. Individual letters were sent to residents in the immediate vicinity to the Leisure Centre and advised of their right to make comments about the forthcoming planning application.
18. Planning permission for the overall development was granted in February 2020 by the Council’s Development Control Committee.
19. To compensate the community for some loss of facilities in the new scheme, the Council worked with a local school to improve their sports hall to accommodate the requirements of sports requiring larger areas such as netball and roller hockey. This would be available for use out of school hours.
20. The scheme was given approval by the Council at a full Council meeting in April 2020.

Mr X’s complaint

21. Mr X complained to the Council in December 2020. He said the April 2020 full Council meeting was misled and so the decision was invalid. He raised the following matters of concern.
1. The development was merely an enabling exercise to build housing on land that should only be used for leisure purposes.
2. The financial information was incorrect.
3. The Council did not consult with all of the affected clubs directly.
4. Information provided to members was incomplete, misleading and biased in favour of the development. For example, it was described as a having a “slightly smaller pool” when Mr X says it is half the size. He says the sports hall is a third of the previous size.
5. The Council incorrectly claimed two clubs would be unable to use the New Centre, when Mr X says it is many more, including wrestling and boxing events and his badminton club.
6. The proposed school refurbishments were inadequate and not fit for purpose. The facility is unheated and has no disabled access or changing facilities and so does not provide an acceptable alternative

The Council’s response

22. Mr X’s complaint was not upheld for the reasons I have summerised below.

• Both the original 2016 public consultation and 2019 engagement exercise were extensive and satisfied the duty to consult.
• Information events held in 2019 were attended by 612 people and promotion material was sent to all local residents. Newsletters were sent to 15,000 residents and publicized at key locations including the Leisure Centre.
• Relevant information was disseminated to staff and pupils at the school.
• The Council accepted the proposal was “business-led” but sufficient consultation was undertaken to inform the development.
• The Council commissioned a “Planned Preventative Maintenance Report” in respect of the existing building and its conclusion was the Leisure Centre was in poor condition and had reached the end of its serviceable life.
• The Council also commissioned an external consultant to assess the proposal and its findings were based on a comprehensive assessment of relevant considerations including a review of the existing facilities, usage, income and expenditure and future population.
• The new operator was having ongoing discussions with existing user groups and there was no evidence that consultation was restricted to too few groups.
• The Council was satisfied the upgrade to the school facilities would provide an acceptable opportunity to accommodate activities that were unsuitable at the New Centre.
• The planning application was lawfully and properly assessed on its own merits and members were not misled.
• The alternative proposals put forward by objectors failed to consider a number of relevant considerations, particularly around the financial implication involved with the development.

23. In response, Mr X made a Freedom of Information Act request about the proposals. He was provided with a letter sent by a lead councillor to members of the Development Committee in advance of the full Council meeting. This addressed, in some detail, the concerns and allegations of wrongdoing made by the Committee. Mr X says this contained inaccurate and misleading information that unduly influenced the decision makers. Mr X says it was also potentially libellous
24. An example of one such inaccuracy was that one displaced club was described as being London based. Mr X has provided the Ombudsman with an email from the club confirming it had been based at the Leisure Centre since the early 1990’s and was not based in London.

Analysis

25. Mr X has complained the decision to replace the Leisure Centre was undemocratic, was based on an inadequate consultation process and decision makers were misled by the lead councillor.
26. The Ombudsman is not an appeal body and does not retake decisions properly made by a Council. The Ombudsman’s role is limited to checking if there was any fault in the way a decision was made. If there was no fault or flaw, the Ombudsman may not, by law, intervene in the judgment reached by the Council. This is the case even where the Ombudsman may have given different weight to a piece of evidence or reached a different decision on the same facts. It is also important to note that objections to a proposal does not prevent the Council from approving it, although the Ombudsman would expect those objections to be considered.
27. It is clear there was significant opposition to the proposal, but this does not mean the Council was wrong to approve it. However, to satisfy the Council’s decision-making duties, it must be able to show the consultees views were considered and the “Gunning Principles” set out at paragraph 11 were adhered to. I am satisfied they were.
28. I have been provided with consultation materials used as part of the consultation and engagement exercises from 2016 and 2019. The Council has also explained who was consulted and how the consultation responses were considered and helped to inform the proposals that were later agreed by the Council (see paragraph 22 above).
29. Officer reports presented to the decision-making committees contained information about, and analysis of, the consultation exercises. This included information about how the Council has responded to objections. The reports commissioned by external advisers provided the Council with a detailed analysis of the costings involved with the New Centre.
30. I am also satisfied the decision makers were fully aware of the concerns raised by Mr X and other objectors. The Council has demonstrated it listened to these concerns and so took steps to mitigate the negative impact on certain users, including the club Mr X to which belongs, by making an additional facility available at the school. While I appreciate this is not a “like for like” replacement, the Council was not under a legal obligation to make such arrangements. Similarly, the Council did not have accommodate all existing and potential future users. But the evidence shows it made its best efforts to do so where possible.
31. It is clear Mr X is of the strongly held belief that the decision was made based on inaccurate and misleading information and I have considered the examples of this he has provided, including the club referred to at paragraph 24 above. I have also listened to the audio recording provided by Mr X in which he says the lead councillor made inaccurate statements.
32. I accept it is possible that some statements are subjective. This will often be the case with contentious developments, particularly where there are conflicting interests. In respect of the example above (paragraph 24), the Leisure Centre is located close to London and so was described as being “London based”. However, in terms of my decision about whether there was fault in the process, I do not share Mr X’s view. The New Centre could not accommodate this particular club because the pool was not deep enough. This is not in dispute and the Council was clear about this and so I do not agree the Council made its decision unaware of the impact it would have on this and certain other users. On the evidence I have seen, I do not agree the Council, as decision maker, was misled about the consequences of the decision.
33. This principle applies for Mr X’s other concerns, particularly about the role of the lead councillor. Mr X was concerned about the note sent by him to committee members in advance of the Full Cabinet meeting. I disagree with Mr X’s interpretation of this note. In my view this note provided the full Council members was a detailed response to the objections that had been raised by Mr X and others directly with councillors about whether to approval the New Centre and associated matters.
34. As to the proposals’ value for money, these are matters which affect “all or most” of the people in the area. As set out in paragraph 5 above, the Ombudsman has no jurisdiction to consider such matters.
35. In any event, the Council has demonstrated it did consider the alternative options and has explained why they were not feasible.

Conclusion

36. Mr X’s view is that replacing the leisure centre is not the best option and that the Council has ignored the wishes of local residents and users. However, although the Council consulted properly, it is not bound by the outcome of those consultations. Rather, it was for the Council to decide on what it considered the most appropriate course of action. This was a decision the Council was entitled to make and in the absence of any fault with the process, the Ombudsman cannot intervene.

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Final decision

37. I have not found fault with the Council’s decision-making process regarding a replacement leisure centre used by Mr X and the Committee he represents.

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Investigator's decision on behalf of the Ombudsman