Summary: Mr X complained about the Council’s handing of his easement application to facilitate access and services to his new-build development. We have found the Council to be at fault. Mr X was given incorrect advice when he was told an easement was already in place. The Council then took too long to process his application. This had an impact on the completion of the associated development and caused Mr X distress and frustration. To remedy this injustice, the Council has agreed to apologise, make a symbolic payment to Mr X and review its procedures.

The complaint

1. Mr X complains that the Council failed to properly manage his easement application. This was required as part of his planning application. In particular, he complains about the following matters:
1. Incorrect information was given about an existing easement.
2. Excessive delay in the process.
3. Excessive cost of the easement.
2. Mr X says the Council’s actions significantly increased the overall cost of the development. He says the Council should have compensated him financially for these costs.
3. He has also experienced distress and frustration as a result of the delay and increased costs.

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The Ombudsman’s role and powers

4. 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’. 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)
5. 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)
6. If we are satisfied with an organisation’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 with Mr X’s representative and reviewed the information provided.
8. I made enquiries with the Council and reviewed the relevant law.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and policy

Easements

10. Local authorities are given powers under section 123 of the Local Government Act 1972 to dispose of land in any manner they wish. This includes sale of a council’s freehold interest, granting a lease or assigning any unexpired term on a lease, and the granting of easements. The only constraint is that a disposal must be for the best consideration reasonably obtainable, unless the Secretary of State consents to the disposal.

What happened

11. I have set out below a summary of the key events. But it is not meant to show everything which happened.
12. In September 2018, Mr X was granted planning permission by the Council to build a new property. Mr X was told an easement would be needed to allow access to the site over land owned by the Council. Mr X made enquiries about this.
13. In February 2019, the Council advised Mr X an easement was already in place. Construction of the new build property started in July 2020. It was estimated it would take nine months to complete.
14. In June 2020, it came to the Council’s attention that existing easement may not cover the work required. The Council sought legal advice to clarify this.
15. In August 2020, Mr X was told the existing easement was insufficient to allow access and for services to be laid. He was invited to make an application. Mr X was asked to pay the costs of this.
16. Mr X complained to the Council about the incorrect advice. In response the Council explained there had been a misunderstanding about the extent of the existing easement and there was a requirement for services as well as access. Once this was known, the Council was under a legal obligation to follow the correct procedures. As well as apologising for the initial oversight and the delay the impact on the development schedule, the Council said it would keep an overview of the easement application to avoid further delay
17. The Council obtained an independent valuation of the easement.
18. In November 2020, Mr X was told the cost of this new easement would be £100,000. Mr X says he felt he had no choice but to agree to this, to proceed with his development. He paid the Council £100,000 in January 2021.
19. The easement was completed in September 2021. However, shortly afterwards the Council was contacted by the gas provider, stating an easement would be required for the gas connection. The Council says this was unusual. This easement was completed in February 2022.
20. Mr X complained to the Council about this further delay. In response, the Council acknowledged the time taken. Some of this was accountable to the gas provider requiring its own easement. However, the Council accepted Mr X has not received the expected standard of service.
21. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman. In response to the Ombudsman’s enquiries the Council offered to make a payment of £100 as a gesture of goodwill to acknowledge the delays in processing his easement application.

Analysis

Incorrect advice

22. It is not in dispute that Mr X was given incorrect advice by the Council in February 2019. From the case records I have seen, the planning officer asked another Council department whether an easement was in place for access across the land. The receiving department took this at face value and advised that an easement was granted in 1985. Mr X was sent a copy of this email.
23. The problem arose because the existing easement was for specific access to a particular property only and would not cover the new build, nor the installation of services. There is no evidence the Council, Mr X or his agent checked the 1985 easement to see if it covered the requirements of the development.
24. I have read the 1985 easement. In my view, it is clear the easement is limited to vehicular access. The Council has accepted this should have realised it was insufficient for Mr X’s requirements. This was fault. It was a reasonable expectation that Mr X could rely on the Council’s advice on this matter.

Delay

25. The case records I have seen show the Council (Officer P) first asked the question of the relevant department about whether the 1985 easement covered the installation of services in February 2020. There is no record of a response to this email. It was not until June 2020 that Officer P, as part of enquiries about other aspects of the development, realised the existing easement was inadequate.
26. I accept that between March and June 2020, councils were unable to function as they would normally do due to the pandemic, and this is a reasonable explanation for this delay. I also accept that once the Council realised there may be a problem, it correctly and promptly sought legal advice and told Mr X he needed to make an application for an easement. I do not find there was excessive delay in informing Mr X about this matter.
27. But it took a year to finalise the first easement. The Council has failed to provide an explanation for this long delay. The Council’s easement process flowchart, while not giving a specific timetable, states that applicants should be given a timescale for expected completion. From the correspondence I have seen, this did not happen. The Council’s internal documentation gave a provisional completion date of 1 April 2021. Despite the Council giving a commitment in its first complaint response that it would ensure the application was dealt with without further delay, this clearly did not happen.
28. This, together with the Council’s own acceptance that Mr X did not receive the expected service, leads to make a finding of fault here.
29. Further delay occurred due to the gas supplier requiring a separate easement. According to the Council, this only became apparent once the first easement had been completed. The Council said the requirement for an additional easement was “unusual”.
30. This version of events is not supported by the case records I have read. By email the Council was told by the gas supplier in September 2020 that it would need either a separate easement or, as an alternative, be a party to the first easement. This was not done. The Council was reminded by the gas company of what it had previously said about it needing a tripartite easement, going on to say, “but this was sadly not considered”.
31. This evidence shows the Council was at fault by not taking into consideration the need to include the gas supplier as a party to the first easement. This directly led to a further five months of delay.

Cost of the easement

32. Mr X also complains about the cost of the easement. In response to my enquiries about this, the Council provided evidence it had sought an independent valuation. It also said Mr X did not challenge the valuation at the time or suggest a second opinion should be obtained.
33. The Council has shared a copy of the valuation with the Ombudsman on a confidential basis. It is not my role to comment on the valuation itself. I can only consider whether the Council followed the correct procedure. I am satisfied it did. I agree that Mr X, or his agent, should have contested this at the time. For this reason, I do not find the Council to be at fault here.

Injustice

34. I have identified two areas to fault:
1. The initial advice that an easement was already in place.
2. Delay in the easement process.
35. I must now consider the impact of these faults on Mr X. He has explained the delay had a significant impact on the progress of the development and this came at huge financial cost. He says what should have been a nine-month construction process, instead took 18 months. One of the remedies sought by Mr X is a refund of the mortgage costs he paid after March 2021, the estimated date of completion.
36. It is not possible for me to say on the evidence I have seen, with enough certainty, whether this delay was caused solely, because of the delay in the application process. There are many variables that could also have had an impact on the progression of a large building project. But I am satisfied it was, on a balance of probabilities, a contributory factor. I do not consider the £100 offered to Mr X to be adequate and does not acknowledge the significant injustice to Mr X.
37. However, I am unable to determine to the direct financial impact that was caused by the Council’s fault alone. For this reason, and in line with the Ombudsman’s Guidance on Remedies, I have recommended the Council should make a symbolic payment to acknowledge the injustice to Mr X.
38. Should Mr X wish to pursue a claim for quantifiable financial loss, the court is the most appropriate forum to do so.
39. In making my recommendations below, I have also acknowledged the distress and frustration experienced by Mr X and his time and trouble making his complaint.

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Agreed action

40. To remedy to injustice to Mr X, the Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Mr X.
2. Pay Mr X £1000 as a symbolic payment to acknowledge the financial impact of the delay.
3. Pay Mr X £1000 as a symbolic payment to acknowledge the frustration and distress caused by the initial incorrect advice and failure to include the gas supplier as a party to the first easement.
4. Pay Mr X £250 to acknowledge his time and trouble spend making his complaint.
5. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman. A copy of this decision statement should be shared with relevant officers.

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Final decision

41. I have found the Council to be at fault and it has agreed to my recommendations to remedy the injustice caused. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman