Summary: We will not investigate this complaint about the Council’s pursuit of a project which the complainant says was bound to fail. The financial cost to the Council is something which affects all residents and is therefore outside our jurisdiction. Also, we do not consider the complainant has suffered a significant personal injustice which warrants our involvement. Finally, it is reasonable to expect the complainant to contact the Information Commissioner’s Office with his concerns about the Council’s refusal to provide information he requested.

The complaint

1. I shall call the complainant Mr X. Mr X says the Council was wrong to pursue the redevelopment of a building on land it owns as there is a restrictive covenant on the land forbidding the sale of alcohol.
2. Mr X says he has worried about the impact of the proposed development for more than four years and this has affected his health.
3. He wants:
• a public apology
• an explanation of what mistakes were made, who is responsible and how much it has cost the council taxpayers; and
• an independent inquiry

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

8. I considered information provided by Mr X.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. In 2019 the Council granted planning permission for demolition of a disused building and construction of a new building over three floors with a multi-purpose space at the lower ground floor, a café or restaurant above and a covered roof terrace.
11. Mr X says residents have recently discovered a covenant on the land preventing the sale of alcohol. He says the Council should not have continued with the project knowing the covenant prevented any café/restaurant from selling alcohol.
12. The Council says it was aware of the restrictive covenant when it marketed the site for a seafront café/restaurant. However, the opinion was this restriction was not unsurmountable.
13. Mr X is concerned at the cost to the taxpayers caused by the Council’s continued progression of the project. Plus, the planning permission has now expired, and he believes the developer will claim financial compensation for their expenditure on the project to date.
14. However, any financial loss to the Council will be a matter which affects all residents in the borough. As explained in paragraph five above, such matters are outside our jurisdiction.
15. There has been no breach of the covenant as no sale of alcohol has taken place.
16. I understand Mr X has found the prospect of a new café or restaurant on the site stressful. However, the planning permission has expired, and the development has not been built. I do not consider he has suffered a significant personal injustice which warrants our involvement.
17. Mr X also complains the Council failed to provide information he requested.
18. As stated in paragraph seven, we normally expect people to complain to the Information Commissioner’s Officer (ICO) about access to information issues. It is reasonable to expect him to refer this issue to the ICO as this is the body with specific powers and expertise to investigate access to information concerns. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Final decision

19. We will not investigate Mr X’s complaint because :
• We cannot consider matters which affect all or most of the Council’s residents
• We do not consider that Mr X has suffered enough personal injustice to justify an investigation; and
• The ICO is better placed to consider his complaints about the Council’s failure to provide information.

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Investigator's decision on behalf of the Ombudsman