Summary: The Ombudsman will not investigate Mr X’s complaint that Transport for London failed to classify his property as land required for the Crossrail 2 project. Mr X says as a result he has no remedy when his property is suffering ‘planning blight’ and cannot be sold. The complaint is outside the Ombudsman’s jurisdiction largely because it involves a central government department’s responsibility. We cannot achieve the outcome Mr X wants.

The complaint

1. Mr X complains Transport for London failed to include his property in its safeguarding scheme (red line zone map) which identifies land needed for Crossrail 2. Mr X says Transport for London knew all along that his land was needed for Crossrail 2 and revealed as much during an appeal to the planning inspector. Mr X says as a result he has lost the right to require Transport for London to buy his property via the ‘planning blight’ notice procedure. Mr X believes Transport for London has an unofficial policy not to list all land affected so it can avoid the notice procedure. Mr X says he is in ‘limbo’ and cannot sell or develop his property. Mr X says Transport for London has acted negligently, fraudulently, and/or with maladministration. He says it has damaged his health, caused him time, trouble, and expense. Mr X wants Transport for London to include his property in the safeguarding zone map and purchase it. He says it should pay compensation.

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The Ombudsman’s role and powers

2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as central government departments. (Local Government Act 1974, sections 25 and 34A, as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

8. I have considered Mr X’s information, comments and discussed the complaint with him by telephone. I have considered his reply to my draft decision statement. The information includes correspondence with Transport for London. I have considered information on Transport for London’s website on Crossrail 2 and the safeguarding system. I have considered planning law on the planning blight notice procedure and internet information on it by the Department for Transport (in relation to HS2) and Crossrail 2. I have clarified with Transport for London its relationship with the Department for Transport.

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What I found

9. Transport for London operates the Crossrail 2 project on behalf of the Department for Transport. The Crossrail website says: ‘safeguarding is a formal process undertaken by the Department for Transport’. This includes identifying land required to deliver the rail project which is subject to the ‘safeguarding scheme’ assessment. A decision is taken to include such land within red lines on the safeguarding map. The purpose is to protect land from development which could interfere with Crossrail2.
10. On 19 August 2020 Transport for London wrote to me saying Crossrail 2 does the engineering review of what is required to deliver the scheme. This informs the extent of the safeguarding directions. ‘Ultimately though, it is the Secretary of State for Transport who accepts that assessment and confirms the safeguarding directions. It is therefore only the Secretary of State who has the legal authority to make the directions’.
11. Mr X says the key safeguarding scheme assessment in his area was in 2014 and 2015. Mr X says the planning objection and other information shows Transport for London knew his land is required for Crossrail 2 when it assessed the area. This is because he lives at a ‘pinchpoint’ in the scheme where there is very little space for the new line and related works. Mr X tells me the land would be needed in ‘any 6 track scenario’. Mr X says it is fault for his land to have been omitted from the official map. He says Transport for London was supposed to undertake a further detailed review of the area but it did not do so. He says the recent comment of Transport for London to this office shows that its advice to the Secretary of State for Transport to sign the March 2015 safeguarding direction was fault because it had not completed a full assessment.
12. Mr X says late in 2016, having confirmed that his property was outside the safeguarding zone, he applied to his local Council to build a house. On 10 March 2017 Transport for London objected saying the land was needed for a Crossrail 2 worksite. Mr X says this was the first time he knew about the problem. A while later, the Council refused his application to develop the land. Mr X won his appeal to the planning inspector who refused his application for costs. Transport for London says the planning inspector found Crossrail 2 had not acted unreasonably in providing the Council with its advice.
13. The Town and Country Planning Act 1990, sections 150-153, gives the owner of land the right to serve a notice on an authority requiring it to purchase the land due to it being blighted by a planning development/proposal. Where an authority serves a counter notice rejecting the request there is a right of appeal to the Upper Tribunal (lands chamber). The Tribunal has the power to determine such questions as whether the land is blighted and whether compensation should be paid.
14. A landowner within the safeguarding zone and/or affected by Crossrail 2 can serve or will be able to serve a notice, as explained above, requiring the relevant authority to purchase the land due to ‘planning blight’. Mr X, in his reply to my draft decision, says in May 2019 he submitted a planning blight claim to the Department for Transport. In July 2019, the Department refused his claim because his land is not within the safeguarding zone. Mr X says the Department acted on advice given by Transport for London.
15. The Government and Parliament has not yet approved the Crossrail 2 project or funding. Transport for London says it has no funds to purchase land. Mr X says this is wrong and it has bought properties affected by Crossrail 2. I understand final decisions on Mr X’s area are yet to be made. An authority has discretion to purchase land for reasons of hardship, where a person does not legally qualify under the planning blight provisions.
16. Mr X says Transport for London acted in a negligent and fraudulent way. He says its approach denies people in his position their legal rights. Mr X says, in reply to my draft decision, he took advice from a barrister in December 2019 and March 2020. Mr X says it is not reasonable for him to pursue a court remedy due to the cost and the inability to obtain legal aid. He cannot raise money against his property or sell it. Legal action is not reasonable due to his serious health conditions.
17. On 11 March 2019 Transport for London/Crossrail wrote to Mr X explaining its position. On 17 March 2020, Mr X first complained to Transport for London. It told him he could complain to this office which he did on 1 July. Mr X says he has pursued the matter with Transport for London since he became aware of it.
18. Mr X tells me he reported the matter to the police and has a complaint with the Parliamentary Ombudsman. That office has jurisdiction to investigate the Department for Transport.

Analysis

19. I will not investigate this complaint for the following reasons:
20. The complaint about the safeguarding assessment and March 2015 safeguarding direction is outside the Ombudsman’s jurisdiction. The Department for Transport, which made the 2015 safeguarding decision, is not a body within our jurisdiction (see paragraph 4 above). We cannot investigate Transport for London/Crossrail’s assessment because it was carried out on behalf of the Department for Transport, to inform its decision.
21. Transport for London’s actions before July 2019 are outside the Ombudsman’s jurisdiction. Mr X complains late and outside the ‘permitted period’ allowed in law of 12 months (see paragraph 5). Mr X says he first knew about the position of Transport for London, towards his property, when it objected to his planning application in March 2017. He could have complained to the Ombudsman sooner.
22. The Ombudsman will not investigate Transport for London’s objection to Mr X’s 2017 planning application because there is no injustice. The planning inspector who granted his appeal, against the Council’s refusal, could remedy injustice to the extent allowed for by the law. As explained above, those actions are additionally outside the Ombudsman’s jurisdiction because Mr X complains late.
23. A complaint that a property is suffering from planning blight, including the potential development adversely affecting its sale, is outside the Ombudsman’s jurisdiction because there is a right of appeal to the Upper Tribunal (see paragraph 13 above). It would be reasonable for Mr X to use a right of appeal because the Tribunal could decide the issue. It could consider his evidence that Transport for London/the Department for Transport know his property is needed for Crossrail 2 even though it is not on the safeguarding zone map. It is not clear that Mr X used the notice procedure when he says he attempted a claim against the Department for Transport (see paragraph 14). As I have explained that Department is outside our jurisdiction.
24. Mr X may ask the responsible body to exercise its discretion to purchase his property if he has evidence of hardship.
25. The complaint that the Council has acted negligently is outside our jurisdiction because Mr X has a legal remedy at court (see 7). This includes a claim that Transport for London has damaged his health. I consider it reasonable for Mr X to use his legal remedies because a court can decide a claim and award damages. The Ombudsman cannot determine negligence or fraud which is a matter for a court.
26. We cannot achieve the outcome Mr X wants. Crossrail 2 is a central government project awaiting decisions by the Department for Transport which is not in our jurisdiction. Mr X’s arguments are for a court or a tribunal to consider rather than this office.

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Final decision

27. The Ombudsman will not investigate Mr X’s complaint that Transport for London failed to classify his property as land required for the Crossrail 2 project. Mr X says as a result he has no remedy when his property is suffering planning blight and cannot be sold. The complaint is outside the Ombudsman’s jurisdiction largely because it involves a central government department’s responsibility. We cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman