Summary: We will not investigate Miss X’s complaint about the Council not ensuring public rights of way. This is because part of the complaint is outside the Ombudsman’s jurisdiction. Also, there is not enough evidence of fault and further investigation is unlikely to lead to a different outcome for achieve anything more for Miss X.

The complaint

1. Miss X complains the Council allowed a fence to be erected across a playing field, preventing public access. She says the planning permission for the fence was invalid because the leaseholder did not sign the ownership certificate. She also says the Council failed to follow its Community Asset Transfer (CAT) policy because the organisation that received the asset has since been dissolved and the asset is now controlled by an individual. Miss X says the Council approved the CAT on the basis the land would remain accessible to the public, but access has since been restricted. As a result, she, her family members with disabilities, and other members of the community can no longer use the field. Miss X wants the Council to restore public access to the site.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. 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)(b), as amended)
4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

Back to top

How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Miss X complained the Council failed to ensure public access to the playing field, including access for people with disabilities. The Council says there is no recorded public right of access over the land. It says no person, whether disabled or not, has a legal right of access to the site. Therefore, we are unlikely to find fault for it failing to take account of its duties under the Equality Act.
9. The Ombudsman cannot determine whether public rights of way or other rights of access exist over land. If Miss X believes a public right of way exists, it would be reasonable for her to apply for a Definitive Map Modification Order (DMMO). If the Council refuses the application, there is a right of appeal to the Planning Inspectorate. Alternatively, if Miss X believes the land should be registered as a Town or Village Green, there is a separate process for deciding that issue. As there are alternative statutory processes available to decide rights of access over the land, this part of the complaint falls outside our jurisdiction.
10. Miss X complained the Council should void the approved planning permission because the leaseholder did not sign the correct ownership certificate. The Council explained that, where a lease is in place for more than seven years, it amounts to landownership in Land Registry terms. It also explained that planning law allows a person to apply for planning permission on land they do not own, provided the relevant ownership certificate requirements are met. The Council was satisfied those requirements had been met. It also carried out a site visit and was satisfied the fence had been erected in the approved location. The Council was entitled to use its professional judgement when determining the application. Therefore, there is not enough evidence of fault to justify an investigation.
11. Miss X complained the dissolution of the organisation that received the CAT breached Council policy and the lease arrangements. The Council confirmed it was aware the original company had been dissolved. It said the individuals involved remain responsible for the site. The Council confirmed the necessary insurance arrangements are in place and said it was not aware of any public funds being used to maintain the land. The Council also said the tenant agreed to install a gate to improve access, despite there being no obligation within the lease to do so. Therefore, further investigation is unlikely to lead to a different outcome or achieve anything more for Miss X.

Back to top

Final decision

12. We will not investigate Miss X’s complaint because part the complaint is outside the Ombudsman’s jurisdiction. Also, there is not enough evidence of fault and further investigation is unlikely to lead to a different outcome for achieve anything more for Miss X.

Back to top

Investigator's decision on behalf of the Ombudsman