The Ombudsman's final decision
Summary: Mr X complained the Council held a music event on common land, which included structures such as a stage, lighting, and fencing, without securing the necessary permission from the Secretary of State. The Council was at fault for proceeding with events which included temporary structures without consent from the Secretary of State. The Council agreed to make a public apology.
The complaint
Mr X complained the Council held a music event on common land, which included structures such as a stage, lighting, and fencing, without securing the necessary permission from the Secretary of State.
Mr X said the Council acted unlawfully and denied the public access to the common land as an open and unenclosed space.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
As part of the investigation I have considered the following: The complaint and the documents provided by the complainant (including his medical evidence).
Documents provided by the Council and its comments in response to my enquiries.
The Commons Act 2006.
The Greater London Parks and Open Spaces Order 1967.
The Government’s common land guidance sheets.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation and guidance Under section 38 of the Commons Act 2006, no ‘inclosure’ can be made on a metropolitan common which is controlled and managed by a London Borough council. Any structure which excludes the public from the common (e.g. a building, fence, or wall) amounts to an ‘inclosure’.
Article 7 of the Greater London Parks and Open Spaces Order 1967 qualifies this general prohibition as it says specified facilities may be provided on a metropolitan common if they are for public recreation.
However, Article 12 of the Greater London Parks and Open Spaces Order 1967 says that if such facilities require a building or structure or permanent enclosure they cannot be provided without the consent of the Minister.
What happened On 6 April 2021, an event organiser applied for planning permission to hold entertainment events on common land during August and September. The events required temporary structures, including fencing, a stage, lighting, and tents.
The Council applied to the Planning Inspectorate for permission to construct temporary works on common land on 23 April. The application was made under Article 12 of the Greater London Parks and Open Spaces Order 1967.
The Council said the works would include fencing, other structures, and the creation of a site for temporary events. The fencing would be steel and would line the event site. The structures would be a mainstage, big top style tents, toilets, and welfare facilities.
In August, the Planning Inspectorate told the Council it needed to hold a public enquiry because it received over 450 representations. It therefore said it could not decide the application before the event was due to take place. It also said it was not satisfied there is a power to grant retrospective permission for the works. It concluded by saying there was no chance it could make a decision before the works took place and no possibility of retrospective consent.
In response, the Council raised four points: Whether temporary installations for entertainments need consent from the Secretary of State, given authorities can enclose land for temporary entertainment events.
Typically, authorities do not learn details of installations until a few months before the event, which does not allow enough time for an application to be determined by the Secretary of State.
Only one tenth of the Common land was to be used, the relevant legislation allows enclosure, and the application is simply for the necessary structures the event needs. The Council considered this should be an easy decision for the Secretary of State to make.
The Council considered the power of retrospective consent does exist and also said the planning inspectorate had granted consent in similar circumstances before.
Mr X complained to the Council on 12 August 2021 about its plans to go ahead with the events without consent from the Secretary of State. He accused the Council of breaking the law and questioned the Council’s grounds for doing so.
The Council granted planning permission to the event organiser on 16 August 2021.
As part of the planning application process, the Council considered the following: An estimated income of over £300,000 for the events, including an expected £63,000 contribution to its Parks Investment Levy.
No comments were received from ward councillors.
Community members had concerns about the impact on the site.
The impact on the community, in terms of parking, waste, and noise, and potential for ground damage.
Its powers to enclose open spaces for the purposes of entertainment, such as concerts, under the Open Spaces Act 1906, the Local Government Act 1972, and Greater London Parks and Open Spaces Act 1967.
The Council allowed the events to take place, including the planned structures, without the Secretary of State’s consent for the works.
The Council responded to Mr X’s complaint on 8 September 2021. It said its application for works consent was still being considered by the Planning Inspectorate, who indicated it may need to hold a public enquiry.
The Council said it did not wish to withdraw its application and had discussed the possibility of a retrospective decision.
Mr X asked the Council to consider his complaint at stage two of the process on 11 September. He said the Council was aware it did not have permission for the events and that it was not legal to close part of the common without it.
The Council sent its final complaint response on 20 October. It said: It applied to the Planning Inspectorate on 22 April 2021, as soon as it had the necessary information from the event organiser.
The Planning Inspectorate has not yet decided the application and there is no caselaw about temporary event infrastructure on common land. As such, the Council said there had been no decision it had failed to adhere to legal requirements.
The Council’s planning report confirms it consulted its legal and governance team, as well as its senior lawyer.
The Local Government Act 1972 gave it the power to ‘arrange to be done anything that is necessary or expedient for the provision of entertainment, such as concerts, within or without their area.’ It said this includes the power to enclose any part of a park owned or controlled by the Council.
The Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 also allowed it to enclose any part of an open space, and to erect and maintain structures it considers necessary to provide amusement fairs and entertainments.
The actions of the Council’s events team were taken in accordance with legal advice and current legislation.
The Planning Inspectorate made its decision on the application in March 2022. It did not grant consent for the works. It said it was not a good use of public money to decide an application where an event had already taken place and the structures removed. It therefore did not consider the merits of the application.
My investigation In response to my enquiries, the Council told me it had extensive discussions with officers in its legal services department about the event. Its legal services advised the relevant legislation permits the Planning Inspectorate to consider matters retrospectively.
The Council said the Greater London Parks and Open Spaces Order 1967 does not state whether it refers to temporary or permanent structures. It said other local authorities hold events on common land without applying to the Planning Inspectorate for permission. The Council said it is leading the way nationally in making these applications.
The Council told me it enclosed 10% of the common for the event, for 25 days. It considered the potential damage to the common, and event organisers pay a damage deposit up front and are required to cover the cost of repairs. The Council carries out surveys before and after the event. The ecological value of the area is low, and the Council has used events funds to improve drainage, levelling, and re-seeding. This meant damage was negligible and over 90% of the event area was open to the public again in a few days.
The Council said it considers the positive benefits of holding events on 10% of common land outweighs the temporary inconvenience.
The Council has now employed a specialist planning consultant to enhance its ability to make Secretary of State consent applications and engage with the Planning Inspectorate about the process.
The Planning Inspectorate granted consent for similar entertainment events, involving similar works and structures, for the summer of 2022.
Analysis The Council’s planning report (the report) states the Council has the power to enclose any open space, for the purposes of entertainment. The Council has quoted relevant law in support of that statement, and it is not for the Ombudsman to decide whether the Council is correct.
I also found the report properly considered the merits of holding entertainment events on common land. It weighed the benefits against local objections in reaching its decision and, while I appreciate Mr X’s (and other residents) concerns about the impact on the common land, I have not seen evidence of fault in the Council reaching its view.
However, the report does not refer to the fact the Council was seeking consent from the Secretary of State for the associated works structures. I can therefore understand why Mr X said the Council should not have granted planning permission while this remained unresolved.
I found the Council applied to the Planning Inspectorate for consent for the works structures, but when it learnt consent could not be granted in time it decided to proceed with the events, and with erecting the structures, in the hope of receiving retrospective permission. That did not happen. By the time the Planning Inspectorate considered the application, the event had already taken place. It therefore saw no benefit in making a decision or holding a public enquiry. The merits of the application were therefore not considered.
Whether it is possible to grant retrospective consent for such an application is not a question the Ombudsman can answer. It is for the Planning Inspectorate or the courts to determine.
While retrospective decisions may be possible, the Council cannot prejudge the application or the views of the Planning Inspectorate. On the evidence seen, there was a difference of opinion about the merits of the case and whether retrospective consent can be granted. The Planning inspectorate also put the Council on notice that it did not consider it had the power to make a retrospective decision, and indeed that it did not intend to do so.
I therefore found the Council was at fault for proceeding with events which included temporary structures without consent from the Secretary of State.
I understand the Council’s point about the timescales. If the Council applied for permission in April that was four months before the event. It may not have been possible for the Council to apply sooner. However, that does not give the Council the right to proceed without consent.
The Council said it is leading the way by requesting the Secretary of State’s consent for temporary structures on common land, and other councils do not do so. I do not find that argument persuasive. There is little point in doing so if the Council goes ahead with an event regardless of whether consent is granted.
The Council was aware the Secretary of State’s consent was required, or it would not have applied for consent for the events in 2021 and now again for upcoming events in 2022. To apply for consent but then proceed with the event before a decision is made, and without receiving that consent, has the same effect as if the Council had not applied for consent in the first place.
Mr X considers the events were unlawful due to the lack of consent for the structures from the Secretary of State and that the Council unlawfully denied the public access to the common. That is ultimately a question for the courts, not the Ombudsman.
To be clear, I do not find the Council at fault for holding the events. It is the works to erect the associated structures, such as fencing, stages, and tents, without consent from the Secretary of State which I find the Council at fault for.
Injustice I have considered whether Mr X suffered any personal injustice as a result of the Council’s fault.
Mr X said he, and the community, were denied access to the Common as an open space. I found the Council has the power to hold entertainment events on the Common and that it properly considered the merits of the event. It also only enclosed 10% of the Common, so Mr X and others could still access most of the Common lands.
In addition, I found the Planning Inspectorate did grant consent for similar events, with similar structures, to be held in 2022. While I cannot say definitively what the outcome would have been if the Planning Inspectorate had determined the 2021 application, on balance I consider it is likely it would have granted consent. The Planning Inspectorate wanted to listen to public concerns (due to the volume of comments received), but this related mainly to the merits of the event itself, rather than the associated works. Also, the situation for the events in 2021 would be much the same as the events in 2022 which the Planning Inspectorate granted consent for.
On that basis, I found Mr X did not suffer significant personal injustice in terms of being able to access the Common.
However, Mr X, and other members of the community, did feel a valid sense of outrage and frustration at the Council for not following the correct procedure. They also lost the opportunity to influence events by expressing their views at a public enquiry. That is Mr X’s, and the community’s, injustice.
The Council must be mindful of the impact its decision-making has on public confidence and trust. It sets a poor example when the Council does not hold itself to the same standards it holds the people it serves to.
Agreed action
Within four weeks of my final decision, the Council agreed to make a public apology for holding an event on common land which included temporary structures without securing the relevant consent from the Secretary of State.
Final decision
I have completed my investigation. The Council was at fault for proceeding with events which included temporary structures without consent from the Secretary of State and agreed to make a public apology.
Investigator's decision on behalf of the Ombudsman