The Ombudsman's final decision
Summary: Mr X and Mr Y complained about the Council’s handling of a tender process which it administered for a licence to operate their business on a privately owned beach. I have ended this investigation because it was ultimately the decision of a private landowner of the beach to veto Mr X and Mr Y’s application for a licence. Further investigation will be unlikely to lead to a different outcome or achieve the outcome Mr X and Mr Y want.
The complaint
Mr X and Mr Y jointly complain about the Council’s handling of a tender process for a licence to operate their business on a beach. They said they scored high enough in the tender process, but private landowners of the beach decided not to award them the licence.
Mr X and Mr Y say the process was not administered fairly or transparently and their business is at risk if they cannot operate it from the beach. They said the matter has caused them distress and ongoing uncertainty.
Mr X and Mr Y want the Council to issue them a licence in line with the results of the tender.
The Ombudsman’s role and powers
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: further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I spoke to Mr X and Mr Y about their complaint and considered information they provided.
I considered the Council’s response to my enquiry letter.
Mr X and Mr Y had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
What happened There is a beach in the Council’s area which several parties own. The Council leases part of the beach from private landowners.
In 2018/19 the Council introduced a licence scheme for the beach to regulate activities from it. The Council has a tri-party agreement with two other landowners to administer the licences.
The initial licencing scheme ran for a year on a trial basis however the Council extended the scheme for the licence holders, in part due to the inability to complete a new tender process due to the COVID-19 pandemic.
Mr X and Mr Y own an outdoor activity business and run part of their business from this beach. The Council said Mr X and Mr Y ran their business from the beach between 2020 and 2021 without a licence and without consent from the landowners. The Council said Mr X and Mr Y continued operating despite requests to stop and it issued enforcement warnings to them.
In early 2022 the Council retendered for four licences to operate from the beach and Mr X and Mr Y applied. The scheme agreement for the process stated the Council would carry out the tendering process and assess all applications against a scoring matrix. The agreement stated the two landowners ‘may make representations’. It said ‘landowners representations will be taken into account and that there is no obligation to proceed with any tender unless each landowner agrees’.
The tender application pack explained what the Council required from applicants as part of the tender process. The application pack also stated: ‘it should be noted that any recommendations that the Council make may or may not be accepted by the other landowners and the Council and its partners reserve the right not to accept all or any tender’.
The Council carried out the tender process and Mr X and Mr Y scored fourth highest. Following the tender process the Council met with the two other landowners to discuss the outcome. Records show one of the landowners did not want to award a licence to Mr X and Mr Y due to their past operating approach and the ongoing issue of enforcement. As a result, Mr X and Mr Y were not awarded the licence due to landowner veto.
Mr X and Mr Y complained to the Council about the matter. The Council’s response explained the decision not to award them a licence was because of concerns raised by the landowners regarding their historic conduct of operating on the beach without a licence. The Council referenced the terms written into the agreement and tender application pack which said landowners reserved the right not to accept all or any tender.
Mr X and Mr Y remained unhappy and complained to us.
My findings
The Ombudsman has jurisdiction to investigate the actions of the Council. We do not have jurisdiction to investigate or make findings about private individuals. We therefore cannot comment on the decision of the landowners. The tender agreement stated the agreement of all parties (the two private landowners and the Council) was required to award a licence and there was a caveat that representations from the two private landowners must be considered. The beach has private owners and the agreement in place allows the private landowners to have the final say on who receives a licence. One of the private landowners made the decision to veto Mr X and Mr Y’s licence application, not the Council.
It is open for Mr X and Mr Y to seek legal advice if they have concerns about the content and clauses in the tri-party agreement between the private landowners and the Council or about the actions of the landowners.
Mr X and Mr Y want the Council to issue them a licence in line with the tender results. However, for the reasons given above I cannot achieve this outcome for Mr X and Mr Y and further investigation into this will not lead to a different outcome. For these reasons I have ended this investigation.
Final decision
I have ended this investigation because further investigation will not achieve the outcome Mr X and Mr Y want or achieve a different outcome.
Investigator's decision on behalf of the Ombudsman