The Ombudsman's final decision
Summary: Mr X complains about the Council’s decision to grant an easement over land which forms part of the site of a planning application for which its Planning Service refused permission. We will not investigate the complaint because we are unlikely an to find evidence of fault by the Council and we cannot achieve the outcome Mr X seeks.
The complaint
The complainant, who I refer to as Mr X, says the Council refused a planning application for a development adjacent to his property due to its overbearing impact but agreed an easement which will allow the development to proceed. He wants the easement refused and the development stopped.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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: there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organisation, or 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 considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
I gave Mr X the opportunity to comment on my draft decision and considered what he said.
My assessment
The Council granted an easement over land it owns to a developer for commercial gain. The easement included a clause stating its completion was conditional upon the appropriate planning consent being granted.
The proposed development covered land in both the Council area and in another council’s area, referred to as Council Q. The developer received planning permission from Council Q but the Council refused the application submitted to it covering the land in its area. The Council’s decision to refuse permission was upheld on appeal by the Planning Inspectorate but it was subsequently discovered that planning permission from the Council was not required because the work on the land in its area fell within permitted development rights.
In responding to Mr X’s complaint about this matter, the Council said the grant of the easement and planning were two separate matters and its Property and Assets Service had not been obliged to take into account detailed planning considerations which fell outside its remit. The Service did acknowledge that planning considerations would need to be considered by the relevant planning authorities and that its clause had been reasonable and sufficient provision within this context.
Mr X’s frustration that the development can go ahead based on Council Q’s planning decision is understandable. However, even if it was accepted that it would have been good practice for the Council’s Property and Assets Service and the Planning Service to have liaised, an investigation by the Ombudsman would be unlikely to find fault with the Council when the easement and planning application are separate matters with different processes and different considerations. The Council could not know what applications the developer might submit and it is through consultation in the planning process that issues such as loss of light and outlook are considered. An investigation could not lead to the outcome Mr X seeks.
In responding to my draft decision Mr X says the easement was granted by the Council without any consultation with residents despite a long history of residents being concerned with easements into their area. He says it showed bad faith by not consulting. However, as with the issue of liaison between departments described in paragraph 10 above, even if it was accepted that it would have been good practice for the Council to have consulted over the easement, there was no legal or statutory duty for it to have done so.
Final decision
We will not investigate this complaint. This is because we are unlikely an to find evidence of fault by the Council and we cannot achieve the outcome Mr X seeks.
Investigator's decision on behalf of the Ombudsman