The Ombudsman's final decision
Summary: We will not investigate this complaint about failures of the Council to preserve a public garden. There is not enough evidence of fault to justify an investigation. Also, there is no permission to develop the site which is the subject of this complaint. Therefore, the majority of the injustice claimed is speculative. Any remaining injustice is insufficient to justify our involvement.
The complaint
The complainant, I shall call Mr D, complains as a member of a trust which owns the Diamond Jubilee Gardens (DJG). He says the Council: failed to follow decisions taken in 2014 to preserve the DJG as public open space included the DJG in a site added to the Brownfield Land Register is now proposing development of that site which includes building on half of the Gardens. It is seeking to impose that development through a Compulsory Purchase Order over land currently owned by the Trust under lease.
Mr D says this will cause a significant and permanent loss of amenity to residents and visitors. He wants the Council to: correct the entry in the Brownfield Land Register complete the 2014 decision to preserve the DJG as public open space: and change the plans for development on the site.
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: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr D and the Council.
I considered the Ombudsman’s Assessment Code.
The complainant now has an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
My assessment
Local Plans are subject to statutory procedures for public consultation and inspection by the Planning Inspectorate before the authority can adopt them.
The Council cannot change the designation of the DJG from public gardens to public open space. Such actions can only be completed as part of a formal review of the local plan.
The Cabinet decision in 2014 were not specific instructions to officers to change the designation as it is not possible for them to legally make such changes.
The Government guidance on Brownfield Land registers says: “Brownfield land registers will provide up-to-date and consistent information on sites that local authorities consider to be appropriate for residential development having regard to the criteria set out in regulation 4 of the Town and Country Planning (Brownfield Land Register) Regulations 2017. Local planning authorities will be able to trigger a grant of permission in principle for residential development for sites in their registers where they follow the required procedures. Registers will be in two parts; Part 1 will comprise all brownfield sites appropriate for residential development and Part 2 those sites granted permission in principle. Registers should be published locally as open data and will provide transparent information about suitable and available sites.”
The site is listed on part one of the register and is considered suitable for development. This does not mean a planning application will automatically receive planning permission. The Council confirms there are no sites in part two of its Brownfield Land Register.
Final decision
We will not investigate this complaint. This is because we have not seen sufficient evidence of fault in the Council’s actions. And, as no planning permission has been granted to develop the DJG the majority of the claimed injustice is speculative. Nay remaining injustice is insufficient to warrant our involvement.
Investigator's decision on behalf of the Ombudsman