The Ombudsman's final decision
Summary: Mr B and Mr C complained the Council have not granted an easement (the right to cross land) that would enable them to implement a planning permission. We find fault with the Council’s consideration of their request because of delay, poor communications and a flawed report that went to the relevant decision makers. While we cannot say that but for these faults the Council would have granted the easement, Mr B and Mr C were caused uncertainty and put to unnecessary time and trouble. The Council accepts these findings and has agreed action to remedy their injustice, set out at the end of this statement.
The complaint
I have called the complainant ‘Mr B’. He complains the Council: has refused an easement over its land which would enable a planning permission to be carried out on land he owns, without providing sound, valid and comprehensive reasons for its decision. He says an initial decision to refuse the easement gave too much weight to the views of its housing tenants and leaseholders. He considers the decision followed an inadequate consultation and consideration of factors relevant to the decision; failed to acknowledge or reply to a complaint made by Mr B about the above.
Mr B is joined in his complaint by ‘Mr C’, who runs a company wanting to implement the planning permission granted on Mr B’s land.
Mr B says the Council’s actions have added to tensions with local people opposed to the development and have caused distress.
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 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
Before issuing this decision statement I considered: Mr B’s written complaint to the Ombudsman and information he provided in support of this, including communications he and Mr C had with the Council about the matters forming this complaint, before we began our investigation; information provided to us by the Council in response to our written enquiries.
Mr B, Mr C and the Council were given opportunity to comment on a draft of this decision statement and provide me with any further evidence they considered relevant to the complaint. I took account of any comments or further evidence they provided before issuing the final decision.
What I found
Chronology of events I set out below what I consider are the key events forming this complaint. This chronology is not intended to be exhaustive.
Mr B owns a piece of land in the Council’s area that I will refer to as ‘the development site’. Mr C runs a company that develops housing, which hopes to build houses on the development site. In 2017 the Council gave planning permission for four houses to be built on the site. The permission relied on access to the site being via an access lane to the south.
At the time of the 2017 permission Mr B understood he had access rights along the access lane to the south. However, a neighbouring landowner disputed this and threatened a legal challenge. So, in November 2019 Mr B and Mr C proposed an alternative scheme. This would again put four houses on the development site but three of them would be accessed via an access lane to the north instead.
This northern access lane is an unadopted road owned by the Council and managed by its housing services. It serves several existing properties which are either let by housing services or else where the Council is a lessee. It has both a roadway and pavement and these are in poor condition.
During consideration of the planning application the Council wrote to Mr C clarifying that a grant of planning permission would not constitute permission for use of the access road “for any purposes”. Mr C was invited to contact the Council if he wanted to discuss access. Mr B and Mr C had already had an initial discussion with Council housing services in June 2019 about the possibility of obtaining an easement. Mr B wrote to the Council immediately after that meeting setting out their position, including an explanation for why they wanted to pursue an alternative to using the southern access for three of the proposed houses.
During consideration of the planning application, the Council invited comments from those bordering the development site and received objections to the proposed use of the northern access lane. These focused on concerns the lane was narrow and there would be a potential for accidents. In particular, that construction traffic would be noisy, disruptive and potentially dangerous. Also, that development may create parking problems.
The Council planning service also consulted its highways service. The highways service raised no objection to the proposals saying the development would not add significantly to traffic using the lane nor pose any health and safety hazard. This was subject to there being a construction management plan to cover matters such as deliveries of building materials, while the development was built.
The Council approved the outline planning permission in November 2019. It required a construction management plan. It also imposed a planning condition requiring each house in the development have two parking spaces. The outline planning permission gave three years for detailed proposals to be put forward confirming such details as the house design, layout within the plot and so on (what are referred to as ‘reserved matters’).
Soon afterwards Mr C resumed negotiation with the Council over obtaining an easement. He offered to make improvements to the access lane and for owners of the new houses to assume to ongoing costs of maintenance (matters also referred to the June 2019 letter). In December 2019 the Council asked Mr C to draw up detailed plans for improvements to the roadway and pavement including the installation of dropped kerbs. By March 2020, Mr C had provided this information.
When Mr C then asked the Council for a decision it said the matter would be “held in abeyance” while it responded to the COVID-19 pandemic. At this point (March 2020) the Council also said that it would be carrying out consultation with its tenants.
Mr B and Mr C were unhappy with the delay and wrote to the Council accordingly in April 2020. Thereafter they wrote again to the Council in August 2020 wanting an update on progress. In response to this latter communication, they were told the Council could resume negotiations. And by December 2020 Mr C and the Council valuer agreed terms for the proposed easement. These provided for repairs and improvements to the access road and a financial contribution to the Council.
The Valuer’s email to Mr C told him the Council would “agree to the easement”. But when Mr B and Mr C chased again in the early months of 2021, they were told the Council still needed to carry out consultation with residents. The Council said the delay in carrying out consultation was because of the need to focus on work arising from the COVID-19 pandemic.
Consultation took place in June 2021. Tenants and leaseholders using the access lane were asked if they if they had any objection to the Council allowing access for development along the lane and if so, to give reasons. The consultation letter noted that if the Council granted the easement, the developer had “agreed to carry out the required maintenance and repairs to the road in return for that consent”.
All those who responded to the consultation objected to the Council allowing access. They cited concerns including the narrowness of the access lane and the potential for accidents, impact on their access and parking and concern at the impact of construction traffic. Other nearby residents, who were not part of the consultation, also wrote to the Council to object. So did the local parish council.
In July 2021 the Council considered the easement request at a meeting of its senior housing officers. They received a report setting out the terms of Mr C’s offer and summarising the outcome of the consultation.
The Council decided not to allow access noting the views of its tenants and that the development site had an alternative access point (the southern access lane).
In September 2021 there was an exchange of letters between solicitors acting for Mr B and Mr C, and the Council. The solicitor’s letter said the Council: had engaged in an unnecessary consultation exercise, given residents’ concerns had already been aired during the planning process and their objections were not sustained; had carried out an inadequate consultation as it did not set out the highway officer assessment of objections nor the full detail of proposed improvements to the access lane; that the December 2020 email had created the legitimate expectation the Council would grant the easement.
In its response the Council said: Mr B and Mr C had known of the need to consult tenants and leaseholders since March 2020; so no legitimate expectation was created by the December 2020 email; that such consultation was in accord with the law (Section 105 of the Housing Act 1985) which said it must involve tenants in matters that ‘substantially affected’ them; also Government guidance and its own ‘Resident Involvement Strategy’; that when it consulted with tenants, it had made them aware of what improvements would be made to the access lane.
Next, Mr B and Mr C decided to approach the Council using its complaint procedure. Mr B submitted a complaint in October 2021 and sought to follow this up. But his contacts were not acknowledged and the Council told us it had no record of the complaint, despite Mr B having copies of the emails he sent.
Mr B and Mr C next approached a local Councillor. Further to that involvement, in January 2022, Mr B and Mr C proposed they would put forward an amended scheme for the development site, reducing the number of houses accessed via the lane from three to two.
In February 2022 the Council housing service management team re-considered the proposal, something Mr B and Mr C were unaware of at the time. The Council presented a further report to its management team which was in similar terms to that put forward in July 2021, although noting the amendments to the proposed development.
The Council has not provided a minute of the meeting. However, an email sent later by the manager who presented the report said the meeting had not decided whether to grant access rights. It had resolved to obtain an opinion from the highways service about whether concerns raised by residents could be mitigated. I have seen no record that this advice was communicated to Mr B or Mr C at the time.
In March 2022 a highways officer told a Councillor making representations on behalf of Mr B and Mr C that if they were wating for an up-to-date plan of proposals and comments on resident’s concerns. The officer said on receipt, they would give an opinion to the housing service. Mr B and Mr C said they were unaware of this until the Councillor received this advice, and I have seen no record this advice was communicated to them before this time.
Mr B provides an email showing that in May 2022 Mr C submitted information in response to the highway officer’s request.
In August 2022 Mr C attended a site visit with a representative from the housing service and local residents. Mr C’s note of the meeting says there was discussion of potential modifications to the scheme and access arrangements for construction. These would require a further planning application.
Findings
I find the Council has always been clear in its communications with Mr B and Mr C that its grant of planning permission did not confer a permission to use the access lane for their development. But it has clearly been willing to consider granting an easement to allow this.
There is no set procedure a Council must follow where it receives a request for such an easement. However, as the Council has explained, in law, it must have some consultation with its tenants over matters which substantially affect them. I find the potential grant of access rights over the access lane - both for the purpose of development and future access to the houses on the development site – could be considered as ‘substantially affecting’ those tenants or leaseholders who use that lane currently. Consequently, I could not find fault in the Council’s view that it needed to consult with its tenants.
But I note an email sent to Mr C in December 2020 was potentially confusing and may have led Mr B and Mr C to think such consultation had completed or was no longer required. Because while the Council is correct to point out it first mentioned consulting with tenants in March 2020, the email of December 2020 reads as implying the Council had agreed to the easement in principle, at that time. Mr B and Mr C may have had exercised some caution on reading it, given the Council had gone silent on the question of consultation and the exact terms of any easement were not yet agreed. But the failure of the Council to add a proviso to that email to explain its consultation remained outstanding, was a fault. I will address the injustice that arises from this fault below.
I have gone on to consider a number of issues relating to the Council’s consultation. The first is its timing. I note that in June 2019 Mr B and Mr C had some initial discussion with the Council and promptly resumed this on receiving planning permission in December 2019. There was activity in response between December 2019 and March 2020 and again from September to December 2020. But in between these dates and between January and June 2021, there is no evidence to suggest the Council was actively seeking to progress the request. So, that equates to around ten months of delay.
I cannot ignore that this delay coincided with the COVID-19 pandemic which caused obvious disruption. I have no doubt that in common with other councils, Cornwall Council diverted resources to deal with the pandemic response. It will also have faced disruption with higher levels of sickness and absence, as well as officers adapting at short notice to new ways of working. It would be unrealistic to expect ‘business as usual’ and I consider some delay in these circumstances as therefore unavoidable and not justifying a finding of fault.
I also accept that the Council, as with any landowner, was not under any obligation to negotiate with Mr B and Mr C nor, if it chose to do so, within any set timescale. But that said, the Council had clearly entered negotiation over an easement and never withdrew from that commitment. So, while Mr B and Mr C could expect the wheels to turn more slowly because of the pandemic, they would not have expected them to stop completely. Yet this is what happened, especially in the early months of 2021, by which time the Government expected councils to have resumed much of their day to day functioning as before March 2020.
On balance, therefore I think it fair to find fault in around four months of delay in the consultation starting. I will address the injustice caused as a result later in this statement.
The second matter that arises over the consultation, concerns the form that it took. In this case the Council wanted its tenants’ views on whether they thought it should grant the easement. Inevitably, by phrasing the question the way it did, the consultation led residents to repeat objections made previously. I understand why Mr B and Mr C feel this was unfair, given those objections were earlier aired during the planning process. But I cannot find fault in this. Because on this occasion the Council was consulting in a fundamentally different guise, that of a landlord and not a planning authority. Something that carries with it different responsibilities. The Council had to show it was listening to its tenants and undertaking a consultation that allowed for a broad range of responses, was consistent with that.
On balance, I am also satisfied tenants were given enough information as part of the consultation. They were apprised of the access rights under consideration and had a plan to aid their understanding showing new dropped kerbs. The Council also commented that approval of the access would result in improvement to the access road. So, while the letter inviting comments could have provided more detail of the proposed repairs and improvements, any omissions were not significant enough to justify a finding of fault.
The third issue is how the Council then reported on the consultation. I have more significant concerns here. I find the report given to housing managers did not comment on the duplication of resident’s concerns which had been considered as part of the planning process. The Council shown have known therefore the view of its highways officers, as this was in the public domain. I consider it would have been relevant to consider those views as part of the evaluation of the consultation responses.
I also find the report did not address the issue of the second access to the development site, even though the Council went on to rely on this in its decision. I do not criticise the Council for thinking this potential alternative access route relevant. But it failed to refer back to what Mr B put in writing to the Council in June 2019 about why an alternative access was now sought. Nor have further communication with Mr B or Mr C about this matter if clarification were needed.
The report also did not make clear what weight the Council gave to those consultation responses which it had not invited; from residents who were not part of the consultation or the parish council. Having mentioned those responses, the report should have made clear if the Council proposed giving any weight to them, and if so why, as they were not part of the consultation.
I consider there was fault therefore in how the Council considered the question of the easement in July 2021. Because factors relevant to the Council’s decision were not adequately considered. I will address below the injustice caused as a result.
I turn next to Mr B and Mr C’s attempts to get the Council to look again at its decision to refuse the easement. I am persuaded by Mr B’s evidence that they tried to raise a complaint in October and November 2021. While I note that Mr B and Mr C knew something of the Council’s position following the exchange of letters with their solicitor, it is still fault for the Council not to have acknowledged or answered the complaint.
Thereafter Mr B and Mr C succeeded in getting the Council housing service to look again at their request for access to the development site, although they were not told the matter was returning to a management meeting in February 2022. I find the report presented to that meeting contained the same flaws as that presented in July 2021. In addition, I find confusion surrounded the outcome of that meeting. It is fault Mr B and Mr C were not told the outcome.
However, clearly by mid-March 2022, Mr B and Mr C knew the Council was willing to re-consider its position over the easement if provided with more detailed advice from highways officers. Mr B’s evidence is that Mr C provided the information needed to inform that detailed advice in May 2022. However, it is not clear the advice followed, nor if it did, what account the housing service took of it.
Potentially, this points at more fault by the Council. However, I have decided not to pursue this line of enquiry. Because it is evident by August 2022 Mr B and Mr C were now actively considering the option of submitting a further planning application with some significant changes from 2019. This followed more discussion with the housing service and local residents. I consider this marked a new chapter in the life of the development site. It would be premature to take a view on the Council’s ongoing administration following the opening of this new chapter. Although, I consider the Council can learn lessons from earlier faults to try and ensure there is no repeat and it has accepted a recommendation for action designed to help achieve this.
Summary of fault and injustice caused In summary therefore I find fault in this case in the actions of the Council because: its email of December 2020 did not qualify that it still needed to complete its consultation with tenants before it could agree an easement; that consultation was then subject to an excessive delay of at least four months; reports presented to housing managers further to the consultation, in July 2021 and February 2022, did not address factors relevant to a decision on whether to grant the easement; it did not acknowledge or respond to a complaint made by Mr B in October 2021; it did not record the outcome of the February 2022 meeting nor communicate the outcome of discussion to Mr B or Mr C.
As a result of these faults, I find Mr B and Mr C were caused the following injustice: the email of December 2020 created a raised expectation the easement would be granted subject to agreement on terms; the subsequent delay caused uncertainty and put Mr B and Mr C to unnecessary time and trouble; the flawed reports mean there is uncertainty if the Council would have made the same decision further to those meetings, something we consider a form of distress; the failure to acknowledge or answer the complaint put Mr B and Mr C to more time and trouble; the failure to record the outcome of the February 2022 meeting nor communicate the outcome of the discussion also led to more time and trouble as Mr B and Mr C had to enquire to find out what was agreed.
However, I do not find that Mr B and Mr C have incurred costs because of these faults. I accept they will have incurred costs in drawing up plans for development and the access road. Also, they will incur costs should they now present a new planning application. But Mr B and Mr C embarked on negotiation with the Council over the easement with no guarantee of success and so knew there was always a risk involved in spending money to bring their scheme to fruition.
I cannot say the Council was bound to give its approval for the easement. Because it would always have had to give some weight to the objections of its tenants. The question of how much weight to give those objections is something at its discretion. That is why I have found the injustice is one of uncertainty – that it is possible the Council may have made a different decision, but we could not say on the balance of probabilities that it is likely to have.
I also find no evidence the Council’s actions have heightened any tensions which may exist over the development site. Clearly, there has been opposition to the scheme, but this is not the result of any fault by the Council as the objections do not arise from any flawed consultation. If objectors have not always conducted themselves in a respectful way towards Mr B or Mr C then that is regrettable, but the Council cannot be held responsible for that.
Agreed action
The Council has accepted the findings set out above. To remedy injustice caused to Mr B and Mr C it has agreed that within 20 working days of a decision on this complaint it will: provide an apology to both accepting the findings of this investigation; pay each £550 in recognition of their distress, time and trouble; set out in writing its current position on the easement request in the light of Mr C’s contact with the housing service since summer 2022 including whether this is now agreed in principle (pending a new planning application and any details of the same) or would be subject to further consultation and if so what this would consist of; commit that in the event Mr B and Mr C need enter further correspondence to pursue this the Council will keep in touch with them at least once every 20 working days until a decision is made.
The agreed financial remedy takes account of advice contained in the Ombudsman’s published guidance on remedies. Mr B and Mr C will each receive £300 in recognition of their distress and £250 for their time and trouble in line with that guidance.
Final decision
For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B and Mr C. The Council accepts this finding and has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.
Investigator's decision on behalf of the Ombudsman