The Ombudsman's final decision
Summary: Mr X complained the Council failed to properly consider his application for an asset of community value for a pub in his village, and it failed to consider his complaint about the matter. There was no fault in the Council’s actions.
The complaint
Mr X complained the Council failed to properly consider his application for an asset of community value for a pub in his village, and it failed to consider his complaint about the matter. Mr X states this caused him frustration and the loss of the community asset.
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) 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) 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
I read the documents Mr X provided and discussed the complaint with him on the telephone.
I considered the documents the Council provided in response to my enquiries.
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
Relevant legislation Part 5 to Chapter 3 of the Localism Act 2011 provides for a scheme called ‘assets of community value’ which is a register of land and buildings nominated by local community groups or parish councils. Broadly speaking, the aim of registration is to give communities the opportunity to take control of local neighbourhood facilities which are no longer in use and then enable them to prepare a financial bid to acquire them.
The listing of an property as an asset does not compel its owner to put it up for sale, or creates any additional restriction on what on owner can do with it while they own it. It does apply a six week moratorium when a listed asset is put up for sale to allow a community group to express an interest in bidding for it, and a further period to allow the group to submit a bid.
The Assets of Community Value (England) Regulations 2012 set out the process for listing assets of community value. There are various bodies that can nominate an asset of community value (an asset) for a council to consider. One of those bodies is an unincorporated body consisting of at least 21 members. Nominations must include why the nominator thinks the council should consider the asset is of community value.
The council must decide whether land nominated as an asset will be listed as an asset within 8 weeks of its nomination.
The owner of the land has a right of appeal to a tribunal if the council decides their land or property is an asset of community value. However, there is no right of appeal for the nominating body if the council decides the asset is not of community value.
Council’s approach The Council’s website provides all the relevant information about assets of community value and how to make a nomination, or application for a property to be considered an asset. The website states it will not consider a nomination of a property as an asset if it has refused to list it in the previous two years. This is because the situation is unlikely to have changed significantly.
What happened Mr X lives in a village that has a public house which has historically been used by members of the community for various activities (the property). At the relevant time the pub had not been open as a business for a number of months.
Mr X became aware the property had been sold to new owners in the summer of 2021. As part of an unincorporated body Mr X applied for the Council to consider the property as an asset of community value in Autumn of 2021.
The application listed the relevant information and provided reasons why the Council should conclude the property was of community value.
The Council considered the application, further information and other relevant documents at a meeting within 8 weeks of its nomination. It decided it did not meet the criteria to list the property as an asset of community value. It wrote to the unincorporated body and set its reasons for the decision. It said the body had not provided: evidence of activities in the recent past that were not just incidental to the use of the property as a pub; information about why events that had occurred at the pub could not occur at other properties in the village; evidence of the impact to the local community while the pub had been closed; or evidence of how the property could be a viable business in the future.
Mr X, as part of a different unincorporated body completed a new application for the property to be listed as an asset. The application provided additional information on the matters set out in the above paragraph.
The Council considered the application and the additional information it provided. It decided that the additional information about the qualifying criteria for an ACV were anecdotal and were not materially different from the application it considered and denied the previous month. It wrote to Mr X and told him because the application was not materially different to the previous one it would not consider the matter further.
Mr X complained to the Council in January 2022 that it had not followed its own policy and the law when it refused to consider the second application. The Council responded and said there was no right of appeal on its original decision about the property and Mr X could challenge it by judicial review.
Mr X complained to us. He stated that he could not request a judicial review as he was unclear on what basis the Council refused the second application.
In response to my enquiries the Council stated the owners of the property had submitted a planning application to operate the property as a pub, café and deli.
My findings
There was no fault in how the Council considered the original application to list the property as an asset of community value. It considered the evidence provided and followed the legislation in making its decision. It provided its reasons to Mr X.
The second application contained further information and responses to the Council’s reasons for denying the original application. There is no right of review of the Council’s decision not to list a property as an asset. However, the Council did consider the further information in the second application. It decided, with reference to the legislation and the criteria for listing an asset of community value, the application was not materially different to the original, therefore it did not justify making a new decision.
The Council explained its second decision to Mr X and how he could challenge its original decision by judicial review. Mr X was aware of his right to seek a judicial review and it was reasonable for Mr X to do so at the time. The Council responded appropriately to Mr X’s complaint about the matter. Additionally, I have now considered Mr X complaint and did not find any fault in the Council’s actions.
Final decision
I have completed my investigation. There was no fault in the Council’s actions.
Investigator's decision on behalf of the Ombudsman