The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision not to consider his community group’s most recent application for a building to be listed as an Asset of Community Value. We found no fault in the way the Council made its decision. Mr X also raised questions of law, which we cannot determine.
The complaint
Mr X complained the Council refused to consider an application for an Asset of Community Value (ACV) status for a public house.
Mr X said the Council should have considered the application, because previous ACV decisions were based upon false information.
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 process, 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 complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.
What I found
Councils may keep lists of assets of community value (ACV), buildings or land that have as their main purpose maintaining well being or social connections in local communities. Public houses are often nominated by parish councils, neighbourhood forums, community groups or charities for inclusion on their local ACV list.
The Localism Act 2011 provides that land or a building can be an ACV, if in the Council’s opinion: it was recently used to further the social wellbeing of the local community; and it is realistic to think that in the next five years, it could be used in this way again.
Once a decision is made, there is no right of appeal for third parties, though landowners can ask for a review of the decision, which is followed by a right of appeal to the courts.
If an ACV is to be sold, communities have the right to bid for it and maintain its social use.
Mr X represents a community group who have submitted several ACV applications for a public house in their area. The Council refused to list the building as an ACV for a number of reasons, including: it was in a poor state of repair and would need substantial works to reinstate it as a public house; its location was not ideal, some distance from the community’s centre and near a busy road; it had been closed for some time and was not sold to be used as a public house, despite being on the market for a number of years; the current owners had no intention to sell or restore the use as a public house.
Mr X believes the Council’s decisions were unfair because his group submitted detailed, factual information that was not refuted, whereas the applicant and their supporters’ representations were strewn with errors and could have been easily questioned by the simplest of checks.
The Council refused to consider the most recent application because it thought it was essentially a repeat of earlier applications.
Mr X said it was unfair for the Council not to consider this application because: the Council’s interpretation of the law was wrong. This was because the Council had misinterpreted the meaning of the word ‘realistic’ in the Act. Mr X provided a copy of an ACV decision made by another council and an email with an opinion of a lawyer on how the legislation should be applied; earlier decisions were affected by false information; other councils had approved ACVs in similar circumstances; his group had provided additional information and the Council was wrong not to properly consider it.
My findings
The ACV process does not include a right of appeal for third parties, and in any event, we are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault in the process, and if we find it, we decide whether it caused a significant injustice to the individual complainant.
Mr X’s case is largely focused on the judgement the Council has made in relation to the ACV applications. The Council has made its position clear and I have seen no evidence of failure to follow the decision-making process set out in the legislation.
Mr X said that the Council’s analysis and evaluation should have been more thorough, and that factual errors in the applicants’ submissions went unchecked.
We are not an appeal body and cannot evaluate or place weight on evidence. Nor can we decide when should defer decision making to investigate issues further, or when to decide whether they have enough evidence to determine an application – these are matters of judgement for councils.
Mr X said the Council’s decision is unlawful because it has failed to properly interpret the meaning of ‘realistic’ and refused to consider the most recent application. We are not a court and cannot decide the law.
Final decision
I completed my investigation as I found no fault in the way the Council made its ACV decisions.
Investigator's decision on behalf of the Ombudsman