Report
on an investigation into
complaint no 09 014 290 against
Barnsley Metropolitan Borough Council
14 February 2011
Beverley House, 17 Shipton Road, York YO30 5FZ
Investigation into complaint no 09 014 290
against Barnsley Metropolitan Borough Council
Table of contents
Page
Report summary
1
Complaint
3
Background
3
Legal and administrative context
4
The Council’s response to my enquiries
5
The Council’s further comments
6
Conclusions
7
Findings
9
Comment
10
Key to names used
Ms J
The complainant
Section 30 of the 1974 Local Government Act says that a report should not
normally name or identify any person. The people involved in this complaint are
referred to by a letter or job role.
This report has been produced following an interview with the complainant and
consideration of relevant documents.
The complainant and the Council were given a confidential draft of this report and
invited to comment. The comments received were taken into account before the
report was finalised.
Report summary
Subject
Ms J asked Barnsley Council to sell her a narrow strip of land along the side boundary
of her home. She was building an extension and wanted the land to use as a path to
the front and back of her home. The Council agreed to sell the land for £2,950.
Before the sale was completed a Council officer visited Ms J and decided that her
extension was being built onto a small, triangular part of the strip it had agreed to sell to
her. The officer told Ms J that the land would be revalued and that she might have to
demolish the partly built extension.
The Council decided that the small triangular piece of land that it believed the extension
was on had a greater value to Ms J than if she were just using it for a path. It said it now
wanted £7,000 for the narrow strip of land – effectively valuing the small triangle of land,
20cms or 7inches at its widest point, at £4,000.
Ms J felt the new price was 'extortionate'. She complained to the Council and when the
Council held to its position, sought the help of her MP, and complained to the
Ombudsman.
The Ombudsman put to the Council that:
•
the known margins of error on plans of plus or minus almost a metre,
means it cannot be sure that the extension was built onto the land it had
agreed to sell; and
•
it had not properly considered what price it could 'reasonably obtain' for
the land taking account of Ms J's modest means and that the land had
no value to anyone else.
Council officers were adamant that they had followed 'proper valuation practice' and the
Council's standard policy and procedure when someone encroaches onto its land. The
officers said that they could not make any exception to the standard policy and
procedure on encroachment because that would introduce 'bias'. They say '… value
placed on the land is seen as a figure which could reasonably be obtained given that
the other option for resolving the situation would be to remove the gable wall and the
extension and rebuild it within the curtilage....'
Finding
The Ombudsman found that the Council acted with maladministration in deciding that
Ms J's extension encroached onto the land it had agreed to sell to her and to increase
the price by £4,000 because it:
•
did not have regard to the widely acknowledged margin of error in drawn
plans;
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•
did not consider the particular circumstances of this case when setting
the increased price (which includes Ms J’s means and that the land has
no value to anyone else) and so has not properly addressed what price
can 'reasonably be obtained'; and
•
fettered its discretion by rigidly applying its policy and procedure on
encroachment and not considering whether to make an exception.
After receiving a draft of this report the Council sought Counsel’s advice and resisted the
Ombudsman’s findings. As the report was about to be published the Council received
advice from the District Valuer that its entire approach to the valuation was incorrect and
the value of the land was considerably less than it had tried to obtain.
Recommended remedy
Ms J has suffered injustice as she has not been able to complete her extension,
causing additional expense and a great deal of worry. The Ombudsman recommends
that the Council should remedy the injustice by apologising to Ms J, transferring all the
narrow strip of land to her without cost, paying her £1,500 in recognition of the distress
caused to her, and paying the costs arising from the delay to completing her extension.
The white triangle held by the Ombudsman’s investigator represents the area of land that the
Council valued at £4,000.
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Complaint
1.
Ms J complains that the Council acted unreasonably and unfairly in seeking an
‘extortionate’ price for a small piece of land adjacent to her home thereby
delaying building work to an extension to her home.
Background
2.
Ms J lives in a semi-detached ex-council house that she and her mother bought
many years ago. It backs on to land that was once used for coal mining and is
now grassed and open. A pair of semi-detached houses that used to be next to
Ms J’s property was demolished some time ago leaving a band of land
connecting the road to the open land at the back.
3.
Ms J decided to build a side extension to her property. The Council granted
planning permission to do this in 2008. She asked the Council to sell her a
narrow strip of land along the boundary of her property and the band of land.
She wanted the narrow strip so that she could move her bins from the back of
the house on collection day. She intended to put a fence along the new
boundary so that the gable wall of the extension would be separated from the
open land and not exposed to graffiti and vandalism.
4.
After initially resisting, the Council agreed to sell the narrow strip of land (said by
the Council to be about 35 square metres) for £74 per square metre,
totalling £2,590. The sale was subject to Ms J applying for planning permission
to change the use of the land from public open space to private garden land. In
considering whether to sell the land to Ms J the Council’s Asset Management
Service became aware that her planning approval included the strip of land.
Ms J had not complied with the legal requirement to serve a notice on the
Council as landowner.
5.
When staff in the Asset Management Service looked at the approved planning
permission plans they believed that Ms J’s extension encroached onto the
Council’s land. Ms J told them that it would not – the extension would be built on
her garden and the narrow strip of council-owned land would be used for the
path.
6.
After work had begun on the extension but before the sale of the strip of land
had been completed Ms J invited an officer from the Asset Management
Service to visit to agree the site boundary. The Council says that ‘…it was
immediately apparent to the officer that the extension extended beyond Ms J’s
boundary and onto the open space…’. Ms J says the officer told her that the
narrow strip of land would be revalued, and warned her that the Council might
take legal action and require her to demolish the extension.
7.
The Council says that after it first measured the site, the extension appeared to
encroach onto the land it had agreed to sell to Ms J by 25 centimetres
(9 ¾ inches) at its greatest width. Council officers returned to carry out a full
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survey, and decided that the encroachment was less: 20 centimetres wide
(7¾ inches) and 1.6 metres long (5¼ feet) with a total area of about 0.16 metres
(1.7 square feet) – the photograph above illustrates the size and shape of the
land in question.
8.
The Council says that the original price it put on the land was for garden use. As
Ms J had used part of it for her extension it should be valued as building land,
which has a higher price. The officer identified legal action as being one of a
number of options that would only be used if the encroachment wasn’t removed
or the land bought at a higher price.
9.
Five weeks after the officer visited the Council offered to sell a re-measured strip
of land, stated to be about 33 square metres for £7,000, subject, as before, to
planning permission to change its use from open space to private garden land.
10.
Ms J felt that the price requested was extortionate and that the Council was
exploiting her situation. She complained to the Council through its corporate
complaints procedure, then approached her M.P. for help. The Council’s Chief
Executive replied to the M.P. that:
•
it appeared to him that Ms J had ‘…been let down by her builder and
architect…’;
•
a Council officer had expressed concern that the extension might
encroach in May 2009; and
•
he was satisfied that ‘…the council’s (sic) actions were proper’ and
‘…can confirm that Ms J has been treated fairly: the procedures which
apply in this case, apply to all cases.’
Legal and administrative context
11.
Section 123 of the Local Government Act 1972 says:
‘(1) Subject to the following provisions of this section, a principal council
may dispose of land held by them in any manner they wish.
(2) Except with the consent of the Secretary of State, a council shall not
dispose of land under this section, otherwise than by way of a short tenancy,
for a consideration less than the best that can reasonably be obtained.’ (my
emphasis)
12.
In addition to their statutory obligations, all public authorities must act within the
well-established public law principles for administrative decision making. These
principles protect citizens against unreasonable and arbitrary actions by public
authorities. The principles include that decisions and actions must:
•
be lawful – within the powers given to the public authority and compliant
with any legal requirements;
•
have regard to guidance and any recognised standards of practice;
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•
comply with an authority's own policy and procedure unless there is good
reason in the particular circumstances not to do so i.e. an authority must
not fetter its discretion;
•
be taken after consideration of all relevant factors and disregarding any
irrelevant factors;
•
be free of personal bias towards or against anyone affected; and
•
be ‘reasonable’ in the particular public law meaning of that term.
13.
Guidance issued by the Land Registry warns that plans used with title deeds
show only the general location of boundaries and, in the event of a dispute a
court should determine the exact location of a boundary.
14.
The Council has used plans generated from the Ordnance Survey. An Officer at
the Ordnance Survey Office has told me that its maps cannot be used to
determine the exact location of boundaries and that at a scale of 1:1250 there is
a margin of error of some +/- 0.9 metres (35 ½ inches).
15.
I have been advised by a highly qualified and experienced surveyor in relation to
the margins of error in surveys and plans, that:
•
there is no perfectly accurate method of establishing the ‘on the ground’
position of a line on a plan;
•
a typical 0.3mm line at a scale of 1:1250 is equivalent to 0.38 metres
(15 inches) on the ground.
The Council’s response to my enquiries
16.
The Council told me that after it had taken measurements:
‘Ms J then had to reapply when it became apparent that the land would
be used for building purposes and this changed the value of the land.
Whilst a path would not have a significant impact on the openness of the
green space…using the land for an extension would have a different
impact. The Council increased the purchase price to £7,000 as the land
could no longer be described as garden land or curtilage and was now
building land and of greater value.’
It also said:
‘In considering any encroachment the Council undertakes a site survey
and confirms its ownership of the land in accordance with the paper title
held… In order to formalise an encroachment the Council may
commence proceedings to ensure that any belongings are removed
from the land and the correct boundary is reinstated. Alternatively...the
Council may offer a tenancy of the land encroached upon or offer it for
sale… In valuing the land, the value to Ms J has been considered. The
alternative to purchasing the land is to remove the encroachment and
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rebuild the gable wall within Ms J’s curtilage, the cost of such works
would be substantial and would result in a less desirable extension.’
In the Council’s view it had:
‘…taken the appropriate reasonable action to help Ms J resolve this
issue’ and, ‘… further delays to date have been instigated by Ms J in
seeking to pursue matters through the Council’s complaints procedure
rather than conclude the matter in response to the offer which was made
to her. Ms J was given a reasonable opportunity to accept the proposed
terms to purchase the land which would have avoided any
consequential losses to Ms J employed professionals to guide her
through this process and it is unfortunate that have been the cause of
her difficulties…’ (sic)
The Council’s further comments
17.
In response to my invitation to comment on a draft of this report the Council said
it had ‘…followed its policies and procedures. It has a set procedure for dealing
with encroachment and to treat any individual differently could be seen as
bias…’
18.
It says it sought to achieve the best price that can be reasonably obtained and
that I believed it had taken an excessive view of what ‘reasonably’ means based
on my misunderstanding of proper valuation practice. The basis of the Council’s
valuation is not the value to it, but to the purchaser. It also says:
‘…reasonably…is open to different interpretations. The value placed on
the land is seen as a figure which could reasonably be obtained given
that the other option for resolving the situation would be to remove the
gable wall and the extension and rebuild it within the curtilage… Experts
indicated the costs of these works to be significantly more than the value
placed on the strip of land.’
It explained:
‘The area of the land may be nominal but the fact remains that Ms J
does not own the land upon which she has built her extension. The use
of the council’s land has allowed Ms J to build a larger
extension…increasing the value of her property as a whole and as such
the council has based the valuation on a proportion of the uplift in the
value of her property this proportion being based 12.8% of the increase
in value…The Council has been reasonable in agreeing to sell the land
for a figure substantially lower than the cost of remedying the
encroachment by removal of the encroachment this would entail the
removal of the whole of the gable wall together with the foundations and
it being reconstructed on Ms J’s land due to the lack of support it would
be likely in removing the gable wall the front and rear elevations would
also have to be rebuilt due to lack of stability during any period of works
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being undertaken. These works would also result in the extension being
less desirable. Based on the council requiring a percentage of any uplift
attributable …a value of £4,500 has been applied to the land upon which
Ms J has encroached…’ (sic)
19.
The Council says that the footings for Ms J’s extension extended further onto its
land than the building itself and that materials and scaffolding had been on the
Council’s land but due ‘ to the delicate nature of this particular case it was
decided not to aggravate the matter further in insisting that the relevant licences
be entered into…’
20.
With regard to the accuracy of Ordnance Survey maps, the Council says that
‘…the plans have been prepared from actual site surveys based on title deeds.
The Council did undertake a full site survey. Conventionally, this is accepted as
the proper way of establishing the position of boundaries.’
21.
The Council subsequently obtained Counsel’s opinion on an earlier draft of this
report. I carefully considered that opinion before finalising this report but saw no
reason to make any substantive changes.
22.
As this report was about to be published the Council received advice from the
District Valuer. The advice was that its approach to valuing the land was wrong.
The Council told me that it therefore had no difficulty in accepting that Ms J had
been caused an injustice and that a remedy was warranted.
Conclusions
23.
Counsel cited case law establishing that “best consideration” in Section 123
relates to commercial or monetary value and not other aspects of a proposed
development that a Council might find attractive. Put simply, case law is that
until 20031 a council could not forgo a price that it could reasonably obtain for
land and property simply because it believed that the purchaser would provide
something of benefit to the area. This point is understood and accepted but is
not related to my finding which is that in determining the best consideration that
it could reasonably obtain, the Barnsley Council should take into account Ms J’s
means, the fact that the land is of no value to anyone else, and, now, my
comments on the accuracy of the title plans.
24.
Nothing in Counsel’s opinion caused me to make any substantial changes to my
finding and conclusions.
1
In Circular 6/03 the Secretary of State gave general consent to local authorities to dispose for less than
the best consideration reasonably obtainable when the transaction was for less than £2 million and an
authority considered it to be in the interests of the social, environmental and economic well being of its
area.
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25.
The area on which the Council claims Ms J’s extension encroaches has a total
area of 0.16 square metres (less than 2 square feet) and is 20 centimetres
(7 ¾ inches) at its widest point. Given that:
•
in the title deed, plans are derived from Ordnance Survey maps which
have known margins of error of around +/-1 metre (approximately
39 inches); and
•
a line drawn when ‘scaled up ‘ at 1:500 would represent a width of at
least 0.25 metres (approximately 10 inches) on the ground;
I do not see how the Council can be certain that Ms J’s extension has
encroached onto its land.
26.
The Council’s dealings with Ms J and its responses to her M.P. or to my
enquiries and to my draft report do not acknowledge this significant factor. Its
response to my draft report on this aspect misses the point – irrespective of the
accuracy of the council’s site survey, it is relying on lines drawn on plans in the
title deeds as indicating the boundary, and these lines are subject to margins of
error greater than the widest part of the land in dispute.
27.
When selling land, the Council has a duty under the 1972 Act to obtain best
value, which is defined as the best price that can be reasonably obtained. It is
inconceivable that the Council could have obtained any value for the narrow
strip of land from anyone other than Ms J.
28.
There is nothing in the Council’s response to Ms J, to her M.P. or to my
enquiries to suggest that the Council has addressed what would be a
reasonable valuation in all the circumstances of this case. The Council’s
responses demonstrate that it considered it could extract the price it named
because Ms J’s only apparent alternatives would have been very costly and very
distressing to her. It made no enquiries about her ability to pay and took no
account of the fact that she would be the only possible purchaser.
29.
The Council has justified its decision to seek £4,500 for 0.16 metres (approx
2 square feet) of land from the owner of a very modest house for land that had
no value to it or anyone else, by saying it has applied ‘proper valuation practice’,
it has followed its policies and procedures on encroachment, and that to treat
Ms J differently to others could introduce ‘bias’.
30.
The Council suggests that Ms J is responsible for the delay because she
complained and would not complete her purchase on the terms offered until the
complaint process had been completed. This seems to me to be tantamount to
saying that a citizen who complains because they feel they have been wronged
by a council must bear the consequences of complaining irrespective of
whether their complaint is justified.
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Findings
31.
I find that the Council has acted with maladministration because it did not
comply with the well-established public law principles for administrative decision
making when it decided that Ms J’s extension had encroached onto its land and
to raise the price of the strip of land that it had agreed to sell to her by £4,500.
Specifically, the Council:
• did not have regard to the widely acknowledged margins of error in
drawn plans;
• has not properly addressed what price could ‘reasonably’ be obtained
because it has not enquired about Ms J’s ability to pay or taken into
account that there are no other potential purchasers; and
• fettered its discretion by rigidly applying its policy and procedure on
encroachment and failing to consider whether to make an exception in
this case.
32.
The Council’s maladministration has caused Ms J a great deal of worry together
with delay and additional expense in building her extension. As a citizen she
justifiably feels a strong sense of outrage that the Council should have exploited
her situation to try to obtain what she describes as an ‘extortionate’ price. The
suggestion that she has inflicted delay upon herself by complaining is, in my
view, reprehensible.
33.
To remedy the injustice I recommend the Council should:
34.
•
apologise to Ms J;
•
arrange for Ms J to acquire, at no cost to her, the narrow strip of land
(area edged in red on its plan reference DV1647EE)
•
pay Ms J £1,500 for her time and trouble in pursuing her complaint and
for the distress it has caused her; and
•
to agree with Ms J for an independent builder to estimate the cost of
getting construction back to where it would have been, but for the
Council’s actions, and to pay Ms J the sum identified by this estimate.
I welcome the council’s acceptance, albeit belated, that these remedies are
acceptable in principle although it believes that it cannot directly dispose of the
land for no consideration. I am sure it will find a suitable mechanism to achieve
the same result.
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Comment
35.
I also hope that the Council will reflect on the way that it has dealt with Ms J, her
MP and my office over this matter and the additional costs it has incurred by
seeking Counsel’s opinion over a small piece of land with significance to only
one householder of modest means who has already suffered a great deal of
anxiety and delay to her home improvements.
Anne Seex
Local Government Ombudsman
Beverley House
17 Shipton Road
York
YO30 5FZ
14 February 2011
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