The Ombudsman's final decision
Summary: Mr X complained the Council allowed a landlord on his estate to subdivide upwards of 20 properties without planning permission and turn them into Houses in Multiple Occupation (HMOs). We did not find fault with the Council.
The complaint
Mr X complained the Council allowed a landlord on his estate to subdivide upwards of 20 properties without planning permission and turn them into Houses in Multiple Occupation (HMOs) Mr X says this has caused problems on his estate including parking issues, antisocial behaviour and increased fly-tipping.
Mr X says he wants the Council to take enforcement action against the landlord.
What I have investigated I have investigated the issues Mr X has raised within the Council since the start 2020.
I have not investigated Mr X’s concerns about matters raised with, or considered by, the Council from 2006 to the end of 2019. I have also not investigated Mr X’s concerns about matters subject to ongoing investigations by the Council. I have explained my reasons for this in the section titled “Parts of the Complaint that I did not investigate”.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mr X provided comments on my draft decision which I considered before making my final decision.
What I found
The Law Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
Councils can take enforcement action if they find a developer has breached planning rules. However councils do not have to take enforcement action just because there has been a breach of planning control.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207) Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.
Local enforcement plan and procedure The Council’s enforcement procedure says once it receives a complaint it will carry our relevant checks followed by a site visit if needed. If the Council does not find a breach of planning control it will close a case.
If the Council finds a breach of planning control it will decide if planning permission may be granted retrospectively. If the Council considers retrospective planning permission could be granted it will invite the planning application.
If the Council considers retrospective planning permission would not be suitable, or a person fails to submit this following invitation, the Council will negotiate for remedial works for an informal solution. Should informal negotiation fail, the Council will decide if it is expedient to take formal action.
If the Council considers it expedient to take formal action, the Council has various options available to it such as issuing an injunction, a Breach of Conditions Notice or an Enforcement Notice.
What happened A landlord owned properties on Mr X’s estate and has expanded his property portfolio since 2006. Mr X raised many complaints with the Council about various properties owned by this landlord up to the events detailed in this complaint.
In December 2020, Mr X complained to the Council the landlord was running two properties, Property 1 and Property 2, as HMOs. The Council told Mr X it would investigate following the easing of the Covid-19 pandemic restrictions put in place by the Government.
On 10 June 2021, the Council told Mr X it would be starting its investigations into Property 1 and Property 2 shortly. The Council completed a site visit of Property 2 on 7 July 2021 but could not gain access to Property 1. The Council only found evidence of three people living in Property 2 but suspected there may be five.
The Council interviewed the landlord and continued to investigate Property 1 and Property 2.
The Council told Mr X it believed Property 1 housed four people so was operating as a HMO and the landlord needed to submit planning permission. The Council told Mr X it had allowed the landlord time to reduce the number of occupants of Property 2 to below HMO licensing levels.
Following further investigation, the Council decided Property 1 did not need a license because it had been operating as a small HMO, with four residents, before the introduction of Article 4 in 2012. The Council maintained Property 2 needed to reduce the numbers of occupation below licensing levels.
Mr X made a formal complaint to the Council about Property 1 and Property 2 at the end of August 2021. In the Council’s Stage 1 complaint response it said that it had already investigated Property 1 and Property 2 in 2010 and 2011. The Council said it found no issues with Property 1 and had inadequate evidence to take legal proceedings against the landlord for Property 2.
Mr X responded to the Council’s Stage 1 complaint response and said the Council was unwilling to act against the landlord. Mr X complained about 16 extra properties owned by this landlord.
The Council provided a Stage 2 complaint response on 11 October 2021. The Council said: It had investigated Property 1 and Property 2 in 2010 and 2011.
Following Mr X’s complaint at the end of 2020 it had investigated Property 2. The Council said it could not find enough evidence to take legal proceedings against the landlord and the landlord has since reduced the numbers in occupation of Property 2.
Following Mr X’s complaint at the end of 2020 it has also investigated Property 1 and found it to be operating as a small HMO. Because of the residence of this property it did not require a license.
It had already investigated the other properties Mr X had raised concerns about in response to the Stage 1 complaint response.
Mr X complained the Council had not fully addressed his concerns and directly referenced two properties, Property 3 and Property 4 on 12 October 2021. Mr X also raised concerns about another property on 31 October 2021, Property 5.
At the start of December 2021, the Council provided a second Stage 2 complaint response. The Council said it would raise enforcement investigations into Property 3, Property 4 and Property 5 about the matters Mr X had raised. The Council said it was unlikely further investigation into the other properties Mr X had complained about would lead to a useful outcome given the passage of time.
In December 2021, Mr X reiterated his concerns about the properties the Council was not investigating and raised concerns about further properties on 19 December 2021.
On 30 December 2021, the Council raised investigations into the outstanding 22 properties bringing the Council’s total investigations to 25 properties.
The Council’s investigations into these 25 properties are continuing to the date of decision statement.
Analysis Mr X’s initial complaint to the Council surrounded Property 1 and Property 2.
The Council could not investigate Mr X’s concerns from December 2020 until June 2021 because of restrictions in place because of the Covid-19 pandemic. The Government created the Covid-19 pandemic restrictions which limited social contact for both the public and Council. The Council has acted correctly by obeying these restrictions. I do not find fault with the Council placing any investigations on hold until June 2021.
Once the Covid-19 pandemic restrictions lifted, the Council followed its policy by attending Property 2 and trying a visit to Property 1. The Council found evidence at Property 2 of a potential breach of HMO licensing conditions and took further steps to investigate this matter including interviewing the landlord.
Following the Council’s investigations it found Property 1 was not in breach of HMO licensing conditions. The Council also negotiated a reduction in occupation of Property 2 with the landlord to bring this matter into line for an unlicensed HMO. The Council took suitable steps to investigate Mr X’s concerns and resolve the issues it identified through informal negotiations. The Council has followed its policy and I do not find fault.
Following its further investigations, the Council also found that it had completed previous investigations in 2010 and 2011 into Property 1 and Property 2. Both of these investigations found no breach of planning conditions. The Council’s investigations in 2010 and 2011 are out of time for the Ombudsman to investigate, as I have explained in paragraph 47.
After the Council issued its Stage 1 complaint response, Mr X raised extra concerns with the Council, over the period of two months, about 25 other properties.
The Council has opened investigations into all 25 of these properties. These properties did not form part of Mr X’s original complaint to the Council. But, following Mr X’s concerns, the Council has taken the correct steps to open investigations into Mr X’s concerns.
It is not for the Ombudsman to pre-empt the outcome of the Council’s investigations into these 25 properties. The Council must have opportunity to investigate Mr X’s concerns before the Ombudsman can investigate these matters. I have explained this further in paragraph 49.
Final decision
I have completed my investigation as there was no fault by the Council.
Parts of the complaint that I did not investigate I have not investigated Mr X’s complaint about matters considered by the Council from 2006 to 2019.
Mr X’s complaint to the Council involved the Council’s investigations it completed into two properties in 2010 and 2011. The Council’s investigations about these matters took place over a decade before the Ombudsman’s investigation. These investigations are outside the Ombudsman’s jurisdiction to investigate.
Mr X has also complained about Building Control matters with the Council. Mr X’s complaint relates to Building Control issues with the latest one being in April 2011. Again, this is over a decade before Mr X brought his complaint to the Ombudsman.
Mr X has shown he was aware of the HMOs on his estate since this point and has raised many complaints with the Council. Mr X has taken more than 12 months to bring these issues to the Ombudsman and there is no reason Mr X could not have complained sooner. I am also not confident there is any realistic prospect of reaching a sound, fair and meaningful decision on these historic matters given the passage of time. Therefore, the building control issues are out of jurisdiction to the Ombudsman.
I have also not investigated Mr X’s complaint about the ongoing investigations the Council is conducting into 25 properties, as detailed in paragraphs 29 to 35 and 41 to 43. This is because the Ombudsman cannot investigate a complaint unless the Council has had suitable opportunity to investigate these matters first. Mr X retains his right to bring the Council’s investigations into these 25 properties to the Ombudsman following the Council’s conclusion of these matters.
Investigator's decision on behalf of the Ombudsman