The Ombudsman's final decision
Summary: Mr X said the Council’s failure to conclude its investigation into unauthorised works to a listed building meant he could not sell his property. We did not find the injustice Mr X claimed arose from the Council’s delayed enforcement investigation. However, the Council agreed to prepare an investigation plan to ensure it maintained progress dealing with unauthorised works to the listed building. The Council also agreed to prepare an action programme to address its backlog of enforcement cases that had been open for at least two years.
The complaint
Mr X said the Council delayed and provided inaccurate information about its enforcement investigation into unauthorised works to a listed building. Mr X said this led him to lose a buyer for his property, which was part of the listed building but not affected by the works. Mr X said the lost sale led him to incur avoidable legal and other costs, caused distress and put him to avoidable time and trouble. Mr X wanted the Council to conclude its enforcement investigation and compensate him for losses linked to him not being able to sell his property.
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) Where we find fault, we must also consider whether that 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
I: considered Mr X’s written complaint and supporting papers; talked to Mr X about the complaint; asked for and considered the Council’s comments and supporting papers about the complaint; and shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.
Background
A listed building has specific legal protection because of its special architectural or historic interest. Development affecting a listed building may need both planning permission and listed building consent from the local council. If councils refuse planning permission and or consent, the applicant may appeal to the Secretary of State. The Planning Inspectorate, acting for the Secretary of State decide most appeals.
Councils have enforcement powers where work takes place without, or not in compliance, any necessary planning permission and or listed building consent. Councils do not need to act against every breach they find. Rather, they have discretion to act.
Councils also usually have choices in how they respond, and Government guidance says a response should be proportionate. Councils may, for example, ask a developer to submit a retrospective application for permission and or consent. Councils also have powers to issue listed building enforcement notices. Councils should be satisfied it is ‘expedient’ to issue a notice having considered the effect of the works on the character of the listed building. A notice must set out the steps to be taken, and by when, to restore the building or address the impact of the works. Those receiving a notice have a right of appeal, which appeals are also determined by the Planning Inspectorate acting for the Secretary of State.
It is an offence to carry out works affecting the character of a listed building both without first getting consent or that do not comply with conditions on a consent.
The Council has a 2019 enforcement policy which, reflecting national advice, says it will adopt a proportionate approach to enforcement problems. The Council also has a planning enforcement plan (‘the Plan’). The Plan says the Council will take formal enforcement action where a breach causes serious harm, but the action taken will be reasonable and proportionate to the harm caused. The Plan says formal action may take many months to conclude in complex cases or where the Council asks for a breach to be put right. The Plan says the Council’s preference is to informally negotiate a solution where it finds non-compliance.
What happened In November 2019 the Council was considering an application for listed building consent for works to a building (‘the Building’). The Council found the works had started and extended beyond those described in the application. The works were stopped and the Council opened an enforcement investigation. The Council decided to further assess and report on the impact of the unauthorised works on the Building and later visited the site to inspect the works.
In December 2019, the Council refused the application for listed building consent. The applicant appealed the Council’s decision.
Correspondence between the Council and third parties linked to the Building showed differing views about whether unauthorised works had taken place. In late January, the third parties said they would apply retrospectively seeking consent for the works. The Council received the application in late February 2020.
In early March 2020, the Council completed its report assessing the impact of the works that had already taken place, without consent, to the Building. The Council contacted third parties linked to the works inviting them to a formal legal interview about the works. COVID-19 restrictions came into force and the Council received responses refusing to attend for interview. The retrospective application for the works was also withdrawn.
Two months later, in late May 2020, the Council received a further retrospective application seeking consent for works carried out to the Building. Having taken specialist advice, the Council approved the application in mid August 2020. The approval did not apply to all works that had been carried out to the Building since 2019.
In November 2020, the Planning Inspectorate dismissed the appeal against the Council’s decision refusing consent for works to the Building (see paragraph 12.) The Council reviewed the case taking account of both works now with consent and those remaining unauthorised and, in January 2021, sought (but did not receive) legal advice.
In November 2021, on an unrelated matter, there was a Council visit to the Building. The visit noted possible further unauthorised works.
Around February 2022, Mr and Mrs X were selling their property (‘the Property’), which was part of the Building. The Council received a standard property search made by potential buyer of the Property (‘the Buyer’). The Council’s response to the search said there was an ‘ongoing enforcement investigation about alleged unauthorised works to a listed building’.
In mid March 2022, the Buyer asked the Council for more information about the investigation and whether it related to the Property or the Building as a whole. The Council confirmed (‘the Email’) the investigation was continuing and “this may affect [the Property] the works are specified in the most recent applications on our website.” The Council said it could not give a date for when it would complete its investigation.
Mrs X then contacted the Council saying the Buyer would not wait beyond the end of the week. Mrs X also told the Council the Building owner had advised the works authorised by the 2020 consent were about to be certified complete. Mrs X also reported the owner as saying it was “ridiculous” the Buyer took notice of the search when the Property and works were on different floors and at opposite ends of the Building.
The Council replied to Mrs X explaining the 2020 consent retrospectively authorised some but not all the works carried out in 2019 to the Building. A recent visit indicated further unauthorised work had taken place although it might not directly affect the Property. The Council said it would visit the Building to assess the situation and then let Mrs X know the position for the Property. The Council then contacted third parties at the Building proposing a visit the following week and, in an email, advised Mrs X of the visit date.
In correspondence that followed, Mrs X said the problem was the Email (see paragraph 19) which the Council sent the Buyer and its “untrue” comments. Mrs X the Council’s enforcement investigation was nothing to do with the Property. Mrs X asked the Council to urgently confirm in writing there was no enforcement action affecting the Property. The Council replied it needed to visit the Building to better understand matters before sending Mrs X a ‘comfort letter’. It also said if there had been no unauthorised works at the Property, there would be no breach of planning or listed building laws. Mrs X then asked the Council to immediately confirm in writing the Property was not affected after its visit.
Before the visit took place, the Council again wrote to Mrs X saying it had told the Building owner and Buyer the Property did not appear to have been affected by the unauthorised works. The Council confirmed it would shortly visit the Building and then update Mrs X.
The Council visited the Building in late March 2022. Later the same day, it wrote to Mrs X saying it had found unauthorised works in the Building but confirmed they did not appear to affect the Property. The Council said it would consider whether to take formal action against the unauthorised work. The Council clarified it was not considering legal or other formal enforcement action in relation to the Property.
In early April 2022, following further contact, the Council wrote again to Mrs X. It pointed out that it had previously confirmed, including to the Buyer, that no unauthorised works in the Building affected the Property. It continued to investigate unauthorised work in the Building and could not say when the matter would be concluded. It had to respond to property searches and was not responsible for decisions made by mortgagees and potential buyers. The Council reaffirmed that none of the works under investigation affected the Property.
Mrs X replied the Email had caused problems as it was the Council’s poorly worded and inaccurate first response to the Buyer. Mrs X also said it was unacceptable to leave an investigation open ended. And the Council should decide what to do by the end of April given it had identified the unauthorised works in March 2020 (see paragraph 14). Mrs X said she would remarket the Property and the Council needed to ensure its future search responses were accurate and unambiguous.
The Council treated Mrs X’s contact as a complaint. In replying the Council recognised that it was distressing when a property sale fell through. But it had correctly handled the property search, which it had followed up with a site visit. It had then written to interested parties confirming the Property was not affected by the unauthorised works. However, it ought not have written to any interested parties before making the site visit. The Council accepted the enforcement case had been open a long time and it had not met its usual service standards. It had faced restructuring and staffing issues, and then disruption from COVID-19, and was clearing the resulting backlog of cases. While it could not give a date for concluding its investigation, it partially upheld the complaint due to its delays, for which it apologised.
In May 2022, the Council visited the Building to assess the current position on unauthorised works and found damp. The Council continued in contact with those responsible for the Building and the unauthorised works. And, in June 2022, the Council told Mrs X its investigation was continuing.
Mr and Mrs X say they cannot sell the Property while the Council’s enforcement investigation remains open.
The Council’s response to the Ombudsman The Council said its investigation into unauthorised works to the Building complied with the Plan in seeking informal resolution. The Council pointed to the applications and appeal made about the works in 2020. The Council recognised delays with its investigation between January 2021 and March 2022. The Council explained that, as well as continuing COVID-19 restrictions, it faced staffing issues, including long term sick leave through 2021. With vacancies and absences, backlogs arose despite officers at work, including temporary agency staff, carrying high caseloads.
The Council confirmed its investigation into the Building remained open mainly because it was assessing the works carried out in November 2021. In response to contact with those responsible for the November 2021 works, it received information about the works in July 2022. The Council said it needed to consider and assess the information and would then review the case as a whole and decide on any formal enforcement action. But it anticipated concluding the investigation would “take some time”.
The Council said the case officer originally handling the investigation, and that had visited the Building, had left its employment during 2021. The new case officer therefore wanted to visit the Building in 2022 before confirming whether unauthorised works affected the Property (see paragraph 21). The visit took place 13 days after first contact from the Buyer in mid March 2022. And, that same day, interested parties, including Mrs X, were told there appeared to be no unauthorised works affecting the Property.
The Council said its response to any property search about the Property would refer to the current status of any enforcement investigation. The response would also confirm that no unauthorised works had been identified in the Property.
The Council said it had around 800 open planning, listed building and tree related enforcement cases in 2019. Its enforcement team had become fully staffed in 2022 but a vacancy again arose in August 2002. In August 2022, nearly 300 cases had been under investigation for over two years. And the officer handling the investigation into the Building was dealing with over 100 other enforcement cases. The Council said investigations over 12 months old were reviewed with senior officers and it was now starting to close more cases than it opened. It was also preparing a new planning enforcement policy that would set out its case priorities and approach to decision making based on planning harm.
Consideration The Council first identified unauthorised works to the Building in November 2019. It later received retrospective applications for works, which led to an August 2020 consent for some works. And, until November 2020, when the Planning Inspectorate issued their appeal decision, it was possible the remaining unauthorised works might receive consent. I therefore found no fault by the Council up to November 2020.
Once the applications and appeal were decided, the Council reviewed the position and decided to take legal advice. That was a suitable and reasonable step to take, and I found no fault here. However, the Council recognised there was then delay in its investigation. I agreed. The Council’s investigation stalled after January 2021. And the investigation would likely have remained dormant after March 2022 but for third party contacts linked to the proposed sale of the Property. While recognising the Council’s staffing problems and continuing COVID-19 restrictions in 2021, I found fault in the Council’s failure to progress its investigation throughout 2021 and early 2022.
The March 2022 contacts led Mr and Mrs X to complain about the Council wrongly saying the unauthorised works ‘may’ affect the Property in the Email. The Council has explained the 2022 case officer had not visited the Building. But, in its complaint response to Mr and Mrs X, it accepted a better approach would have been to visit and then respond to the Buyer’s enquiries. However, within two weeks of the Buyer’s enquiry, the Council had visited the Building and clarified in writing the works did not appear to affect the Property. The evidence did not show the Buyer withdrew from buying the Property because the Council had said it ‘might’ be affected by unauthorised works.
However, Mr and Mrs X also complained that having an open enforcement investigation affecting the Building prevented any sale of the Property. The Council is not responsible for third parties carrying out unauthorised works to the Building. And, once such work is brought to its attention, it should investigate.
Here, the Council found additional unauthorised works in November 2021. It was not clear why the Council effectively extended its 2019 investigation to cover the 2021 unauthorised works. The 2021 works concerned another part of the Building and were carried out by different people to those responsible for the 2019 works. However, if the Council could have opened a second enforcement case into the 2021 works, it was unlikely, on balance, to have completed that investigation by March 2022. So, even if the Council had been able to reach an enforcement decision on the 2019 works, it would have been investigating the November 2021 works in March 2022. I therefore found no fault in the Council having an open enforcement investigation into unauthorised works in the Building in March 2022. Mr and Mrs X would therefore have found themselves in the same position: the Council’s property searches showing an open enforcement investigation for the Building.
I recognise Mr and Mrs X found the Council’s open enforcement investigation the reason they could not sell the Property. The Council has confirmed that its property searches will show the open investigation for the Building but clarify there are no unauthorised works affecting the Property. Each potential buyer has their own checklist of what they seek when buying a property. And potential buyers may decide, without giving any reasons, to withdraw from property sales. I can only consider injustice caused by fault (see paragraphs 2 and 3). Here, I did not find fault in the Council having an open enforcement investigation into unauthorised works in the Building around March 2022 (see paragraph 39). I could not therefore find Mr X’s claimed injustice, of not selling the Property, arose because of fault by the Council.
However, no enforcement investigation should ‘drift’. I therefore welcomed the Council’s confirmation that it now actively reviews cases over 12 months old. Here, the investigation had been open for three years. And, for two of those years (since the appeal decision), the extent of the 2019 unauthorised works have been clear. The Building is listed and the evidence showed the works may have caused, and be causing, harm. So, while I recognised the Council had nearly 300 cases over two years old, I found it should work to conclude its investigation into the Building. The Council should also produce an action plan to deal with other longstanding and high priority enforcement investigations.
Agreed action
The Council agreed: (within three months of this statement) to prepare a plan showing the steps it would take and by when to ensure it maintained progress investigating unauthorised works in the Building; and on completing each step in the plan, to update Mr X on progress while he continued to have a legal interest in the Building.
The Council also agreed (within six months of this statement), to produce a programme for dealing with enforcement cases that have been open for more than two years and which would include: all such cases ranked in line with the priority categories in its emerging enforcement policy; and key steps, and target dates for achieving those steps, for each ‘high priority’ case.
The Council further agreed, within a month of producing the programme referred to in paragraph 43, to write to each person reporting a ‘high priority’ case open for more than two years explaining: its enforcement backlog; the case they were interested in now had high priority; and how they would be kept informed of progress with the investigation in future.
Final decision
I completed my investigation finding that although delay by the Council in progressing the enforcement case was fault, it did not lead to the loss of the sale of Mr X’s property.
Investigator's decision on behalf of the Ombudsman