Summary: X complained about how the Council dealt with a planning and listed building enforcement issue. We did not investigate this complaint further because we were unlikely to find significant fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council threatened to serve an enforcement notice against them, but later decided not to take formal action.
3. X is a freeholder of a building, said they began legal proceedings against a leaseholder because of the Council’s threat, and incurred significant costs.
4. X believes the Council acted unfairly, because it could have made its decision not to take enforcement action much sooner.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused significant injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

7. I read the complaint and discussed it with 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.
8. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Listed building consent

9. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest;
• Grade II – Buildings of particularly important/more than special interest;
• Grade III – buildings of special interest.
10. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
11. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.

Planning enforcement powers

12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
13. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

14. X is a freeholder of a building, part of which is let to a tenant on leasehold. Work had been done by the previous owner of the lease, and X wrote to the tenant because the work was in breach of the lease. X also thought it was likely that the works were in breach of planning controls.
15. X contacted the Council’s planning enforcement officer to ask whether the works were in breach of control. X sought advice from their solicitor. The Council enforcement officer said there was a breach of planning control and that it might serve an enforcement notice on X.
16. X took private legal action in the court against the tenant. The court found the tenant in breach of the terms of the lease, but the tenant did not rectify the problem.
17. X said their next step was to take further legal action to end the lease, but this was likely to be time consuming and expensive. Before doing this, X’s solicitor wrote to the Council to ask whether it might take action against the tenant to require them to remove the unlawful works.
18. The Council responded to say that there was a breach of planning control, because listed building consent should have been applied for before the works were undertaken. However, the Council did not consider there was sufficient harm caused to the public to justify further action.
19. X believes the Council acted unfairly, because it had threatened it might take action against them as freeholder, instead of the tenant who was also liable. X said it was the Council’s threat enforcement action, which had led X to begin legal action against the tenant in the courts. X said, if they had known sooner that the Council would not take formal action, they might have avoided the stress and cost of court action. X complained to the Council.
20. The Council responded to the complaint to say its planning enforcement officer’s communications could have been clearer, as a warning letter had requested a planning application, not listed building consent application. However, the Council said it did not consider this would have made any difference to the outcome of its decision, and its earlier decision to write to X as freeholder was not unreasonable in all the circumstances.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
23. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
24. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
25. I should not investigate further, and my reasons are as follows:
• I cannot say the planning enforcement officer was wrong warn X that they may take enforcement action, because councils can serve enforcement notices on landowners.
• It is not unusual for planning enforcement officers to threaten action when they find evidence of a breach of planning control, and to warn developers and/or those with an interest in the land that formal action might follow. This was a judgement the officer was entitled to make.
• I cannot speculate what X might or might not have done if the Council had acted differently.
• The Council considered the alleged breach of control, considered its powers relating to listed buildings, decided there was evidence of breach, but later that enforcement action was not justified. The planning enforcement process I would expect has happened.
• The Council has accepted there was an error in one of its warning letters, as it had referred to a planning application, not listed building consent. I think it is unlikely that further investigation would result in our finding this made any difference to the outcome.
• We do not normally recommend compensation for legal fees, but in exceptional circumstances, we might do so, for example, where individual complainants were compelled to take legal action because of fault by the Council. Where a matter is decided by a court, the court will decide whether to make one party liable for the other party’s costs. Matters that happen inside court are outside our jurisdiction.

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Final decision

26. I ended my investigation because it was unlikely to result in finding of fault, a remedy for X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman