Royal Borough of Greenwich (19 003 436)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 27 Jan 2020

The Ombudsman's final decision:

Summary: Mr C says the Council delayed considering his application for an HMO licence which means he now requires planning permission which he could have avoided if the Council had processed his application promptly. Fault by the Council did not result in Mr B’s HMO licence application being determined after the rules had changed.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complained the Council:
    • delayed considering his application for a house in multiple occupation (HMO) licence which means he now requires planning permission which he could have avoided if the Council had processed his application promptly; and
    • delayed telling him he would require planning permission if he did not receive his licence before 27 September 2018.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. If we are satisfied with a Council’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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mr C’s comments on my original draft decision;
    • considered the Council’s comments on my original draft decision; and
    • gave Mr C and the Council an opportunity to comment on my revised draft decision.

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What I found

Background

  1. Until 27 September 2018 the Council did not require people converting residential properties into an HMO to have planning permission. However, the Council introduced an article 4 direction which meant from 27 September 2018 an HMO required full planning permission. The Council consulted on that change before introducing it and issued a press release to advertise the impending change.
  2. Mr C contacted the Council’s planning department on 22 August 2017 to see whether he needed planning permission to convert his property into an HMO. The Council told him he needed a licence for the property but did not need planning permission. That was the right information based on the situation in 2017.
  3. Mr C applied for an HMO licence on 8 May 2018. The Council told Mr C he needed to provide some mandatory documentation on 18 June. Mr C provided the documentation on 2 July. The Council issued a draft licence on 6 July for consultation. As Mr C had not paid the final fee the Council emailed Mr C on 30 July to ask for payment. Mr C responded on 30 July to say he had not understood he needed to make payment until he had completed the works. Mr C said he would pay as soon as possible. On 3 August the Council told Mr C when it had received the payment it would issue the final license. The Council says it was ready to issue the final licence on 6 September but had not received the final fee from Mr C. Mr C paid the final fee on 27 September. By that point Mr C needed planning permission to convert his property into an HMO. The Council issued the HMO licence on 19 February 2019.
  4. Mr C complained to the Council about the delay processing his HMO licence application and delay telling him about the article 4 direction. Mr C says if the Council had processed the licence application before 27 September, as it should have done, he would not have needed planning permission. Mr C says he does not intend to seek planning permission as he is not guaranteed to get it and it would cost money. Mr C says if the Council had told him about the need for planning permission earlier he could have avoided the costs in remortgaging his property and paying a deposit to a builder.
  5. The Council accepts it delayed processing Mr C’s licence application between 27 September 2018 and 19 February 2019. The Council does not accept responsibility for delays before 27 September 2018. The Council points to the fact Mr C did not provide the mandatory documentation with his application and had not paid the fee until 27 September 2018. The Council says it was Mr C’s responsibility to do his due diligence with regard to the necessary permissions.

Analysis

  1. Mr C says delay by the Council considering his application for an HMO licence means he now needs planning permission. Mr C says if the Council had processed his application for a licence promptly he would have secured the licence before the rule changes took place on 27 September 2018. Mr C says this means he could have run his property as an HMO without planning permission. Mr C says if he had known his application would not be processed before 27 September 2018 and he would need planning permission he would not have pursued the HMO licence. Mr C says he has lost money as he paid for the certificates the Council wanted, remortgaged his property and paid a deposit to a builder to complete the works which will not be repaid.
  2. The key issue here is whether the Council delayed processing Mr C’s application for an HMO licence and whether Mr C could have avoided having to apply for planning permission if the Council had not delayed. I note Mr C put in his application for an HMO licence on 8 May 2018. The Council’s online guidance says it aims to process applications in 12 weeks. However, that 12 weeks runs from the point at which the Council receives a full and complete application. A full and complete application is one which includes all the documentary evidence listed on the Council’s website as well as the fee for the application. Mr C did not submit the required documentary evidence until 2 July 2018. Mr C did not pay the licence fee until 27 September 2018, which is the date the Council’s article 4 direction came into force and Mr C needed planning permission. So, I am satisfied the 12 week period for the Council to process the licence application ran from 27 September 2018. I am therefore satisfied it was not delay by the Council which meant Mr C required planning permission for conversion of his property into an HMO. Instead, delay by the Council concerns the period 27 September 2018 to 19 February 2019, which did not affect the need for Mr C to have planning permission.
  3. Mr C says the Council delayed telling him he needed planning permission to convert his property once the article 4 direction came into force. I understand Mr C’s concern about that, particularly given the Council’s home improvement officer contacted the planning department on 4 September and the planning department did not tell the officer about the impending changes. I understand though the Council had included the disabilities and home improvements team in meetings about the changes which should have put them on notice. Either way, either the planning department or the home improvement officer should have known the rules on HMO licensing were about to change and should have told Mr C about that.
  4. I now have to consider whether fault in not telling Mr C about the impending changes between 4 and 27 September resulted in any injustice. Mr C says it was the Council’s responsibility to tell him about the changes and if he had known he would not have remortgaged his property or paid money to a builder. On the other hand though, as the owner of the property it was Mr C’s responsibility to check whether he needed planning permission. It was not the home improvement officer’s responsibility to give him that information. I have seen no evidence Mr C made contact with the planning department to see whether anything had changed between his contact in August 2017 and the events complained of. I am also aware during that period the Council consulted on changes to the requirement for planning permission for HMO properties and had advertised the changes in a press release. As it was also Mr C’s responsibility to make himself aware of any requirements I cannot say fault by the Council is responsible for Mr C incurring costs. The Council had publicised the changes, Mr C had not made any contact with the planning department despite more than a year since his original contact and fault by the Council was not responsible for the application not being determined until the article 4 direction was in place. In those circumstances I cannot recommend the Council pay Mr C an amount to reflect the abortive costs he incurred. Nor can I recommend the Council process his licence application as if it was complete before the requirement for planning permission was introduced. As I have made clear, Mr C’s licence application was not complete until the day the changes were introduced and the Council then had 12 weeks to process the application.

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Final decision

  1. I have completed my investigation. Fault by the Council did not cause Mr C to require planning permission for his property conversion.

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Investigator's decision on behalf of the Ombudsman

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