The Ombudsman's final decision:
Summary: Mr C complains the Council did not use its powers to keep a listed building safe and properly maintained. Mr C says the condition of the building deteriorated to represent a safety hazard and has a harmful impact on the amenity of the local area. The Ombudsman has found no evidence of fault by the Council.
- The complainant, whom I shall refer to as Mr C, complains the Council did not use its powers to keep a listed building safe and properly maintained either through compulsory purchase or repairs and renovations by the owner. Mr C says because of the Council's fault the condition of the building deteriorated to the extent it represented a safety hazard and had a harmful impact on the amenity of the local area. Mr C also says delay by the Council meant the works required were substantial and resulted in road closures affecting the access to his business.
The Ombudsman’s role and powers
- 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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.
What I found
- The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
- Local Authorities hold lists of buildings considered by English Heritage to have some special architectural or historic value. Before carrying out any work on a listed building, it is necessary to apply for Listed Building Consent. Consent is still necessary even if the work would be permitted development if carried out on a non-listed building. Where planning permission is required, the developer must submit separate applications, a full or outline planning application and a Listed Building Consent application.
- Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made. Approved Inspectors are private bodies or individuals who may undertake building control functions. The local authority has no part to play in work supervised by Approved Inspectors and so such matters do not fall within the Ombudsman’s jurisdiction.
- If it appears to a local authority that a building is in a dangerous condition and immediate action is required to make it safe, it may take such steps as may be necessary to make the building safe. The local authority may recover the cost of this emergency work from the building owner. If the owner disputes that the work was necessary or the costs involved, they may apply to a magistrates court.
- Mr C’s complaint relates to a large listed building in the town centre which has a history of various commercial uses. The current owner bought the building in 2000 and it has remained mostly unused since that date although some ground floor units are leased to businesses. The Council granted planning permission and listed building consent in 2014 to convert the building to a hotel and restaurant.
- The Council’s Conservation Officer wrote to the owner of the building about its condition in November 2016. The Officer wrote again in January and February 2017. The owner’s architect confirmed to the Council in February that they were about to apply to discharge some conditions attached to the planning permission. The Council also received a building control initial notice from an Approved Inspector about the conversion works in February.
- The Council determined an application to discharge some conditions attached to the planning permission in March 2017 and some limited building work took place. The Council considers the development has commended within the required time period of the planning permission.
- The Council received a report about staff sleeping on site in April and advised the Approved Inspector. The HSE served an abatement notice and works stopped at the site. The Council’s Conservation Officer also contacted the owner in April about the removal of architectural details.
- Mr C contacted the Council about the building’s condition in July 2017. The Council visited the site in July.
- The Council contacted the owner’s architect in September seeking a timescale for the conversion works after Mr C’s report and a report from the Civic Society. There followed a period between October 2017 and June 2018 when the Council was in telephone contact with the owner who provided assurances about the intention to start works.
- The Council also received a Councillor report at the end of October about an issue with an aerial at the building. The Council visited the site at the end of January 2018 and contacted the owner about the aerial in February.
- The Council contacted the Approved Inspector about roof slates in March 2018. The Council completed further site inspections in March and April and provided a list of required actions. The Council also issued a dangerous structure letter to the owner in April. The owner confirmed in April that their builders would address the issues identified.
- The Council formally wrote to the owner in June 2018 requesting a timescale for works and warning of the possibility of enforcement action under section 215 of the Town and Country Planning Act 1990. The Council held a teleconference with the owner in July with agreed actions.
- The Council received report from a Councillor and another resident about falling roof slates in July. The Council visited the site in August and issued a dangerous structure letter about the slates to the owner in September. The Council arranged for the fire service to remove slipped roof slates in September using its section 78 powers.
- The Council arranged a site meeting in October and various actions were agreed. It also became apparent that the rear of the building had become structurally unstable. The Council considered this was immediately dangerous and required the insertion of an internal scaffold. The Council maintained a presence on site to ensure the roof works and internal scaffold support works were completed.
- The Council provided written updates to Mr C in September and October and verbal updates in visits to his business premises. The Council says during the period of necessary works affecting the street on which Mr C’s business is located it provided free parking in a nearby pay and display car park for affected business owners including Mr C.
- The Council’s Structural Engineer inspected the building after the completion of the required works in January 2019. The report confirmed the works had stabilised the building and removed any immediate danger.
- There are two key issues here in terms of the safety of the building and the preservation of the fabric of a listed building. I will deal with the safety element first.
- The owner is using an Approved Inspector to undertake the building control functions. This means the local authority has no part in work supervised by the Approved Inspector although it retains its powers under the Building Act 1984 to deal with the building if it considers it to be a dangerous structure.
- Based on the evidence provided I am satisfied the Council responded to reports about the safety of the building and took appropriate action. The Council’s Building Control Team visited the site in response to reports and maintained a regular on-site presence during key remedial works to ensure the safety of the building.
- The Council also issued warning letters and ensured works to the roof and to stabilise the building when it considered immediate works were required including works in default by the Council under section 78 of the Building Act 1984. In these circumstances, there are no grounds for me to say any inconvenience or obstruction to Mr C’s business during required works is due to some fault by the Council. The Council’s Structural Engineer has since inspected the building and confirmed it is stabilised and any immediate danger is removed.
- In terms of the deterioration of a listed building, the Council has provided evidence of its contact with the building’s owner after the granting of planning permission in 2014. The Council sought assurances from the owner from November 2016 onward and was advised works were due to start imminently but were subject to finance. The Council has explained it allowed the owner a reasonable period to fully implement the planning permission after work had commenced in 2017. The focus and priority then became the safety of the building structure. However, the Council has confirmed it is now considering whether it should pursue further enforcement using powers available under planning legislation to provide a longer-term solution for the building.
- On balance, I do not consider the Council’s approach or time taken constitutes fault. However, given the passage of time, the Ombudsman would expect the Council to reach a fully reasoned decision on what, if any, action it will now take to provide a longer-term solution for the building within a reasonable period. I consider a reasonable period would be three months from the date of my final decision. It would be open to Mr C to make a new complaint to the Ombudsman if he is unhappy with the outcome of the Council’s consideration or if it has not reached a decision within the period set out above.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman