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London Borough of Ealing (20 009 317)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 26 Aug 2021

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s failure to address her concerns after it approved applications relating a tree in her garden and a flat in the building that she lives in. We ended our investigation as it was unlikely to result in a finding of fault or an injustice we could remedy.

The complaint

  1. Ms X complained the Council failed to address her concerns about a company which owns the freehold of the building she lives in. She complains the company was granted:
    • A certificate of lawful use (CLU) without ensuring electrical work was safe. Ms X alleged the landlord has unlawfully connected to her private electricity supply; and
    • Permission to remove a tree in her garden, without her consent. Ms X said the Council did not enter her land to carry out a site visit.
  2. Mr X also complained:
    • About how the Council deals with the company generally, when it seeks approval for development at sites across the borough; and
    • her property has been frequently ‘flooded’ from apartments above her home.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and considered documents from its planning files, including the applications and decisions for the certificate of lawful use and to allow removal of the tree.
  2. I gave Ms X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Planning permission is usually required for development or engineering works on or change of use of land. If development occurs without permission, Councils may take enforcement action.
  2. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
    • where there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
    • where there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
    • for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
  3. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful or needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use (CLU) to the applicant.
  4. This may happen where:
    • the Council has already granted planning permission for the use or development;
    • a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
    • the development may have been unlawful, but the time limit for enforcement action has now passed.
  5. Councils have the power to create conservation areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
  6. In conservation areas, notice to the Council planning authority is necessary to remove any tree which has a trunk larger than 75mm diameter when measured 1.5 metres above the ground. The notice is to give the Council an opportunity to consider whether it should make an order to protect the tree.

Building regulations

  1. Most building work requires building regulations approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
  2. Building regulations approval can be granted by Councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work. Some types of work, for example, gas or electrical work can be carried out under self-certification schemes by individuals who qualify as ‘competent persons’.
  3. There have been court challenges where owners of buildings or neighbours have sought to hold Council building control authorities liable for defects in building work they have inspected or might control. The courts have decided that Council building control authorities are not liable for failure to comply with building regulations – the duty to comply with regulations lies with the building owner and builder. An owner may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

Electrical safety regulations

  1. Regulations set out obligations of private sector landlords. Amongst other things, private sector landlords must ensure electrical wiring in their properties is safe and councils do have power to require action, if they have reasonable grounds to do so.

What happened

  1. Ms X owns the leasehold of a flat and garden. A property company owns the freehold of the building. Without planning permission, the building was further divided to create an additional flat. The company applied for a CLU on the basis that the additional flat had been used for more than 4 years. The company sent copies of tenancy agreements as evidence. The Council’s own Council Tax department confirmed that council tax had been paid for all flats, including the additional flat, for more than 4 years. The Council accepted the evidence provided by the landlord and its Council Tax department. It accepted it had no planning enforcement powers over the additional flat and so issued the CLU.
  2. Ms X also complained that after work was carried out in other flats, she experienced electrical problems in her flat. She suspects the owners of the company have connected to her ceiling lighting electrical circuit without her permission causing it to overheat and become unsafe. She said her electrician confirmed this was a possibility.
  3. Ms X complained to the Council. In relation to the CLU, it confirmed it had granted approval of the application. In relation to the allegation about an unlawful electrical connection, it said her claims were speculative, but in any event, her concerns were a private matter between her and the company. Ms X believes the Council should have considered electrical safety matters when it approved the CLU.
  4. Ms X also complained about the Council’s decision to approve removal of a tree in her garden. Ms X said:
    • she was not consulted, even though she was the owner of the tree;
    • the Council made its decision without visiting the site or entering her garden and so could not have properly considered the condition or amenity value of the tree;
    • the tree is in a conservation area and has real amenity value;
    • the name of the applicant on the prior notification application form is false, as no such person lives at the address.
  5. Ms X said the tree has not yet been removed but she fears it might be, now the Council granted its permission.

My findings

  1. Before we begin or continue our investigations, we need evidence to show it is likely there was fault in the decision-making process that caused the individual complainant a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
  2. I have considered Ms X’s complaints, but I should end my investigation. My reasons are as follows:
    • I am unlikely to find fault in the way the CLU decision was made. The evidence available on the Council’s website shows it considered its enforcement powers, the application and the evidence that came with it. It also sought evidence from its Council Tax department. This is the process we would expect for a CLU decision such as this. Without fault in process, we cannot comment on the judgement the Council made, that it could not take enforcement action in relation to the additional flat.
    • We would not expect the Council to consider electrical safety matters when making its CLU decision. The CLU decision was simply about whether the Council could use its enforcement powers to assert planning control.
    • The Council considered Ms X’s allegation about electrical wiring, but decided her allegation was speculative. If Ms X has real evidence, she can provide it to the Council. Alternatively, if she has evidence to show her neighbour has connected to her wiring without her permission, she might find a remedy in the civil courts.
    • Ms X said the prior notification tree applicant’s name is false, but we do not expect councils to carry out forensic investigations into ownership or tenancy rights before accepting applications as valid. It is worth remembering that the purpose of the Council’s role is to consider whether it wants to use its powers to protect the public. It is the Council’s power to decide the value of the tree to the amenity of the public, not the private rights or interests of property owners, that is relevant here.
    • Ms X said the Council did not visit the site or her garden before making its decision about the tree, so could not have properly considered its condition or amenity value. The Council’s decision was about the amenity value of the tree to the public, not about its condition. There is no legal obligation to carry out any visit. The Council did not need to enter Ms X’s property to assess the tree, as it is views from public areas it needs to consider. This could be done with drive by visits or by inspecting aerial maps and online street view photos.
    • Ms X said she is the owner of the tree. If this is so, she can deny entry to her property and use her private rights to protect the tree.
    • We do not carry out general audit style investigations, so I will not investigate Ms X’s allegation about the planning department’s performance when dealing with applications from the company. Our investigations focus on complaints of fault that cause injustice to individual complainants and for the reasons given above I see no good reason to continue my investigation.
    • I have not investigated Ms X’s allegation that she has been flooded by water ingress from apartments above her. This is clearly a private matter, and we would not expect the Council to be involved in a private dispute.

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Final decision

  1. I have ended my investigation as it was unlikely to result in a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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