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Cheshire East Council (19 016 626)

Category : Housing > Other

Decision : Not upheld

Decision date : 07 Sep 2020

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take action regarding a neighbouring long-term empty property. The Council was not at fault and there is no evidence Mr X was caused a significant personal injustice. In addition, the property has now been sold so there is nothing more that could be achieved by further investigation of the complaint.

The complaint

  1. Mr X complained the Council failed to act under empty homes legislation regarding a neighbouring property which has been empty and unoccupied for around five years. Mr X says the property affects the street scene and neighbourhood and the Council’s failure to respond properly to his concerns has caused him frustration.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome.

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

  1. 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)
  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. I have considered the information provided by Mr X in writing and on the telephone.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered the comments I received before reach a final decision.

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What I found

  1. Councils have a range of enforcement powers open to them in relation to empty properties. These include:
    • S132 Housing Act 2004: This gives councils powers to get an Empty Dwelling Management Order (EDMO) to take over a property and repair it, with consent of the owner. They can then let and manage it on behalf of the landlord for up to 7 years. Costs are recouped from the rental income. It may mean only properties with relatively low repair costs are financially viable.
    • Environmental Protection Act 1990: If an empty property is in such a state of disrepair that it is causing a statutory nuisance the council can serve a notice requiring works to remedy the cause of a nuisance. This would include a property causing a nuisance to another property through damp, for example.
    • S215 Town and Country Planning Act 1990: Councils can serve a notice on owners who fail to maintain their properties where the external appearance is casing significant blight and loss of amenity to an area. It deals with the external appearance of the property.
    • Under the Local Government (Miscellaneous Provisions) Act 1982 a council can undertake any works necessary to prevent unauthorised entry or to prevent a building becoming a danger to public health.
    • Under s17 Housing Act 1985 and Section 226 of the Town and Country Planning Act 1990 councils can compulsory purchase properties, removing ownership from the current owner and transferring it to the Council. This is done by making a Compulsory Purchase Order (CPO). The Council must show it took other measures to bring the property back in to use and has a plan for its reuse/management.
  2. These powers are discretionary and the Government guidance note on EDMOs 2006 says councils ‘should always attempt to secure the occupation of empty dwellings with the consent and cooperation of the owner and only resort to the exercise of formal enforcement powers, including the use of EDMOs, where occupation cannot be achieved through voluntary means’.
  3. The Council’s Housing Strategy sets out its approach to empty homes. It says ‘our approach through this Strategy is to work with the owners of empty homes, to support and encourage voluntary action to bring these homes back into use. Where co-operation fails, we will determine the extent to which the empty home impacts on its neighbours and the wider community, which in turn will inform our decision whether to intervene using our enforcement powers’.

What happened

  1. In late 2017 Mr X contacted the Council regarding an empty property opposite his home. In early January 2018, a Council officer spoke to Mr X on the telephone. Mr X says the officer agreed to inspect the property and to attempt to contact the owner if the external condition was out of keeping with the neighbourhood.
  2. Mr X contacted the Council again in June 2018. Following this the Council wrote to Mr X. The letter said the Council officer had inspected the property and gardens and did not consider it warranted the issue of a notice requiring the owner to tidy it at the present time. The letter said they would attempt to contact the owner regarding it not being occupied.
  3. Mr X responded that month with concerns about the state of the property, that it was heavily overgrown and running water could often be heard. Mr X did not receive a response and wrote to the Council again in August 2018.
  4. A Council manager responded later that month and apologised for the lack of response to Mr X’s June letter. The letter said officers were continuing in their efforts to make contact with the owner. They said they had reviewed the photos of the property and street scene and supported the officer’s view that action was not warranted at the time. The letter also explained the Council’s strategy regarding empty homes, attempting to work with owners to support and encourage action. They said the extent the property affected its neighbours and the wider community would inform the decision as to whether to intervene using enforcement powers.
  5. Mr X wrote to the Council in July 2019 to ask what action the Council had taken regarding the empty property which he said continued to deteriorate. Mr X sent another letter five weeks later as he had not received a response. The Council acknowledged his letter and replied at the end of August 2019. The Council’s letter said an officer had visited. It had considered the state of the property and current legislation and decided enforcement action was not appropriate at that time. This was because the appearance of the property was not causing sufficient detriment to the local area, it was not attracting antisocial behaviour, it was secure against unauthorised access and was in a good condition. It said it would continue to monitor the property.
  6. Mr X wrote to the Council in October 2019. He said the owner had instructed an estate agent to sell the property. A specialist contractor had inspected the property and said it was unsafe and in such a poor state renovation is impossible. Mr X said the Council ‘had failed in its duty to act in returning a once superb family home to beneficial use’.
  7. The Council responded to Mr X later that month. It advised it had last attended the property in August 2019 resulting in the utility company terminating the water supply to the property. The officer attending the property found no notable issues of disrepair to the exterior of the building which was not visible from the street due to trees and shrubs. They decided no enforcement action was necessary. The Council had no reason or duty to access the property so could not comment on the contractor’s report. It said the Council does not have a statutory duty to bring empty properties back to use. It had evaluated the legislative powers available and concluded the use of the powers did not meet the legal test or were not in the public interest.
  8. Mr X remained unhappy. He responded to the Council in October 2019. Mr X’s concerns included that:
    • the garden was massively overgrown and the property was dilapidated,
    • the main gate was partially open for a number of years although the estate agent had now padlocked the gate,
    • the front door was obstructed, the garden was a ruin, guttering was broken and water damage had all but destroyed the interior of the property,
    • the site had been entered during the hours of darkness and it was attracting vermin.
  9. The Council replied in November 2019. It said the Council carries out enforcement action where appropriate. If action had been considered appropriate the Council would have to use public money to purchase a property and would then have to place it on the open market or find an alternative use for it. As the property was on the market, this would result in the property being brought back to use.
  10. Mr X remained unhappy and complained to the Ombudsman. Mr X says he thinks the property has now been sold. He says it is likely it will be demolished and replaced with another property causing him noise and inconvenience.

Findings

  1. The Council has powers to take action regarding empty properties but no duty to do so and it is not illegal to leave a property empty. The Council’s Housing Strategy sets out the basis on which it will use its powers to act regarding empty properties. The Council visited the site and explained to Mr X why it did not consider the property impacted the neighbours or the street scene to the extent that it required it to take enforcement action. The Ombudsman cannot question the merits of a decision made properly or propose the Council takes a different course of action. Mr X does not agree with the Council’s view but that does not mean the Council is at fault.
  2. The Ombudsman considers complaints of injustice caused by fault by a council. Mr X was unhappy the house was left empty and neglected. However, this has not had a significant impact on Mr X personally. Mr X says neighbours have removed rubbish and taken action to tidy the hedge. Had the hedge impacted the street it is possible the Council could have served a notice to require the owner to address this. The proactive actions of residents addressed some of the impact of the property. Mr X was caused some frustration by the Council’s delays in responding to his correspondence, but this in itself is not a significant enough personal injustice to warrant any further investigation. The lack of significant personal injustice means it would not be a good use of public money to carry out any further investigation of the complaint.
  3. Mr X says the property is now sold and as such, in time, it will be brought back into use. I therefore could not achieve anything more by further investigation of the complaint. Mr X says the property will likely be demolished which will affect him. However, I cannot speculate on potential future injustice. It is also possible that, if purchased earlier, a developer may still have taken the decision to demolish and rebuild the property.

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Final decision

  1. I have completed my investigation as there is no evidence of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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