The Ombudsman's final decision:
Summary: Mr D complained the Council did not alert him to unauthorised changes to his home before he completed its purchase. We found the Council did not know of the changes until after the sale completed and so was not at fault.
- The complainant, who I will call ‘Mr D’, is unhappy the Council failed to alert him to unauthorised changes to the roof of a property he bought in May 2016. His solicitor undertook searches on behalf of Mr D before he completed the purchase and Mr D questions why these did not alert him to this problem. The Council has served an enforcement notice against the changes to the roof which has been upheld on appeal. So, Mr D faces significant uncertainty about what will happen next.
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. 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
- Before I completed my investigation and issued this decision statement I considered:
- Information provided by Mr D with his complaint including that gathered in a telephone conversation with him.
- Correspondence exchanged between Mr D and the Council about the subject of his complaint.
- Further information provided by the Council in reply to my enquiries.
- Comments and information provided in reply to a draft decision statement which I sent to both parties, setting out my thinking on the complaint below.
What I found
- Mr D bought his home as a leasehold in May 2016. His home is a flat built to the rear of an existing house (‘the main house’). The lessor/landowner did not obtain planning permission when building Mr D’s home (which he converted from an outbuilding). However, in 2012 the Council gave a Certificate of Lawful Use and Development accepting the flat had existed for at least four years. This made it immune from planning enforcement action, as then built.
- But some time before Mr D bought the flat the lessor/leaseholder changed the building. They extended the height of the roof. They did not seek planning permission for this change. The lessor/landowner has said they made the change in April 2015.
- However, the Council says this cannot be so. This is because in June 2015 the Council began a planning enforcement investigation into a building erected to the front of the main house. Photographs from that visit show Mr D’s flat but do not show any changes to the roof of the flat. A google streetmap image from June 2015 also confirms there had been no changes to the roof at that time.
- It was only on a later visit to the property in August 2016 that the Council noted changes to the roof of Mr D’s flat. At which point the Council expanded its enforcement investigation to also consider that issue.
- This resulted in the Council serving an enforcement notice requiring demolition of the roof extension and return to its previous state. The lessor/landowner appealed the enforcement notice unsuccessfully to the Government Planning Inspectorate. The Council also turned down a planning application seeking retrospective planning approval for the changes.
- Before buying the flat Mr D had asked his solicitor to undertake searches. The Council has no record of receiving a request for an official land charges search. It considers the solicitor therefore undertook instead a personal search. This means they or an agent checked information in the public domain such as records of any land charges, information held on a ‘public register’ and data records.
- The Council says whichever search the solicitor used it should have highlighted the planning enforcement investigation underway in April 2016. But that it takes no responsibility for personal searches and explains on its website it “cannot validate” information gathered that way.
- I do not find the Council at fault in this case. First, Mr D’s solicitor did not undertake an official land charges search with the Council. So the Council was not directly responsible for providing the information Mr D then relied on before completing his purchase.
- But second, I also consider that whatever search method Mr D’s solicitor used, this would not have shown up the unauthorised roof extension. A search may and possibly should have highlighted the Council’s investigation of the building in front of the main house. But this would not have lead Mr D to know of any concerns the Council had about changes to the roof to his flat. This because when Mr D’s solicitor conducted his search the Council did not know of those changes and so did not have such concerns. I am satisfied the Council did not learn of the changes to the roof until August 2016, after Mr D had completed his purchase.
- I recognise Mr D finds himself in a distressing position. Having bought a home in good faith he faces uncertainty as the Council requires demolition of a key part of it. But I can find no grounds to say the Council should or could have alerted him to this possibility before he bought it. Because it did not know at that time of the change to the roof because the lessor/landowner had not told it of that change or sought planning permission for it.
For the reasons explained above I did not find grounds to uphold this complaint. I therefore completed my investigation satisfied with the Council’s actions.
Investigator's decision on behalf of the Ombudsman