Brighton & Hove City Council (24 005 109)
Category : Other Categories > Land
Decision : Closed after initial enquiries
Decision date : 18 Nov 2024
The Ombudsman's final decision:
Summary: We will not investigate this complaint about an alledged failure by the Council to take action in respect of boundary changes to a piece of public land leased by the Council, or issues relating to breaches of planning law. This is because the matter about boundaries is a historical issue dating back to 1992 and therefore outside the scope of complaints we investigate. There is insufficient evidence of fault by the Council with respect to it not taking enforcement action at present for the reason there are active planning applications which concern the alledged planning breaches.
The complaint
- The complainant (Mr Z) complains about an alledged failure by the Council to accurately record a conservation area map, in particular the size and boundaries of a piece of public land which is adjacent to his property. Further, he says the Council has failed to manage the land which it leases to a third party. This includes failing to take action against the collapse and loss of a section of curtilage listed wall, removal of trees and shrubs on the land, as well as allowing the use of firearms which he says is contrary to the safety of the local community.
- In summary, Mr Z he has been intimidated and distressed by firearm users on public land. He also says he has lost significant amenity due to the loss of trees and shrubs and the unlawful boundary changes. As a desired outcome, he wants the Council to reinstate the original boundaries, replace the trees and shrubbery removed and enforce the leaseholders of the land to adhere to the lease, including removing rubbish on footpaths.
The Ombudsman’s role and powers
- We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify this. (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
- The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
How I considered this complaint
- I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.
My assessment
Conservation map area
- The provision I outline at paragraph four (above) inserts a time limit for a member of the public to bring their complaint to the attention of the Ombudsman. Its intention is two-fold: to provide us with the best opportunity of arriving at a robust, evidence-based decision on complaints about recent events and to ensure fairness by enabling us to decline an investigation into historic matters, which could and should have formed the basis of a complaint far sooner.
- The issues raised by Mr Z with respect to this part of the complaint largely relate to some discrepancy regarding the conservation area boundary between the Council’s 1992 map and the 2005 map. The Council does not consider it to be a major discrepancy and advise the discrepancy identified did not have the effect of reducing the protection given to designated heritage assets. Though I recognise Mr Z disputes this, as he says in his complaint to us this is a historical complaint.
- It is not the role of the Ombudsman to investigate historical issues. This is because it would be more difficult to achieve a meaningful remedy in Mr Z’s case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties. For instance, there would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement. Further, we cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was any fault. We will not investigate this part of the complaint on this basis.
Use of firearms
- This part of the complaint relates to the use of firearms on the land subject to the lease. However, unlike the other parts of Mr Z’s complaint, I have not found any evidence of this issue being raised by him in his letters of complaint to the Council. The Council has therefore not responded to this issue. As the law says the Council first must have the opportunity to investigate, this part of the complaint is premature. Mr Z should therefore complain to the Council about this in the first instance and he is free to bring this matter to us again following this.
Wall repair and removal of shrubbery
- This part of the complaint refers to a number of different matters that Mr Z has raised relating to the terms of lease and maintenance of the land and maintenance and reinstatement of the curtilage wall. The Council’s planning enforcement team became involved in relation to the wall in late 2020 when complaints were received about the collapse of this.
- In early 2021, the Council commenced a planning enforcement investigation and conducted a site visit. The Council’s records show the planning enforcement officer was of the opinion at this time that the wall had been part demolished, but the leaseholder claimed it was a result of the growth of trees and shrubs. Over the following months, the Council made a number of requests to the leaseholder to repair the wall. However, between mid-2021 to early-2022, the Council received correspondence from the leaseholder denying it had a responsibility of repair, as well as giving clarification the wall had been knocked down by the growth of trees. The evidence shows the Council notified the leaseholder at the end of this period of its intention to commence enforcement should it not confirm its proposal to begin remedial works. In April 2022, the leaseholder confirmed it could not do so until the removal of vegetation next to the wall had been removed. As I understand, the Council accepted this fell under its responsibility and arranged for the removal of vegetation over a number of months.
- Between mid-2023 and late 2023, I found evidence of the Council seeking updates as to the leaseholder’s progress on a number of occassions, with the leaseholder informing of it working with a contractor for the purpose of repairing the wall. The Council’s enforcement officer was made aware from the leaseholder of an anticipated start and completion date in January 2024. Following these works, the Council became aware that instead of the wall being repaired, the leaseholder had removed this and formed new foundations, works which engaged the lease and planning law. Having reassessed the problem, the Council concluded the wall was curtilage listed and as a result planning permission and listed building consent was required to reinstate the wall. The leaseholder has since applied for permission and the Council does not consider it appropriate to make any decisions of enforcement while determination of these are pending.
- The Council is under no legal duty to commence enforcement action in respect of a breach. Instead, it has the right to exercise its power and take enforcement action. This type of action is therefore discretionary. Before making a decision not to take planning enforcement action, the Council has considered the allegations raised, investigated the situation on the site while having due regards to its powers. The Council subsequently decided it would not be expedient to take enforcement action at this moment on account of the live planning application which I note is still pending a decision. This is the planning enforcement process we would expect the Council to follow and I see no evidence of fault in the way it has made its decision.
- I recognise Mr Z also expresses unhappiness about the removal of trees and shrubbery on the land leased by the Council. However, the evidence shows this matter is inextricably linked to the issues relating to the condition, repair and removal of the wall. It is therefore reasonable that the Council have the opportunity to continue its assessment of this matter following determination of the relevant planning applications.
Final decision
- We will not investigate this complaint. This is because the restrictions I outline at paragraphs three, four and five (above) apply.
Investigator's decision on behalf of the Ombudsman