Summary: Mr X complains the Council failed to provide accurate information in response to a local authority search on a property he subsequently purchased. The Ombudsman will not investigate the complaint as there is another body better placed to investigate.

The complaint

1. Mr X complains the Council failed to inform him his property was curtilage listed when it responded to a local authority search when he purchased his property. Mr X says this has caused injustice as he would have paid less for the property had he known there would be restrictions on developing it and known of the extra responsibilities and cost of upkeep of owning such a property. Mr X says he may also have decided not to buy the property if he had known it could not be altered in the way he had anticipated.

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The Ombudsman’s role and powers

2. 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’.
3. 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 there is another body better placed to consider this complaint or if we think the issues could reasonably be raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I have considered the documents provided by Mr X and the Council as well as online documents in relation to a planning application made by Mr X.
5. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

Legal and administrative information

6. A local authority search refers to providing specific information about a property and the surrounding area for buyers and sellers. There are two parts to a local authority search. The first is a LLC1 which is a local land charges register search. This covers charges or restrictions about land or property. This can include whether the property is a listed building. The form also covers planning agreements and conditional planning permissions.
7. CON 29 is the second part of the search and gives information about public highways, new road proposals, rail schemes or planning decisions that could affect the property. It also gives information about outstanding statutory notices, breaches of planning or building regulations or the existence of a Compulsory Purchase Order.
8. The Local Land Charges Act 1975 provides for a person to claim damages resulting from either non-registration of a local land charge, or from a defective official certificate of search from the Chief Land Registrar.

Factual background

9. Mr X purchased his house which sits on the edge of a Grade II listed historical park (‘the Park’) in 2014. Within the Park, but in a different local authority area, is a Grade I listed Hall (‘the Hall’)
10. When Mr X’s conveyancer carried out searches of the Council, the Council did not identify that Mr X’s property was within a listed park or that it was within the curtilage of a listed building. The Council did refer to the Hall on CON29 as part of a list of planning designations and proposals.
11. When Mr X came to developing his property in 2018 he employed an architect who advised that given the location of Mr X’s property in relation to the Hall and Park it was likely to be curtilage listed. Curtilage listing is where buildings are deemed to be listed by virtue of being within the curtilage of a listed building.
12. It is important to know if a building is curtilage listed as listed building consent is needed for works that affect the character of a building listed as of special architectural or historical interest. A building within the curtilage of a listed building may have its own special architectural or historic interest or contribute to the special interest in the principal building as part of the group. A failure to apply for listed building consent before works that require it is a criminal offence.
13. Mr X told me when his architect enquired if his property was curtilage listed the Council’s conservation officers confirmed that it was. Mr X says this had the effect of him having to amend plans for an extension to a more limited scheme. Mr X also obtained evidence from an estate agent that had the property been sold as listed that Mr X could have purchased it for £40,000 less than what he paid for it.
14. Mr X made a complaint and claim for compensation to the Council.
15. The Council did not accept it had been at fault because:
• The search details provided were correct. The property to which the search related was not itself a listed building and is not on the Listed Building register.
• The search did not reveal the property was within the curtilage of a Listed Building because it was not the Council’s responsibility to reveal the possible curtilage listing when the primary Listed Building sits in a different local authority. The Council does not hold details of Listed Buildings outside its own area.
• The curtilage listing was because Mr X’s house was an ancillary building to the Hall not because it was within the Park, although its location within the Park made the curtilage clearer.
• The search result did refer to the Hall on the CON29 part of the search and this was not queried by Mr X’s solicitors.
• The Council has updated its data to show more detail on the CON29 search in respect of the Park, but the Park was not registerable as a local land charge and so would not appear on the Local Land Charges register.
16. Mr X disagreed with the Council’s view because he considered as the Council’s conservation team was aware of the curtilage listing, and was enforcing it, the Council should have declared this. Mr X says the enforcement action shows the Council was responsible for revealing the curtilage listing even though the Hall was in a different area.
17. The Council passed the complaint to its insurers who denied liability.

Response to Ombudsman enquiries

18. The Council says as responsibility for the local search lay with the Council and had not transferred to the Land Registry at the relevant time the compensation scheme does not apply.
19. The Council does not consider it has breached its legal obligations in any way, it says the local search listing was correct and if Mr X disagrees he should take court action.
20. The Council’s view is that Mr X and his legal advisers should have made their own further enquiries before purchasing the property and the principle of ‘caveat emptor’ (buyer beware) would apply.

Analysis

21. I am not clear from the wording of the compensation scheme whether Mr X’s situation is excluded as the Council says, but it is open to Mr X to apply to the Land Registry for a definitive view on this.
22. Whether or not Mr X is covered by the compensation scheme, I am of the view that the Ombudsman should not investigate. Mr X may take the matter to court and it would be reasonable for him to do so given the level of compensation being sought. The matter is not straightforward with differing views on what legally has to be disclosed on searches with regard to a curtilage listing where the principle building is in a different local authority. It is not the role of the Ombudsman to make law or to resolve different interpretations of the law, this is properly a matter for the courts.
23. Further there is likely to be differing views between the parties about the level of financial loss arising from a curtilage listing.
24. The Court is the appropriate forum to decide the conflicting opinions on legal liability, seek expert advice and assess the value of any losses incurred.

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Final decision

25. I have discontinued my investigation of the complaint on the basis the courts are better placed to resolve the legal dispute between the parties.

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Investigator's decision on behalf of the Ombudsman