The Ombudsman's final decision:
Summary: Mr X complains of unreasonable delay by the Council in its handling of planning enforcement and building control complaints made by him and other leaseholders of a building. There was unreasonable delay by the Council but it has recently taken steps to address the outstanding planning enforcement matters. The Council committed to this proactive approach in settlement of the complaint.
- Mr X complains of unreasonable delay by the Council in its handling of planning enforcement and building control complaints made by him and other leaseholders of a building. Mr X says the Council took the incorrect position that the outstanding planning and building control matters were enforceable against individual flat owners as well as the freeholder and so no action was taken against the developer and freeholder. Mr X says the leaseholders spent tens of thousands of pounds making essential repairs to the building which should have been the responsibility of the developer and freeholder.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. She provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if she believes:
- it is unlikely she would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify her involvement, or
- it is unlikely she could add to any previous investigation by the Council, or
- she cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
- I considered the complaint and correspondence sent to the Ombudsman by Mr X and the Council. I discussed matters by telephone with Mr X. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties in reply.
What I found
- The Council granted planning permission with conditions for the development in 2007. When Mr X bought two flats within one of the buildings in January 2016 some of the planning conditions had not been discharged.
- Mr X’s solicitors complained to the Council in October 2016 about the lack of formal enforcement action by the Council. They included an excerpt from an email of 4 October from an officer to Mr X. The excerpt reads:
“As far as the issue of enforcement is concerned were the Council to issue any notice it would be served on both yourself (as owner of the flat) and the current freeholder as both are responsible for ensuring that building work to which the building regulations applies is compliant with the relevant legislation”.
- The solicitors interpreted this statement as tantamount to the Council saying it could only take action against the developer and the leaseholders. They pointed out structural issues were for the developer to resolve and not the leaseholders. They asked the Council to justify any formal legal action against Mr X or other leaseholders.
- There was an exchange of correspondence between the Council and Mr X’s solicitors which culminated in a stage one complaint response from the Council in December 2016. Here the Council explained enforcement action it could take against an individual flat owner as well as the developer/freeholder. It also explained the enforcement action it could take under sections 172 and 187A of the Town and Country Planning Act 1990. The Council referred to having worked ‘proactively’ with the developer over a number of years to resolve all outstanding matters.
- In a further reply to Mr X at the final stage of the complaints process in February 2017, the Council said it had written to the developer and given him seven days to respond.
- I am unclear about the extent of the planning conditions which have not been complied with but from the Council’s letters to the Ombudsman and another leaseholder in May 2017 the issues involve:
- A wall to be built to the gable of an existing building.
- The type of material to be used to construct the walls.
- Details required for the discharge of conditions 11, 12, 13, 16, 17, 19 and 20 of the planning permission.
Fault and Injustice.
- I do not find the Council’s explanation that it could take formal enforcement action against the developer and/or leaseholders was incorrect. This was a true statement of its powers. Of course Mr X could have a valid defence against any enforcement action along the lines put by his solicitors. But that is for the courts to determine if the Council does take such legal action and it is not for this service to adjudicate on the matter. In any case, even though the complaint to the Council was on the particularities of its enforcement powers I do not consider this was the material point of Mr X’s grievance.
- The material point was that whatever its powers the Council did not appear to Mr X or other leaseholders to be doing anything. Here, I am inclined to find fault by the Council. The papers I have seen show other leaseholders raising points about planning enforcement and building control at this development in 2012 to 2014. At that time planning officers pointed to emails they sent to the freeholder seeking contact but with no other action. Indeed the Council’s first stage complaint response refers to the Council having dealt with the matter over a number of years.
- Enforcement action is discretionary but this does not mean the Council can allow matters to drift for as long as it has in this case. This was fault.
- And the injustice? The Council has now taken steps to gather the necessary information to enable it to take formal enforcement action if necessary. Recently, it has also secured the information necessary to discharge some of the planning conditions. So I am satisfied the Council is now dealing with the enforcement complaints properly. The Council has drawn a line in the sand with the developer. I would require its commitment to continue this approach and not allow matters to drift again.
- I do not consider Mr X suffered significant injustice because of the identified delay to warrant further pursuit of this complaint by the Ombudsman or a further remedy beyond the Council’s commitment to ensure it takes formal enforcement action against the developer/freeholder if that party does not comply with its reasonable requests for information or action.
- In response to my draft decision statement the Council made a commitment to take enforcement action against the developer/freeholder if that party does not comply with its requests for information or action.
- This commitment emphasises the phased approach to enforcement. I am satisfied the Council has gathered the necessary information on the breaches of planning and building control. It has pursued an informal approach with the developer to resolve the issues. If informal action does not succeed it would be a retrograde step to allow matters to drift and so start all over again.
- The Council also agreed to keep Mr X and other leaseholders periodically informed of its pursuit of matters until they are all resolved. I consider once a month to be a reasonable period.
- I found fault by the Council. But I have closed the complaint because the Council agreed to take a proactive approach to enforcement and to keep Mr X and other leaseholders informed of its action periodically.
Investigator's decision on behalf of the Ombudsman