London Borough Of Brent (17 001 471)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 28 Jul 2017

The Ombudsman's final decision:

Summary: Mr X complained the Council continues to take enforcement action against him. An investigation by the Ombudsman cannot achieve any meaningful outcome for Mr X and so we should not investigate further.

The complaint

  1. Mr X complains the Council continues to take enforcement action against him to remove his uPVC windows, even though many other properties in the area have similar windows.
  2. Mr X also complains the Council took too long to respond to a planning application he submitted to retain the windows in 2014. Mr X also says the Council failed to tell him he had a right of appeal to the Planning Inspectorate.

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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, or
  • we cannot achieve the outcome someone wants.

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

  1. The law says we cannot normally investigate a complaint when someone can appeal or has had the right to appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))

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How I considered this complaint

  1. I read Mr X’s complaint and discussed it with him. I read the Council’s response to the complaint and documents from its planning files. I discussed Mr X’s case with an Enforcement Officer.
  2. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

  1. Councils may designate Conservation Areas when they decide that the buildings within the area have special architectural and heritage value that should be preserved.
  2. Councils may remove permitted development rights in Conservation Areas to allow control of new developments or maintenance. Conservation Area policy may be used to control windows, doors, boundary walls and building extensions. Developments that would otherwise be permitted will need planning approval.
  3. When a council finds a breach of controls it may take enforcement action which may include serving Enforcement Notices to require action to correct the breach of planning control. Enforcement Notices are recorded on the local Land Charges Register against the land. The notices ‘go with the land’, which means they will remain valid against future owners. Prospective purchasers can check the Local Register for existing Enforcement Notices and other encumbrances.
  4. Councils have discretion on whether to take enforcement action and how to do it. For example, when an Enforcement Notice is not complied with, councils may:
    • prosecute the case in the Magistrate’s court; or
    • enter onto the land to carry out works and recover the costs by placing a charge on the land/taking action in common law for debt recovery in the County Court.
  5. Planning Enforcement Notices give rise to a time limited right of appeal to the Planning Inspectorate. Planning application refusals may also be appealed, though the time limit for the appeal is reduced if there is a valid Enforcement Notice affecting all or part of the application site. If councils do not make planning decisions within certain time limits, applicants may appeal to the Planning Inspectorate without waiting for determination of their applications.
  6. The law was recently changed to allow councils to refuse to determine planning applications if it would involve all or part of a site subject to a valid Enforcement Notice. There is no right of appeal against such a decision, and it may only be challenged by way of judicial review at the High Court.

What happened

  1. In 2013 Mr X bought a house at a public auction: Mr X lives elsewhere but intends to move into the house when he retires. The house was already subject to an existing Enforcement Notice when Mr X bought it. The notice required the removal of uPVC windows and replacement with windows of specific design and materials. Mr X employed a solicitor to represent him with the purchase.
  2. The Council says it wrote to Mr X to warn him that unless he complied, it would take action against him. Mr X says he did not receive the Council’s letters and was not aware of the Enforcement Notices until he received a summons to appear at the Magistrate’s court.
  3. Mr X attended court and pleaded guilty and was fined and asked to pay costs.
  4. In 2014 Mr X submitted a planning application proposing to retain the uPVC windows. The Council decided to refuse the application in 2016. Because an Enforcement Notice existed, the time limit for an appeal to the Planning Inspectorate was 28 days. The first schedule of the refusal notice clearly sets out what Mr X should do if he felt aggrieved with the decision, including his appeal rights to the Planning Inspectorate.
  5. Mr X did not appeal and says this was because he was advised by a Council Officer to complain instead. Mr X shared the correspondence with me, and in his letter to the Council he says he wishes to ‘complain’ about the decision.
  6. The Officer denies he told Mr X that he should complain, but said he told him to speak to Planning Officers about appeal matters.
  7. In 2017 Mr X submitted a second application. The Council decided not to determine this application, because the site was subject to an Enforcement Notice.
  8. Mr X feels he has been treated unfairly. He says many other houses in the street have uPVC windows. Mr X says he cannot afford to replace the windows and his wife is ill.

My findings

  1. Before we continue our investigations, we need to be satisfied that the individual complainant was caused an injustice as a result of fault by the Council. If we find fault and injustice we need to be able to recommend a remedy.
  2. Mr X bought a house that was subject of an Enforcement Notice. He has already attended court and pleaded guilty to the offence of failing to comply with the notice.
  3. There may well have been delay in determining the 2014 application, but Mr X has a remedy for this, an appeal to the Planning Inspectorate. In any event, I cannot say Mr X was caused an injustice by any delay, as I cannot see how he was disadvantaged by continuing in his failure to comply with the Enforcement Notice.
  4. Mr X says he was advised to complain instead of using his right of appeal, but we have no real evidence of what was said or understood by what was said during his conversation with the Council Officer. I have seen no evidence that Mr X was misled by the Officer. The evidence I do have shows Mr X was informed of his appeal rights to the Planning Inspectorate.
  5. In any event, I cannot speculate on what a Planning Inspector might have decided if Mr X had appealed in 2016, though I can imagine significant weight might have been given to the fact that Mr X had already pleaded guilty to the Enforcement Notice.
  6. The Ombudsman is not an appeal body and cannot determine planning matters. We cannot give an opinion on whether it is unfair to require compliance – that is a matter for the Planning Inspectorate and the courts.
  7. The Enforcement Notice still exists and the Council tells me it is currently considering what it might do next. However, I cannot see that further investigation by the Ombudsman is likely to find fault or would result in a meaningful outcome in an ongoing enforcement matter.
  8. For these reasons I should end my investigation.

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Final decision

  1. I have ended my investigation because further investigation by the Ombudsman is unlikely to lead to a finding of fault or achieve a meaningful outcome for the complainant.

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Investigator's decision on behalf of the Ombudsman

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