Kettering Borough Council (18 007 913)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 16 Jan 2019

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to take enforcement action about breaches of planning control and planning permission. The Ombudsman will not investigate because the complaint is late and the Ombudsman cannot achieve the outcome Mr X wants.

The complaint

  1. Mr X complains about the Council’s failure to take enforcement action about numerous breaches of planning control and planning permission in a development in which he owns two flats. He says this has left the building unsafe and encourages a variety of antisocial behaviours. As a result of this, and other related matters, he says his flats are now worthless. He says this has had a devastating impact on his life and that of his family.

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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 could add to any previous investigation by the Council, 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. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mr X and considered the written information he provided before reaching a draft decision on the complaint. I have considered the comments he made in response to this before reaching my final decision.

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What I found

  1. In 2007 Mr X bought two flats, off plan, within a development of an old building. The Council has yet to issue a completion statement for the building as a whole because there are a number of defects, including fire and safety issues.
  2. Mr X made a separate complaint to the Ombudsman about the building control certificates it issued for his two flats back in 2007. The Ombudsman was unable to investigate because the matters complained about happened too long ago and there is a longstanding legal precedent that Council’s should not be held responsible for poor workmanship by the builder.
  3. This complaint is closely related to these matters.
  4. It is agreed by all parties involved that significant works are required to bring the building to an acceptable and safe standard. There has been ongoing conflict about who is responsible for doing this work because the original developer went into liquidation some years ago. As a result, very little has been done since. Because of this, the building has been left to deteriorate and Mr X says its poor condition has attracted anti-social behaviour and public nuisances. He has provided a number photographs to show overflowing waste bins and drug related paraphernalia on site.
  5. Mr X says the Council has failed in its public duty to deal with the faults with the building that have caused the anti-social behaviour. In particular, he says the Council should have taken enforcement action in respect of breaches of planning control and the original planning consent.
  6. The Council has worked with the current freeholder to devise a schedule to works to bring the building up to standard and complete it so a building control certificate can finally be issued for the building. This was finalised in November 2016. Mr X says this is to correct dangerous and possibly life-threatening defects with the building.

Original planning permission

  1. The original planning permission was granted in 2004. This was for demolition and alteration to form 23 new flats. It included conditions about security measures and external fire escapes prior to any occupation. This did not happen and Mr X reported the breaches to the Council in 2012.
  2. In its response to Mr X’s complaint about this, the Council said:
  • the possible breaches of planning control about lack of security were investigated and a decision was made there was no “demonstrable planning harm”.
  • The Council accepted the external stair fire escape had not been installed and issued an enforcement notice. The developer went into liquidation while the plans for this were being finalised. The Council said this forms part of the schedule of works.

Analysis

  1. The Ombudsman will not investigate this complaint. As referred to above, the matters complained of are very closely related to Mr X’s complaint about building control. In that case the Ombudsman decided he could not investigate because the alleged fault happened too long ago and as a matter of public policy the courts have decided primary responsibility and liability should rest with the builder and not the Council.

Failure to take enforcement action

  1. The alleged failure to take enforcement action has been ongoing for many years. Mr X first complained about this in 2011. The Council started to take enforcement action but this was frustrated by the developer going into liquidation. Since that time the Council has been working with the new freeholder to address the problems with the building by formulating a schedule of works. From the evidence I have seen this has been a difficult and complex task, complicated by the significant costs and number of parties involved.
  2. I have carefully considered the Council’s response to Mr X’s complaint. It has said its Building Control team has been working with the current freeholder to agree a schedule of works. It has also said it investigated Mr X’s concerns about breaches of planning permission in 2011. It issued an enforcement notice but this was unenforceable when the original developer went into liquidation. It made a decision not to proceed with enforcement action because there was “no demonstrable planning harm”.
  3. Local planning authorities have no duty to monitor development but, if they receive a complaint about a breach of planning control they have a duty to investigate. Breach of planning control includes failing to comply with conditions attached to a planning permission.
  4. The authority has powers to take action but it has no duty to do so. Enforcement action is discretionary.
  5. The Ombudsman cannot intervene in discretionary decisions or professional judgments made by officers where there has been no fault in the administrative process, even if we may have made a different decision on the same facts.
  6. Not only is it a discretionary decision, it also happened too long ago for the Ombudsman to investigate properly.

Late complaint

  1. Mr X first asked the Council to take enforcement action in 2011. It did so and made a professional judgement that this was not appropriate. Mr X could have brought his complaint about this to the Ombudsman at this time but did not do so. He says he has only recently been in a position to bring his complaint to us as the schedule of works has only just been agreed. I disagree. It is clear from the extensive paperwork that Mr X has provided that he has been fully involved with the problems with the building for many years. The schedule of works was agreed in 2016. I can see no reason why Mr X could not have complained sooner than he has.

Conclusion

  1. There is clearly a problem with the building. However, the Council is working with the freeholder to bring it up to the required standard. I am not satisfied any further investigation by the Ombudsman would achieve anything more.
  2. It is the quality of the original workmanship and subsequent insolvency of the builder that has caused the resulting problems, not fault by the Council.
  3. The Council has worked with the owner to identify what needs to be done. From what I have been told the owner is committed to carrying out this work. This is what is required to resolve the fundamental problem that lies at the heart of this complaint. This work should take place as soon as possible but this is something that any further investigation by the Ombudsman could not achieve. It is for this reason that I am closing my investigation.

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Final decision

  1. The Ombudsman will not investigate this complaint. It is late and the Ombudsman could not achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman

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