Summary: The Ombudsman found fault by the Council on Mr Y’s complaint of it failing to take enforcement action properly and promptly about the conversion of units from business to residential use without consent. Fault included: delay; failing to have a clear strategy for pursuing action when faced with non-cooperation; a lack of updates to Mr Y; failing to decide whether a rear extension breached planning consent. The agreed action remedies the injustice caused.

The complaint

1. Mr Y complains the Council failed to promptly and properly take enforcement action against the landlord of the building he lives in for converting business units into residential apartments without planning consent; as a result, his quality of life has been affected as extra dwellings impacted on waste disposal, the security of the building, and noise disturbance.

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What I have investigated

2. I only investigated the Council’s actions from January 2018. The paragraph at the end of this statement explains why. Information referred to before this date is given by way of background, to put the complaint in to context.

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The Ombudsman’s role and powers

3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. 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)
5. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

6. I considered all the information Mr Y sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I was unable to send him a complete copy because the Council asked for many documents it sent to remain confidential. This is because it contained information about third parties. This means there is much information I am unable to disclose to Mr Y, or refer to directly, in this draft decision. I sent a copy of this draft decision to him and the Council. I considered their responses.

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What I found

7. Mr Y has lived in the flat he owns for more than 20 years. Many years ago, the Council refused planning consent to the landlord who wanted to convert the ground and basement units from business to residential use. When the Council refused the application, the landlord ignored the Council and carried out the conversions anyway. Mr Y is unhappy with the Council’s failures to take effective enforcement action to return these units to their original use.
8. He says the conversions impact on residents through increased noise, less security, devalued properties, and hygiene.
9. Information from the Council states:

• 2014: It took enforcement action against the landlord and served an enforcement notice. This is because the rear of the ground floor and basement were converted to a residential maisonette. The notice required the ending of residential use and the removal of the kitchen, toilet, and bathroom.
• 2014 to 2016: The Council considered the possibility of prosecuting the landlord because he was profiting from the illegal conversion. Site visits confirmed continued non-compliance. In 2016, environmental health officers served an improvement notice for works to reduce hazards of damp, mould, fire, and the risk of falling on steps/stairs. The works were done. They also served a hygiene prohibition order which remains in place until an officer considers enough measures are taken to eliminate the imminent risk of injury to health.
• 2017: A report recommended prosecution proceedings for non-compliance and legal proceedings were investigated. Towards the end of the year, court proceedings were issued.
• 2018: The landlord pleaded not guilty early in the year. The Council did not continue with this when it received a barrister’s opinion. It received no response to a planning contravention notice served. Taking further advice from a barrister, the Council decided it could not justify the time and cost of pursuing a prosecution given the chances of success. An officer wrote to Mr Y explaining they had no evidence of the landlord receiving rent and about the need to investigate further. The Council served the landlord with a planning contravention notice as it wanted information about the connections between various parties. It received no response.

The Council refused a Certificate of Lawfulness for the retention of the basement and ground floor units as a self-contained residence.

• 2019: The Council received further information from Mr Y of works to an extension which could be another illegal conversion. The Council confirmed the extension has no consent for residential use. Officers could not access the site towards the end of the year when they visited.

The Council told Mr Y it could not get strong enough evidence to show receipt of rental income for the units. Nor could it justify further time and effort when there was little chance of a conviction. It told him there was no evidence of residential use and the units were uninhabited. Mr Y disputed these findings.

• 2020: Officers could not gain access at the start of the year because of a problem with keys. It appeared the property had squatters. The rear extension was occupied. The officer confirmed the basement and ground floor units were occupied. A further attempt to gain access in March was unsuccessful. The Council could not confirm whether the current use and history of the rear extension breaches planning control.

10. In response to my enquiries, the Council explained there are ‘legal complexities’ due to various levels of ownership and interests in the property it needs to overcome to take successful prosecution proceedings. It explained the enforcement notice remains in place. Overall, the Council did not receive responses from its attempted contact with them. The Council did an interview under caution with the representative of the landlord and noted the extension was occupied. The managing agents confirmed they were not involved since the previous summer. A further site visit was arranged but, this could not be done because of the COVID-19 lockdown restrictions.
11. The Council also confirmed it received an application for a Certificate of Lawfulness in June 2019 for the use of the basement and ground floor as a self-contained residential flat. Information sent with it is considered possible evidence for a future court case. It sent a letter under caution to the agents seeking confirmation of the legitimacy of the documents.
12. The Council accepted it could update Mr Y where possible because of legal sensitivities with prosecution proceedings which are not for public disclosure.

Analysis

13. The Council’s planning manual on enforcement, section 7, states when an enforcement notice is not complied with, it will consider the expediency of further action which is usually prosecution and/or direct action. Direct action would involve the Council taking steps to removal a structure, for example. Where the breach is significant, the Council will consider prosecution. Where it continues to cause a nuisance and/or harm, and when sufficient evidence can be obtained, prosecution should be considered. In such cases, a final warning letter is sent, and all other parties are served with the notice.
14. I make the following findings on this complaint:
1. The enforcement notice that became effective in 2015 has not been complied with until recently. Under the law, the owner of the land who breaches the notice is guilty of an offence. The first step for the Council, therefore, was to identify the owner of the land. (section 179 (1) and (2) Town and Country Planning Act 1990) The Council had to take reasonable steps to identify the person upon whom the notice should be served. This would include serving a planning contravention notice, carrying out a HM Land Registry search, and searching records at Companies House, for example.
2. The ownership of this ground floor flat and basement was complicated as the freehold was registered to Mr B; Ms C owned a very long lease; Mr D owned a shorter, but quite long lease; and rent from the property was paid to Mr E through a management agent.
3. A person who has control of, or an interest in the land to which the notice relates, must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried out. Failure to do so is an offence. (section 179 (4) and (5) Town and Country Planning Act 1990)
4. Although I cannot directly refer to what was happening, the evidence shows the Council was pursuing legal action throughout the first half of 2018. Following a barrister’s advice, the Council decided it was not appropriate to spend further time and money pursuing its prosecution action given the likely chance of success.
5. I found no fault with the Council pursuing court action up to this point and acting on legal opinion not to pursue it further.
6. In the second half of 2018, the Council served a planning contravention notice. This helps a council get information from land owners, occupiers, or operators. Failure to reply to this notice can lead to prosecution and fines. The Council received no response. Considering the problems faced with the prosecution, and the barrister’s opinion, I do not consider it fault for the Council to try and gain information to clarify ownership and the relationships between the various parties identified in this way.
7. Around this time, the Council received an application for a Lawful Development Certificate for an Existing use or operation or activity (CLUED) from Ms C. This is a legal document, not planning consent, that establishes the existing use or operation of the building as lawful. Put simply, it regularises unauthorised development and prevents enforcement action against that breach. She wanted the Council to accept her argument that the property had a residential use for more than 4 years. Three months later, the Council refused it.
8. Had the Council taken enforcement action before deciding the CLUED, it would have been vulnerable to a defence at court raising the point that such action might not be necessary if the Council went on to accept the application. The Council would have been at risk on costs had it continued with action before deciding the application.
9. There is no information about what the Council was doing from November 2018 until June 2019. I consider this 7-month period of no action amounts to fault.

In response to my draft decision, the Council explained while a lack of resources or staff sickness should not normally be a reason for delay, it contributed, along with increasing caseloads, to a delay in seeking legal advice.

10. The evidence shows officers from planning and environmental health visited shortly before the Council received a second CLUED application. This application provided further evidence in support, including rental statement accounts from 2015. It also confirmed the property still contained a tenant.

In response to my draft decision, the Council confirmed that after investigation, it found this evidence was fabricated and so gave it no weight in its considerations.

11. In August 2019, the Council refused this application.
12. The following month, the Council was told about the rear extension, which was another possible breach. Between September and December, officers visited the property at least 4 times, gaining no access during any of them.
13. In January 2020, the Council attempted to arrange to visit the premises with the agent and officers from the planning and environmental health teams. A week later, there were 2 more unsuccessful visits. Several days later, officers gained access and found it occupied. There followed communication with the agent’s solicitor and a further unsuccessful visit following receipt of information the tenant had left the property. Shortly afterwards, officers were advised to work from home because of national Covid-19 restrictions.
14. While I have not looked at events before 2018, this situation has persisted since the Council had a report of unauthorised use of the basement as residence. Understandably, Mr Y has grown increasingly impatient and frustrated with the failure to effectively resolve this situation.
15. The evidence shows a history of little, or no, co-operation from any of the parties the Council has attempted to get information from over the years. What I have not seen is a clear, overall strategy from the Council of what it wants and intends to achieve. So, for example, I have seen nothing that explained what the Council planned to do when it inevitably got no response to the planning contravention notice it sent. Nor have I seen information about the purpose of the many site visits that were done and what steps the Council would take as a result. This is fault.

In response to my draft decision, the Council stated its current strategy is to: continue with interviews under caution of interested parties; carry out further site visits to establish who lives in the property and speak to an occupant; consider whether the evidential and public interest case is met to seek further formal action. It noted its letters under caution sent in 2020 resulted in it contacting additional parties which has led to the removal of the kitchen, toilet, and bathroom which means it now has compliance with the enforcement notice. I have seen photographic evidence of their removal.

16. While I accept the Council is limited in terms of how much information it can give him about enforcement action, I consider it failed to provide him with updates about the situation. The evidence for 2018, for example, shows contact with Mr Y in August following him initiating contact with a query. The following year, the contact with him was under its complaints procedure after receiving his formal complaint. I saw no correspondence with him in 2020. I consider the failure to provide him with some updates throughout this 2-year period is fault.
17. In response to my draft decision, the Council confirmed it could not take enforcement action about the erection of the rear extension because of the amount of time that has passed since it was built. It was built since at least November 2000 which means the time limit for taking enforcement action has passed. It is unclear whether any internal works requiring planning consent were done, which can only be established by a site visit. While I note the problem of Covid-19 restrictions means the Council cannot gain access to view the extension internally, this was first raised by Mr Y 7 months before the introduction of national restrictions.
18. I am satisfied the identified fault caused Mr Y an injustice. The distress caused included: frustration; loss of confidence in the planning enforcement process; uncertainty about whether the matter could have been concluded but for these failures; inconvenience; and some stress.

Agreed action

15. I considered our guidance on jurisdiction.
16. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Mr Y a written apology for its failure to: progress the case for a period of 7 months between November 2018 and June 2019; have a clear, overall strategy setting out objectives, purposes of visits, and what steps it would take if the failure to co-operate continued; provide Mr Y with updates about progress, or lack of progress, on his reports; make a decision about whether the rear extension breaches planning consent.
2. Review why the delay happened and act to ensure this is not repeated in the future.
3. Act to ensure a strategy for approaching this site is created, setting out an action plan for how to deal with ongoing breaches at this site, including timeframes for action and clarity about who has overall responsibility for pursuing/running the case.
4. Remind officers of the need to provide updates to complainants about progress on their reports.
5. Pay Mr Y £350 for the avoidable injustice caused.
17. The Council also agreed to do the following within 16 weeks of the final decision on this complaint:
1. It will draw up an action plan for its investigation of the internal works carried out in the rear extension and communicate this to Mr Y with the aim of establishing whether they are a breach of not.

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Final decision

18. The Ombudsman found fault on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

19. I did not investigate any complaint Mr Y had against the Council about its actions before January 2018. This is because these complaints are ‘late’ as it took him more than 12 months to complain to us about it. He complained to us in November 2019 which means we usually would only look at events from November 2018. In these circumstances, I was prepared to exercise discretion and investigate events from the start of 2018 instead.

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Investigator's decision on behalf of the Ombudsman