Summary: Mr X complains on behalf of Miss T, that the Council has placed a note on the local search about potential planning enforcement action on the development which her properties are located within. He says this is preventing her refinancing her properties and causing her to pay high interest charges. We do not find fault with the actions of the Council. It is the property developer who is ultimately responsible for adhering to the specified planning conditions, and the Council is not responsible for the subsequent financial impact Miss T has suffered. The Council is entitled to take action as it deems appropriate to deal with any breaches of planning control.

The complaint

1. Mr X complains on behalf of Miss T that the Council;

• placed a note on the local search that enforcement action is pending against her properties, which is preventing them being refinanced. He says Miss T has not been served with any notice, and
• delayed taking any enforcement action, instead preferring to continue with negotiation, which is further impacting Miss T financially due to the current high interest of her property finance.

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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’. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I read documents provided by Miss T, which included the Council’s responses to correspondence with her father Mr P, and I spoke to her representative Mr X on the telephone.
6. I examined planning permission documents from the Council’s website relating to the development concerned.
7. I invited Mr X and the Council to comment on a draft decision and considered any comments made in response.

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What I found

8. Planning permission is required for the development of land and may be granted subject to conditions relating to the development and use of land.
9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

Local land charges

10. Local land charges searches, also sometimes referred to as local searches, are normally required in the property-buying process. Most local land charges are restrictions or prohibitions on the use of the property. The local land charges search will reveal whether a property is subject to a charge if that charge has been registered. The property will be subject to it regardless of whether it is registered or not. Other searches will need to be conducted to determine whether a property has an obligation on it.

Background

11. Miss T’s father, Mr P, applied to the Council for planning permission to build 29 dwelling houses in April 2015. The permission was granted with conditions in December 2015.
12. A further planning decision notice was issued in November 2016 in respect of the development. This decision discharged some of the conditions from the initial planning decision, but others remained unfulfilled.
13. The company who financed the project took control of the unsold properties on the development through a receiver in December 2019. Miss T said she understands there is significant legal action ongoing between Mr P and the receiver.

What happened

14. Miss T purchased three properties from the housing development being built by Mr P. Miss T said the financing of these properties relied on a clear local search in June 2018. She said these searches did not give any indication of any enforcement proceedings or planning contravention notice (PCN) being in place. Miss T financed the three properties through the same company who later took control of the unsold properties on the development.
15. In July 2019, Miss T said she financed one of the properties she had purchased on the development away from the original finance company to a different one. She said another local search was undertaken and confirmed there were no breaches of planning or any issues being subject of a PCN.
16. Miss T said she then agreed to finance her other two properties away from the original finance company. She said a local search carried out in August 2019 revealed a PCN had been issued for a number of planning contraventions on the development. Miss T said she never received a copy or any notification of a PCN being issued.
17. Miss T said that a further local search in June 2020 revealed a note that said the PCN had served its purpose and ongoing non-compliance with planning conditions is now subject to a separate resolution through enforcement action. The local search also said the Local Planning Authority is working to resolve these breaches through negotiation, but if negotiations fail then formal action will follow.
18. Miss T said a further local search was completed in September 2020 and showed there was no PCN issued to any of her properties, but there was still a threat of enforcement action preventing her being able to sell or refinance any of her properties. She also said that the terms from the original finance company were coming to an end which would mean she would have to pay much higher rates.
19. Miss T said the Council was still proceeding to take informal action about the breaches of planning control which meant there was no end in sight as to when she would be able to refinance or sell her properties. She said this is now having a financial impact on her as she has to pay a higher rate of interest to the initial finance company. Additionally, she says this is causing her a great amount of stress.
20. Mr X said had the Council provided Miss T with detailed information as to the outstanding planning matters, she could have considered funding the outstanding planning issues to enable her to refinance the properties. Mr X said the Council did not respond to the request.
21. In support of her complaint to the Ombudsman, Miss T provided documents that involved correspondence between the Council and Mr P.
22. When responding to a complaint from Mr P in May 2021, the Council said it is considering taking formal enforcement action with regards the non-compliance of planning conditions.
23. The Council said it is looking to resolve the planning issues with the receivers who are now in control of the development. It said the receivers have maintained their intention to remedy all breaches of planning control relating to the development and it will continue to proceed by way of negotiation, and only takes formal action as a last resort.
24. The Council also said that whilst the ongoing proceedings in the High Court or Court of Appeal between Mr P and the receivers does not prevent the receivers completing required actions, it has inevitably been a distraction for the receivers and presently none of the planning breaches have been fully resolved.
25. In a stage two complaint response to Mr P in July 2021, the Council said it made him aware of non-compliance with a number of planning contraventions when he was still the developer of the site. It said its correspondence about the issues is now with the receivers who have taken control of the development and is confidential.
26. The Council said its enforcement powers are discretionary and it is the Council’s decision how best to discharge those powers. It said it is committed to ensure the site is delivered to the standard detailed in the approved plans. The Council said this approach is in the best interests of current and future homeowners on the site and the wider area and surrounding properties. It said it is continuing to actively pursue enforcement activity with regards the outstanding issues on the site.

Analysis

27. This complaint has added complexity in that Miss T’s father, Mr P, is the original developer and is currently engaged in court action with the receivers who now have control of the unsold houses on the development.
28. The Council did not serve Miss T with any notices about any PCN’s in place or give her any information about potential enforcement actions being taken that impacted on her properties. I have decided not to reach a view on whether the service of any notices would have been appropriate because even if the Council should have served a notice, this has not caused Miss T a significant injustice.
29. Mr X’s comment that had Miss T been served a notice, she could have resolved the planning issues on the development is not an appropriate course of action. It is unlikely this is something the Council could agree to as Miss T is not the person who was granted planning permission. It is the responsibility of the developer who is in control of the development following planning permission being granted to ensure any development meets the approved plans.
30. Local searches contain information that is known and recorded at the point in time the searches were conducted. This does not mean that planning contraventions discovered or realised at a later date cannot be added.
31. The ultimate responsibility for ensuring that planning conditions were complied with is the developer of the site. The Council is not responsible for the developer failing to adhere to planning conditions, which had led to the unfortunate position Miss T is now in.
32. With regards to the complaint about the delay in taking enforcement action, it is at the Council’s discretion how to use its enforcement powers. It has outlined its position on how it intends to proceed having considered the information available to it. We cannot question a decision by the Council which has been properly made.
33. I do not propose to find fault with the actions of the Council for the reasons detailed above.

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Final decision

34. I close this case without a finding of fault against the Council for the reasons detailed in this statement.

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Investigator's decision on behalf of the Ombudsman