Summary: Mr R and Miss X complained about the Council’s handling of unauthorised works that led to a building near their properties becoming a dangerous structure, which caused them stress for ten months. We found there was no fault in how the Council responded to Mr R’s and Miss X’s concerns as both a building control and local planning authority. And the Council’s apologies had already suitably addressed any injustice to Mr R arising from its avoidable delay in processing his complaint about what happened.

The complaint

1. Mr R and Miss X said the Council’s planning and building control officers did not cooperate, delayed, and repeatedly failed to stop unauthorised development near their properties. The unauthorised works led to a building on the development site becoming a dangerous structure. Mr R and Miss X experienced distress and worry for ten months. And Miss X’s tenants had to move out of her adjoining property as it became uninhabitable. The Council also delayed responding to Mr R's complaint about what happened. Mr R and Miss X wanted the Council to improve communication between its officers, review its procedures, prosecute the developer, and pay compensation.

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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 may investigate complaints made on behalf of someone else if they have given their consent. Miss X has given her written consent for Mr R to act for her in making this joint complaint. (Local Government Act 1974, section 26A(1), as amended)
4. If we are satisfied with an organisation’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 considered Mr R’s the written complaint and supporting papers, which included information about the Council’s actions and complaint correspondence. I shared a draft of this statement with Mr R and the Council and considered any comments received before making a final decision.

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What I found

Background

Planning enforcement

6. Most development needs planning permission from the local council. If development takes place without the necessary planning permission there will be a breach of planning control. Councils should investigate reports of unauthorised development. But enforcement action is discretionary and Government policy and guidance says councils should act proportionately in responding to suspected breaches.
7. If councils find a breach, they may decide to take informal action or not act at all. Indeed, Government policy and guidance encourages councils to resolve issues through negotiation with developers. Informal action might include negotiating improvements or asking for a planning application so the council may consider the merits of the development. Where councils wish to act, they usually have choices in the formal steps they may take in response to a breach. They may, for example:

• send the developer a planning contravention notice seeking information about the land and unauthorised development;
• issue an enforcement notice describing the breach and the steps the developer must take, and by when, to remedy that breach;
• issue a 28 day temporary stop notice where they consider it expedient to immediately stop activity breaching planning control; and
• apply to the courts for an injunction to restrain an actual or expected breach of planning control.

8. The developer often has legal rights to challenge formal enforcement action by councils and sometimes may seek compensation. The independent Planning Inspectorate (PINs) decides most planning appeals.

Building control and dangerous buildings and structures

9. Building regulations set out the requirements for ensuring buildings are safe for those that use or live near them. So, most building work needs building regulation approval. Builders and building owners may make either a ‘full plans’ or a ‘building notice’ application when seeking approval. A building notice usually seeks approval for minor building work. Both councils, acting as building control authorities, and independent ‘approved’ inspectors may give building regulation approval. Councils alone may also deal with regularisation applications and, after works are done, certify they comply with the regulations.
10. Buildings may become dangerous because, for example, of storm damage, a fire, or lack of maintenance. People may report dangerous buildings and structures to their council as councils have powers to ensure they are ‘made safe’. A council building control officer will visit and may find any danger is either:

• imminent, meaning the building or structure is at risk of collapse and must be secured for public safety; or
• hazardous, meaning the building or structure is unstable but not imminently dangerous.

11. With an imminent danger, councils should still, if reasonably practicable, contact the owner, but they may take immediate action to remove the danger. Where immediate action is not necessary, councils may give the owner reasonable time to remove any danger. And councils may ask the courts for a formal order requiring the owner to remove the danger or demolish the building or structure. Failure to comply with the court order is a criminal offence and the council may then carry out works to make the building or structure safe. Councils may recover their costs both in carrying out ‘immediate’ works and where an owner fails to comply with a court order. However, before awarding costs for ‘immediate’ works, the courts will consider whether the council could not reasonably have applied for a legal order requiring the owner to carry out the works.

A summary of what happened

12. In mid-January 2021 Mr R reported development taking place affecting a building (‘the Building’). The Building was on a site near both Mr R’s home and Miss X’s property, which was occupied by tenants. A Council building control officer visited the site the next day and told the developers the works needed building control approval (and, later, the developers submitted a building notice application). Mr R said work continued on site.
13. About a week later, a Council planning enforcement officer visited the site and met the developers. The enforcement officer asked the developers to stop the development, or the Council would issue a temporary stop notice. The developers agreed to stop working.
14. Later that same day, another building control visit took place. The building control officer then wrote to the developers giving them seven days to complete named ‘urgent’ works to make the Building safe.
15. As work continued, Mr R contacted the Council again. The Council told Mr R it had asked the developers to secure the site. Mr R also said Miss X’s tenants moved out of their home for a few days while emergency propping work took place.
16. In February 2021, Council officers made four visits to the site. During one visit, officers found work had taken place to secure the Building but also to progress the unauthorised development. The Council opened a planning enforcement case and issued a 28-day temporary stop notice.
17. Mr R said work continued the day following the temporary stop notice. And, later that day, he saw the Council’s planning and building control officers on site with the developers. No further work took place from mid-February, although the developers came to the site a few times, including to remove equipment. The developer also applied for planning permission to develop the Building.
18. In April 2021, the Council refused planning permission for the Building finding the standard of accommodation and design of the proposed development unacceptable. The Council also sent the developers a planning contravention notice, which the developers completed and returned, for information about the unauthorised development.
19. The developers made a second planning application in June 2021. A resident also contacted the Council expressing concern about the site. The Council’s planning enforcement and building control officers visited the site and found no changes since their last February visit. The Council, as building control authority said it was satisfied the remedial works completed in February 2021 meant the Building was safe.
20. At the end of July 2021, Mr R said he noticed water pooling on the site and he, Miss X and other residents became increasingly concerned about the Building. Residents instructed a surveyor to report on the site. Then, in early August 2021, Mr R noticed activity on the site.
21. During August 2021 the Council said its officers made five visits to the site, including meeting with residents. The Council considered the residents’ surveyor’s report and officers then met with the surveyor and developers on site. The Council said it found the Building needed further works, which the developers agreed to complete within seven days, to make it safe. Two weeks later, the Council’s building control officer visited the site finding the Building not yet made safe. The following day the building control officer met the developers on site to stop further development work. Three days later, on 31 August, the building control officer made a further site visit in response to a report that work had restarted. Mr R said work stopped after the visit.
22. The next day the Council wrote to the developers warning them it would seek an injunction unless work ceased on site. The following day the Council issued a dangerous structure notice for the Building. During the rest of September and in October 2021 the Council said it made a further six site visits. The Council was also in touch with utility companies about disconnecting water, gas and electricity so it could carry out works to make the Building safe. The services to be disconnected also served Miss X’s property. And, while Miss X’s tenants moved out on 1 October, a utility company remained unable to disconnect their service.
23. The Council then determined the developers’ second planning application. Besides design issues, the Council refused planning permission because of a lack of information about the structural stability of the Building and adjoining properties. The Council also referred to the Building as an unsafe structure because of unauthorised works. The day after refusing planning permission, the Council issued an enforcement notice for excavated land on the site to be backfilled. The developers used their legal right to appeal to PINs against the enforcement notice. (In February 2022, PINs dismissed the appeal, so the enforcement notice took effect and the developers then complied with its requirements.)
24. In November 2021, the Council said it carried out six further site visits and all the relevant utility companies had disconnected their services to the Building and Miss X’s property. The Council and its contractor then agreed a programme of works to make the Building and site safe. The Council also engaged an external expert to report on the proposed works to ensure they were necessary and justified. The Council arranged a temporary road closure and secured police presence for the site and then started the works to make the Building and site safe. The works were completed during November. Meanwhile the developers made a third planning application to develop the site.
25. From late November 2021 until early April 2022 the Council sought reconnection of services to the Building and Miss X’s property. The Council paid the utility companies reconnection costs, including for Miss X’s property. All services were restored in early April 2022. The Council placed a legal charge on the site and Building so it could recover its costs of carrying out the November works.
26. Mr R for himself and Miss X complained to the Council saying its failure to deal with the site meant problems escalated. The Building had become derelict and open to the weather, which badly affected Miss X’s adjoining property. Mr R referred to minimal work in February 2021 and no further action until September 2021. The Council then took two months to carry out works to the Building and four months to reconnect services to Miss X’s property. Mr R said the Council had put residents’ lives at risk and it should issue an enforcement notice to restore the Building to its former condition.
27. The Council apologised for taking four months to provide a substantive response to the complaint. The Council said its intervention in February 2021 was quick and successful. And, when it received reports of activity in summer 2021 and found the Building had deteriorated, it again acted quickly to stop works on site. It had carried out planning enforcement and building control investigations. The site had been backfilled, which remedied the breach of planning control. And it had used its building control powers to take direct action to deal with the Building in November 2021. Its officers made many, including joint planning and building control, visits to the site. Building control had received and responded to about 250 emails and kept residents informed. Issues with services had caused some delays but it had made daily telephone calls to utility companies seeking their cooperation. The Council said the Building had never been in imminent danger of collapse and it had acted in line with relevant laws and guidance.
28. Mr R found the response inadequate saying it failed to address the issues or provide an apology and compensation for what had happened to residents. Mr R said the Council did not act quickly as it took ten days to issue the temporary stop notice in February 2021 and ten months to take direct action in November 2021. Mr R also said the Council had not coordinated its planning and building control responses. And if the Council had acted properly, preventing excavation work, Miss X’s tenants would not have needed to move out of their home.
29. The Council replied six weeks later, apologising for its delay. It repeated that it acted quickly in response to the January 2021 report of unauthorised works on the site. The Building was made safe and remained so until summer 2021, when the professional view of its building control officers changed. It then followed the necessary procedures to make the Building safe while ensuring it could recover its costs in taking direct action. The Council said it was not responsible for the actions and delays of utility companies. And it would not take planning enforcement action while it was considering planning applications to develop the site. The Council said it was not its role to protect private property and it was the developers’ actions that had affected the Building. It had acted to reduce any risk of harm and it had not added to any distress experienced by residents. The Council signposted Mr R to the Ombudsman.
30. Meanwhile, the developers appealed the Council’s refusal of planning permission on their third application. (The appeal remained undecided as of early May 2023.) The developers also restored the Building so it could be occupied again.

Consideration

Introduction

31. My role was to consider whether there was evidence the Council acted with fault and, if so, whether that fault caused Miss X and Mr R injustice that I should seek to put right. That the Council could have done more and or acted differently did not necessarily mean that what it did amounted to fault. I also had no role in arbitrating on any differing views about if and when the Building was a dangerous structure. My concern was how the Council processed Mr R’s reported concerns about the site and Building and reached its decisions but not the merits of those decisions.

Liaison between Council officers

32. The owner of a building is primarily responsible for its condition. Owners are also responsible for securing any consents and approvals needed to carry out works to their building and ensuring works comply with building regulations. Here, the developers, as owners of the Building, started work without the necessary planning permission or building control approval.
33. Council enforcement and regulatory powers are often reactive. That is, councils will respond to people reporting a possible problem, issue or concern. Here, the Council responded to reported concerns about the Building as both the local planning and the building control authority. While these are two separate functions with different laws and guidance, development and building control are often linked in practice. Here, the evidence showed the Council’s planning and building control officers were aware of the Building and site and carried out joint site visits. I therefore saw no good grounds to find the Council’s planning and building control officers failed to liaise in responding to residents’ concerns about the site and Building.

Planning enforcement

34. As local planning authority the Council visited the site within about a week of receiving Mr R's report of an alleged breach of planning control. I therefore found no avoidable delay here. The Council also asked that unauthorised development stop and referred to its powers to issue a temporary stop notice, which notice it later issued. I recognised Mr R found the Council took too much time to issue the notice when work continued on site. However, in line with government guidance, councils normally seek to resolve breaches of planning control informally before considering formal action. They also need time to process and authorise formal notices. This will often include enforcement officers getting appropriate legal advice to ensure notices are properly worded and correctly served on interested parties. I therefore did not find the Council fell below acceptable administrative standards in first seeking the developers’ informal cooperation to stop work. And then taking about ten days to issue a temporary stop notice. So, I found no fault here.
35. Between February and November 2021, the developers made three planning applications to develop the site and Building. The development proposed in the applications reflected the unauthorised development started on the site. Councils will usually hold enforcement action in abeyance while determining applications that, if approved, will regularise unauthorised development. Here, in refusing planning permission for the first planning application, the Council’s reasons did not show the development proposed was unacceptable in principle. Rather, the Council found the detailed proposals did not comply with relevant local planning policies. But, having refused planning permission on the first application, the Council took further enforcement action in sending the developers a planning contravention notice. I therefore found no fault by the Council, as local planning authority, at this point.
36. The developers then made a second application, changing their proposals to try to overcome the Council’s reasons for refusing the first application. While the second application was being considered, the Council’s building control officers changed their professional view and found the Building was a dangerous structure. And, as building control authority, the Council issued a dangerous structure notice for the Building. The Council, as local planning authority, took account of building control’s change of view and circumstances in deciding the second application. As local planning authority, the Council’s reasons for refusing planning permission included the lack of information about the structural stability of the Building. The Council then issued an enforcement notice requiring the developers to backfill the excavated land on the site to remedy the existing breach of planning control. I therefore saw no evidence the Council, as local planning authority, acted with fault in processing the second planning application and then issuing an enforcement notice.

Building control and dangerous structures

37. As building control authority, the Council’s officers visited the site and inspected the Building many times between January and November 2021. The first visit came the day after the Council received a report of unauthorised works on the site. The Council’s building control officer then advised the developers they needed building control approval. I did not find the Council at fault for taking informal steps and seeking the developers’ cooperation in securing the necessary approvals.
38. The second visit came a week later, after which the Council wrote requiring the developers to make the Building safe. The Council, as local planning authority, also issued a temporary stop notice. Works to secure the Building were completed by mid-February 2021. I recognised Mr R found the time taken to secure the Building unacceptable. However, the Council said the Building was never at risk of imminent collapse. And it was not for me to question this view, which was based on the assessment and judgement of onsite circumstances by the Council’s professional building control officers. I therefore found no avoidable delay amounting to fault by the Council in its initial response to reports about the Building.
39. Once the Council was satisfied the Building had been made safe in February 2021, it had fulfilled is regulatory role. And it was for the developers to maintain the Building and secure any necessary approvals to further develop the site. While the developers then made two planning applications, there was little evidence of substantive work taking place on the site or at the Building, once it was made safe in February 2021, until summer 2021. However, once the Council received further reports of concerns about the site and Building in August 2021, the evidence showed it again responded without any avoidable delay. And this intervention led the Council to issue a dangerous structure notice in early September 2021.
40. I recognised it then took over two months before the Council completed works to make the make the Building safe. However, the Council did not consider the Building was in imminent danger of collapse. And it needed to prepare for direct works on site. The steps taken by the Council included arranging to disconnect services from the Building and Miss X’s adjoining property. The relevant utility companies would have their own requirements for disconnecting services and would be responsible for programming any disconnection. The evidence showed that, unfortunately, it took some time for one utility company to disconnect their service. The Council also engaged a works contractor and sought an independent report to support recovery of its costs in taking direct action. The Council arranged for a temporary road closure and for the police to attend the site. These are steps a council would likely need to take before carrying out works at public expense. And I saw no evidence there was avoidable delay by the Council in taking them. I therefore did not find the Council at fault in taking about two months to complete works to the Building after issuing the dangerous structure notice in early September 2021.
41. On completion of the works, it took more than four months to restore all services to the Building and Miss X’s property. This is a long time. However, again it was for the relevant utility companies to programme and reconnect their services. I saw no evidence that fault by the Council affected the time taken to reconnect services so Miss X’s property could be reoccupied.

Complaints handling

42. The time targets set in the Council’s complaint procedure required that it respond to Mr R’s original complaint in 10 working days. The Council’s second complaint response was an ‘adjudication’. Under its complaints procedure, that response was due within 30 working days.
43. While the Council kept in touch with Mr R, it took over four months to respond to his initial complaint. I therefore found fault here. The Council also missed its ‘adjudication’ time target by two working days, which I did not find of significance. However, in both complaint responses the Council apologised to Mr R for its delay. I found those apologies adequately addressed any resulting injustice the Council’s delayed replies caused Mr R.

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Final decision

44. I found no fault in how the Council responded to Mr R’s reports of unauthorised works on land near his home and Miss X’s property. And the Council’s apologies had already suitably addressed any injustice to Mr R arising from its delayed complaint responses.

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Investigator's decision on behalf of the Ombudsman