Summary: Mr X complained the Council failed to take proper action against the owner of two houses in multiple occupation (HMO) near his home, failed to do due diligence before issuing HMO licences, failed to communicate between different departments, and failed to respond in a timely manner. There was no fault in the Council’s planning enforcement investigation.

The complaint

1. Mr X complained the Council failed to take proper action against the owner of two houses in multiple occupation (HMO) near his home, failed to do due diligence before issuing HMO licences, failed to communicate between different departments, and failed to respond in a timely manner.
2. Mr X said:
• One of the HMOs was unlicensed and then had too many occupants.
• The owner did not get planning permission from the Council to change the use of the property from a residential home to a HMO, but the Council still issued a new HMO licence anyway.
• The owner of the two HMOs lied on his planning application to the Council by saying he intended to live in one of the houses. The Council did not address this before issuing the owner a new HMO licence for that house.
• There have been continuing problems at the two HMOs since May 2021 with overflowing household waste bins and fly tipping.
3. Mr X said there are now problems with parking on the street and with overflowing bins because there are too many people. He also said HMO tenants leave rubbish out in the street, create noise nuisance, and take drugs.

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What I have investigated

4. In this decision statement I have addressed the issues around planning and planning enforcement. I have considered the remaining heads of complaint separately and produced a separate decision statement.

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The Ombudsman’s role and powers

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)
6. 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

7. As part of the investigation I have considered the following:
• Mr X’s complaint and supporting information.
• Documents provided by the Council and its comments in response to my enquiries.
8. Mr X and the Council and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Houses in multiple occupation

9. An HMO is a house or flat occupied by three or more unrelated people who are not from a single household and who share amenities. It is a legal requirement for HMOs with five or more occupiers, who live in two or more households, and share amenities, to be licensed by the Council.
10. You need planning permission to convert a house into an HMO for more than six people. For six occupants or less planning permission may not be needed.

Planning enforcement

11. 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.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

What happened

14. I have detailed below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.

Background

15. Mr X lives on a residential street consisting of several houses. I will refer to the two properties relevant to this complaint as Property A and Property B.
16. Property A is a HMO on the development where Mr X lives.
17. In about February 2021, the owner of Property A also bought Property B, which is on Mr X’s street. The owner applied to the Council for permission to convert the garage of Property B into a habitable room. The owner told the Council they intended to live in Property B. The Council granted planning permission.
18. Later, the owner made another planning application for permission to build a new floor within Property B for more rooms. Neighbours opposed the plans and the Council refused planning permission. The owner appealed to the planning inspectorate and a decision is awaited.
19. Mr X told me the owner then split the living room of Property B into two bedrooms and installed bathrooms in each room. The owner also started work on a staircase for the new floor they wanted to build.
20. Mr X said the previous owner of Property B had a licence for a four person HMO, but the new owner made the property into a larger HMO without permission.
21. Mr X also complained to the Council there were too many people living at Property A and B. He said the new owner of Property B converted the house from a four-bedroom home to seven bedrooms.

Property A

22. The Council’s environmental health department inspected Property A on 18 October 2021. It found nine bedrooms with planning permission. However, one bedroom was undersized. The Council therefore reduced the number of permitted households on the HMO licence from nine to eight.

Property B

23. The Council’s planning department visited Property B on 15 September. It found a HMO with six or seven rooms.
24. The Council served a planning contravention notice on the owner of Property B in October. This was so the Council could gather evidence and consider what action to take. It asked for names of tenants, names of mortgagees, details of any planning permission, details of the current use of the property, when this use started, and number of occupiers.
25. The owner said a management company was the tenant and gave the Council their details. The owner said the property’s use was residential, but they were unaware of how many people occupied the property. They failed to answer most of the Council’s questions.
26. The Council also sent a contravention notice to the management company, asking for the same information.
27. The Council did not receive a reply from the management company, so it visited the property again in December. An occupant confirmed they shared the house with seven others, the house had seven bedrooms, and all occupants had lived there for about three months, paying rent separately.
28. After liaising with the Council’s licensing department, the planning department confirmed the property was used as a seven-bedroom HMO and that it did not have the required planning permission.
29. The Council served an Enforcement Notice on the owner of Property B on 2 February 2022. The notice required the owner to stop using the property as a HMO and return it to a residential home by 15 September 2022. The owner did not appeal.

Formal complaint

30. Mr X complained to the Council on 13 October 2021. He said the Council found a breach of planning permission and breaches of the HMO licence at Property A and B but has not taken action to improve the situation for residents. He said there were unreasonable delays and the Council approved HMO licences with no prior checks.
31. The Council sent its final complaint response on 2 December 2021. Relevant to the planning enforcement complaint, the Council said its planning department is investigating an alleged breach at Property B and has served a contravention notice.

My investigation

32. Mr X told me the previous owner of Property B had permission for a four person HMO. However, the new owner transformed the house into a bigger HMO without planning permission.
33. In response to my enquiries, the Council told me when its environmental health department grants an HMO licence for more than six occupants it passes the details to its planning department. The owner must then apply for planning permission. If the owner does not apply for planning permission within six months it is up to the planning department to decide whether to take enforcement action.
34. If the planning department take action against an owner, the environmental health department would then consider whether to vary or revoke the HMO licence.
35. The Council told me the management company of Property B have not appealed against the Enforcement Notice issued in February 2022. They had until 16 September 2022 to stop using the house as an HMO.
36. The Council will now arrange to enter Property B to check whether the management company has complied with the Enforcement Notice.

Analysis

37. The Council carried out inspections at Property A and B following Mr X’s complaints.
38. Property A had planning permission as an HMO and the Council varied the HMO licence so the undersized bedroom could not be used after the occupants’ tenancy expired.
39. Property B had more rooms and more occupants than its licence allowed and did not have the necessary planning permission.
40. The Council’s planning department served an Enforcement Notice on the management company of Property B. They had until September 2022 to stop using the house as an HMO. If they do not comply, the Council can consider prosecution. Its environmental health team can then also consider whether to vary or revoke the HMO licence.
41. Planning enforcement action is at the Council’s discretion. It does not have to take formal action if it considers it would not be proportionate to do so. In this case, the Council has started formal enforcement action. Unfortunately for Mr X and residents, this is not a quick process. The Council must collect evidence and follow the correct procedures. It must also allow the management company the right to appeal and the opportunity to correct matters.
42. I have not seen evidence of fault in the Council’s planning enforcement investigation.
43. In response to my draft decision, Mr X told me he understands the Council does not intend to take further action because it is minded to grant retrospective planning permission to the owner of Property B. Mr X considers this is an abuse of the process by the owner and managing agent.
44. I cannot know the intentions of the owner or managing agent. While I do not dismiss Mr X’s complaint, enforcement action is at the Council’s discretion. If it decides it would have been likely to grant planning permission if the owner applied at the outset, then the Council is entitled to grant retrospective permission.

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Final decision

45. I have completed my investigation. There was no fault in the Council’s planning enforcement investigation.

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Investigator's decision on behalf of the Ombudsman