Summary: Mrs X complains the Council has failed to take action regarding the unacceptable condition of the grounds in which her house is situated. We have found the Council failed to properly assess the safety of the site and respond to her first complaint. The Council has agreed to apologise, make a financial payment and service improvements to remedy the injustice caused.

The complaint

1. Mrs X complains the Council has failed to take action regarding the unacceptable condition of the grounds in which her house is situated. Mrs X says the buildings have been in an unacceptable condition since 2019 and demolition of (Building A) started years ago. Mrs X says the condition and safety of the land and antisocial behaviour has been getting worse year after year, but the Council has failed to address these issues.
2. Mrs X says this has caused them significant stress and they have been subjected to living amongst rubble, broken glass and unsightly demolition with no confirmation the half-demolished buildings are safe. They have been subjected to years of antisocial behaviour for which there are numerous police reports, suffered damage to their own property and been subjected to verbal abuse because they have been attracted to the derelict buildings.

Back to top

What I have not investigated

3. Mrs X’s complaint refers to issues that arose in October 2019. As explained in paragraph 4 below, this part of Mrs X’s complaint is late. However, I have exercised my discretion to investigate this complaint from September 2021, when Mrs X complained to the Council.

Back to top

The Ombudsman’s role and powers

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)
6. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)

Back to top

How I considered this complaint

8. I discussed the complaint with Mrs X and considered the information she provided. I made enquiries of the Council and considered the information it provided.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

Back to top

What I found

Town and Country Planning Act 1990

10. Under section 215 of the Town and Country Planning Act 1990 (as amended) the local planning authority can serve notice on the owner of untidy land. This section of the Act allows a local planning authority to take enforcement action via an untidy land notice where the amenity of a part of their area, or adjoining area, is adversely affected by the condition of the land.
11. The Government has issued best practice guidance (‘the guidance’) to local planning authorities on how best to make use of their powers under Section 215. The guidance states the use of section 215 by local planning authorities is discretionary and it is for the authority to decide whether a notice is appropriate in a particular case, taking into account all the local circumstances including, for example, the condition of the site, the impact on the surrounding area and the scope of their powers.

Anti-social behaviour

12. Councils have a duty to take action to tackle anti-social behaviour (ASB). The Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
3. conduct capable of causing housing related nuisance or annoyance to any person.
13. ASB can take many different forms and councils should make informed and proportionate decisions about which of their powers is most appropriate to use in any situation. For example, they may deal with noise as an environmental health issue, or where the alleged perpetrator is a council tenant, they may take action as part of their duties as a social landlord.
14. The 2014 Act introduced new powers for councils, the police and other bodies to tackle ASB. The statutory guidance which accompanies the Act sets out some early and informal interventions which may be used to address anti-social behaviour. These include verbal and written warnings, mediation and acceptable behaviour agreements.
15. Acceptable behaviour agreements are voluntary agreements used when someone has engaged in ASB, understands and accepts they did something wrong and wants support to change their behaviour.
16. Councils and the police also have powers to issue community protection notices to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable.
17. In terms of assessing the impact of ASB on victims, the statutory guidance says it is good practice for agencies to assess the risk of harm to the victim, and their potential vulnerability, when they receive a complaint about anti-social behaviour.

What happened

Chronology of key events

18. Below is a chronology of key events. It is not meant to show everything that happened. I have not included any details about discussions between the Council and planning applicants in relation to the site and Building A due to reasons of confidentiality and in the interests of protecting third party information.
19. In November 2020, the Council received a planning application for the site which was validated in January 2021.
20. On 27 September 2021, Mrs X contacted the Council about ongoing concerns regarding the land at the site of Building A. Mrs X said she was aware that a planning application had been submitted some time ago, which she hoped would improve the area but the general state of the land and buildings surrounding her property was becoming intolerable. She asked the Council to explain what action it was taking to address this including the safety of the structures.
21. Mrs X said that in October 2019 a heavy goods vehicle had crashed into the archway, and little had been done to rectify and clean up the area or to confirm its safety. Mrs X said demolition work on Building A commenced six months ago but was suddenly stopped and no clean-up of the area has taken place since. She said the whole area had been left derelict for several years and referred to the Convention of Human Rights which stated that a person is entitled to the peaceful enjoyment of his/her property. Mrs X explained there had been several incidents regarding graffiti, vandalism and arson.
22. In early January 2022, Mrs X’s MP contacted the Council about Mrs X’s concerns in relation the security of the site, its current state and that ongoing delays in addressing the matter were resulting in increased ASB.
23. On 24 January, a planning enforcement case was opened, and legal advice was sought regarding taking enforcement action against the site owner.
24. On 22 February the Council responded to the MP requesting more information, which was provided on 25 February. A week later, the site was advertised for sale.
25. In March, the Council considered taking enforcement action against the site owner. However, the live planning application in relation to the site was being revised and the agent was due to provide updated plans.
26. On 20 April, the MP forwarded part of an email from Mrs X to the Council. Mrs X acknowledged the support they had received from the police in relation to vandalism and ASB. Mrs X said she was hopeful that section 215 of the TPA could be applied as the issues had been going on for several years. There is no copy of this correspondence on the enforcement file. The Council informed the MP that it was aware of the situation and an enforcement case had been opened and was being investigated.
27. On 5 July, Mrs X sent an email to the Council regarding ASB on the site. Mrs X said she had previously raised the same concerns. The Council has no record of these emails.
28. The Council told Mrs X that a planning application for the site was being considered. The Council said it was monitoring the site and had issued a Community Protection Notice (CPN) to ensure it was safe and to prevent youths accessing it. Mrs X responded stating the site was not secure and raised further concerns about ASB.
29. On 12 July, in an internal email the environmental health team clarified that it had issued a Miscellaneous Provision Act, not a CPN, on the landowner to enable the site to be made safe. It said it had not received any complaints of ASB and had not visited the site for several months but would visit the next day to ensure the site was secure.
30. On 21 July, the Council told Mrs X there was an active enforcement case in relation to the site. The Council said there was a live planning application on the site, and it was working with the agent. It explained that demolition material on site may have historical value and would require a full assessment before a decision could be made about moving them. The Council apologised for the delay in determining the planning application.
31. On 1 August, a site visit was undertaken by the Council; however, no details of this have been provided.
32. Between 21 September 2022 and January 2023, there is evidence of discussions between the Council and a potential new developer for the site.
33. On 16 January 2023, the enforcement team requested a site visit to check if the fencing on the site was still in place, secure and prevented access to the site.
34. On 19 January, Mrs X complained to the Council again. She said there had been several emails and phone calls over the years, but they were getting nowhere. Mrs X said she was complaining about Building A and the lack of communication and consideration by the Council about the impact it was having on Mrs X and the town. Mrs X repeated her concerns about ASB and safety of the buildings.
35. The Council responded on the same day. It explained that it was dealing with a planning application for the site which was for the demolition of the existing building including the rear of Building A and construction of four dwellings. The Council explained the site was located within a conservation area and the older buildings on site made a positive contribution to the area. The Council said the conservation officer had been consulted and objected to the demolition of the archway and adjacent ‘stores’ building, and the conservation survey was lacking detail as to how the poor condition of the main building could be overcome and be repaired.
36. The Council confirmed it was still discussing the site with the agent to try and negotiate a way forward. The Council said it had explored enforcement action on the site, however it had limited powers to force the owner to clean up the site. The Council told Mrs X that any ASB was a matter for the police and any safety issues was a matter for its building control section. The Council said the site has been fenced off and access prevented to any unauthorised people.
37. On the same day, Mrs X asked for her complaint to be escalated to stage two. She said the response had provided no new information than what she had been told for the last several years. Mrs X said her complaint was not about the complexities of the planning process but the time it was taking to make decisions and speed up the clean-up of this area. She said since the demolition works the rubble had just been left and since the archway was damaged in 2019 the site had been left in a completely unacceptable state that had got worse year on year. Mrs X provided photographs of the site with her complaint.
38. On 6 February, the Council responded to Mrs X and agreed that Building A had been left in an unacceptable situation. It said the building made a positive contribution to the character of the conservation area and the planning authority was keen to protect that. The Council said it was monitoring the site, was keen to see it redeveloped and was in engaged in sensitive discussions with the landowner’s agent regarding the current planning application. It said it did not want to jeopardise any discussion by serving a formal notice.
39. The Council said it would monitor the site for three months from the date of its correspondence and if no progress had been made on the planning application it would serve a section 215 notice.
40. In May 2023, the Council received a planning application for the site.

The Council’s response to our enquiries.

41. The Council said it had only received one objection from a local resident, Mrs X, about the condition of the site and it advised her to contact the police about ASB issues. It explained the building was not unsafe as it was adequately fenced off to the public.
42. The Council acknowledged than an enforcement file on the site remained open but had not been updated. It confirmed that it was considering serving a section 215 notice on the owner in late April or Early May 2023, but was uncertain as to who owned the property as it was understood it was changing hands. On 17 May, the Council told the Ombudsman that it would not be serving a section 215 notice as it had received a planning application for redevelopment of the site.

Analysis

43. In matters of planning enforcement and environmental health, councils have broad discretion as to when and when not to act. The Ombudsman cannot generally find fault for a failure to act in these areas because the decision whether to act to not would be a professional decision made by an expert in full possession of the facts. The Ombudsman is not able to disagree with such professional judgements. For us to find fault, there must generally be fault with the way the decision is made.

Enforcement action

44. The Council opened an enforcement case in January 2021 and considered taking enforcement action against the site owner but decided not to do so as there was a live planning application in place for the site. This was a decision for the Council to make and I find no fault in the way it reached this decision.
45. On the matter of the section 215 notice, it is clear the Council was dealing with two planning applications during the period of Mrs X’s complaint. I understand Mrs X’s frustration due to the length of time taken in determining the planning applications. However, Councils will usually hold enforcement action in abeyance while determining applications. As explained in paragraph 10, use of section 215 by local planning authorities is discretionary and it is for the authority to decide whether a notice is appropriate in a particular case. The Council decided not to issue a section 215 notice as it did not want to jeopardise any discussions by serving a formal notice. This was a decision the Council was entitled to make, and I find no fault in the way it reached this decision.
46. On 6 February 2023, the Council told Mrs X that it would monitor the site for three months and if no progress had been made on the planning application it would serve a section 215 notice. A planning application was received in May, and therefore the Council decided not pursue enforcement action at that time. I have found no fault in the way the Council reached this decision.

Anti-social behaviour

47. As part of my investigation, I have considered how the council responded to Mrs X’s reports of anti-social behaviour and what legal responsibility it had in this area. The Council is not an alternative police force. It is for the police to investigate alleged crimes such as criminal damage to property. I note that Mrs X had contacted the police about the ASB she reported, and I consider that correct.
48. The role of the Council is different. The Crime and Disorder Act 1998 places a general duty on it to act to combat anti-social behaviour. It must therefore have a service that responds to reports of anti-social behaviour and consider what, if anything, it can do in response to contacts from residents. There is no ‘one size fits all’ response to such reports. Sometimes, the Council may offer a service. Examples would include asking its environmental health services to investigate specific complaints of nuisance noise. Or asking its housing services to tackle nuisance behaviour alleged against Council tenants. The Council also has the power to act against individuals or properties to prevent ASB.
49. But sometimes, there will be no role for the Council. Or else it may decide not to offer a service having liaised with local police who have led enquiries into reports of such behaviour. There is no inherent fault in such a response.
50. There is evidence that Mrs X and her MP had been in contact with the Council since September 2021 about the condition of the site, including issues around its safety and ASB. I find it concerning the Council said it has no record of Mrs X raising these concerns. I recognise that ASB is not a planning issue, but Mrs X’s concerns should have been forwarded to the correct department for consideration. Information provided by the Council shows the environmental health team did not contact Mrs X until July 2022 about her concerns and still failed to consider whether it needed to take any follow up action regarding the ASB. I have also seen no evidence the risks to Mrs X and her family were assessed by the Council. This is fault. I will now consider whether these faults caused Mrs X an injustice.
51. In April 2022, Mrs X acknowledged they had received support from the police in relation to vandalism and ASB. Therefore, it is difficult to say even if the Council had properly considered Mrs X’s complaint before this date, it would have led to a different outcome or improvement at the time, as the police had led enquiries into reports of ASB and provided support.
52. However, from July 2022 onwards Mrs X continued to raise concerns about increased ASB on the site. The Council advised Mrs X to contact the police but failed to consider these concerns and its own duty to take action to tackle ASB. In my view, the Council focussed on the planning issues and as a result fell short in addressing the issues about ASB. This lack of service is fault and has caused Mrs X distress in the form of uncertainty, as we cannot know what decision the Council would have made if it had properly considered the issues and whether a more effective response by the Council may have resulted in this matter being resolved. Mrs X has told the Ombudsman that they continue to experience ASB.

Building control

53. The Council’s building control team said Building A was not unsafe and it was adequately fenced off. It is not clear how the Council reached this decision or satisfied itself the Building was safe, as no site visits or surveys were undertaken. The Council did not undertake a visit until January 2023 which is 15 months after Mrs X raised her initial concerns. It is also not clear whether the Council contacted Mrs X and informed her of the outcome of the visit. These faults have caused Mrs X uncertainty and distress about the Council’s assessment of the site and whether the fencing was adequate.

Complaint handling

54. Mrs X complained to the Council in September 2021. Mrs X did not receive a response. Mrs X complained again in July 2022 and the Council responded. I acknowledge there was some communication with Mrs X’s MP in February and April 2022. However, the failure to respond to Mrs X’s first complaint is fault and added to her distress and uncertainty at the time.

Back to top

Agreed action

55. The Ombudsman’s guidance on remedies recommends a remedy payment for distress of up to £500. In cases where the distress is severe or prolonged, we may recommend more.
56. The Council has agreed to our recommendations and within one month of my final decision it will:
1. apologise to Mrs X for the faults identified in this statement;
2. pay Mrs X a symbolic payment of £250 to remedy the distress caused by the lack of service and response to her concerns about ASB;
3. pay Mrs X a symbolic payment of £250 to remedy the distress caused by the failure to assess the safety of the site in a timely manner and inform Mrs X of the outcome of its site visit in January 2023;
4. pay Mrs X a symbolic payment of £100 for the distress caused by the failure to respond to her complaint in September 2021 and address the issues she complained about;
5. write to Mrs X informing her of the outcome of its site visit in January 2023 in relation to the safety of the site;
6. write to Mrs X setting out the current position on the ASB issues detailing what it intends to do to progress this; and
7. take steps to improve information sharing between the planning team and environmental health team and record keeping on enforcement cases.
57. The Council should provide us with evidence it has complied with the above actions

Back to top

Final decision

58. I have found fault by the Council causing an injustice to Mrs X. I have completed my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman