Summary: X complained about the Council’s decision not to take enforcement action in relation to a listed building. We did not investigate the complaint further because we were unlikely to find fault, recommend a remedy for X or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to protect an access path for local people when it decided not to take enforcement action in relation to development associated with a listed building.
3. X also complained about the way the Council handled their complaint through its corporate complaints procedure.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Listed building controls

7. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I– Buildings of exceptional interest.
• Grade II* – Buildings of particularly important/more than special interest.
• Grade II – buildings of special interest.
8. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.

Planning enforcement powers

9. 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.
10. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Permitted development regulation

11. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Rights of way

12. Local authorities maintain definitive maps which show public rights of way. It is possible to apply to modify a definitive map by providing evidence that a right of way should be added or removed.

The Council’s complaints procedure

13. The Council has a two stage complaints procedure. At stage 1, complaints are considered by the relevant Team Leader. At stage 2, complaints are referred to the Council’s Chief Executive or an independent representative acting on their behalf. If complainants remain unhappy, they can complain to the Ombudsman.

What happened

14. X complained about a landowner who put up a gate and blocked an access used by many local residents.
15. The site included a listed building. A complaint was made to the Council’s planning enforcement officers who considered whether to take formal action. The enforcement officers sought advice from a heritage officer, who said the design of the gate was acceptable. The Council decided no further action was justified.
16. The Council also confirmed the access was not a public right of way.
17. The Council’s response to X’s stage 1 complaint was from a manager in the enforcement team. The stage 2 response was dealt with by a senior manager in the planning department.
18. X told me that an application has been made to modify the definitive map to include the access as a public right of way. The Council has not yet made a decision on this application.
19. In response to an earlier draft of this decision, X said:
• their complaint was about the Council’s failure to protect the amenities of residents when it made its enforcement decision; and
• the Council had failed to take action in relation to lighting and CCTV cameras.
20. X also sent more information about the alleged or claimed right of way.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
23. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
24. I should not investigate this complaint further, and my reasons are as follows:
• Before it made its decision not to take further enforcement action, the Council considered the allegation, its powers to protect listed buildings, and the opinions of its heritage officer. It followed the decision-making process we would expect, and further investigation is unlikely to result in a finding of fault.
• X said their complaint is about a failure to protect residential amenities of neighbours when making its enforcement decision. This enforcement case related to heritage powers, which are intended to protect the historic assets, not general neighbouring amenities. General planning controls may address amenity issues, but gates, fences and walls often require no permission from councils, as they fall within permitted development rights.
• The injustice claimed here is about access rights, whereas the Council’s involvement here relates to design of a gate and whether it is suitable for a listed building. The local planning authority could not use its listed building powers to protect a right of way. That is a matter for the countryside and rights of way authority to decide.
• In its response to the complaint, the Council explained its position on lighting and CCTV cameras to X and that at this stage it had decided not to take further action. The Council is entitled to use its discretion on when and how to act, but for further investigation for the Ombudsman, I would need evidence to show that X was caused a significant injustice. I saw no evidence to suggest X was caused an injustice.
• There is no clear fault in the way the Council dealt with X’s complaint. I saw no evidence to show that the senior manager that dealt with the stage 2 complaint was involved in planning enforcement decisions.

Final decision

25. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman