Summary: Mr B complains about the Council’s failure to take enforcement action about various issues at the housing development where he lives. Mr B says the development is not in line with planning permission, and his family have suffered as a result. We have ended our investigation. This is because it was reasonable to expect Mr B to have been aware of some of these issues prior to purchase. Also, one of Mr B’s complaints is late and where we have investigated, our view is the Council was not at fault.

The complaint

1. The complainant, who I will refer to as Mr B, is the leaseholder of a shared ownership property. The property forms part of a housing development, built in 2014, that is close to an industrial plant. The Council granted planning permission for the development in 2012.
2. Mr B complains that:
• The Council has not taken planning enforcement action about the lack of air conditioning in the shared ownership properties, including his property, which was a requirement of planning permission.
• The Council has wrongly refused to issue him with a residents parking permit, and will not take action against the developer for not providing him with a parking space.
• The Council’s environmental health department has not taken action about noise and dust nuisance from the nearby industrial plant.
• The Council has not taken planning enforcement action about the lack of a play area which was a requirement of the development.
3. Mr B says because there is no air conditioning he has to open windows. Mr B says his family suffer from noise and dust nuisance from the industrial plant. Mr B also says he cannot park his car near his property and his family have not been able to use the play area which should have been built.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons.
6. 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)
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. We would not normally start or continue an investigation if we are satisfied a person could reasonably have been expected to be aware of a possible issue before purchasing a property. In English law there is a principle called caveat emptor which means “let the buyer beware”. The rule places the responsibility on the buyer of a property to carry out all necessary checks to ensure they know the exact state and condition of the property before purchasing it. It is the buyer’s responsibility to obtain surveys and searches in respect of the whole building and not just the premises they are buying.

Back to top

How I considered this complaint

9. I have considered Mr B’s complaint and the supporting information he sent. I have discussed the complaint with Mr B. I have made enquiries to the Council and have considered the information provided by the Council in response. I have also shared a draft version of this statement with Mr B and the Council and have considered the comments I received in response.

Back to top

What I found

What happened

10. Mr B purchased his current three bedroom property in 2014. The property is an apartment in a housing development, which is next to an industrial plant. Mr B bought the property from a housing association on shared ownership terms. When Mr B bought his property the tower in which his apartment is located had been completed, but the scheme as a whole had not been completed.
11. Mr B says before the purchase he arranged for the relevant environmental searches to be done. The searches showed the industrial plant next to the development but Mr B says he was not made aware that the plant has a 24 hour licence. Mr B visited the property three times before purchase and also visited the industrial plant. Mr B says before purchasing the property, the housing association told him he could apply to the developer for a parking space within the development.
12. Mr B says three weeks after moving in to his apartment, the developer told him he was not entitled to a parking space within the development. Mr B says since then he has found out that the parking spaces are not available to the shared ownership properties.
13. Mr B says a few months after moving into his apartment he visited another apartment on the development and found out it had air conditioning, unlike his property. Since then Mr B has discovered that the shared ownership properties on the development do not have air conditioning but the properties sold to market have air conditioning. Mr B says this is even though the shared ownership properties were the same price, if not more expensive, than the properties sold to market. Mr B says this is not in line with the planning permission for the development.
14. Mr B contacted the developer in 2015 by email about several issues, including the lack of a play area at the development. Mr B says during this period he also contacted the housing association, his MP, the Homes and Communities Agency and the Mayor of London. Mr B says he then complained to the Council.
15. In 2015 and 2016 Mr B contacted the Council’s environmental health department about noise and dust nuisance from the industrial plant. The Council investigated the matter and said this was a statutory nuisance but it did not have the power to stop the nuisance because the plant has a 24 hour licence.
16. Mr B complained to the Council about its response to the noise and dust nuisance he reported. The Council responded at stage 1 of its complaints procedure in August 2016. The Council did not uphold the complaint. The Council told Mr B he could pursue the matter by making a stage 2 complaint.
17. In March 2018 Mr B asked the Council for help buying a residents parking permit which would allow him to park on nearby roads which are part of a Controlled Parking Zone. The Council refused Mr B’s request and said he lives in a car-free development, as set out in the Section 106 agreement. The agreement says residents of the development cannot buy a residents parking permit from the Council. The Council told Mr B about the process for varying the agreement.
18. Mr B complained to the Council again and the Council provided its final response to Mr B in summer 2018. Mr B complained about the lack of air conditioning in the shared ownership properties. Mr B also said the play area set out in the planning permission had not been provided. The Council:
• said the ventilation system for Mr B’s property is in line with planning permission and building regulations.
• said the market units have the added benefit of air conditioning - the housing association was aware of this when the units were transferred to them.
• outlined the play area scheme set out in the planning application and invited Mr B to contact the developer if this has not been provided.
• told Mr B he could pursue his complaint by complaining to the Ombudsman.
19. Mr B says this was the first time he was aware he could complain to us. Mr B complained to us in June 2018.
20. In response to my enquiries the Council has provided the Traffic Management Order (TMO) issued when the Council introduced the Controlled Parking Zone in Mr B’s area. Schedule 3 of the TMO lists the streets for the purpose of issuing permits. This list does not include the street where Mr B lives.
21. Schedule 4 of the TMO sets out the documents that need to be provided to receive a residents parking permit. It says:

‘In this item, where reference is made to a document (not including a foreign registration certificate) indicating the postal address of an applicant, that postal address shall be the applicant’s place of abode and shall be in a street or part of a street specified in Schedule 3 and, in a case where the document relates to the provision of a service or supply, it shall be the postal address of the premises to which that service or supply is provided.’

22. I asked the Council to comment on Mr B’s complaint that the play area had not been provided in line with the grant of planning permission. The Council responded by saying:
• The original planning permission says the development of each phase shall not commence prior to the submission and approval of the proposed landscaping within that phase.
• An officer from the Council’s planning enforcement team has visited the site and confirms that the landscaping within phase 1 of the development has been carried out in accordance with the submitted plans. This includes the provision of leisure/play areas to the west of the site, specifically; a badminton court, chess tables, table tennis area and outdoor gym.
• Phase 2 of the development has not yet been carried out.

Analysis

23. I will now address each of the issues Mr B complains about.

Air conditioning

24. Mr B complains that the Council has not taken planning enforcement action about the lack of air conditioning in the shared ownership properties at the development.
25. I have not investigated this complaint further. As explained at paragraph 8 of this statement, we would not normally start or continue an investigation if we are satisfied a person could reasonably have been expected to be aware of a possible issue before purchasing a property.
26. I consider it is reasonable to have expected Mr B to have been aware prior to purchase that the property did not have air conditioning. In addition, it is reasonable to have expected Mr B to have been aware that the nearby industrial plant could affect his enjoyment of the property.
27. Furthermore, I have not seen any information to suggest the planning permission required the developer to install air conditioning in all properties. So, even if Mr B could not have been expected to have been aware of this issue prior to purchase, the information does not suggest the Council was at fault for not taking planning enforcement action.

Parking

28. Again, it was for Mr B to make enquiries about parking provision before purchasing the property. Mr B says the housing association advised him he could apply to the developer for a parking space. If Mr B was uncertain about whether he would be provided with a parking space, he could have asked the developer and/or housing association to confirm this in writing before purchase.
29. The developer later told Mr B after he moved in that he was not entitled to a parking space. My view is Mr B’s complaint is ultimately about the developer and/or the housing association, rather than the Council.
30. The Council has also explained to Mr B that the travel plan (which says three bedroom properties will be allocated a parking space) submitted by the developer as part of the planning application is not enforceable. I have not seen any information to suggest the Council has the power to take planning enforcement action against the developer for the way it has allocated parking spaces to residents.
31. Mr B asked the Council for a residents parking permit to allow him to park on nearby roads which are a Controlled Parking Zone. The Council refused Mr B’s request because he lives in a car free development as set out in the section 106 agreement.
32. A recent court decision (R (on the application of Khodari) v Royal Borough of Kensington and Chelsea) says section 106 agreements cannot be used to prevent residents of a development from applying for a residents parking permit to park on the public highway.
33. But, although Mr B lives within the boundaries of a Controlled Parking Zone, the TMO for the Controlled Parking Zone does not include his street. The TMO makes it clear that only residents of streets stated in the TMO can apply for a residents parking permit. The Council could have done more to explain this to Mr B. But, I cannot say the Council was at fault for refusing Mr B’s request for a permit.
34. Mr B says the Council did not give him the opportunity to discuss his reasons for wanting a parking permit. But, Mr B’s reasons for wanting a permit were not relevant to the Council’s decision on whether he was eligible for a permit.
35. Mr B also says he believes the Council has issued a parking permit to another resident of the development. I have decided not to investigate this matter further. This is because even if the Council has issued a permit in error, this does not mean the Council was at fault for refusing Mr B’s request for a permit.

Noise and dust nuisance from the industrial plant

36. The Council’s environmental health department investigated the noise and dust nuisance reported by Mr B and other residents in 2015 and 2016. The information provided by Mr B shows that he complained to the Council about the investigation in 2016. Mr B received a stage 1 response to his complaint in August 2016. Mr B complained to the Ombudsman in June 2018.
37. Mr B has not complained to the Ombudsman within 12 months of becoming aware of the issue he complains about. I consider Mr B could have complained to us before now. Mr B says he only recently became aware of the Ombudsman. But, if he had completed the Council’s complaints procedure, the Council would have signposted him to the Ombudsman. So, I do not consider there are good reasons to exercise the Ombudsman’s discretion to investigate this complaint now.

Play area

38. The Council has now investigated Mr B’s complaint that the play area has not been provided in line with planning permission. The Council is satisfied the play area has been provided in line with the requirements of phase 1 of the development, and phase 2 has not been completed yet. The Council has provided photographs in support and the relevant landscaping plan which was approved as part of the planning permission. The information does not indicate the Council’s handling of the matter has been affected by fault.

Back to top

Final decision

39. For the above reasons I have ended my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman