Summary: Mr B complains the Council delayed in acting to enforce the protection of a listed building in his area. He says the building has historical significance and because of the delays is now in a severely deteriorated state. The Ombudsman finds fault in how the Council has managed its involvement in preserving the listed building.

The complaint

1. Mr B complains the Council delayed in acting over a long period of time to protect a listed building. He says the Council should have taken enforcement action against the owner for not properly maintaining the building. He says the building is now in a bad state of repair and may not be salvageable. He says the building has historical significance and its loss would be a detriment to the local area and community.

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What I have investigated

2. I have investigated the Council’s actions from 2017 onwards.

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The Ombudsman’s role and powers

3. 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)
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. If we are satisfied with a council’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

6. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

7. Historic England maintains the National Heritage List for England (“the List”), which is a list of all nationally protected historic buildings and sites in England. The List has the following gradings:
• Grade I – buildings are of exceptional interest
• Grade II* - buildings are particular important and of more than special interest
• Grade II – buildings are of special interest
8. Listed building consent from the local authority is required for all works of demolition, alteration or extension to a listed building, which affect its character as a building of special architectural or historic interest.
9. Owners do not have a direct legal obligation to maintain or repair listed buildings. However, the local authority has the power to enter the property, carry out the works and recover the costs from the owner. If it intends to do so, it must serve an urgent works notice on the owner.
10. Historic England has produced guidance on enforcement action to save historic buildings, called Stopping the Rot (“the Guidance”). It says, when considering an urgent works notice, the Council should first make contact with the owner and suggest appropriate action including maintenance and repair. If the owner is unresponsive it should set out its powers and request a site meeting. It should then follow up with a second letter and draft schedule of works, with a date for formal service of a Notice if the works are not carried out.
11. The Guidance says the decision to hold back on any formal service of notice is at the local authority’s discretion. However, too many warnings with no follow-up action could undermine credibility. It says the local authority should set out its own timetable and stick to it. It should not wait too long once it has informed the owner the works are urgent. It says it may be reasonable in some cases to specify a slightly longer period, say a fortnight, but specifying too long a period could prejudice the local authority’s case that the works were urgently necessary.
12. The Guidance says urgent works notices should be restricted to emergency repairs to keep a building wind and weatherproof and safe from collapse.
13. The local authority may, with permission of the Secretary of State, compulsorily purchase a listed building if it appears the owner is not taking reasonable steps to preserve the building and the Council considers it is expedient to do so. Before doing so the local authority would need to serve a repairs notice, specifying the works required to preserve the building.
14. The local authority may also serve a Section 215 notice. This type of notice allows the local authority to require the owner to complete works if the amenity of the area is adversely affected by the condition of land in that area. The Guidance says a s215 notice can be effective as an alternative or complementary action to urgent works notices or repairs notices.
15. If it appears to a local authority that a building is in such a condition as to be dangerous, the authority may apply to the Magistrates Court. The Court may make an order:
• a) to execute work as may be necessary to remove the danger
• b) if the owner elects, to demolish the building
16. If the Council decides to issue a dangerous building order, it must first consider whether to issue an urgent works notice instead.

Background

17. Mr B is part of a residents’ group concerned with protecting the heritage of his area. Mr B and the group have raised concerns about the condition of a Grade II listed building in the area for several years. Mr B says the group first raised concerns in 2010 and has continued to regularly contact the Council about this matter. For the reasons outlined in the final section of this statement, I have only considered the Council’s actions from 2017 onwards.
18. In February 2017, a local councillor raised concerns on residents’ behalf about the deteriorating condition of the building. The Council says it held an internal case conference in March 2017, then attempted to compel the owners to voluntarily preserve the building. The Council has not provided any correspondence or notes of meetings from 2017 so it is not clear what discussions took place.
19. The Council found the building was in a state of considerable disrepair. In April 2017 it issued a dangerous building notice. This required the owner of the building to erect hoarding around the building to prevent unauthorised entry.
20. The Council’s enforcement investigation case notes suggest it considered the need for a s215 notice. However, it is not clear at what point of its investigation it considered this, and there is no further mention of a s215 notice.
21. The Council says it carried out a site visit in June 2017, which was followed by ongoing negotiations with the owner, who it says instructed planning consultants. Again, the Council has not provided records from 2017 so I cannot see what negotiations took place or what decisions the Council made.
22. In the Council’s later complaint response letter to Mr B, it said it considered sending an urgent works notice in 2017. It is not clear why the Council considered this, what decision it made or why it made that decision.
23. In March 2018 the Council sent a draft urgent works notice to the owner of the building. The Council says a new case officer sent the notice. It says that officer did not know anything about the previous urgent works notice. As far as I can see there was not a previous urgent works notice. It is not clear whether the Council is referring to the dangerous buildings notice, or whether it is saying the officer had no knowledge of the previous history of the case.
24. The draft notice set out the following proposed schedule of works:
• Erect a fully independent roofed scaffold to cover the entire building. Such a scaffold is to be retained until the existing roof structure is repaired and replaced where necessary.
• Cover the scaffold with reinforced plastic sheeting to the roof and sides to protect it from severe weather conditions. The sheeting to be of sufficient quality to withstand the weather for at least three years and in any event shall be maintained until the existing roof is able repaired and replaced to provide adequate protection.
• To specify and install sufficient structural props to prevent further structural collapse to the first floor and roof structure. These props should be maintained and retained until the structure is able to be repaired and replaced.
25. The notice gave the owner 14 days to confirm they would complete the work, or the Council would continue with the works and recover costs from the owner.
26. In April 2018 the owner submitted an initial condition and significance report.
27. The Council’s enforcement case notes say it then met with the owner in June 2018. The owner indicated they would apply to de-list the building. Therefore, the Council closed its enforcement case with no further action to be taken. The Council has not provided any records of this meeting. I cannot see any records that show the outcome of the application to de-list the building. However, the building remained listed, so it would appear any application was unsuccessful.
28. The next recorded action I can see is that a meeting was arranged for October 2018. The Council has not provided any notes from this meeting. It appears at this point the Council either requested or agreed for the owner to obtain a structural survey from an engineer, before following through with the urgent works notice.
29. The owner commissioned a structural engineer to visit and complete a report in November 2018. I can see the Council chased for the report several times, before receiving the final report in mid-January 2019. The Council reviewed the report then arranged a meeting to discuss the case with the owners in March 2019.
30. In May 2019 had a meeting with the owners. It set out the works needed, and the owners agreed to complete those works. The Council sent a further draft urgent works notice to the owner. This notice had a detailed schedule of works, including a corrugated metal roof, supported by scaffolding and covered with plastic sheets to the sides. Also the cutting back of vegetation and boarding the property to prevent access.
31. In late May 2019 the Council received confirmation from the owner that work had started on the vegetation and in contacting tradesman for the scaffolding.
32. In June 2019 Mr B’s community group submitted a formal complaint about the lack of action taken by the Council. The complaint said no one at the Council had taken responsibility for the matter, it did not have a clear plan or strategy and would drop the matter when their group or councillors were not applying pressure. It said the Council failed to communicate with the group and had allowed the building to seriously deteriorate.
33. The Council’s response said it had acted cautiously, to ensure it sought proper advice and took appropriate action, as this was not an everyday case. The Council said it had been in contact with the owners throughout the year and the owner had now agreed to complete the works. However, it upheld the complaint as it accepted it had not always provided updates to the group as often as it should have done.
34. In July 2019 the Council arranged a meeting with the owner to discuss and monitor the works going forward. The Council needed to postpone this meeting and tried to arrange an alternative date. However, I cannot see anything in the records provided that shows any further actions or discussions on the case between July and September 2019.
35. Mr B’s group made a second stage complaint in September 2019 as it was not satisfied with the Council’s response. The complaint asked whether the Council had inspected the work completed by the owner and whether it was adequate.
36. In early October 2019 the Council issued a dangerous building notice. The notice required the owners to either repair, remove or make the building safe to members of the public by the end of October 2019. The Council said the owners had not completed any of the urgent works set out in the May 2019 notice. In response the owners submitted an application to demolish the building and replace it with a new building.
37. The Council responded to Mr B’s complaint in November 2019. It outlined again the actions the Council had taken, including the recent dangerous buildings notice. I again apologised for not always keeping the group updated but said it was a complex matter and it could not always give detailed updates.
38. The Council met with Mr B in November 2019. Following this meeting the group submitted a third stage complaint to the Council, which said the Council’s outright and partial rejections of its complaints were not consistent with the evidence available. The Council responded in late December 2019 and said it was still considering the application for demolition. It did not uphold the complaint.
39. Mr B’s group made objections to the application for demolition as part of the public consultation in February 2020. The Council refused the application in July 2019. It said the application failed to provide appropriate detailing of the present condition of the building. It said it could not take into account the deteriorated condition, to justify loss of a heritage asset.
40. I cannot see any indication of further actions taken by the Council from this point on. The Council responded to my enquiries in August 2021. It said that it was currently considering options as to how to secure a further of the building.

Findings

41. The various enforcement options listed at Paragraphs 9 to 16 are powers the Council may exercise if it considers necessary, rather than duties it must fulfil in particular situations. I cannot question the merits of Council decisions if it has set out clear justification for why it made those decisions. I can only consider whether there is fault in the way the Council considered whether to exercise its powers and how it followed through with any decision.
42. I have separated my findings into separate timeframes based on key points in the Council’s enforcement procedure or changes in its position.
43. I have exercised discretion to investigate as far back as 2017, as from this point on the Council’s consideration of enforcement action has been one ongoing matter.

February 2017 to March 2018

44. The Council has provided very little documentation from 2017. From the information available it appears the Council acted on concerns raised in February 2017 by meeting with the owners and engaging in negotiations about the future use of the building. However, I have no records or information to show what the Council asked the owners to do or whether it was satisfied with their responses. It is not clear whether the Council made any decisions about what action it intended to take, or why, over the space of 12 months, until March 2018.
45. The Council says the officer who issued the draft urgent works notice in March 2018 was not aware of previous actions on the case. This suggests there were problems with communication within the Council, which may have led to delays in the Council deciding a course of action to protect the listed building.
46. The Council has not provided any evidence that it kept Mr B or his group up to date with any actions it was taking in 2017.
47. I therefore find fault in how the Council managed this matter.

March 2018 to May 2019

48. In March 2018 the Council decided to issue a draft urgent works notice. It therefore recognised the building needed urgent works to prevent it from deteriorating further.
49. No works were completed between March 2018 and the Council issuing a second draft urgent works notice in May 2019, a period of 10 months. Even so, I do not find fault with the Council not following through with the first notice. The Council has provided reasons for why it did not do so. These included that the owner intended to de-list the building and arranged for a structural engineer’s report.
50. As already outlined, the decision to issue an urgent works notice is a power the Council can exercise at its discretion, provided it has properly considered whether to do so. If the Council decided to hold off on using that power as the condition and future status as a listed building was in doubt, that was its decision to make. I cannot criticise the merits of the decision.

May 2019 to July 2020

51. The Council issued a second urgent works notice in May 2019, so again recognised that the works were urgent and signalled its intention to enforce against the owner if they did not complete the works. The owner did then agree.
52. I find fault as there is no evidence the Council took any actions between June 2019 and October 2019 to check the owner had completed that work. The owner did not complete any works and during this time the building deteriorated further to the point the Council issued a dangerous building notice.
53. I also have concerns about the way the Council issued the dangerous buildings notice. It had already issued one in 2017, which said the owner should put up fencing around the building to prevent entry. It then went on to issue an urgent works notice so was clearly of the view the building was safe enough to complete works. There is no record of why the Council then considered a second dangerous building notice. The Council has not set out anywhere whether it considered that it was still safe to complete any of the works required by its urgent works notice.
54. The dangerous building notice did not specify what action the Council wanted the owner to take. So again, it is not clear whether the Council wanted the owner to continue with the urgent works or, if not, what it wanted the owner to do. This is particularly unclear when considering the Council later rejected an application to demolish the building on the grounds the owner had not provided enough information about the condition of the building to justify losing a heritage asset.

July 2020 to the present

55. Since the Council’s decision not to allow the owner to demolish the building in July 2020, there is no evidence the Council has made any further decisions or taken any further action. In August 2020 the Council said it was still considering how to proceed. This is fault.
56. It has been over three years since the Council identified that urgent works were necessary to stop the building deteriorating beyond repair. It has been two years since it issued a second urgent works notice and agreed the nature of the required works with the owner. It has not made any decision about whether it is safe to enforce completion of those works or, if it is not safe, whether there is any other action it might take to preserve the building. It decided a year ago that it was not acceptable to demolish, which suggests it considered there was still a possibility of preserving the building. However, it has not provided evidence of any further consideration of how it might go about doing so.
57. The lack of any decision at all over the last year is fault.

Consideration of Remedy

58. I have found fault in how the Council managed this matter during 2017 and from May 2019 onwards. Over this period of time, it is not in dispute that the condition of the building has deteriorated. However, what Mr B ultimately wants to achieve is preservation of the listed building. I can therefore only consider remedies addressing what the Council does going forward, and to address any changes in its procedures when managing enforcement investigations of this nature.
59. The problem right now is that over the past year or more, the Council has not made any decision about how it will go forward. As it stands, there is a draft notice setting out the urgent works the owner should have completed in the summer of 2019. The Council needs to decide whether it considers it is safe for the owner to complete these works, whether they are still necessary and appropriate and, if so, whether and how it will enforce completion of the works.
60. If the Council no longer thinks it is safe to complete the works, or that the works are no longer appropriate, it should decide whether there are any other works the owner should complete or any other action the Council might take. If the Council’s decision is not to take any further action to preserve the building it would need to clearly justify why that is the case, taking into account the previous actions it taken showing its intention to preserve the building. It is the Council’s decision to make but it needs to consider all the relevant factors and communicate a clear rationale for its decisions to the parties involved.
61. Another point to note is that urgent works notices are only meant as a temporary measure to stop the immediate deterioration of a building. They are not designed to enforce the long-term repair or restoration of the building. If the Council’s intention is to ensure the building is repaired or restored to prevent long-term deterioration, it would need to consider any other powers it has, such as under a s215 notice.
62. I can see the Council had some conversations with the owner about re-use of the building in 2017. However, I cannot see anything to suggest the Council considered whether to take any action about the long-term future of the building from that point onwards. I have not made any findings on this as it is for the Council to decide if it will take any such action and an urgent works notice would be the initial step in preserving the building. However, it is something the Council might need to consider when deciding how to go forwards.
63. I recommend the Council review its procedures for dealing with enforcement cases of this nature, to ensure that any officers working on each case have access to all relevant information about previous actions taken in relation to the same matter.

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Agreed action

64. The Council has agreed to, within a month of this decision:
• Apologise to Mr B for the fault in the way it has managed this matter
• Make a decision on how it will proceed, whether that be to enforce the existing urgent works identified, enforce completion of other works it considers appropriate, or any other action Council considers is appropriate in this case. The Council should communicate its decision clearly to Mr B.
65. The Council has also agreed to, within three months of this decision:
• Review its procedures for dealing with listed building enforcement cases, to ensure any new officers working on each case have access to all relevant information about any previous actions taken and/or notices issued.

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Final decision

66. The Council is at fault in how it managed its involvement in preserving the listed building.

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Parts of the complaint that I did not investigate

67. Mr B’s group raised concerns with the Council over several years dating back to 2010. I have only investigated the Council’s actions from 2017 onward. This is because anything before then is out of time.
68. Mr B could have brought a complaint about delays in the Council’s actions in 2010 and in 2014 at the respective times. There are no compelling reasons to exercise my discretion to investigate back further. I understand Mr B’s point that this shows a longer term failing by the Council to protect the listed building. However, even if I did find fault with the Council’s actions over those years, it would not make any difference to what I can recommend now.
69. I have found fault in the way the Council managed the matter from 2017 onwards. The only remedy that can achieve what Mr B wants, that being preservation of the listed building, is for the Council to make a decision going forward. Any findings of historic fault would only lead to the same recommendation.

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Investigator's decision on behalf of the Ombudsman