The Ombudsman's final decision:
Summary: Mr X complained the Council provided incorrect information in local land charges searches regarding the Permitted Development rights for a property he purchased. The Council’s failure to record the removal of permitted development rights as a local land charge which is discoverable through a search of the local land charges register is fault. This fault has caused Mr X an injustice.
- The complainant, whom I shall refer to as Mr X complained the Council provided incorrect information in local land charges searches regarding the Permitted Development rights for a property he purchased. Mr X states that had he been aware the Permitted Development rights had been removed he would not have proceeded with the purchase. Mr X has obtained expert advice and asserts he has overpaid around £5000 for the property on the basis it had permitted development rights.
- Mr X also complains that a solicitor for the Council wrongly told him the Council was not at fault for the inaccurate information on the local land charges register and advised him to seek legal advice. The Council’s solicitor subsequently confirmed their advice was incorrect, by which point Mr X had incurred legal fees based on the original advice.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mr X; and
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr and Mrs X bought a property in the autumn of 2020. As the property has limited light, Mr and Mrs X intended to increase the size of the existing windows, add a dormer window and install bifold doors to the rear garden. Mr X believed they could carry out these works under permitted development rights. He understood the previous owners had carried out works to the property, including a loft conversion under permitted development rights.
- Mr X applied to the Council for permitted development advice. In assessing the application, the Council noted an earlier planning permission had removed the permitted development rights from Mr X’s property. Consequently Mr X’s proposed alterations would require planning permission. Although the proposal was acceptable in principle the Council advised Mr X it was unlikely to support the proposal from a conservation perspective. The property was a non-designated heritage asset, and the Council considered the alterations would harm the building and impact the setting.
- Mr X asked the Council for guidance on their options. He also asked for clarification as to the point in the purchasing process when they could have been made aware of the designation of the property and its implications. The Council confirmed the property’s status as a non-designated heritage asset would not come up in local land charge searches or in the purchaser’s pack.
- As Mr X was considering his options, including selling the property, he asked to speak to the planning officer about the work already carried out to the property. He also asked where information about the property being a non-designated heritage asset could be found in the Council records, as he felt this information should be available to future owners.
- There are no records of Mr X’s conversation with the planning officer, but the officer agreed to seek advice from the Council’s legal advisors regarding the removal of permitted development rights. Mr X chased the Council for an update in April 2021. He noted it was several months since they first made enquiries and they need to decide whether to make changes to the property or put it back on the market.
- On 12 May 2021 the planning officer wrote to Mr X and confirmed the removal of permitted development rights would not come up in a local search unless they were part of an Article 4 Direction under the General Permitted Development Order. Mr X’s search prior to purchasing the property correctly identified there was no Article 4 Direction in place
- The planning officer also confirmed that while conditions on planning permissions do not come up on a local search, that planning permissions and conditions would normally be checked during the conveyancing process. In relation to the loft conversion, the planning officer confirmed the building regulation certificates for the work are dated 2016. As the works would be more than four years old they would be immune from enforcement action.
- Mr X then discussed the removal of permitted development rights with the Council’s legal advisor. Again there are no records of this conversation, but Mr X states the legal advisor told him he would need a solicitor, but not their conveyancing solicitor. He states the inference was they would need to bring a negligence claim against their conveyancing solicitor. The Council’s legal advisor agreed to write to Mr X setting out the legal position.
- On 18 May 2021 the Council’s legal advisor confirmed their earlier advice was incorrect. They confirmed the removal of permitted development rights is a local land charge which should have been discoverable through a search of the local land charge register. The Council’s legal advisor advised the search was at fault as the condition was not highlighted on the Council’s personal search portal. They had raised this with the Council’s IT department. The Council’s legal advisor apologised that their previous advice was wrong and for any inconvenience caused.
- Mr X and Mrs X made a formal complaint to the Council in June 2021. They had taken legal advice and been informed the Council was negligent in not reporting the removal of permitted development rights to their conveyancing solicitor. They asked the Council to legitimise the loft conversion; compensate them for the diminution in the value of the property; reimburse their legal fees; and compensate them for their financial losses in having to apply for planning permission.
- In its response the Council confirmed that due to the age of the loft conversion an application for a Certificate of Lawful Use would be the best approach. It would make the conversion immune from enforcement action. The Council stated that in view of the situation it would waive the fee for this application.
- In relation to Mr X’s request for compensation for the diminution in value of his property the Council advised this was not something the Council could evaluate. It also noted it was unclear how much Mr X was seeking in reimbursement of his legal expenses, but the Council confirmed it would refund his original search fees of £144.50. As a gesture of goodwill the Council also offered a one-off payment of £500 to close the matter.
- Mr X was not satisfied by the Council’s response. He instructed a surveyor to prepare a valuation report on his property. The surveyor noted the absence of permitted development rights potentially inhibits what works can be done to a property and therefore reduces certainty by having to rely on the submission of a full planning application. In addition the non-designated heritage asset status results in greater consideration of the proposed works by the Council and other statutory consultees.
- The surveyor considered the extent to which the presence of permitted development rights and the designation affects the value of the property is subjective. Due to the uniqueness of the situation the surveyor found there was no quantifiable evidence on which to base a diminution in value. They considered the value of Mr X’s property without permitted development rights and as a non-designated heritage asset at the date of purchase was £5,000 less than Mr X had paid for it.
- Mr X has since submitted an application for a Certificate of Lawful Use for the loft conversion, which the Council granted. Mr X paid the fee for this application as the Council’s offer to waive the fee was contingent on him accepting the Council’s offer in full.
- Mr X has asked the Ombudsman to investigate his complaint. He states they would not have purchased the property had they known the permitted development rights had been removed and that it was a non-designated heritage asset. He would like the Council to reimburse their conveyancing costs, the fees for the permitted development advice and Certificate of Lawful Use application. Mr X would also like the Council to compensate them for the £5,000 diminution in value of the property.
- In addition, Mr X would like the Council to reimburse the professional fees they have incurred. He states they instructed a solicitor based on the Council’s legal advisor’s advice and have incurred legal fees totalling £2538. In addition, as the Council was unable to evaluate any diminution in the value of the property, Mr X obtained an expert report and incurred a surveyor’s fee of £840.
- The Council’s failure to record the removal of permitted development rights as a local land charge which is discoverable through a search of the local land charges register is fault. But for this fault Mr X would have been aware before completing the purchase of the property that he would not be able to carry out his intended works without planning permission.
- It is possible that the removal of permitted development rights could still have been identified as part of the conveyancing process. While the planning permission removing the permitted development rights was not available on the Council’s website at the time, Mr X or his solicitors could have requested copies of the documentation. I recognise this may have been complicated or delayed by and COVID-19 restrictions in place at the time. Such checks may have been prudent give Mr X’s intention to carry out works on the property.
- However the property’s designation as a non-designated heritage asset would not have been revealed through local land charges searches. Further searches and investigation would have been necessary to identify this designation.
- The loft conversion works at the property were unauthorised. Although the Council suggested the works were immune from enforcement action, it recommended Mr X apply for a lawful development certificate. Had Mr X been aware the works were unauthorised before he purchased the property he could have asked the seller to obtain a lawful development certificate, rather than incur the expense himself.
- It is unfortunate that the Council’s legal advisor was not aware of the need to record conditions removing permitted development rights as local land charges. This meant Mr X was initially given inaccurate information. I recognise the Council then corrected its advice within a week. But it would clearly have been preferrable had the Council provided correct information at the outset.
I do not however consider the Council should bear the cost of Mr X’s legal fees. Mr X states he incurred legal fees based on the initial, incorrect advice. However Mr X had already sought legal advice regarding his purchase of the property, in March/ April 2021, prior to the Council’s legal advisor’s incorrect advice. Mr X contacted the solicitors again in May 2018 in relation to his complaint about the Council. The evidence does not suggest Mr X incurred these legal fees based on the Council’s legal advisor’s suggestion his conveyancers may be at fault.
- Mr X has incurred a surveyor’s fee as the Council told him it was unable to evaluate any diminution in the value of the property. I consider the Council should reimburse Mr X this fee. However, I am not persuaded the Council should pay Mr X £5,000 in respect of diminution in value. This reduction in value takes account of not only the removal of the permitted development rights, but also the non-designated heritage asset status. There is no evidence Mr X was unaware of the non-designated heritage asset status due to fault by the Council.
- I am also mindful that any diminution in value is subjective, and that the surveyor considered the demand for properties in the area was and remains strong, regardless of the existence or absence of permitted development rights.
- The Council has agreed to refund Mr X the following fees:
- the local land charges search;
- the pre-application advice; and
- the lawful development certificate application.
- The Council’s failure to record the removal of permitted development rights as a local land charge which is discoverable through a search of the local land charges register is fault. This fault has caused Mr X an injustice.
Investigator's decision on behalf of the Ombudsman