Summary: We found no fault on all of Mrs B’s complaints against the Council about it failing to take enforcement action against the owners of a neighbouring property which they adapted, changed, and intensified the use of. Nor was there fault in the way it dealt with reports of antisocial behaviour from residents.

The complaint

1. Mrs B complains on her behalf, and on behalf of Mrs C, Ms D and Mrs E, that the Council failed to:
1. take enforcement action against the owners of a property who adapted it, changed and intensified its use from a guest house, without planning consent or meeting building regulation approval; and
2. promptly deal with the owners’ application for a lawful development certificate.
2. In addition, she complains despite knowing the above, the Council:
1. used the property for temporary emergency accommodation for its tenants;
2. failed to address problems of anti-social behaviour from tenants;
3. wrongly granted a 12-month House in Multiple Occupation licence; and
4. intended to enter in to a five-year service agreement for the property’s use for emergency accommodation.
3. As a result, she and other residents on her road had their quality of life affected by the behaviour of the tenants.

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What I have investigated

4. I have not investigated any complaint Mrs B may have against the Council before January 2020. The paragraph at the end of this statement explains why.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)

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How I considered this complaint

8. I considered all the information Mrs B sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs B and the Council.

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What I found

9. Mrs B has lived in her home for almost ten years. She lives on the same road as a former guest house (the property). In 2019, new owners bought it. Mrs C lives directly opposite the property and Ms D’s property adjoins the next-door property. Mrs E lives on a neighbouring road.
10. Almost immediately, the owners started building works to convert it to a House in Multiple Occupation (HMO) containing 14 rooms, to provide temporary emergency accommodation to Council tenants. An HMO is a building, or part of it, which is occupied by three or more people living in it as more than one household, who pay rent. Mrs D contacted the Council about the works and officers visited.
11. In response to my initial draft decision, the Council sent information from the building control team. This shows officers first visited the site in January 2020 following a report about the removal of walls. The records also show the team receiving a building regulation application the same month which it approved in February. While it said building control contacted the owners, it provided no evidence. Nor is there evidence of the involvement of the planning enforcement team which the Council said took advice from a planning officer.
12. The owners then applied for retrospective planning consent to keep all the changes made. They also wanted consent for a two-storey extension. The Council received about 50 representations against the proposal. The owners later withdrew the application. Mrs B confirmed rooms were still rented out at the property and used by the Council to house its tenants throughout the works and before it received the application.
13. Mrs B claims the Council suggested the owners apply for a Lawful Development Certificate (LDC) before the period for making representations expired. This is a legal document confirming the lawfulness of past, present, or future building use or operations. When granted, it means enforcement action cannot be taken for works set out in the LDC. An application for it can be made where there is an intensification of use of a site and the exact nature of the existing use is difficult to describe. For example, this might include a site where there were mixed uses or subdivisions. The Council confirmed asking the agent whether they considered applying for it.
14. The owners applied for a LDC in July which the Council failed to decide within the required eight weeks. The owners appealed its failure to decide the application to the planning inspectorate in September 2021, 14 months later. The LDC was for the existing use of the property for the provision of housing for those in need of emergency accommodation.
15. In the Council’s response to the appeal, it said its planning committee confirmed in September 2021 that it would have refused the LDC if it had considered it in time. The Council confirmed enforcement action was halted because the owners appealed the decision. This has yet to be decided.
16. Mrs B says the tenants’ behaviour caused them all problems even before the submission of the retrospective planning application. She claimed the property was used for drug dealing, tenants became abusive, and overdoses occurred.
17. Ms D kept a log of events which she sent to the Council. I have not seen a copy of the log. She says these recorded the tenants’ behaviour and constant disturbance from the property attached to hers. Some of the tenants turned up on her doorstep following her reports. In response to my initial draft decision, Ms D said she was unaware she could report these instances of behaviour directly to the Council until June 2022 when told she could by the Community Safety Team. She claims this was because the owners asked her to remain in contact with them and avoid involving the Council.
18. The owners agreed to 24-hour supervision on site and started to build an annexe without planning consent which the Council stopped. There is still no 24-hour supervision on site according to Mrs B.
19. In early 2021, the Council granted the owners a 12-month HMO licence. To protect tenants, the law regulates the quality of this type of accommodation. A landlord needs an HMO licence where there are five or more occupants in the property with two or more separate households. Mrs B noted it granted the licence despite the property having no planning consent. The Council said officers visited the site in February. I have seen evidence of this visit. I have not seen evidence of the April visit.
20. Mrs B found out the Council intended to agree a five-year service agreement for use of the property to house its tenants.
21. In April, the Council wrote to Mrs B explaining whether an HMO can operate in a class C1 guest house is a matter of fact and degree as to whether it amounts to a material change of use. It referred to case law which shows the difficulties councils face.

Complaint a): Planning enforcement

22. Mrs B claims the Council failed to take enforcement action against the owners for:

• Carrying out building works and adaptations without consent; and
• Changing the property’s use without consent.

23. The Council said it became aware of works at the property in February 2020 when it received a report about its conversion to a large HMO.
24. In April, the owners applied for retrospective planning consent for a change of use from a guest house (Class C1) to an HMO with temporary accommodation, owners’ accommodation, single storey extension, and other alterations including the installation of a communal kitchen. The owners withdrew this application three months later.

My findings

25. I make the following findings on this complaint:
1. The Council received a planning application in early 2020 for a change of use of the property along with building works. It was not fault for it to decide to take no formal enforcement action at this point. This is because had it tried to take enforcement action, the owners could have defended it by pointing out it had asked the Council for consent, which had yet to decide whether to give it or not. Put simply, the owners could argue they might get consent for the works and change of use anyway. Until it decided the application, the Council was at risk should it take action.
2. Three months later, the owners withdrew the application which meant enforcement was now an option the Council could consider.
3. The following month, the owners applied for the LDC. This was because the owners wanted the Council to accept the existing use of the building was lawful for planning purposes or the proposal did not need planning consent. This was not the same as getting planning consent.
4. The Council failed to decide the LDC within the statutory timescale. The owners appealed its failure to give notice of its decision within the appropriate period as legally required. They sent their appeal to the planning inspectorate in September 2021. They could have appealed the decision after the eight-week period had expired the previous October.
5. There is no information about what the Council did, or considered, in terms of enforcement in the 12 months leading up to the appeal. While it says it placed it on hold, there is nothing showing how this decision was reached and what factors were considered. In response to my initial draft decision, the Council said it was still all being considered during this period and would not be usual to consider enforcement during the application. On balance, I consider that even if the Council started enforcement action during this period, it is liekly the owners would have simply appealed the LDC non-determination anyway.
6. I am satisfied the planning inspectorate will, when considering the LDC, also look at physical changes made to the property. For this reason, I am satisfied the Council’s decision that these were not separate issues it could consider for enforcement purposes was not fault.
7. I also considered the complaint about the Council’s failure to ensure the owners complied with building regulations which required the prevention of noise transmission from the property to Ms D’s property.
8. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
9. There have been court challenges, for example, where owners of buildings have sought to hold Council building control authorities liable for defects in building work they have inspected. The courts decided council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations rests with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect, or builder.
10. Even if there had been a breach of building control, as the purpose of building regulations is to protect the public who live in or around the building, there would be no injustice to Ms D.
11. The appeal against non-determination of the LDC is still ongoing as the planning inspectorate has not yet considered it.

Complaint b): Lawful development certificate

26. Mrs B claims the Council encouraged the owners to apply for the LDC and then failed to decide it within the statutory timescale.
27. The Council received the application in 2020. The owner applied for a LDC confirming the lawfulness of the existing use of the provision of housing for those in need of temporary emergency accommodation. The owners claimed the use has continued for more than ten years. In response to my initial draft decision, the Council noted the planning committee confirmed in September 2021 that if it could have still decided the application, it would have refused it but by this time, the application was waiting the outcome against non-determination. The reasons for refusal concerned use, while the works themselves were acceptable. The Council explained the physical alterations to the building were considered part of the LDC application to the extent they amounted to a material change of use and were not entirely separate.
28. The Council confirmed asking the owners’ agent while processing the planning application whether they had considered making a LDC application. During discussions, the agent said they would collect evidence.
29. I have seen a redacted email between the Council and agent. This said applying for an LDC was an issue the owners had previously considered.

My findings

30. While the Council failed to decide the LDC within the statutory deadline, I do not consider it caused an injustice to Mrs B or the other complainants. This is because while the Council says the planning committee said it would have rejected the application had it considered it in time, the likelihood is the owners would have appealed any decision to refuse it anyway. This means the situation would be exactly as it is now, namely waiting for the planning inspectorate to consider the appeal.
31. Whatever the outcome of the current appeal, or the outcome of the LDC refusal decision had the Council refused it, the ultimate decision would be made by the planning inspectorate, not the Council.
32. I do not find any fault in the Council discussing an LDC application with the agent. Under the National Planning Policy Framework, local planning authorities should ‘work proactively with applicants to secure developments that will improve the economic, social and environmental conditions of the area’. (paragraph 38)

Complaint c): Temporary accommodation

33. Mrs B is unhappy the Council used the property for emergency temporary accommodation for its tenants despite it having no planning consent for that use or for the works done to allow it to provide accommodation.
34. The Council confirmed it uses commercial bed and breakfast accommodation to meet its emergency accommodation duties. The owners contacted the housing team about the intention to carry out improvement works with the required consent. Due to increased homelessness demand for accommodation, and a shortage of accommodation, it decided to use this property for its tenants.
35. When reaching this decision, it considered the fact the property was refurbished to a high standard and the owners were trying to get consent. Based on this, the Council decided it appropriate to use this property to meet housing needs.
36. The Council provided a copy of a report dated September 2020. It noted the property already played a crucial role ensuring its most vulnerable single homeless people had somewhere safe and secure to stay and provided reliable nightly booked emergency accommodation for ten years. It also noted the property would be inspected by the private sector housing/environmental health officers to ensure it complied with the Housing health and safety rating system (HHSRS). The HHSRS assesses a property against specific housing hazards and the impact each may have on health and safety.
37. The report referred to the owners seeking appropriate planning consent and safety documents about the gas and electric as well as a fire certificate, along with an HMO licence. Officers would make periodic inspections to ensure the owners were maintaining the property.

My findings

38. I found no fault on this complaint. While the property still had to obtain planning consent for the works done and the usage, the Council would ensure the flats were safe for its tenants. The owners would seek the necessary planning consents although this has yet to be resolved.
39. On balance, I am satisfied the Council took a pragmatic, considered approach when deciding to use this property for temporary accommodation.

Complaint d): Antisocial behaviour

40. Mrs B complains about the lack of effective action against the owners for the antisocial behaviour (ASB) of its residents.
41. The Council says its housing and community safety teams worked with the police and a charity about concerns raised about activities in this area and the town centre. It received few complaints about the property. Mrs B disputes this and says complaints may not have always been made directly but raised with councillors and the local MP. The Council believed issues from use of a nearby public space and other premises locally were merged or blamed on residents of the property by local neighbours even where not linked or considered to be ASB.
42. It says its teams (Communities and Wellbeing team and Housing teams) met and spoke with a local charity supporting single people and rough sleepers. The Community Safety Team and the police liaised with residents about how to report ASB although Mrs B disputes any liaison by the Community Safety Team. The Council explained it could not act due to lack of reporting and descriptions of those involved so increased patrols. No evidence of liaison by this team was sent.
43. It says it contacted the owners to remind them of the HMO licence agreement requirements about working with residents to follow protocols.
44. In its response to my enquiries, the Council gave the following information:

2020:

• May: A councillor emailed about a police call out the previous night and the police confirmed making an arrest following a dispute between tenants. The councillor asked for tenants to be reminded of protocols and behaviour due to increased concerns about social distancing not being followed. The HMO licence required tenants to follow Covid-19 protocols and he asked the owners to remind the tenants of this. The councillor sent a further email about another disturbance but gave no details. The councillor later said the behaviour continued over other nights but, there were no descriptions of those involved. The police confirmed visiting and often finding nobody there. Nor were they receiving reports to allow a response.
• June: A nearby guest house contacted the Council about residents’ behaviour from the property and were asked to report it to the police. The police received a report of ASB who responded to a resident needing detention under the Mental Health Act. I have seen an email from someone unhappy with general behaviour in the area who was told the Council regularly met the police about it. Emails show the police visiting the nearby beach area but finding nobody there. The police noted they were not getting many wider community reports.

Another email from the Council explained due to the pandemic, it had not been able to move people into supported accommodation as quickly as it would have liked.

• July: A local resident sent a photograph of four people standing in the road outside the property, but staff could not identify them. They thought they were not tenants.
• August: The Council consulted the police about the LDC application. In its response, the police said it objected to the initial planning application, which was later withdrawn, due to ‘on-going issues of anti-social behaviour and high levels of police attendance to deal with said issues impacting on police resources’. It noted there continued to be a ‘very high number’ of on-going calls to this address where police still regularly attended because of anti-social behaviour. The police objected to the LDC because if granted, it would place an additional burden on its resources.
• September: A resident walked across the road, forcing a car to stop and then abused the driver. The man was not actually a resident and evidence showed the car driver was initially abusive to the man.
• October: The police visited the property because of noise and aggressive behaviour. The owners spoke to the neighbour concerned and agreed actions which included tenants not smoking at the front door or smoking illegal drugs. They would also restrict the use of the communal kitchen and garden after 11pm, monitor the property regularly, and the neighbour would alert management to doors slamming so this could be checked against CCTV. The police also told a councillor they would meet regularly with the owners.
• December: The Council’s out of hours security patrol continued to visit regularly and contact the police. The owner replied to a further email from the councillor about an incident elsewhere involving its tenants. The owner was concerned with false accusations against their tenants, vague complaints that could not be investigated, and CCTV showing two non-resident cyclists talking outside in the early hours. The Council confirmed it received no reports from the police about problems.

2021:

• January: The police were called to an argument in the street involving two people.
• April: Reports received of daily cannabis use, antisocial driving, noise, and the number of people coming and going. The person making the report said they had been threatened several times. The Council responded to the person and sent ASB logs to complete but these were not returned.

45. The Council claimed its Outreach Team visited the property every week for two years to work with individuals to challenge inappropriate and antisocial behaviour, liaise with management, and feedback concerns to the housing service. They only received three complaints during this time. One was about behaviour, but the ASB logs sent out were not completed and returned. No evidence was sent showing this. Two others were about why the police were present. Each time the complaint was passed to the police for extra attention in the area. It confirmed it has no resource to collate the number of police call outs to the property.
46. I have seen emails between the Council and the police which show liaison about problems and about meeting regularly at the property to talk to residents.

My findings

47. On balance, based on the evidence I have been provided with about reported problems, I found no fault on this complaint. The evidence shows action taken on those reports the Council received.
48. I considered Mrs B’s response to my initial draft decision. She explained reports were made to the owner of the property who had tried to avoid them involving the Council. While I appreciate this may well be the case, it does confirm reports were not being sent to the Council. She also sent copies of logs made by Ms D but there is nothing to show if and when these were sent to the Council.

Complaint e): HMO licence

49. Mrs B is unhappy with the Council’s decision to grant the property an HMO licence despite it having no planning consent.
50. The Council explained it was important to note the difference between HMO’s under planning law and those under housing law. Whether a property is an HMO under housing law is a matter of fact, not planning status. This is because housing law says an HMO is a property occupied by three or more people who are not a single household who share one or more basic facilities. If five or more live in it, who don’t form a single household, it is a licensable HMO.
51. The Council confirmed the property was an HMO under housing law which became licensable. It confirmed it became a licensable HMO in 2018. The current owners applied for a licence as soon as they bought it in December 2019.
52. Due to the unsettled planning status, the Council granted a short licence of 12 months. The maximum it could grant was five years. It granted it after an inspection. There was no legal reason why the licence could not be granted. It is also common to issue them with schedules of works to meet safety standards, for example. It granted a further 12-month licence when it expired.
53. It confirmed it will grant a short licence period in certain circumstances, including where the planning position is unsettled. Due to the unsettled planning status, the Council grated a one-year licence instead of the 5-year maximum. Before doing so, officers visited and inspected the property. It issued a licence with a schedule of works that needed doing. The owners met all the conditions in the licence and carried out all works.
54. Government guidance (‘Houses in multiple occupation and residential property licensing reform: guidance for local housing authorities’ (9 October 2019)) is non-statutory. The guidance states, ‘We actively encourage local authorities to ensure planning permission has been given before issuing a licence. Wherever possible we recommended processing consents in parallel, to resolve any issues as early as possible’.

My findings

55. I found no fault on this complaint. Government guidance encouraged councils to ensure planning consent was given before issuing a licence but, recognised this may not always be possible. In these cases, it recommended processing both at the same time where possible.
56. The problem with the planning process, is an applicant can amend, withdraw, and resubmit applications, and also appeal against refusals to grant consent or, where a council failed to decide it at all. What this means is the processing of planning consent and HMO licence applications cannot then be done in parallel as the planning process may take some considerable time to resolve.
57. The grounds on which it can refuse an application are limited to where a property does not meet certain legal conditions (for example, insufficient facilities or inadequate fire precautions) or the applicant is not a fit and proper person to hold the licence. The Council confirmed it had no valid ground on which to refuse the application.
58. On balance, I found no fault on this complaint. It was not realistic to have the planning and licensing application running in parallel.

Complaint f): Service agreement

59. The Council confirmed in February 2021, it agreed to look at entering a service level agreement to use this property pending an inspection of it to ensure it complied with the HHSRS and getting appropriate planning consent. It does not accept it changed its position when challenged by residents about it.
60. I have seen a report from September 2020. This considered the case for entering in to a 5-year service level agreement with the owners. It would block book all 14 rooms to provide long term emergency accommodation. It noted the property would need to be inspected by its private sector housing/environmental health officers to ensure it complied with the HHSRS. Planning consent would also need to be obtained. In addition, it set out what reports were needed before any agreement, which included gas and electrical reports along with an HMO licence and fire risk assessment.

My findings

61. I found no fault on this complaint. The proposed agreement would only be reached if the property passed the HHSRS inspection and in addition, obtained the necessary planning consents. Planning consent has still to be resolved.

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Final decision

62. I found the following on the complaint made by Mrs B, Mrs C, Mrs D and Mrs E:

• Complaint a): no fault;
• Complaint b): no fault;
• Complaint c): no fault;
• Complaint d): no fault;
• Complaint e): no fault; and
• Complaint f): no fault.

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Parts of the complaint that I did not investigate

63. I did not investigate any complaint Mrs B may have against the Council before January 2020. This is because the law says 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.
64. Mrs B complained to us in February 2022. This means we would usually investigate events going back 12 months to February 2021. I exercised discretion to investigate from January 2020 because:

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Investigator's decision on behalf of the Ombudsman