Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s failure to advise him about work required to address a leak and damp at his listed property. This is because it is unlikely we would find fault by the Council. We will not investigate Mr X’s complaint about the Council’s delay in determining his listed building consent application as it would have been reasonable for him to appeal.

The complaint

1. The complainant, Mr X, complains the Council did not give him guidance about his application for listed building consent and works required to his property. He says the house suffers from damp and has a leak in the roof which he is unable to stop. He is also unhappy the Council has failed to determine his application.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

5. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and considered his comments.

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What I found

6. Mr X owns a listed building. Several years ago he applied to the Council for listed building consent to carry out work to the property. He is unhappy the Council did not contact him to provide advice about the work and that it has not decided his application.
7. In response to Mr X’s complaint the Council suggested he obtains a report from a historic building specialist surveyor to identify issues with the property and suggest solutions to deal with the issues in a sympathetic way. Mr X says he has spoken to a specialist but they cannot add anything further to his application because the issue is so simple.
8. Mr X wants the Council to send someone to his property to see the issues for themselves and believes that if it did this, it would agree with his proposal and grant consent for it.
9. The Ombudsman will not investigate this complaint. It is not for the Council to set out exactly what Mr X should do to deal with the issues he has with his property. It can consider whether proposed work is acceptable as part of an application for listed building consent but we would not expect it to visit his property to identify the issues and tell Mr X how he should deal with them.
10. Mr X is unhappy that the Council has not decided his application and its “non-determination” carries a right of appeal to the Planning Inspectorate. Mr X is now out of time to appeal on these grounds, which apply for six months after the due-date for the decision, and says the Council did not provide him with any guidance about how to appeal. But if he was unhappy with the Council’s lack of progress it was for him to look into ways to challenge it at the time.
11. Applications for listed building consent do not carry a fee so if Mr X is concerned the Council will not determine his application he may withdraw it and apply again. In the event the Council does not determine the application within eight weeks he may then appeal to the Planning Inspectorate as set out above.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is unlikely we could say the Council’s failure to advise Mr X amounted to fault and because it would have been reasonable for Mr X to appeal to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman