Hart District Council (18 009 615)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 14 May 2019

The Ombudsman's final decision:

Summary: There is no evidence of fault by Hart District Council in relation to Ms F’s complaints about its handling of matters related to her applications for planning and listed buildings consent. Ms F can appeal to the Planning Inspector about the decisions on her applications and so I will not pursue a complaint about these decisions.

The complaint

  1. The complainant, whom I shall refer to as Ms F, complains about the Council’s handling of matters related to its provision of advice and consideration of planning applications she has submitted for work to a listed building she bought in April 2018. Specifically she complains that:
  1. it failed to provide pre-application advice when she applied for this and its officers also refused to meet to discuss this;
  2. it has wrongly required her to submit planning applications to replace damaged windows when she was replacing these with “like for like” windows and has also refused these applications;
  3. it wrongly entered her property without consent to stop works on the windows which did not require planning consent;
  4. refused to process applications regarding the windows and other renovation work because it wrongly required evidence of her ownership of the property and would not process applications even though she provided evidence from the Land Registry confirming her ownership before the applications were decided in August 2018 and refused to meet to discuss these issues;
  5. with regard to a current application the Council wrongly returned the application for more information before agreeing to process it when in fact all the necessary information had already been provided on the form; and
  6. it wrongly refused her application to change the use of the building and construct a two storey rear extension.

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What I have investigated

  1. I investigated parts a) to e) of Ms F’s complaint. The final section of this statement contains the reasons I have not investigated part f) of Ms F’s complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  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)). We cannot investigate a complaint if someone has appealed to a tribunal such as the planning inspectorate (Local Government Act 1974, section 26(6)(a), as amended)
  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; and a decision to refuse planning permission or non-determination.
  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

  1. I discussed the complaint with Ms F and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I gave the Council and Ms F the opportunity to comment on my draft decision. I considered the responses before reaching a final decision on the complaint.

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What I found

  1. There is no duty on councils to provide pre-application planning advice and councils cannot insist developers seek such advice. But, it is accepted good practice for councils to offer and encourage pre-application discussions and most do so. Government policy and practice also supports pre-application advice “to improve the efficiency and effectiveness of the planning application system”. But, there is no right of appeal for ‘delay’ or against the advice given. In the latter case, the way to test that advice is to make a planning application and, if necessary, appeal any refusal of planning permission.
  2. The Council has a guidance note on its Pre-Application Advice Service which it publishes on its website. This states that the service offers advice relating to small household applications, minor and major developments. In relation to the household and minor developments, which would seem relevant to Ms F’s application, the Council says it requires information from the developer including sketch plans and a site location plan, photographs, and possibly information about the planning history and local plan policies.
  3. Developers carrying out work to a listed building need to apply for listed building consent if they want to alter or extend a listed building in a manner which would affect its character as a building of special architectural or historic interest. It is a criminal offence to carry out works which require listed buildings consent without obtaining that consent first.
  4. Local planning authorities can gain entry to listed buildings by force where the owner has refused permission. The powers to do so are set out under Section 88 of the Planning (Listed Buildings & Conservation Areas) Act 1990, and additional powers under Sections 88A and 88B were granted by Schedule 3 of the Planning & Compensation Act 1990.
  5. When submitting a planning application applicants are required to include particular documents in order for the application to be valid. These include an application form, specified plans and an ownership document confirming ownership of the property. If the land which is relevant to the application is not solely owned by the applicant, the applicant is required to service notice on the other owners. The Council’s website confirms that a certificate of ownership must be submitted as part of the application in order for the application to be valid. The Council requires the same evidence to be submitted with an application for listed building consent.

What happened

Background

  1. Ms F purchased a grade 2 listed building in a conservation area in the Council’s area in the Spring of 2018. Before she purchased the property she contacted the Council as she was aware that an application to convert the then office property into flats had been previously refused. She wanted to keep the main building as one building but said she wanted to remove a staircase and some other changes to the roof including providing an additional opening there.
  2. In Summer 2018 Ms F submitted an application to change the use of her property from office to residential, to demolish and existing rear single storey extension and erect a two storey rear extension and make other internal and external changes to the building including putting in dormer windows and rooflights and putting gin a new staircase for example.
  3. By early 2019 the Council’s website showed that Ms F has submitted around 20 planning applications in relation to her property. Of these nine were refused, one was withdrawn, three were granted, a decision reached on an application to do work to trees, two were not processed due to lack clarity on ownership, one was pre-application enquiry and three are currently awaiting a decision. In addition four others were submitted in November 2018. I refer to these below.

Pre-application advice

  1. The Council has provided copies of its email correspondence with Ms F on this matter and says it has suggested to Ms F that she obtains this on many occasions. The following is a summary of the correspondence on this point:
    • Ms F made an initial request for advice before purchasing the property and was advised by the Council to seek specialist advice and submit an application for pre-planning advice;
    • Ms F requested advice in May 2018 but the officer responded saying that in order to provide meaningful advice she would need more information which she detailed. Ms F replied saying that as so much more information was required she would submit a formal application instead and asked for a refund of the fee she had paid for the pre-application advice;
    • Council officers met Ms F and her agent in September 2018 to discuss her intentions for the property. This seems to have been a fairly lengthy meeting given the notes of this and discussed what would need to be amended in the application to address the reasons for refusal of the applications to that point.

Why was Ms F required to submit applications for consent for replacing windows in her listed building

  1. The Council confirms that planning consent would be required to replace windows in a historic building such as Ms F’s but says that in fact Ms F did not apply to replace the windows but to dismantle and refurbish the ones already in place. The Council says that whether this work requires listed building consent depends on the facts and “degree” of the intended work. The Council says it has repeatedly told Ms F that she can carry out works to her windows and may not need listed building consent to do this. It said that it told her that if she required clarification on whether works she intended to complete to the windows needed consent she should send details so she could be advised on this further.
  2. The Council has gone on to say that work that Ms F has already completed to five windows in the property has caused harm and damaged the historic elements of these. As she intended completing the same work to other windows in the property the Council says it asked her to submit a listed buildings application. She did then submit an application which was refused. The Council says this was due to a legal technicality related to ownership of the application site which I will address further below. The Council then says that Ms F decided to apply for separate consent on each individual window and that it was her choice to do so and not the requirement or recommendation of officers at the Council.
  3. The Council says that the applications confirmed that “…some of the works could be considered as repair and did not require consent, and other works did require consent because they had the potential to affect the special character of the historic windows within the listed building”. The Council confirms that those works which did not require consent were not then considered and that it was only the works that may have required listed building consent, or had the potential to cause harm that were given any consideration. The Council says that the information submitted with the applications was “vague” but that the missing information could have been dealt with by conditions applied to the planning consent. However, Ms F stated that she would not accept any conditions on these applications, and without these the Council was not confident that the windows would not be harmed. The Council says it wrote its report on these applications was written to enable Ms F to be clear about what works constitute a repair, and what may need consent.

Officers entering property without consent

  1. The Council says it did not need to exercise its powers of entry to inspect the works being completed on site as the people carrying out the work there permitted their entry. The Council confirms that the inspection was related to removal of windows for which consent would have been required and was not given. The Council says that when its officers arrived at the property they discovered that windows had been removed without consent and that other works were being completed inside the property. The Council confirms that, as Ms F alleged, the workman in the property did not speak English. In order to communicate with him the officers used an online translation website. They managed to communicate with him sufficiently well for him to show them the removed windows and they then called Ms F by phone. An English speaking workman returned to the site whilst the officers were there so they were able to speak to him and also contacted an officer at the Council who could speak the workman’s first language and s/he spoke to the workman by phone to explain the reason for the visit.
  2. The Council says that officers were unhappy with the works being completed as they constituted more than repair and officers considered the materials being used were also unsuitable. The officers wanted the workers to stop working while their concerns were sorted out. Ms F did not agree and instructed her workmen to continue working.
  3. Council officers consider the works done to the windows caused them harm and so the Council considered further works to the windows required listed building consent approval in order to ensure that future work did not harm the historic nature of them. This is referred to above.

Requirement to provide evidence of property ownership

  1. The Council says that at the time she submitted her initial application for planning/listed building consent the property and the land adjoining it were not registered in Ms F’s name. The Council says that the building and some land were purchased by Ms F but other land to the rear of the property was purchased by a company. The Council says that prior to this the plot was owned by one person. The Council says it was concerned as the change of use application related only to the front of the plot so it was in effect a division of the plot in terms of planning use. In addition, the Council says at the time of the initial applications Ms F and her husband were not yet registered as the legal owners with the Land Registry. Applicants are required to confirm on their planning applications that they have notified all people with an interest in the land of their application and submit the relevant certificates in this respect and a certificate of ownership.
  2. The Council says that as Ms F and her husband were not yet the registered owners by the time they submitted that application, Ms X and her husband would have to either notify the registered owners of the application or wait until they were registered as the owners in order to satisfy the requirements of the application in this respect.
  3. The Council says for this reason it advised Ms F to withdraw the applications so she could correctly complete the certificates on new applications. It says Ms F refused to do so and so the Council refused to consider the applications. The Council has provided copies of its emails to Ms F in July 2018 in which it explained this issue to her.

Meetings with Council officers

  1. Ms F says that meetings she requested to have with Council officers have been refused. The Council says a number of planning officers met with Ms F and her planning consultant in September. It has provided a note of this meeting. Ms F says she also met with council officers in August and that her planning consultant had a telephone meeting with an officer in December 2018.
  2. The notes of the September record that the meeting lasted two hours and involved four council officers and Ms F and two planning consultants that she took with her. The notes indicate that they all discussed a range of issues about the listed building, what Ms F wanted to do and what the Council was and was not likely to approve. The final notes of the meeting states that an officer said “…there was no need for any further dialogue now that the applicant has confirmed they want a determination”.
  3. At an early stage in the process, Ms F asked to discuss ways of agreeing to changes to the property given the refusal of the previous owner when they applied to convert the property into flats. The Council was consistent in saying that as the situation with the property was complex Ms F should seek advice from experts and submit a formal pre-planning application.
  4. Information provided by the Council also confirms that Ms F had a telephone conversation with the Conservation Officer in July 2018.

What additional information the Council needed in November 2018 and current application

  1. The Council confirms it received four applications from Ms F in November 2018. It says that two of these were duplicates of the other two. The Council says these applications were not validated because they:
    • did not include a Heritage Statement;
    • did not include landscaping details;
    • a draft planning obligations was required;
    • refuse details were required; and
    • the listed building consent application lacked a heritage statement.
  2. These issues were addressed, the applications resubmitted and were awaiting a decision.

Was the Council at fault and did this cause injustice?

  1. The evidence shows that Council officers advised Ms F to submit requests for pre-application advice and that Ms F did so. Unfortunately when she submitted requests Ms F did not provide all the information necessary to enable officers to provide proper advice and she failed to then provide this when asked. The Council reimbursed her fee for the pre-application advice at her request when she did not provide further information it required to process her pre-application advice request. It is not the case that the Council refused to meet with Ms F to discuss her applications and what was required in order for the Council to be likely to approve them, She and her advisors met for two hours with four council officers in September 2018 to discuss this. Ms F also told me that another meeting took place in August and a phone meeting took place with her planning advisor and a council officer in December 2018. There are no grounds for me to uphold this part of Ms F’s complaint.
  2. Planning officers did not have to meet with Ms F to offer pre-planning advice separate to any advice it was providing under its Pre-Application Advice Service which requires information to be submitted in advance of any discussion or provision of formal advice. Ms F did submit a pre-application application but the Council did not consider sufficient information was provided to enable it to provide meaningful advice and so Ms F decided to apply for consent rather than provide the information the Council asked for. In any case it is clear that Council officers have met with Ms F to discuss the development site and the works she proposed and what the Council is likely to approve. So there are no grounds for me conclude there is fault by the Council in relation to this part of Ms F’s complaint.
  3. In relation to work to the windows in Ms F’s house the Council does not agree that all the work being undertaken was “like for like” as Ms F claims. The Council does agree that not all works to windows in listed buildings require consent however it says that the nature of some of the works Ms F was carrying out did require consideration and it refused some of these. Ms F has a right appeal to the Planning Inspector which it would be reasonable for her to use if she wants to dispute the decision to refuse these applications and I will not therefore consider the decision on these refused applications.
  4. Officers do not need consent to enter a listed building if they wish to survey it in order to consider whether a notice should be served under the listed building legislation. In this case they did not need to use their powers as officers were granted access by consent at the point they arrived at the property. There are no grounds for me to conclude there was fault in the Council officers entering Ms F’s property when they believed that work being carried out would not be permissible.
  5. Government guidance and the Councils own procedures confirm that for a planning application to be validated the developer is required to submit the relevant certificates of ownership. As these were not provided the Council did not validate the applications. If Ms F wishes to challenge the decision not to validate these applications it is reasonable to have expected her to use her right of appeal to the Planning Inspectorate. I will not therefore consider this matter further.
  6. In relation to the November application Ms F said the Council wrongly returned the application for more information before agreeing to process it when in fact all the necessary information had already been provided on the form. This does not appear to be the case as the Council listed the information which it said had not been submitted. This was subsequently provided and the application is now in the process of being considered. Ms F will have the right to appeal about any delay or refusal of consent to the planning consent to the Planning Inspectorate.

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Final decision

  1. There is no evidence of fault by the Council. Ms F can appeal to the Planning Inspectorate about the decision on or the non-determination of applications. I consider it reasonable to expect her to do so and have therefore not considered such matters.

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Parts of the complaint I did not investigate

  1. I did not investigate part f) of the complaint as Ms F had exercised her right to appeal to the planning inspectorate about this. We cannot investigate a complaint if someone has appealed to a tribunal such as the planning inspectorate (Local Government Act 1974, section 26(6)(a), as amended)

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Investigator's decision on behalf of the Ombudsman

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