Summary: I have stopped my investigation into Ms X’s complaint about development of houses of multiple occupation in her area. The Council is currently in the process of deciding whether to remove permitted development rights for these developments in its area and the Council has no powers to control the number of developments taking place in an area at any one time.

The complaint

1. Ms X complains on behalf of a number of local residents about the Council’s failure to control development in her local area. She says the Council:
• Has failed to limit the amount of houses in multiple occupation in her area.
• Has failed to limit the amount of development on certain streets meaning footpaths are blocked by scaffolding and roads blocked by skips.
• Has failed to communicate with local people regarding their concerns.

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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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

3. I have spoken to Ms X about her complaint and considered the information she has provided to the Ombudsman.
4. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Houses in multiple occupation (HMOs)

5. An HMO is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen. Private landlords must obtain a license to rent out a large HMO (which has more than three storeys and is occupied by five or more persons forming two or more households). Some local authorities may also use their discretionary power under the act to designate certain areas to be subject to additional licensing, which would require smaller HMOs in the designated area to be licensed.
6. Generally, a residential property can be converted to an HMO without planning permission under permitted development rules. This means the use of the property as an HMO can go ahead without the need for a planning application.
7. However, some councils have removed permitted development rights relating to HMOs in their local area. This means planning permission is normally required for a residential property to be converted to an HMO. If a property was being used as an HMO before permitted development rights were removed in the local area planning permission would not be required.
8. Councils can remove permitted development rights from specific areas where HMOs are linked to specific local issues such as anti social behaviour or they may decide to remove these rights from their whole area. Councils must provide reasons for removing these rights from an area otherwise decisions may be open to challenge in the courts.

Planning enforcement

9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

10. Ms X lives in an area predominantly made up of terraced housing. She and other local residents complain that these houses are being converted into HMOs and associated work is causing disruption in the area. They say:
• Pavements are being blocked by significant amounts of scaffolding.
• Construction vehicles block local highways.
• There is noise, dust and other nuisance caused by the works.
• Construction work is not being carried out in a safe manner.
• The number of HMOs in the area is unsustainable due to increase in population and pressures on local highways and infrastructure.
11. Ms X and other local residents have formed a residents group. They have raised concerns with various officers in the Council.
12. In January 2020 the Council published a draft policy which said it intended to remove permitted development rights for residential properties being converted into HMOs in certain areas of the city. In September 2020 the Council’s cabinet approved a consultation on the proposals. The consultation started in December 2020 and will end in February 2021. The Council says the policy will come into force from April 2021 if it decides to proceed after considering the responses to the consultation.
13. The Council has already removed permitted development rights for conversion of residential properties to HMOs in another part of the city in 2018.
14. Ms X says the Council should have acted sooner as there are already too many HMOs on her street.
15. The Council says it has checked its systems and received 4060 “service requests” regarding highways issues linked to HMOs in the area where Ms X lives between April 2018 and May 2019. It says it has resolved 99.41% of these issues.
16. In its response to Ms X’s complaint the Council acknowledged that a visit from an officer may resolve an issue in the short term but would not prevent a contractor from carrying out more bad practice once the officer had left. The Council says it is reliant on local people reporting issues to it in order to deal with them.

My findings

17. The Council is not responsible for health and safety issues on construction sites. The responsibility for this lies with the Health and Safety Executive. Therefore, I cannot criticise the Council for not responding to complaints about unsafe working practices.
18. The Council also has no powers to limit the amount of construction work happening in an area or on a street at any one time. Ms X believes such powers exist but I have been unable to find reference to this in any legislation or case law. Therefore, I cannot criticise the Council for failure to control the number of developments happening at any one time in the area.
19. The Council is responsible for highways in the area. This includes the placement of skips and scaffolding on pavements and roads. Ms X and the residents have not provided me with specific instances where they believe the Council has failed to respond to complaints about highways being blocked. The Council’s records show it has responded to the majority of requests for assistance regarding highways matters linked to the development of HMOs in the area. In the absence of a specific allegation of fault I cannot justify using the Ombudsman’s limited resources to investigate how the Council responded on each occasion.
20. The Council has given planning permission for a number of properties in the area to be converted to HMOs. However, I do not have complaints about these individual properties and the Council has not had an opportunity to respond to any complaints. Therefore, I have not investigated how the Council has dealt with these applications.
21. I have stopped my investigation into Ms X’s complaint about the way the Council has dealt with her and the removal of permitted development rights in her area. This is because the Council is currently consulting on plans to remove permitted development rights in her area. This process takes time to complete and I cannot say whether Ms X has been caused an injustice or whether there has been fault in the way the decision was reached until the Council decides whether to remove permitted development rights.
22. Ms X says the Council should have acted sooner. She first complained to the Council in October 2019 and the Council published its draft policy in January 2020. I cannot see that there has been a significant delay in the Council introducing proposals to remove permitted development rights from the area where she lives.

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Final decision

23. I have stopped my investigation into the Council’s proposal to remove permitted development rights relating to HMOs. This is because the Council has not reached a decision on this matter so I cannot say whether there has been fault or whether Ms X has been caused an injustice.
24. There is no evidence of delay in the Council introducing proposals to remove permitted development rights from the area where Ms X lives so I have completed my investigation into this part of her complaint.
25. I have also stopped my investigation into the way the Council responded to complaints about construction work in relation to the highway. This is because I do not have a specific allegation of fault and I cannot justify using the Ombudsman’s limited resources to investigate the way the Council has responded to every complaint it has received.

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Investigator's decision on behalf of the Ombudsman