Summary: Mr X complains about the Council’s handling of repair and planning matters for a building it owns in a conservation area. Mr X says the Council’s actions damaged the building putting it at risk of demolition, which would harm the conservation area. The Ombudsman discontinued his investigation because earlier events happened too long ago to address now, and the Council has taken suitable action in response to Mr X’s more recent concerns.

The complaint

1. The complainant, who I refer to as Mr X, says the Council failed to properly carry out repairs to an historic property it owns (‘the Building’). Mr X says this caused damage to the Building and led to a planning application to demolish it. Mr X also says the Council misled him about the existence of an expert’s report for the Building and followed poor practice in predetermining the right course of action to take on the Building. Mr X says the Building is at risk of being lost which would cause harm to the surrounding conservation area and disadvantage residents. Mr X wants the Council to repair and save the Building.

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What I have investigated

2. I have investigated Mr X’s complaint from April 2018 when an expert assessed the Building. My reasons for not investigating the rest the complaint appear at paragraphs 28 to 33 of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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, for example, we believe:

• 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)

5. 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)
6. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
7. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

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How I considered this complaint

8. I have:

• considered Mr X’s written complaint;
• talked to Mr X about the complaint;
• considered the complaint correspondence between Mr X and the Council; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

What happened

9. The Council owns property, including the Building, in a conservation area, which it leases to a third party. Land and buildings in an area designated a ‘conservation area’ have added planning protection. The Building is more than a hundred years old and of some heritage value.
10. Several years ago, the Council carried out repairs to the Building. And, about three years ago, the Council decided to apply for planning permission to demolish the Building due to its poor condition. A local conservation society, which Mr X represents, challenged the Council’s planning application. Mr X said the Council had failed to apply national planning policy that needed proper consideration of the heritage significance of the Building when making the planning application. Later, the Council withdrew the planning application and sought expert advice on the Building’s heritage and structural condition. The expert made a site assessment, arranged for a heritage appraisal by a specialist service, and produced a report for the Council.
11. About three months later, Mr X asked the Council for an update on what was happening. The Council officer dealing with the matter sent two emails to Mr X saying progress would be made once the Council received the expert's report.
12. The report found the Building to be of low to moderate architectural and historic value due to changes and the removal of historic fabric. The report also said the Building was not prominent in the streetscape and made a neutral contribution to the character of the conservation area. The report set out three alternatives for the Building:

• stabilising work to allow its partial use;
• more extensive works to allow full use; and
• demolition and rebuilding.

The report said the constraints of the Building, its moderate significance, and the costs necessary to bring it fully into use, limited sustainable long term uses. So, the report said, regrettably, demolition should be considered.

13. The Council did not decide the Building’s future but erected hoarding to protect both it from further damage and people using neighbouring property.
14. Later, Mr X made Freedom of Information requests to the Council about the Building. After receiving information from the Council, Mr X complained, including about the repair work and the withdrawn planning application (see paragraph 10). Mr X also said the Council had twice misled him about not having the expert’s report when it did have it. Mr X said the Council had predetermined demolition of the Building without considering its importance to the conservation area. Mr X also said the Council’s failed repairs and handling of the Building would have wasted much public money.
15. In response, the Council denied the earlier repairs (see paragraph 10) had damaged the Building. The Council said the Building was small and needed a viable use to justify the cost of its repair. The existing structural problems and lack of a meaningful use for the Building had led to its decision to apply for planning permission to demolish it about two years earlier. The Council accepted it should have assessed the Building’s heritage significance. It had therefore withdrawn the planning application to fully assess the Building’s structure and heritage value. The Council said it had not immediately shared the following expert report as it first considered options with the expert and its tenant. On costs, the Council said it would have viewed the earlier repairs (see paragraph 10) as acceptable, and later costs were officer and consultants’ time and those arising from owning property. The Council said, while not yet convinced there was merit in saving the Building, it would further consider options for its repair, heritage funding and reuse with the tenant.
16. The Council’s complaint response also claimed to quote earlier comments made by the conservation society represented by Mr X. The Council said these earlier comments weakened the society’s argument for preserving and repairing the Building.
17. Mr X took his complaint to stage two of the Council’s complaints procedure. And, in the correspondence that followed, Mr X and the Council continued to disagree on issues about the earlier repairs to the Building and the impact of those repairs. Mr X and the Council also continued to deal with the complaint about the inadequacy, and costs, of the Council’s withdrawn planning application.
18. Mr X’s stage 2 complaint also dealt with the Council’s emails being misleading in saying it did not yet have the expert’s report. Mr X said the emails were a deliberate misrepresentation and a serious breach of the Council’s ‘code of conduct for employees’ had taken place. Mr X also said the Council had misrepresented the society’s views as the ‘quote’ in its stage one response was wrong and unacceptable. Mr X also said the Council had now admitted it had predetermined to demolish the Building when it was wrong to predetermine decisions. Mr X set out a detailed argument for why the expert report the Council relied on was wrong and of limited value.
19. In responding, the Council accepted it should not have ‘quoted’ the society because the society had not made the quoted comments. The Council apologised for the misunderstanding caused. The Council also said it had at first viewed the expert’s report as a ‘working document’. But, after further discussions with the expert and the tenant, it agreed there was no need for further appraisals and so ‘approved’ the report, which it then sent to Mr X. The Council accepted its emails about ‘waiting’ for the report did not make this clear and so apologised to Mr X.
20. On predetermining the decision to demolish the Building, the Council explained the difference between it acting as a landowner and its statutory role as a local planning authority. The Council said, as owner of the Building, it was entitled to take and progress a decision to demolish it. Before demolition, as owner, it would need planning permission. And any application for planning permission would follow the normal statutory procedure. The Council did not accept Mr X’s views about the expert’s report. The Council stressed it would consider all options for the Building. The Council offered to meet with Mr X to discuss any proposals the society might have about a practical and viable use for the Building.
21. At stage three of the Council’s complaint procedure, Mr X repeated his concerns about the Council’s misleading emails and misquoting the society he represented. Mr X said an internal Council inquiry was needed into its officer’s breach of the code of conduct for employees. Mr X also repeated his concerns about the Council predetermining demolition of the Building as owner and challenging the expert’s report.
22. The Council replied referring Mr X to its earlier complaint responses. The Council told Mr X it had considered his request for an inquiry about its officer’s conduct but decided this was not a proportionate response to what had happened. The Council recognised Mr X disagreed with its earlier decision, as owner, to seek planning permission to demolish the Building. The Council said it was important to remember it had not made a final decision about the future of the Building and continued to explore different options. The Council repeated its offer to meet with Mr X and representatives of the society to discuss options for the Building.
23. Dissatisfied with the Council’s responses, Mr X complained to the Ombudsman.

Consideration

24. Having withdrawn the planning application to demolish the Building, the Council sought expert advice and considered the resulting report. Mr X says the Council has predetermined the future of the Building, which is to demolish it and not repair and save it for future use. And yet, the Council may take such a view as a landowner. And, in taking this view, as landowner, the Council considered the limited use allowed by the small size and layout of the Building, and the cost of repairs, as relevant matters. The Council, as landowner, has correctly explained that to demolish the Building, it would need planning permission. And, as landowner, it would apply for planning permission and the application would be decided in line with normal planning procedures. Such procedures would allow Mr X, and other interested people, to comment and or object to the application before the Council, as local planning authority, decided whether to grant or refuse planning permission.
25. I recognise Mr X’s dissatisfaction with the Council’s apologies about misleading emails and for misquoting the society. And yet, I do not find these are matters that warrant further investigation by the Ombudsman. In reaching this view, I have taken into account that I cannot, by law, investigate personnel or disciplinary matters (see paragraph 7). I cannot therefore provide the inquiry into the alleged breach of the employee code of conduct that Mr X seeks.
26. The Council has yet to decide what will happen to the Building. Mr X wants the Building repaired and saved but the decision on its future is one for the Council to make, and not the Ombudsman (or the society). The Council has offered to meet with Mr X and other members of the society to discuss options for the Building. And, the Council has said it will consider practical proposals put forward by Mr X and the society. So, the Council is looking to engage with Mr X and the society in considering the future of the Building. I therefore find the Council has proposed a reasonable way forward. I do not find further investigation by the Ombudsman is likely to achieve any more meaningful outcome for Mr X.

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Final decision

27. I discontinued my investigation.

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Parts of the complaint that I did not investigate

28. The Local Government Act 1974 sets out the Ombudsman’s powers but also places limits on investigations, including those at paragraphs 5, 6 and 7 of this statement. The restriction on investigating personnel issues applies to Mr X’s request for an employee inquiry (see paragraphs 7 and 25).
29. In the draft of this statement, I said the 12 month rule about late complaints applied to Mr X’s concern about repairs to the Building, which took place several years ago. In response Mr X said he only became aware of the repair work and its impact on the Building when making his Freedom of Information requests (see paragraph 14). As Mr X says he was not aware of the repair work until after April 2018, I may consider this part of the complaint (see paragraph 2).
30. The Council, in its complaint responses to Mr X about the repair work said, given the time since the work took place, its records of what happened were “limited”. The Council also said those records were “open to interpretation”. The Council did not accept the repair work had caused structural problems for the Building but that such problems existed when the work took place. Mr X and the Council therefore have differing views about the repair work and its effect on the Building. Although Mr X relatively recently found out about the repair work, it did take place many years ago. An investigation now is unlikely to provide sufficient evidence to reach a fair, sound, and objective view on whether the Council is likely to have acted with fault in carrying out the repair work.
31. An investigation now into the historic repairs and their impact also will not change the current condition of the Building. Nor will such an investigation affect the need for the Council to reach a view on the future of the Building (see paragraph 26). Overall, in the circumstances here, I find no good grounds or reason to exercise discretion and investigate this part of Mr X’s complaint (see paragraph 4).
32. The 12 month rule does apply to the withdrawn the planning application. I find no good reason to warrant exercising discretion to investigate now this part of Mr X’s complaint (see paragraphs 5 and 10).
33. Mr X also complains about the Council wasting public money in dealing with the Building. However, the injustice of such a claim would cover all or most of the people in the Council’s area and so falls outside our jurisdiction and will not be investigated (see paragraph 6).

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Investigator's decision on behalf of the Ombudsman