Summary: Mr X complained about the Council’s enforcement action in relation to unlawful works and demolition on an important building in his area. There was no evidence of fault in the way the Council acted.

The complaint

1. Mr X complained the Council did not:
• use a stop notice when a developer began demolishing an important building in his area;
• take formal enforcement action to control unlawful development on part of the land.
2. Mr X does not claim to have been caused a personal injustice by what has happened but said that the developer’s actions caused a loss of a community asset that affect many people in the area.

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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-making process. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the planning inspector’s decision and enforcement officer’s reports.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning and building control law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
9. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
12. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
14. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices – these may be served along with an Enforcement Notice to prohibit activities without further delay where it is essential to safeguard the public and to stop serious or irreversible harm. The Stop Notice must specify when it takes effect, which must normally be no less than 3 days and no later than 28 days from when the notice is served. If Stop Notices are quashed, varied or withdrawn, the Council may be obliged to pay compensation to the developer.
• Temporary Stop Notices – these notices can be served without an accompanying an Enforcement Notice and may last up to 28 days.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
15. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
16. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

17. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
18. 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.

Background

19. The Council received complaints that a building was being demolished in a Conservation Area. An enforcement officer visited the site the same day and told the developer to stop working. The developer claimed that only an extension was being demolished.
20. The developer submitted a planning application to retain the building, demolish the extension and build houses on the land.
21. A few weeks later the Council received more complaints that other parts of the building were being demolished. On the first visit that followed, the developer said they were merely carrying out renovations, but on the second visit it was clear that this was not the case. The developer was warned that an offence had been committed and was cautioned.
22. The developer claimed the demolition was necessary because the repair work had revealed an unsafe structure. They claimed to have a survey to show the building was unsafe.
23. During the next few weeks, the Council continued its enforcement investigations, seeking legal advice, carrying out Land Registry searches, more site visits, interviews under caution and seeking evidence from energy supply companies.
24. The developer admitted a Building Control Act offence, of carrying out work without giving notice.
25. Planning enforcement investigations led to further charges, relating to demolishing a building in a Conservation Area. The Council also issued an Enforcement Notice requiring the developer to rebuild the demolished building. The developer appealed to the Planning Inspectorate. The Inspector decided the building should be rebuilt, but not the single storey extension. Rebuild works are underway.
26. In response to Mr X’s complaint that it should have used a Stop Notice, the Council explained that it considered this option, but decided that other enforcement powers were more appropriate, because:
• the original building, even when partially demolished, had become unsafe and stopping demolition part way through would leave a ruin;
• the offence of demolishing a building without consent in a Conservation Area carried significant penalties;
• the Council could use enforcement notices to require a rebuild.
27. In relation to Mr X’s complaint that it failed to take enforcement action for unlawful development on part of the land, the Council explained it decided not to take enforcement action because:
• the use of the smaller part of the land was the same planning use as the whole site;
• development works on the outside of the remaining building, whilst unlawful, were not considered to cause significant harm to the area.

My findings

28. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
29. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
30. In relation to enforcement matters raised in this complaint, before it made its decisions, the Council considered the allegations, its powers and the circumstances it found on site, as well as legal advice and evidence from a number of sources. The Council followed the decision-making process we would expect and so I find no fault.

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Final decision

31. I have completed my investigation as I found no fault in the Council’s decision-making process.

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Investigator's decision on behalf of the Ombudsman