Summary: Mr X complains the Council delayed in responding to his enquiries. Also, it will not specify what work to his listed building requires Listed Building Consent. We will not investigate this complaint. The Council has apologised for the delay which is a suitable remedy to this part of the complaint. Further investigation is unlikely to lead to a different outcome. And concerns about his application for Listed Building Consent are outside our jurisdiction as Mr X has appealed to the Planning Inspectorate.

The complaint

1. The complainant, who I shall call Mr X, says the Council will not specify what work to his Grade 2 listed building requires Listed Building Consent (LBC). And the requirement for LBC appears ‘at the whims of the Conservation Officer.’
2. He also complained about the Council’s delay in responding to his enquiry.

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The Ombudsman’s role and powers

3. 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:

• the injustice is not significant enough to justify our involvement
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

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

4. 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))
5. 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.

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How I considered this complaint

6. I considered:
• the information provided by Mr X
• copies of his correspondence with the Council and its responses
• information about the planning process and listed buildings available on the Council’s website; and
• Mr X’s comments on the draft version of this decision.

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What I found

7. Buildings which have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are:
• Grade I – Buildings of exceptional interest
• Grade II – Buildings of particular importance or more than special interest
• Grade III – buildings of special interest.
8. Listed buildings have an added layer of planning control and protection. As well as any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
9. It is an offence to work on a listed building without first getting listed building consent from the planning authority.
10. In 2018, Mr X bought his home which is Grade 2 Listed. He says the Council’s previous Conservation Officer (CO) considered that some work would be done by a ‘Letter of Agreement’. In April 2020, he emailed the Council’s new CO with details of work he wanted to do on his home.
11. After four weeks with no reply, he chased the CO for a response. The CO asked him to provide some photographs which he says he sent by return.
12. Having received no reply by the end of July, Mr X wrote to the Council’s Chief Executive.
13. The senior officer responsible for the planning department wrote to Mr X. He apologised for the delay in the CO’s response. He explained this was because the officer was redeployed to other duties while the country was in ‘lockdown’ due to the Coronavirus Pandemic. The Council says it decided to redeploy the CO during this time because much of his work needed indoor site visits, and such visits were restricted by the Government. However, the senior officer acknowledged Mr X should have been informed of this and apologised. He also noted Mr X had been advised the work he proposed required listed building consent and confirmed the CO would contact Mr X about a site visit to his home.
14. The CO met Mr X at his home and discussed the work Mr X was proposing. He followed up the visit with an email confirming the work required listed building consent.
15. Mr X disagrees with the CO’s opinion. He contacted the Council stating:

“it is morally wrong that council taxpayers, of which I pay XXXX per annum, should have to pay an internet agency to have a listed building application considered. We should have free access and information from your Department.”

16. In October, Mr X asked the Council for:

“the authorised, authoritative Government document which states what works to a listed building require Listed Building Consent”

The Council provided a link to information on the Historic England website.

17. In November, Mr X put in an application for listed building consent. He also complained to the Council about:
• the delay in dealing with his planning enquiry
• the ‘valueless’ response from the senior planning officer
• the failure of the Conservation Officer to wear Personal Protective equipment (PPE) during the site visit
• the high handed and impolite attitude displayed by the Conservation Officer
• the failure to provide a definitive list of work which requires Listed Building Consent

He demanded the Council show him respect and urgently resolve the matter.

18. In its final response to Mr X, the Council again apologised for the delay in responding to his request for agreement to the proposed work to his Grade 2 Listed Building.
19. It explained the Government requirement for face coverings was not in force when the CO visit Mr X’s home. However, the Council says the CO wore gloves and had confirmed before attending Mr X’s home that 2 metre social distancing would be possible during the visit.
20. It apologised Mr X felt the CO was impolite, confirming the officer had not intended this.
21. The Council explained that in seeking an authoritative list of work which requires listed building consent, Mr X is asking for definitive detail which does not exist. It confirmed deciding the effect of work on the character of a listed building involves the professional judgement of the CO.

Assessment

22. Mr X says his complaint is about the process required to get any form of consent for the work he wants to carry out at his home.
23. He says he previously carried out work to his home with a ‘letter of agreement’. However, listed buildings are protected by the Planning (Listed Buildings & Conservation Areas) Act 1990 (the Act). Section 7 of this Act states “that works that consist of the demolition or the alteration or extension of a listed building in any manner which would affect the building's special character or appearance require listed building consent”. The Council’s website refers to this.
24. It also says confirmation on whether particular work requires LBC can be obtained by contacting the CO. Formal confirmation can be obtained by submitting a Certificate of Lawfulness.
25. There was a delay in the Council’s response to Mr X’s first enquiry in April, the request for photographs in May and the site visit in August. However, the Council has explained why this occurred and it is clear the restrictions on visiting people’s homes imposed by the Government during this period is relevant. But the Council recognises it should have kept Mr X informed and has apologised several times.
26. I do not consider that further investigation of this part of the complaint will lead to a different outcome. I am also satisfied that an apology is a suitable remedy to this part of the complaint.
27. The Council’s email to Mr X in August states that a listed building consent application was required. I understand Mr X disagrees with the CO and has asked for a definitive list of work which requiring listed building consent. The Council is correct in confirming that no such list exists. The planning process includes a high degree of officer judgement and the law does not allow us to question the merits of the officer’s decision on these points.
28. We cannot decide whether listed building consent is required for the work Mr X wants to carry out on his home. Our role is to consider whether the Council has properly considered the matter. From the information I have seen it seems the Council has given proper thought to the matter. It has visited Mr X’s home and considered the proposed work.
29. I see no sign of procedural irregularity which would allow us to question the requirement to apply for listed building consent.
30. Mr X’s says he should not have to pay a fee to have a listed building consent application considered. The Council’s website provides information about work on listed buildings. it confirms these applications are free.
31. Mr X put in a listed building consent application. As the Council has not determined this within the statutory time frame Mr X has appealed to the Planning Inspectorate. All matters on the application are therefore outside our jurisdiction.
32. Mr X disputes the Council’s position that the CO wore gloves and practised social distancing during the site visit. I cannot comment about what happened during the site visit.
33. We expect Council’s to follow the Government’s guidance which is in place at any given time. The Council’s website it clear that it is currently aiming to assess planning applications using virtual site visits and photographs where possible. If a site visit is necessary, the case officer will contact applicants to discuss the matter and a risk assessment will be carried out before the visit.
34. I accept that Mr X disagrees with the Council’s version of events during the site visit. However, he has not informed me of of any adverse consequences as a direct consequence of the visit and the alleged lack of personal protective equipment. This, with the details in paragraph 33, leads me to conclude that Mr X has not suffered a significant personal injustice arising directly from this specific part of his complaint which warrants investigating.

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Final decision

35. I will not investigate this complaint. The Council accepts the delays in responding to his original enquiry was fault and has apologised. I consider this is a suitable remedy to this part of the complaint.
36. Mr X complains the Council failed to provide a definitive list of work requiring LBC, however no such list exists. From the information I have seen the Council has considered his proposal. A suitably qualified officer visited his home and gave the opinion that LBC is required. While Mr X may disagree, this is not evidence of fault.
37. Mr X has not advised of any significant adverse consequences of the alleged lack of PPE during the site visit. Therefore, I do not consider he suffered a significant personal injustice arising from this part of his complaint.
38. Finally, we cannot achieve the outcome Mr X is seeking. He has appealed to the Planning Inspectorate, therefore all matters relating to the LBC application are outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman