Summary: Ms D complains the Council failed to preserve a listed building, near her home, which is in severe disrepair. She also complains the Council failed to respond to a complaint. We have completed our investigation. There is no fault in the Council’s handling of the listed building. However, it failed to reply to a formal complaint. This was fault but it did not cause a significant injustice to Ms D.

The complaint

1. The complainant (whom I refer to as Ms D) represents a Residents Association (RA). Ms D said the Council failed to grant planning permission for a nearby listed building site which is in severe disrepair. She also complained the Council failed to preserve the site or communicate with the RA.

Back to top

What I have investigated

2. Ms D refers to events dating back to 2002. I am looking at what happened from March 2020 in respect of the site preservation. I explain below why I cannot look at earlier events or the Council’s decisions to refuse planning permission at the site.

Back to top

The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
4. 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 the Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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)

Back to top

How I considered this complaint

7. I have spoken to Ms D and considered the information she supplied. I also asked the Council questions and examined its response.
8. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What happened

Background

9. The listed building is near to Ms D’s home. She, and other residents, have been in contact with the Council for several years concerning the disrepair and condition of the site. The site owner unsuccessfully submitted various planning applications to demolish parts of the building.

Events I have investigated

10. In March 2020 the Council received a planning application from the site owner. The application was not validated by the Council because of missing information. On 11 March residents met to discuss the site with the relevant Councillor. The Council set out Historic England’s guidance which it had to follow when dealing with a listed building. It was looking to get the site made safe.
11. In August the Council received a listed building consent application from the site owner. At the end of September Ms D formally complained to the Council about its handling of the case. The Council replied in October that it had acted correctly and had to consider planning applications submitted by the site owner. Ms D escalated her complaint and the Council replied on 2 November. It said that overall, it has acted correctly. It was taking a pro-active approach now and liaising with Historic England to prevent further deterioration of the site.
12. In December, after meetings with Historic England, the Council issued Urgent Works Notices to the site owner. These required numerous repairs to the building. In addition, Section 215 Notices were also issued to have the site cleared up. The target date for the owner to comply was the end of February 2021.
13. In January 2021 the RA wrote to the Council. The Council filed this as comments on the planning application. On 25 April the Council received a complaint from the RA about lack of progress. The Council logged the complaint but failed to issue a formal response.
14. On 30 June the Council produced a briefing note for Councillors and senior officers about the case. It set out a brief history of the site and that Urgent Works Notices and Section 215 Notices had not been complied with. The Council had prepared for litigation but decided not to go to court [in part because of the costs and timescales involved] at that time. The briefing detailed how the Council had considered various options to progress matters. This included possibly working with a charity and a back-to-back purchase of the site; constructing a fence at the site to prevent harm and damage. The Council could do the fence work and claim back the costs. In July the Council met with the RA to discuss the case.
15. Through July to September the Council agreed to fund fencing at the site and carried out a procurement exercise. It also continued to work with a charity about the future of the site. In October the Council released the funding and the fence was completed in November. The Council also met residents that month and explained the current position and options being considered.
16. The Council has an action plan in place for 2022 and is currently working to that schedule.

What should have happened

17. The owner of a listed building is responsible for its preservation. The Council can intervene where the site is neglected. When considering what action should be taken to preserve a listed building the Council follows the Stopping the Rot guidance by Historic England. This sets out the various option available to the Council.
18. Urgent Works Notices enable the Council to carry out works that are urgently needed for the preservation of a listed building. They give the site owner a set timeframe to complete any works. If they are not complied with the Council has the option of legal action against the site owner, if expedient.
19. The Council can serve a Section 215 Notice, under the Town and Country Planning Act 1990, against the site owner to secure improvements to the external appearance of the site. Again, the Notice will give a deadline for the completion of works, if these are not met the Council can seek prosecution. It can also carry out the works and recover any costs from the owner.
20. Repairs Notices are another option for the Council. They are served on the site owner and specify repairs needed for long term preservation of the site. If they are not complied with the Council can start Compulsory Purchase proceedings (Compulsory Purchase Order) under the Listed Buildings Act 1990. This is a reserve power only used to ensure the long-term preservation of a listed building. If the Council does not intend to carry out repairs itself it can identify a suitable end purchaser, such as a charitable group/ trust. The Council can pass the building onto an end user via a “back-to-back” agreement.
21. Each option is at the Council’s discretion. Officers should assess what steps are best suited to the site and whether the owner is likely to comply.
22. The Council will log a formal complaint and should reply within a set timeframe.

Was there fault by the Council

23. Ms D says the Council has failed to take action to preserve the site. Overall, the Council has taken reasonable steps to progress this case. It must follow a process which unfortunately can take time. In this case it has worked with Historic England to ensure the requirements for listed buildings are being adhered to. It issued Notices to try and secure the site and make it safe. When the Notices expired in February 2021 the Council’s Legal Team considered whether it was expedient to take formal enforcement action and progress matters to court. It decided this would not be appropriate at that time. I have seen the reasons for its decisions, part of which are confidential. The Council has the discretion to not take court action if it’s not considered appropriate at that time. The Council continued in 2021 to work with partners to find a long-term solution for the site. In addition, it carried out works itself to secure the perimeter of the site.
24. In respect of the listed building consent application in 2020 the Council cannot reach a decision on this because the applicant needs to also submit a planning application and additional information. There is no fault by the Council.
25. Whilst I appreciate Ms D feels the Council has not taken adequate steps to preserve and make the site safe, I am satisfied the Council sought to progress the case within the limits placed on it. Ms D may disagree with decisions taken by the Council regarding how to progress matters, but the Ombudsman will not question the merits of those decisions because they were taken in line with procedures.
26. Ms D also says the Council failed to communicate with the RA. The evidence shows me the Council has taken reasonable steps to keep the RA informed about the case. There is one instance of fault by the Council. It failed to respond to a complaint from the RA in April 2021. The Council apologises for this oversight.

Did the fault cause an injustice

27. The Council failed to respond to the April 2021 complaint. Given it subsequently met with the RA to discuss its concerns I do not see this error resulted in a significant injustice. The Council apologises for its failure to respond.

Back to top

Final decision

28. I have completed my investigation. The Council was at fault for failing to respond to Ms D’s complaint in April 2021 but there is no significant injustice.

Back to top

Parts of the complaint that I did not investigate

29. The Ombudsman expects a complaint to be made within 12 months of the matters arising. We cannot go back to events in 2002. The Ombudsman also cannot investigate complaints about the refusal of planning permission.

Back to top

Investigator's decision on behalf of the Ombudsman