Summary: We will not investigate this complaint about the way the Council considered and approved an application for retrospective listed building consent. We have not seen enough evidence of fault in the Council’s actions. And it is reasonable to expect the complainant to contact the Information Commissioner’s Office with her concerns about the Council withholding information.

The complaint

1. Ms X complains the Council failed to take enforcement for failure to obtain a breach of listed building consent.
2. She also complains:
• The Council excluded her from the consultation process
• Retrospectively altered planning records; and
• Breached its transparency and disclosure obligations.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X lives in a grade two listed building. The building owners installed an extractor fan in the kitchen without listed building consent.
8. Mrs X reported this to the Council. The property owner put in an application for retrospective listed building consent.
9. The Council erected a site notice outside the property and placed an advert in the local paper. It also consulted its Conservation Officer who had no objection to the extractor fan.
10. The Planning Officer’s report to the Council says:

“Overall any impact is negligible, no harm has been caused to the building and there is no objection to the works. The works have not resulted in undue loss of historic fabric, nor have they harmed the historic character of the listed building. Therefore the historic significance special interest of the listed building has been preserved.”

The Council granted listed building consent.

11. I understand Mrs X is concerned the owner failed to apply for listed building consent before installing the extractor fan. However, listed building consent can be made after work to a listed building has taken place.
12. Having considered the report of a failure to obtain listed building consent, the Council was entitled to accept a retrospective application to regularise the situation.
13. Mrs X says she was excluded from the consultation process. However, regulations require the Council to publish a notice of the application in a local paper and to erect a notice on or near the site.
14. It is the responsibility of the owner to let those with an interest in the property know an application had been submitted.
15. From the information I have seen, the Council discharged its responsibilities for publicising the application for listed building consent.
16. Mrs X also complains the Council altered and withheld information on a previous planning application.
17. The Council confirmed the owners have previously applied for listed building consent for new doors and windows. The Council’s Conservation Officer objected to the application. They considered the proposal for PVC units did not have due regard to the preservation of the listed building. The applicant decided to withdraw the application before the Council made a decision. Therefore the Council’s planning website correctly shows the application was withdrawn, not refused.
18. Mrs X says she believes the Council changed the planning record as it previously showed the application as refused. However, I have seen no evidence to support this. If she believes the Council failed to follow its obligations on disclosing information, it is reasonable to expect her to complain to the Information Commissioner’s Office (ICO).

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Final decision

19. We will not investigate Mrs X’s complaint because:
• We have not seen enough evidence of fault in the way the Council considered the retrospective application for listed building consent or publicised the application; and
• It is reasonable to expect her to complain to the ICO with her concerns that the Council is withholding information.

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Investigator's decision on behalf of the Ombudsman