Report on an investigation into complaint no against the London Borough of Hillingdon 28 September 2006 Millbank Tower, Millbank, London SW1P 4QP
Investigation into complaint no against the London Borough of Hillingdon Table of Contents Page Report Summary 1 Introduction 3 Legal and Administrative Background 3 Investigation 4 Conclusion 8 Key to names used Mr Smith - the complainant Mr Eden - the complainant s neighbour
Report Summary Subject Mr Eden (not his real name for legal reasons) owns a two-storey end-of-terrace house in a suburban street of similar properties. He applied to the Council for a certificate of lawfulness of existing use and development to erect a three-storey side extension up to the boundary he shares with the complainant, Mr Smith. By law Mr Eden s development would require planning permission. The development is contrary to the Council s policies and the Ombudsman is satisfied that it would never have received permission. Due to human error however, the Council granted the certificate of lawfulness. Realising its mistake the Council quickly sought the advice of its Legal Department which wrongly advised that a replacement notice refusing the certificate could be issued to Mr Eden. The Council did this but Mr Eden refused to accept it. In the meantime, Mr Smith complained to the Council about Mr Eden s building work. He was told by the Council that it had been in correspondence with Mr Eden about its refusal of his application but that the matter had been resolved and it would be taking enforcement action against Mr Eden. However, after some correspondence with Mr Eden, the Council conceded that the certificate was valid and Mr Eden was able to build the extension. Mr Smith continued to write to the Council about the development and the progress of its enforcement action. But the Council only gave limited information in its replies and did not tell Mr Smith that a certificate had been granted or that it had now agreed that it was valid until almost a year after it had reached this decision. Finding The Council s failings were maladministration causing injustice. Mr Smith now has a three-storey extension being built up to his plot boundary, where no three-storey extension should be. He has also been put to significant time and trouble in pursuing matters and he will rightly have an ongoing sense of outrage about the Council s actions. Recommended remedy The Ombudsman recommends that the Council: 1. appoints an independent party to undertake a before and after valuation of his home and pays Mr Smith compensation to reflect any diminution in its value; 2. pays Mr Smith 3,500 to reflect the injustice to him and for his time and trouble in pursuing matters; and 3. undertakes a review of its procedures and should also ensure that its legal advice is accurate and complete. 1
2
Introduction 1. Mr Smith complains that the Council wrongly granted a certificate of lawfulness for a three-storey side extension to his neighbour s house, up to their common boundary, and that the Council failed to keep him informed of what was happening. Legal and Administrative Background 2. All development requires planning permission, but Parliament has granted a general permission (known as permitted development ) for certain types. As part of this, planning permission is not generally required for an extension of up to 50m 3 to a terraced, or end-of-terrace, house (or for 10% of the volume of the original house if this is greater) provided the extension is not more than 4m in height within 2m of the property boundary. 1 3. An applicant can establish whether planning permission is required by applying for a certificate of lawfulness of existing use or development. If granted, the certificate confirms that the proposal does not require planning permission. 2 A council may only revoke a certificate if the application or any supporting document contained a false statement as to a material fact or if any material information was withheld. 3 The courts have held 4 that a certificate issued by mistake can be superseded by the correct certificate where this would not change the basis of the decision or the nature or effect of the decision. 4. The Council s decisions on certificates of lawfulness are made by officers under delegated powers. A Planning Officer prepares a report using a standard template which includes a checklist: if the answer to any of the listed questions is yes, then planning permission is required and a certificate should not be granted. The recommendation has to be countersigned by two senior officers before the certificate is granted or refused. 5. Where planning permission is required, decisions must be made in accordance with the Council s development plan unless material considerations indicate otherwise. Policy BE22 of the Council s Unitary Development Plan says that residential extensions and buildings of two or more storeys in height should be set back a minimum of 1m from the side boundary of the property for the full height of the building. The Council s design guidance says that the roof line of extensions should normally be parallel to those of the existing building, with eaves lines (the bottom edge of the roof) following through. 1 Schedule 2 Part 1 Class A The Town and Country Planning (General Permitted Development) Order 1995 2 s192 The Town and Country Planning Act 1990, as amended 3 s193(7) and (8) of the 1990 Act 4 R v Arun District Council, ex parte Marie-Yvonne Fowler [1997] EWHC Admin 896 3
6. Matters such as the structural stability of proposed developments are dealt with under the building regulations. If a council is satisfied the regulations are met, it must grant approval. 7. Judicial review allows a court to review decisions of a public body. If an application for judicial review is successful the court can grant a number of remedies, one of which is a Quashing Order. This overturns an invalid decision: the public body must then take the decision again applying the proper legal test. Unless circumstances are exceptional, an application for judicial review must be made promptly and in any event within three months after the grounds to make the claim first arose. A council can apply for a judicial review of its own decision. Investigation 8. Mr Eden is the owner of a two-storey end-of-terrace house, with a two-storey bay to the front elevation. The other properties in the terrace, and adjoining in this suburban street, are similar. 9. Since 2001 Mr Eden had made a number of applications for certificates of lawfulness for two-storey extensions to his home. Each had been refused. In 2003 the Council considered an application for a certificate of lawfulness for the erection of a two-storey side extension to the property, and the removal of the two-storey front bay. The Council refused his application, and Mr Eden appealed. 10. In November 2003 the Planning Inspector dismissed Mr Eden s appeal: he noted (amongst other matters) that the extension would be more than 4m high within 2m of the boundary and therefore required planning permission. Almost immediately, the Council received a fresh application for a certificate of lawfulness. This time, as well as removing the front bay, the development involved a three-storey side extension (and conversion of the roof space to habitable accommodation). The extension was to be built up to the plot boundary, and 1.8m deep. 11. The Planning Officer noted yes to a question on the report checklist (see paragraph 4) which asked whether any part of the extension was higher than 4m within 2m of the boundary (and so required planning permission), but his report recommended that the Council should grant a certificate of lawfulness: he says that he failed to amend the recommendation from the previous report on which he had been working. 12. The report was checked and countersigned by the Planning Officer s line manager (who says he signed off 25-30 reports each day) and that officer s manager. Neither noticed the clear inconsistency in the report. A certificate confirming that the proposal was permitted development, and so did not require planning permission, was issued on 19 January 2004. 13. The Planning Officer says that he realised his mistake after Mr Eden had received the certificate of lawfulness. He immediately sought the advice of his line manager, who in turn sought advice from the Council s Legal Department. The legal advice 4
was that the Council had a statutory power to revoke the certificate but the statutory process need not be used here, as this was a simple administrative error, and a replacement notice refusing the application could be given to Mr Eden. There is no evidence that the Council considered applying for a judicial review of its decision. The Council delivered a refusal notice to Mr Eden a week after the erroneous certificate had been issued. 14. In March 2004 Mr Eden made a building regulations application to the Council and started building work, erecting a timber structure. The Council did not consider this had permission and it did not accord with any of the plans lodged with the Council. As a result it wrote to Mr Eden, telling him to remove the structure or be open to enforcement action. Further letters between the Council and Mr Eden followed. Mr Eden said that the certificate was valid, and he therefore had permission to build in accordance with the plans, while the Council said the refusal notice was valid. 15. Mr Smith complained to the Council about the structure in May 2004. He described it as formed by three by two timber with sheets of plyboard that is four metres wide and seven to eight metres high and held together with bolts and nails. He said that his five year old daughter now refused to walk down the side of his house because she was frightened, and he asked to be informed in writing what action the Council was taking. 16. In June 2004 the Council told Mr Smith it had been in correspondence with Mr Eden about its refusal of his application for a certificate of lawfulness. It went on: I am pleased to report that this debate has now been concluded and can confirm that the structure would require planning permission, which has not been granted and it is therefore unauthorised the committee report recommending enforcement action will be prepared shortly I understand from the Building Control manager that the structure is no longer in a dangerous condition as of the 23 June. 17. The following week, the Council received a letter from Mr Eden s solicitors, arguing that the Council s understanding of its legal position was incorrect, and the certificate could not be revoked. A month later, the Council s Legal Department was asked to confirm the position. It sought Counsel s opinion in September 2004. This said that as no false statement had been made, or material information withheld, the Council had no power to revoke the certificate, and that the situation could be distinguished from case law which did allow a council to issue a fresh certificate. (In short, the Council s initial legal advice had been flawed.) The Council could have applied for judicial review of its own decision, but the Counsel felt it was now too late for this to succeed. On 23 November the Council wrote to Mr Eden confirming that the certificate was valid. 5
18. There is no indication that the Council informed Mr Smith following its June 2004 letter that the legal dispute had been resurrected, or that in November 2004 it told him of the outcome. 19. In January 2005 Mr Smith was served with a notice by his neighbour, saying that he was going to start building a three-storey side extension. On 20 January Mr Smith wrote to the Council s Planning Department and on 24 January to Building Control, asking about the proposed extension, and on 27 January to his Councillor. Building Control replied that they had had nothing new since March 2004, but the Planning Department did not reply. The Council responded to Mr Smith s Councillor s enquiries, but these responses were not passed on to Mr Smith. (The Council says that it has since changed its procedures so that a copy of a reply to a councillor is also sent to the complainant.) Between January 2005 and October 2005 Mr Smith made six enquiries of the Council: the Council failed to reply to four letters and gave only limited information in the replies it did send. 20. In November 2005, a year after the Council had confirmed that the certificate was valid, Mr Smith was told the correct situation. He asked why the Council had not applied for a judicial review of its own decision. Although I had had no involvement and was unaware of the matter (Mr Smith complained to me shortly afterwards), the Council told his Councillor (who passed this information to Mr Smith) that it had missed the opportunity of seeking a judicial review because of delay by me. The same month it also responded to a Councillor s enquiry at a meeting of the full Council. The Cabinet Member responsible was briefed that I had caused the delay, although this incorrect information does not appear to have been passed on to the meeting. 21. A Council officer has since apologised to me (by email) for providing false information about me to Mr Smith s Councillor: she said that she was a new member of staff and had been misinformed. 22. In response to my enquiries about Mr Smith s complaint, the Council told me that it accepted the certificate was issued in error, but it did not feel it had been negligent as it had sought to rectify matters. It said it had kept Mr Smith informed. (It was unaware that all the information given to his Councillor was not passed onto Mr Smith: it now accepts that its communication with the complainant was inadequate.) 23. At the time of writing, Mr Eden s extension remains unfinished. The following photographs show its state at March 2006: the front and side walls of a shallow extension projecting just above the first floor eaves level, built up to the common boundary with Mr Smith s home. The third storey is yet to be added and the front bay to the original house has yet to be demolished. 6
Front view at first floor level Rear view showing Mr Smith s property to the (left) side The work is continuing at a slow pace. The partially constructed walls are obviously crooked. The Council has concluded that although the work is not of a high standard, the structure is not dangerous. In April 2006 Mr Eden made a fresh application for a certificate of lawfulness. This was to provide a two-storey extension to the rear of the three-storey extension currently under construction. This application was refused in June 2006. 7
24. None of the planning staff involved in issuing the certificate of lawfulness are currently employed by the Council, which has introduced measures to avoid similar mistakes in the future. These include regular training sessions for new staff to improve the quality of reports, targets for enforcement action which include keeping complainants informed and formal arrangements for liaison between Building Control and the Planning Department. Conclusion 25. This is a tale of very substantial and very serious error, incompetence and delay: The Council wrongly issued a certificate of lawfulness which has allowed a three-storey extension to be built to the side of a two-storey end-of-terrace house in a suburban street. The law did not allow for the certificate to be issued, and by its failings here the Council has allowed a development which is contrary to its policies and which I am satisfied would never otherwise have received permission. The certificate was issued because of simple and clear cut error, which was not identified in wholly inadequate checks by more senior staff. The legal advice on which the Council initially acted was flawed, and in consequence it failed to consider judicial review within a timescale which might have lead to the quashing of the certificate. The Council failed to keep Mr Smith informed. Most significantly, it failed to tell him that it had reversed its original position and now considered the certificate of lawfulness to be valid until nearly a year after it had reached this conclusion. There was a lack of liaison between planning and building control staff, so that full and accurate responses to enquiries were not given. Findings 26. The Council s failings, described in paragraphs 25 and 26 above, were maladministration. Mr Smith has suffered injustice as a result, because he now has a three-storey extension being built up to his plot boundary, where no three-storey extension should be. I have no powers to secure the removal of the extension. To remedy this injustice to Mr Smith, therefore, I recommend that the Council appoints the District Valuer, or some other independent party to be agreed with Mr Smith, to undertake a before and after valuation of his home and pay Mr Smith compensation to reflect any diminution in its value. I accept that the structure is incomplete, but it can reasonably be assumed from Mr Eden s actions to date that he intends to complete the structure. The after valuation should therefore be based on this 8
assumption, and that the structure will comply with the Building Regulations and in the knowledge of Mr Eden s apparent skills as a builder. 27. Mr Smith has also been put to very significant time and trouble in pursuing matters. He made a number of enquiries, to many of which the Council failed to respond and to others it provided only limited information. He was left in the dark about the true position for a significant time and was caused anxiety, uncertainty and outrage by the Council. He will rightly have an ongoing sense of outrage about the Council s actions. The Council should pay Mr Smith 3,500 to reflect the injustice to him in these respects. 28. Finally, the Council should undertake a review of its procedures, including those for responding to complaints and enquiries (from residents, Councillors and from me) and should also ensure that its legal advice is accurate and complete. Tony Redmond 28 September 2006 Local Government Ombudsman 10 th Floor Millbank Tower Millbank London SW1P 4QP 9