The Ombudsman's final decision
Summary: Mrs X complained about the Council’s handling of her planning application after her property was put on the local list as a Non Designated Heritage Asset. We did not investigate the complaint further as we are unlikely to find fault, recommend a remedy or reach any other meaningful outcome.
The complaint
Mrs X complained about the Council’s handling of planning matters in relation to her property. Mrs X said: the Council was wrong to decide her property was a Non Designated Heritage Asset (NDHA). Mrs X feels the Council unfairly discriminated her, as similar properties in the area have been treated differently; Council officers insisted she make costly and unnecessary changes to her application before it could be approved; and an officer was unprepared and obstructive at a site meeting to discuss discharge of a planning condition controlling materials. Later, the officer changed their mind about a material sample.
Mrs X said the Council’s inappropriate behaviour and approach meant she could not carry out the development she wanted and that she was caused unnecessary expense. Mrs X would like the Council to compensate her and for its officers to be retrained so their decisions are more consistent and less subjective.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint. I read government guidance on Non Designated Heritage Assets (NDHAs) and decisions by the Planning Inspectorate relating to them.
I gave Mrs X and the Council an opportunity to comment on a draft of this decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
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.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Buildings that are considered to have significant historic or architectural interest may be recorded, graded and designated on the National Heritage List for England. The grades of listed buildings are as follows: Grade I – Buildings of exceptional interest; Grade II – Buildings of particularly important/more than special interest; Grade III – buildings of special interest.
If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.
In addition to the national list of buildings, councils may also keep local lists of other buildings they consider to be of significant historic, aesthetic or communal value. The NDHA status is considered in weighing planning applications for proposed demolition or development.
There is no appeal against a council’s decision to place a building on the local list. If a building owner feels the decision is unreasonable or unlawful in some other way, they may challenge the decision by way of judicial review in the courts. Alternatively, they may apply for planning permission for any development they wish to carry out, and if it is refused they may appeal to the Planning Inspectorate.
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.
The Planning Inspectorate may also disagree with judgements about local heritage lists and overturn council decisions regarding NDHA status.
What happened Mrs X bought a property from the Council that had no historical listing or NDHA status. She planned to carry out works on the property and applied for planning permission.
The Council placed the property on the local list as a NDHA. During the planning process, planning and conservation officers suggested changes they considered necessary to protect the building, including measures to control materials to be used during construction.
The Council approved the application and Mrs X complied with the Council’s planning condition to control materials. Mrs X feels she has been treated unfairly, as the building is similar to others that have not been classed as NDHAs. She disagreed with the officers’ judgements about the need for particular building materials but felt she would only get permission if she complied with their requests.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further, and my reasons are as follows: We are not an appeal body and cannot agree or disagree with planning judgements made by council officers and members. Further investigation is unlikely to result in a finding of fault.
Inclusion on a local list is not necessarily disadvantageous. Protecting heritage assets undoubtedly improves the built environment and can have a positive impact on house values. However, it is important to remember that the purpose of planning protection here is to safeguard heritage assets for the public, not the private interests of property owners and developers.
Mrs X said she felt obliged to comply with the opinions of Council officers, but she had options. If she had evidence to show the local listing was unlawful in some way, she might have challenged the Council’s decision in the courts. Alternatively, she could have stuck with her proposed plans and taken her case to the Planning Inspectorate. It is the appropriate forum for challenging planning judgements of this kind.
Planning decisions and judgements can often seem inconsistent, and while councils aim for consistency through application of local and national policy, a divergence of opinion and approach is inevitable where different decisions and judgements are made by different people at different times. Where opinions differ, we are not able to say which are right or wrong.
Final decision
I ended my investigation as I was unlikely to be able to find fault, remedy an injustice, change the outcome or reach any other meaningful conclusion.
Investigator's decision on behalf of the Ombudsman