Stacks Image 15
HERITAGE ADVICE & THE LOCAL GOVERNMENT OMBUDSMAN
On a number of occasions the Local Government Ombudsman has found maladministration by local authorities in heritage related cases (or planning cases with a heritage component). In some cases this is a consequence of specialist expertise either not having been sought or having been given, that advice was then ignored when a decision was taken. In other cases procedural errors led to maladministration, particularly when officers were using their delegated powers.

With the increasing pressures on public expenditure and a continuing loss of specialist expertise, it appears that some local authorities have not fully understood the statutory nature of heritage advice1. Maladministration may be found with increasing frequency in future if such advice is not fully taken into account or statutory processes not correctly followed.

The position of the Institute is that local authorities place themselves at risk of having their decision making found unsound - either through an Ombudsmans' investigation or by Judicial Review - if the appropriately qualified specialist expertise and procedure are not fully integrated into development management decision making.

Indeed, since publication of the Ombudsman summaries, the Institute has been made aware of one authority where a planning committee report on a development proposal included a warning to Councillors of the maladministration implications of giving insufficient weight to heritage considerations. This led to the report being withdrawn so as to allow further consideration to be given to the appropriate weight of the specialist officer recommendations to the planning committee before they made their decision.

For ease of reference below, summaries of Ombudsmans adjudications on heritage related cases are presented in chronological order. All relevant cases since 2005-6 can be found in full on the Local Government Ombudsmans' website. Reference should be made to these for greater detail. Prior to 2005-6 only selective cases appear. The Institute would therefore appreciate being notified of any other related cases that predate 2005-6.These should be forwarded by email to government@ihbc.org.uk

Gwynedd Council 10-2002. Complaint No. 2001/0569/CN/251.
Failure to notify listing ruled to be maladministration

A complainant who bought two derelict cottages in 1998 and proceeded to carry out extensive renovation works has been supported by the ombudsman, who has reco­mmended that Gwynedd Council should pay him more than £31,000 for failing to notify him that the properties had subsequently been listed.

Unknown to the complainant, the cottages were listed in November 1998. He started renovation work in late 1999 and substantial works had been completed before their listed status was revealed following a visit by a building control officer. The authority required extensive works to redress the harm to the listed cottages, and the complainant instructed an architect and a solicitor to handle the negotiations and supervision of remedial work to the authority’s satisfaction.

The ombudsman established that the authority had been notified of the listing in November 1998 and that it was then required by law to serve statutory notices of the Listing "as soon as possible" the authority failed to do so until August 2000, nearly two years later. This failure amounted to mal-administration, the ombudsman held.

As substantial work had been completed before the listed status was revealed, the ombudsman considered that the complainant should be compensated. He deter­mined that the reimbursement should be for the costs of corrective works, architect’s fees and partial legal fees amounting to some £31,000. He also recommended that council staff should be instructed as to the require­ments for statutory notifications and that adequate resources are in place to perform the function.

Reading Borough Council 11-1992. Complaint No. 92/B/2170
Inappropriate use of delegated powers and inappropriate work to a listed terrace

The complainants lived in the middle of a terrace of six Listed dwellings of symmetrical design situated in a conservation area. Until May 1991 the façade of the terrace was finished in unpainted render. The Council then granted conditional listed building consent for the painting of the façade on an adjacent dwelling. The application (without drawings) was only made after a sealant undercoat had been applied to this dwelling as well as a significant part of the complainant's (which had a flying freehold).

The complainants considered that the Council should have protected the character of the listed terrace and the conservation area by refusing consent and requiring removal of the paint. The painting also breached a covenant on the terrace.

Although the complainants were notified of the application, and objected together with nearby owners, a planning officer approved the application under delegated powers. The officer contended that as Councillors were circulated with weekly lists of current applications received, any one of them could have requested that the proposal be determined in Committee with a full written report.

The officers considered there would be no adverse impact on the listed building and the application raised no major questions of policy - notwithstanding that an offence might have been committed. Furthermore, they were of the view that the fact that an offence had been committed did not necessarily make an application to authorise the painting a controversial one.

The scheme of delegation however, stated that where unusual, unexpected or controversial issues are raised applications should be referred to the Planning Committee and the Ombudsman was in little doubt that not only was the case controversial, but the objections to the application supported this because they were an expression of significant public opposition on sound planning grounds. A Committee report would have enabled an opportunity to discuss the relevant national and local policies and local objections.

During consideration of the application, some of the standard assessment notes relating to e.g. whether the building was listed or on a conservation area and whether the application had been advertised, had not been completed by the officers and no note was made of the outcome of site discussions with the applicant. The Council only appreciated the impact of the flying freehold after approval had been granted.

The Council had employed a specialist consultant prior to granting consent. He concluded after the work had been carried out that it could not be easily removed. The Council then made various suggestions including painting the applicant's house and gaining consent for work to the flying freehold but this was unacceptable to the complaints (and would breach the covenant and impose a future maintenance commitment on them). An alternative involving removal of the painted render and re-rendering was also considered but this was likely to leave a visually unsatisfactory two-tone rendered elevation.

In March 1992 the complainants requested advice from English Heritage. They considered trial surface treatments of the terrace to be unsatisfactory. The Council's consultant insisted the Council should act reasonably but although he would not hesitate to recommend removal of the paint from Grade 1 and 2* listed buildings he thought that a refusal on this Grade 2 building would be unreasonable and any refusal would be granted on appeal.

The Ombudsman considered the injustice not only affected the complainants in particular but also other residents of the terrace and the wider public. To remedy the injustice the Council was recommended inter alia to offer to pay for the re-rendering of both affected properties (subject to further legal action such as determining if further listed building consent was require) and to persuade both parties to agree this without unreasonable delay.

North Kesteven District Council 1998. Complaint No. 96/C/2531
Failure to consider the impact of development on a church in a conservation area

The complainants concern was that the Council had failed to take proper account of the impact of new development on the setting of a church in a conservation area close to their home; had failed to notify them of the planning application and failing to take into account the Village Appraisal. This document gave more detailed guidance on planning decisions in the village that the subsequent Local Plan for the whole Council area. The Appraisal stated that a Conservation Area had been designated and also described the 12th Century church as the most important building and that no building should be permitted in the adjacent paddock in order to preserve the setting.

Successive planning applications for dwellings on or incorporating the paddock had been submitted and refused since 1984, one specifically citing inappropriateness in relation to the conservation area and setting of the listed building. In 1989 however, outline consent had been grated as it had been considered that the east window of the church would not be obscured. A full application followed in 1992 and approved, followed by a further full application in 1995, which sought to vary the materials to use brick throughout instead of natural limestone, confining this only to the frontage.

Maladministration was found because the complainants had not been notified of applications despite their house being clearly identified on site plans, and the Village Appraisal had not been cited in Committee reports relating to the site after 1984 despite the detailed guidance to which the attention of Councillors should have been drawn. Furthermore, the Council had failed to report the 1984 Decision Notice correctly in 1989 and 1992. The refusal had included a note that although the application had been refused because the siting was considered unsatisfactory, the Council was unlikely to look favourably on an application showing a siting at the front of the site. The note was subsequently wrongly reported as "the local planning authority was likely to look favourably…". The Ombudsman further noted that the relevant view of the church could not now be restored.

 

Calderdale Metropolitan Borough Council 05-2006. Complaints Nos. 07/C/1406 & 07/C/14724
Failure to consider the setting of a listed building or consult English Heritage

Planning consent was granted to extend and alter a primary school next to a Grade 2* 17th Century hall. The Council had two distinct roles: as LPA and as education authority - promoting and implementing the project and instructing the architect and project management company.

The Council was required to consult English Heritage and to have special regard to the desirability of preserving the Hall or its setting and consider the careful design of new buildings to respect the setting of any adjacent historic ones in accordance with national planning policy guidance.

No consideration or instruction was given to consider the setting of the Hall when the extension and alterations were designed; and the planning application was not referred English Heritage because the inexperienced planning officer did not know that the impact on the Hall should be considered.

English Heritage would have objected to the adverse impact on the setting of the Hall and increased prominence of the school building had they been consulted.

After the scheme commenced, approval was sought for further changes included altering the cladding of a prominent feature wall from cedar cladding to bright blue render and a new tarmac footpath along the boundary of the Hall. Although the Council had no power to amend the planning permission, the officer without undertaking any publicity, public consultation or notification of English Heritage agreed to these changes. Again English Heritage stated that they (and the residents of the Hall) would have objected had they been notified.

Later, the architect asked for further changes to the consent amounting to a new section of footpath, ramp and balustrades. This was refused by the LPA but the builders had been instructed to go ahead before that decision had been made. This was unlawful and undermined the Council's credibility when discharging its heritage stewardship and planning functions. Although retrospective consent was refused it was a further 10 months before the planning enforcement service became involved.

To remedy the injustice and when considering the Ombudsmans' draft findings of maladministration on eight points, the Council agreed inter alia to:

  • ensure that officers responsible for promoting and project managing developments were fully briefed about the proper discharging of heritage stewardship responsibilities;
  • ensure that all employees in the planning service were properly trained, supported and supervised to: identify planning applications with heritage stewardship implications; notify relevant bodies and organisations; take account of all relevant law, regulations, guidance and material factors;
  • change the colour of the feature wall etc. as recommended by English Heritage;
  • discuss with English Heritage, the School and the residents of the Hall the best way to deal with the boundary footpath and the need for significant screening;
  • meet English Heritage's costs for making the recommendations.

Bradford Metropolitan District Council 09-2006. Complaint No. 04/C/05233
Works in a conservation area

Senior Planners at the Council had delegated authority to accept or reject amendments to approve planning permissions if they would not "...entail a material change in the overall impact of the development in planning terms". In October 2001 an Area Planning Manager agreed amendments to plans for a house in a conservation area which increased its height by over 4M; added an extra storey and changed the roof from a mansard to pitched. By dealing with the amendments in this way the public were denied any opportunity to influence the decision. Members of the Local Residents Association consequently complained that they were "...saddled with a monstrosity on their doorsteps not in scale with the local environment."

The officer's decision to treat the changes as minor amendments was influenced by a valid consent for the use of the site as a youth club. Although that approval had ben granted by the Planning Committee the officer was aware that it was unpopular and he had been asked to try to avoid it being implemented.
Whatever the motives, it was maladministration by the Council to deal with and approve such changes as minor amendments. The Ombudsman's investigation concluded that on the balance of probabilities, the amendments would not have been approved had there been consultation and a report to the Planning Committee. Subsequently the Committee approved a retrospective planning application that increased the height of the house by a further 1M.
There was no specific adverse impact on the residential amenity of neighbours and the Ombudsman's only remedy was for the report of the Council's maladministration to be made public.

 

Kirklees Metropolitan Borough Council 11-2006. Complaint Nos. 04/C/07540
Failure to have special regard to listed building and conservation area considerations

Outline planning consent was granted for a large detached house between two listed buildings within a conservation area. The application stated that 'access' was the 'matter' for which the applicant was seeking approval. Outline approval established that a property could be built subject to the submission of specific 'reserved matters' for later approval. The decision that a large detached house should be allowed on the site was made by planning officers using delegated powers.

The Ombudsman found this decision was flawed by significant maladministration by the Council's:

  • failure to consult its Conservation and Design Section required by its own written guidance;
  • failure to address its responsibilities to 'enhance and preserve the special nature of the conservation area';
  • a failure to take into account relevant considerations and to disregard irrelevant matters;
  • active encouragement of the applicant to act in a way that could not possibly meet the requirements of the GDPO for notifying owners of land forming part of the application;
  • by issuing a decision notice knowing that notification of the application had not been undertaken under the Act and GPDO;
  • failure to address the possible implications between the outline application and another application (for an extension to an existing property adjoining the site) that was current when the outline application was made and approved five weeks after the outline application was submitted;
  • placing a condition on the approval that had no 'reasonable prospect' of being fulfilled and contrary to Government guidance.

A direct consequence of the haste in which the decision notice was issued was denial of the opportunity for local Councillors to refer the application to the Area Planning Committee for consideration; or for open debate and public scrutiny of crucial aspects of the application, posing such questions as :

  • did it 'enhance and preserve' the special character of the conservation area?;
  • did it affect the setting of a listed building;?
  • was the 'special attention' to be given to the desirability of preserving the setting of listed buildings; the provision of adequate and acceptable vehicle access for the site?

The complainant had two interests adversely affected by the lack of open debate and thorough consideration of these issues: (a) as a resident of the Conservation Area -wanting to see its special character enhanced and preserved; and (b) as the owner of a listed building - the setting of which was, in his view and that of the Council's specialist staff was, affected by residential development on the site.

Once the principle of residential development on the site had been established by the outline planning approval, the Council's planning powers were limited to considering 'reserved matters' and enforcing any planning conditions. There was a strong presumption that a further application would be approved subject to details being acceptable to the clear advantage of the applicant and the disadvantage of any objectors. In the case of the complainant his grounds for objecting to any impact on the setting of his listed building (and others) was limited to the scale and detail of any application.

The nature and extent of the maladministration called into question the decision to grant outline approval and the Council was recommended to commission a suitably qualified and experienced independent person to advise on whether (a) residential development on the site would enhance and preserve or detract from the special quality of the conservation area; and, (b) the nature of residential development, if any, that could be accommodated on the site without adverse impact on the setting of the adjacent listed buildings. These recommendations should be reported without delay to the Planning Committee, and people notified of or commenting on the outline application, invited to attend. The Committee should at the same meeting be advised of the Ombudsman's view that the approval should be revoked if the advice was that residential development would detract from the special qualities of the conservation area or could not be accommodated without detracting from the setting of a listed building.

The Council was further advised of the necessity to abide by law, guidance and its own policies and delegation scheme when dealing with any planning application; and that when assessing applications for development in a Conservation Area or which could affect a listed building, the Council must involve its Conservation and Design Section and consult interested groups as appropriate.

 

West Wiltshire District Council 05-2007. Complaint Nos. 06/B/00538, 06/B/00547, 06/B/00549 & 06/B/01306
Inappropriate development & the conservation area & failing to address the Conservation Officer's concerns

The local preservation trust and a group formed in response to the development of the site, complained about the grant of planning consent for a terrace of houses of modern design in the conservation area and administrative errors in the handling of the application. Furthermore, the Area Planning Committee were not informed of the Conservation Officer's concerns about the proposed development resulting in an approval. As a result planning permission was granted for a development considered c inappropriate in the conservation area. Conditions attached to the planning permission were not enforced - particularly in relation to the external finishes and car parking.

The Ombudsman found maladministration stemming from the sense of outrage that Councillors had granted consent without knowing the views of the Conservation Officer and because they would never know whether a development they consider highly inappropriate for the Conservation Area might have been avoided.

In finding that there had been maladministration and injustice, the Council had agreed to make a payment of £2,000 to the Preservation Trust to be used for a project of benefit to the Conservation Area.

 

Selby District Council 07-2007. Complaint No. 06/C/03908
Incorrect representations of objections to demolitions in a conservation area

The Ombudsman found serious deficiencies in a report to a Planning Committee, following a complaint from the Civic Society. Approval of the demolition of two buildings in a conservation area had been based on the report. This had been 'signed off' by four senior officers before being issued but contained serious flaws including:

  • incorporation of un-attributed views of consultants acting for the applicant, purported to be the officers' assessment;
  • failure to fairly summarise the views of the Civic Society;
  • uncritical acceptance of the applicant's assertions that converting the building was not commercially viable, including a statement that was seriously misleading;
  • including reference to policy and guidance but failing to include sufficient information and evidence to enable the Committee to properly form a view about whether the proposal complied with this policy and failing to address the issue.

While the Ombudsman considered the Committee had good reasons to approve the application and could not say what it would have decided if the report had not been flawed, there injustice to the Civic Society is that their views and relevant issues were, demonstrably, not considered.
The Council was therefore recommended to:

  • ensure that staff were properly trained in how to write reports on which Councillors would take decisions;
  • instruct planning staff that all evidence submitted in support of planning applications should be critically examined and evaluated;
  • arrange for a senior representative of the Council to apologise, in person, to the Civic Society.

 

Ealing London Borough Council 10-2008. Complaint No. 07/A/06244
Failure to recognize withdrawal of permitted development rights in a conservation area

The Council was wrong to issue a Lawful Development Certificate for a ground floor extension to the rear of the property belonging to the neighbor of the of the complainant. This was because permitted development rights to carry out such work had been withdrawn in the conservation area where the complainant lived.

The Council failed to recognise that planning permission for the proposed extension was required and was unlikely to have been granted, as contrary to the Council's Design Guide for the conservation area. The complainant faced living next door to an extension larger and closer to his property than would have been the case if the Council had dealt with the matter properly. Given that the neighbour works for the Council, it should have taken more robust action to seek to have the Lawful Development Certificate revoked when it became aware of its error.

To remedy the injustice, the Ombudsman found inter alia that the Council should:

  • pay compensation based on the difference between the value of the complainant's home given the way his neighbour's property has been developed and the value it might have had, if his neighbour's property had been extended in line with the Design Guide for the conservation area; and
  • take steps to ensure that planning applications relating to property in which officers had an interest were identified and such applications were reported to the planning committee.

 

Darlington Borough Council 12-2008. Complaint No. 06/C/05668
Failure to have special regard to listed buildings or consult English Heritage

The complainants who lived in a conservation area on the main street near the centre of a village considered that the Council had failed to deal properly with applications for a development next door involving conversion of some listed agricultural buildings into homes, demolishing others and building new houses.
Council officers did not seem to understand the listing descriptions; did not apply the legal tests and so did not require an application for listed building consent; did not address themselves to the appropriate national planning policies and guidance; and did not notify English Heritage and the National Amenity Societies.

Reports on which the Planning Area Committee made its decisions were deficient, particularly in respect of the approval of demolitions and conversions of the listed buildings that failed to:

  • correctly identify the buildings that were listed;
  • explain the general presumption in favour of preserving listed buildings;
  • clearly explain the proper tests under PPG15 and case law, i.e. (a) would the proposed works significantly harm the listed building or its setting; (b) if so, were the works desirable or necessary?;
  • provide the information necessary to apply (b);
  • include a highly relevant point from an earlier decision by a Planning Inspector.

These failings were eclipsed by an earlier and fundamental flaw of not properly considering the applicant's justification for the demolition of part of a listed long barn. A Planning Inspector had previously judged this barn to be an important component part of a group of buildings that '… possess, in my assessment, considerable group value, both in terms of the appearance and history of the village. They belong to a group…this group provides an important focal point within the village with the appearance of each building reflecting its origin and function…'

Having initially failed to require a justification, the planning officers then resisted English Heritage's recommendation to obtain one, and did not properly examine and consider the justification that was eventually obtained.

It was argued by the Council that partial demolition was justified to comply with its requirements as Highway Authority. This went unchallenged despite the specification required by a Council Highways Officer not having been necessary in other cases. Subsequently, the Council had agreed an alternative access, without the need for partial demolition of the barn.

The Ombudsman found multiple and various failings by the planning officers and consequently the Planning Area Committee had not been properly advised nor was able to take all relevant factors into account when reaching its decisions.

The complainants were very upset about the potential loss of the long barn that formed an important part of the character of their village and had been avoided but only because of their indefatigable efforts.

The Council restructured and strengthened its planning function and reviewed its practices but the Ombudsman urged it to also ensure that all staff involved in dealing with development control decisions were properly trained in the law and its own policies and procedures relating to listed buildings.

 

City of York Council 06-2009. Complaint No. 07/B/17676
Incorrect advice on a Georgian terrace house

The complainant was renovating her Georgian terraced property and complained that the Council gave her incorrect advice in 1999-2000 by informing her that planning permission was required for alterations to her front bay window but would only be granted for a square bay rather than the bow-shaped window which was her preference. The Council considered that the bay on her house should match the square bay on the neighbouring property. In 2007 the adjacent owner carried out renovations which included a bow-shaped bay window at the front.

The complainant was aggrieved that she had installed a window that she did not want on the basis of the Council's advice and now her property is the 'odd one out' with a square bay window.

The Ombudsman concluded that the Council's advice had been incorrect and it was reasonable for the complainant to have relied on it. Had the Council advised her correctly, she would have been able to pursue her original plans of a bow-shaped bay window. The Ombudsman found maladministration causing injustice and recommended that the Council pay the reasonable costs of installing the bay-window of the complainant's preferred choice in addition to some recompense in recognition of the time and trouble to which she has been put.

 

Herefordshire Council 08-2009. Complaint No. 08 004 420
Inaccurate positioning of a property in relation to a listed building

Complaints contended that the Council had: failed to require submission of plans accurately showing the position of a new house next to their listed property when determining planning consent for the development; and, failed to ensure the compliance of the developer with the approved plans after construction began. This had allowed the new dwelling to be built closer to their home, with windows that caused them a loss of privacy. Furthermore, the Council had given inadequate consideration to their complaint and consequently they were overlooked, which had not been the case previously, by a new house that was out of scale and keeping with its surroundings.

To remedy the injustice, the Ombudsman required inter alia for the Council to review its procedures and staff training on amendments to planning applications and planning permissions in the light of the issues highlighted in the complaint.

 

Kirklees Metropolitan Borough Council 02-2010. Complaint Nos. 07/C/14968 & 07/C/17131
Failure to have special regard to listed building considerations

The way in which the Council granted permissions for a listed Victorian Schoolroom to be demolished and for new houses to be built on the site was the subject of complaint.

Serious errors and omissions were found in the report and presentation to the Sub-Committee that granted the consents. The applicants had argued that demolition of the Schoolroom and sale of the site with planning permission would "enable" the associated distinctive, listed Chapel to be repaired and refurbished. The Planning Officer accepted this without applying any of the tests for enabling development required by English Heritage. Furthermore, the Sub-Committee were not told of:

  • the law requiring them to have special regard to preserving the listed Schoolroom;
  • national planning guidance on the general presumption in favour of
    preserving listed buildings;
  • the specific tests that they should have applied before giving permission for the Schoolroom to be demolished;
  • relevant comments from the Council's own conservation specialists.
Thirty-two photographs were shown to the Sub-Committee to illustrate the dilapidated condition of the Schoolroom – 24 of which were of a completely different building.

The Ombudsman considered, on the balance of probability, that the applications would not have been approved if the officers had applied the correct tests and advised the Sub-Committee properly.

Ombudsman concluded that there had been maladministration to the complainants because of the potential loss of part of their area's built heritage contributing to the setting of the distinctive, listed Chapel and the general character of the Conservation Area. The Council was therefore recommended to negotiate relinquishing the consents in favour of a new scheme, meeting the reasonable design costs and planning application fees; but in the event of failure, and after due consideration, to revoke the approvals.

 

Christchurch Borough Council 11-2010. Complaints Nos. 08 019 936 & 08 012 531
Works within a conservation area

Proposed amendments to a planning consent adjacent to the complainants' property in a conservation area were treated as minor, thereby denying them the opportunity to comment. The Council did not keep a proper record of its consideration of the proposed amendments, nor how concluded that these were minor. It failed to notice the omission of obscure glazed screens to balconies on the final set of approved drawings which led to uncertainty and reliance by the Council on the developer agreeing to install them causing further injustice to the complainants.

The Council has agreed to make a payment to each of the complainants to remedy the injustice. Additionally, the Council introduced improvements to its record keeping procedures with planning application files recording the chronology of all site visits and telephone calls. Amended plans received during the determination period would also be stamped, scanned and linked to the Council's IT system and website. The Government's revisions to process non-material amendments were also introduced. The Council also secured the installation of appropriate obscure glazed screens.