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Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

ENGLISH HERITAGE

Case No. C.181/98

The handling of applications for listed building consent

3.1 Mr Ashton complained that English Heritage (EH) imposed an unreasonable condition on one of the listed building consent applications which he had made; that avoidable delay in giving directions on two of his applications had caused him to incur unnecessary costs; and that they failed to reply to his correspondence.

3.2 My investigation began in June 1998 once the Ombudsman had obtained comments from the Chief Executive of EH. I have not put into this report every detail investigated by the Ombudsman's staff but I am satisfied that no matter of significance has been overlooked.

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Statutory and administrative background

3.3 Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act) requires the Secretary of State for what is now the Department of Culture, Media and Sport to maintain a list of buildings of special architectural or historic interest (known as listed buildings). Under section 8 of the 1990 Act local planning authorities (LPAs) may authorise works for the demolition, alteration or extension of a listed building. Such authorisation is known as "listed building consent". Section 14 of the 1990 Act requires a LPA in London to notify EH of applications for listed building consent and give details of the works proposed. EH may direct the LPA to refuse consent, may give directions as to the granting of consent or may leave it to the LPA to determine the application. Section 16 of the 1990 Act provides for the LPA to grant consent subject to certain conditions and circular 8/87 put out by the then Department of the Environment gave guidance on the imposition of conditions on listed building consents. (That guidance was updated in September 1994 by guidance contained in Planning Policy Guidance 15 put out by the then Department of the Environment and the then Department of National Heritage.) Under section 20 of the 1990 Act a person who has made an application for listed building consent may appeal to the Secretary of State if the LPA have not given notice to the applicant of their decision within eight weeks from the date of the receipt of the application.

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Jurisdiction

3.4 Under section 12(3) of the Parliamentary Commissioner Act 1967 the Ombudsman may not question the merits of discretionary decisions of government departments taken without maladministration. He can only investigate complaints of maladministration on the part of those government departments and other public bodies which are listed in Schedule 2 to the 1967 Act. Local authorities are not so listed and I refer to the actions of the relevant London borough (LB) in this report only to place in context the administrative actions of EH which have been the subject of my investigation.

Investigation

3.5 Mr Ashton's address is included on the list of buildings of special architectural or historic interest and his is a basement flat.

3.6

1993

On 14 May 1993 Mr Ashton made two similar applications - known as Schemes A and B - to the LB for listed building consent to undertake alterations to the flat. The LB referenced them as 9370101 and 9370102 respectively. Both applications were for refurbishment to include a conservatory extension; Scheme A included plans for a plunge pool in one under pavement vault, while Scheme B included plans for a kitchen in two under pavement vaults. On 25 May the LB referred the applications to EH.

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Scheme A

3.7 On 30 June EH wrote to the LB with a direction authorising Scheme A subject to six conditions. Condition 3 to the direction stated that

"the works shall be completed in their entirety".

3.8

1994

On 1 March 1994 Mr Ashton applied to the LB for the removal of condition 3 attached to the listed building consent for Scheme A. The LB referenced the application as 9470063 and referred it to EH on 14 March. On 18 April EH sent a standard authorisation letter to the LB for application 9470063 with the effect that condition 3 to the listed building consent for Scheme A was removed. That authorisation referred to two drawings which had been submitted with application 9370101 but not with application 9470063.

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3.9 On 6 October the LB wrote to EH asking for directions on five applications said to be outstanding for the building, including application 9470063; they made no mention of EH's authorisation of 18 April. There is no evidence that EH replied. On 24 October Mr Ashton appealed to the Planning Inspectorate (PI) of the then Department of the Environment regarding the non-determination of the application. On 1 November the LB wrote to EH referring to their letter of 14 March with which they had forwarded the listed building application 9470063 which required EH's authorisation. They said that they proposed to grant consent but first required EH's authorisation. On 17 November PI notified EH that Mr Ashton had appealed over the non-determination of his application. On 19 November Mr Ashton wrote to EH enquiring if any directions or authorisations had been given to the LB in respect of application 9470063. There is no evidence that EH replied. On 13 December the LB contacted EH. An EH file note says "[The LB] couldn't process [the authorisation of 18 April] because it referred to drawings which were not part of this application. They unfortunately did not tell us of this until 13/12/94". Because of a change in the procedure for handling listed building applications, EH had to seek confirmation of their authorisation from the then Department of the Environment. That was obtained on 23 December.

3.10

1995

On 4 January 1995 EH sent a standard authorisation letter to the LB for application 9470063. The authorisation stated that the LB had referred the application to EH on 1 November 1994 and it made no reference to the fact that EH had previously sent authorisation to the LB on 18 April 1994 following a referral on 14 March 1994. On 13 January the LB wrote to Mr Ashton saying that they were willing to grant listed building consent for application 9470063 but were unable to do so while the matter was under appeal.

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Scheme B

3.11

1993

In their letter of 30 June 1993 (paragraph 7) EH said that they were unable to authorise Scheme B as the proposals involved the demolition of two under pavement vaults which were considered to be of historic interest. Mr Ashton submitted two revised versions of Scheme B (references 9370102R1 and 9370102R2.) On 6 September EH maintained their objection to application 9370102R1 as it was still based on the loss of under pavement vaults. On 15 September the LB refused listed building consent for application 9370102R2, which they had not referred to EH.

3.12

1994

On 1 March 1994 Mr Ashton made an application for listed building consent for internal re-arrangement of the flat including the provision of a kitchen within two under pavement vaults. The LB referenced the application as 9470064 and referred it to EH on 14 March. On 22 April EH wrote to the LB regarding application 9470064 saying that the proposals were unacceptable because they involved the loss of two under pavement vaults.

3.13 Mr Ashton appealed against the refusal of planning permission for Scheme B (application 9370102R2). In his determination of 8 August allowing the appeal, the planning Inspector said that "the vaults clearly do not contribute to the architectural or historic character of the listed building". On 30 September EH received legal advice, which they had sought on 25 August, on the implications of the decision to allow the appeal on application 9370102R2.

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3.14 On 6 October the LB wrote to EH asking for directions on five applications said to be outstanding in respect of the building, including application 9470064. On 24 October Mr Ashton appealed to PI about the non-determination of application 9470064. On 17 November PI notified EH of the appeal. On 19 November Mr Ashton wrote to EH enquiring if any directions or authorisations had been given to the LB in respect of the application.

3.15 On 23 December EH wrote to the LB saying that, following legal advice on the planning Inspector's decision regarding the under pavement vaults in Scheme B (application 9370102R2), they had decided to authorise application 9470064.

3.16

1995

On 11 January 1995 EH sent a standard authorisation letter to the LB for application 9470064. The authorisation correctly stated that the LB had referred the application on 14 March 1994 but made no reference to the fact that a direction had previously been sent to the LB on 22 April 1994. On 13 January the LB wrote to Mr Ashton saying that they were willing to grant listed building consent for application 9470064 but were unable to do so while the matter was under appeal.

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Mr Ashton's appeals against the non-determination of applications 9470063 and 9470064

3.17 On 9 March 1995 a planning Inspector held an informal hearing of Mr Ashton's appeals. EH told the Ombudsman's staff that they had not been invited to the hearing and had not submitted evidence to it. The LB told the Ombudsman's staff that it was their normal practice to advise EH of all appeals involving listed building applications on which EH had made representations. The LB were unable to explain why EH had not been invited to the hearing. In his determination dated 13 April, the Inspector accepted the LB's account that they had telephoned EH on various occasions seeking directions on Mr Ashton's applications, and that on 6 October and again on 1 November they had taken "the unprecedented step" (the LB's words) of writing to EH about the matter. In relation to application 9470063 the Inspector said:

"I believe that the imposition of the disputed condition was unreasonable in the first instance ............. No precise reason was given in the first instance for imposing it, and the reason given when it was queried by the appellant was that the front window should be replaced. This was not something which could properly be the subject of a condition, since it required the applicant to improve a listed building.

The condition was directed by English Heritage, but it was still the Council that imposed it. Before doing so, the Council should have asked itself if the condition was necessary and reasonable and, if it decided that it was not, then the matter should have been raised with English Heritage."

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The Inspector found that EH had delayed giving directions on the applications until 4 and 11 January 1995 respectively and that the LB had been unable to determine the applications without such directions, despite having made reasonable efforts to expedite them. However, he found that the LB could have given earlier notice that they did not intend to contest the appeals. The Inspector said:

"The need for a hearing arose from a failure to determine the two applications, and I have accepted that the Council's hands were tied, so that they could not determine without direction. They should not therefore bear the costs attributable to the Hearing itself. They did, however, lead the applicant into unnecessary cost in preparing for the Hearing, and that justifies a partial award of costs."

3.18

1997

On 18 February 1997 Mr Ashton wrote to EH asking for reimbursement of those costs involved with his attendance at the hearing on 9 March 1995 which were not covered by the Inspector's determination of 13 April, given that he had had to appeal primarily because of inaction by EH. On 27 March EH replied saying that they were not empowered to pay Mr Ashton's costs unless so ordered by an Inspector. They said that they did not accept Mr Ashton's criticism of their role in the matter; application 9470063 had been received by EH on 14 March 1994 and authorised on 18 April. They said "Due to an administrative error [the Council] were unable to act upon that authorisation, but did not notify EH of the difficulty until November". Application 9470064 had been received by EH on 14 March 1994 and a letter of objection had been sent to the LB on 22 April; in the light of the appeal decision on application 9370102R2 EH had sent an advice letter to the LB on 23 December and had authorised the application on 11 January 1995. They noted that over a period of 17 months from February 1993 Mr Ashton had made nine partly overlapping applications for two similar proposals to refurbish the flat; they thought that that might have sown the seeds of confusion in the minds of the LB and the planning Inspector.

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The Chief Executive's comments on the complaint

3.19 The Chief Executive did not accept that EH had failed to advise the LB on applications 9470063 and 9470064 within a reasonable time. She said that written advice had been provided to the LB within five weeks and six weeks respectively. She said that it seemed reasonable to conclude that drawings submitted with Scheme A were relevant to application 9470063 (paragraph 3.8), as Mr Ashton's intention in making that application was to seek the discharge of a condition attached to listed building consent for Scheme A. She said that the time taken for EH to come to a view on the implications of the appeal on Scheme B (application 9370102R2) had been regrettably long (paragraphs 3.13 and 3.15) but had resulted from the need to seek legal advice. She also regretted that EH had failed to reply to Mr Ashton's letter of 19 November 1994. On the question of the imposition of an unreasonable condition on application 9370101 (Scheme A), she said that EH were not of the opinion that the condition was unreasonable in planning terms and that, in any event, as recognised by the planning Inspector (paragraph 3.17), the final responsibility for imposing the condition lay with the LB.

Later developments

3.20 On 9 July 1998 EH wrote to Mr Ashton apologising for not having replied to his letter of 19 November 1994. EH told the Ombudsman's staff that the "administrative error" to which they had referred in their letter of 27 March 1997 (paragraph 3.18) had been the LB's failure to process EH's direction of 18 April 1994 on application 9470063. They said that if the LB had felt unable to process the direction (which had been in the form of their standard authorisation letter) they should have sought clarification from EH. The LB told the Ombudsman's staff that they had not considered EH's communication of 18 April a formal direction and that there was no record of them contacting EH about application 9470063 until 6 October 1994.

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Findings

3.21 I deal first with Mr Ashton's complaint that condition 3 of the listed building consent for Scheme A was unreasonable and that EH should not have issued directions to the LB containing such a condition. On 13 April 1995, in his determination of Mr Ashton's appeal in relation to application 9470063, the planning Inspector said that he believed that the imposition of the disputed condition had been unreasonable (paragraph 3.17). However, EH remain of the opinion that the original decision was reasonable in planning terms (paragraph 3.19). EH do not have any specific guidelines on the imposition of conditions on listed building consents but, at the time the condition was imposed on 30 June 1993, drew on advice given in the 1990 Act and Department of Environment circular 8/87 (paragraph 3.3). With reference to those, I have found no evidence of maladministration in the way in which EH reached their discretionary decision to advise the LB to impose that condition on the listed building consent for Scheme A. As explained in paragraph 3.4, the Ombudsman may not question the merits of discretionary decisions taken without maladministration. In any event, as the planning Inspector recognised, the final responsibility for imposing conditions on the listed building consent rested with the LB. I do not therefore uphold that part of Mr Ashton's complaint.

3.22 I consider next Mr Ashton's complaint that EH delayed giving directions on applications 9470063 and 9470064; and that the failure to determine the applications within a reasonable period had caused him to mount appeals against non-determination and to incur unnecessary costs in preparing for those appeals and attending the hearing of them, for which he had not been fully compensated. Both applications had been referred to EH by the LB on 14 March 1994.

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Delay over application 9470063

3.23 EH wrote to the LB on 18 April 1994 with a direction authorising application 9470063 but referring to two drawings which, although submitted with the original Scheme A application, had not been submitted with application 9470063. EH's view (paragraph 3.19) was that it seemed reasonable to conclude that the drawings submitted with Scheme A were relevant to application 9470063 as Mr Ashton's intention in making that application was to seek the discharge of a condition attached to the consent for Scheme A. That does not seem unreasonable to me. However, the LB considered that they could not decide the application on the basis of what they appear to have seen as an invalid authorisation; and there is no evidence that the LB sought to clarify the matter with EH or to follow it up in any way until 6 October 1994. Although I do not find EH culpable over their authorisation of application 9470063, I criticise them for taking no action on the LB's reminder of 6 October 1994 or on Mr Ashton's letter of 19 November 1994 (paragraph 3.9). If EH had replied promptly to that reminder, the LB might well have been able to let Mr Ashton know their decision on the application in time to prevent him from appealing (on 24 October) against the non-determination of the application. Similarly, even after lodging his appeal Mr Ashton might well have been spared some of his costs - he could have withdrawn his appeal - if EH had acted sooner on the LB's reminder of 1 November 1994, on PI's notification of appeal of 17 November 1994 or on Mr Ashton's letter of 19 November 1994. I also criticise EH for saying in the amended authorisation sent to the LB on 4 January 1995 (paragraph 3.10) that the application had been referred to them on 1 November 1994 and making no reference to the fact that an authorisation had been issued on 18 April 1994. That caused unnecessary confusion to Mr Ashton and the planning Inspector.

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Delay on application 9470064

3.24 I find that EH wrote to the LB on 22 April 1994 saying that the proposals under application 9470064 were unacceptable. I have found no evidence of maladministration in that. However, I again criticise EH for not taking action on the LB's reminder of 6 October and Mr Ashton's letter of 19 November; if they had acted sooner Mr Ashton might well have been spared some of his expenses. I accept that it took EH some time to reach a decision on the implications for application 9470064 of the planning Inspector's determination in the appeal on application 9370102R2, but they should have been able to act earlier on the legal advice which they received on 30 September 1994 and they should at least have given an interim reply to the LB's letter.

3.25 EH accept that they did not reply to Mr Ashton's letter and have apologised to him. Although the overall responsibility for the proper progress of the application and for granting listed building consent lay ultimately with the LB, in the absence of the maladministration by EH which I have described in paragraphs 3.23 and 3.24, there might well not have been a need for Mr Ashton to appeal to get the listed building consent he was seeking. In the light of that I invited the Chief Executive to consider making an ex gratia payment toward Mr Ashton's reasonable expenses in recognition of the part played by EH in the delay in the LB approving Mr Ashton's applications. I also asked the Chief Executive if she would extend her apologies to cover all the maladministration revealed by my investigation. In reply EH's Director of Corporate Services offered his apologies for the shortcomings which I have identified. EH agreed to meet those of Mr Ashton's expenses incurred in the pursuit of his appeals which had not already been met by the LB.

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Conclusion

3.26 I found no evidence that EH delayed giving decisions to the LB on Mr Ashton's applications for listed building consent or that their discretionary decision to impose conditions on application 9370101 had been tainted by maladministration. Although responsibility for the proper progress of Mr Ashton's applications rested with the LB, in the absence of maladministration by EH Mr Ashton might not have had to appeal. I regard EH's apologies - which I pass on to Mr Ashton through this report - and their agreement to meet those of his expenses which have not already been met, as a suitable outcome to a partly justified complaint.

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Last updated: 19 April 2006