Brighton & Hove City Council (18 003 442)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 13 Nov 2018

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take sufficient enforcement action to deal with the untidy condition of his neighbour’s front and rear gardens. He also complained the Council failed to take appropriate enforcement action against development his neighbour carried out without planning permission. We found the Council was not at fault.

The complaint

  1. Mr X complains the Council has failed to take sufficient enforcement action to deal with the untidy condition of his neighbour’s front and rear gardens and their driveway. He also complains the Council failed to properly respond to his correspondence and complaints about the matter.
  2. Mr X complains the Council has failed to properly investigate and act upon complaints that his neighbour has carried out development without planning permission. He complains his neighbour built several extensions to the rear of their property without planning permission and carried out development at the front of the property which had no planning permission. He also complains the Council failed to properly respond to his correspondence and complaints about the matter.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mr X and considered the information he provided to us. I asked the Council for information. I considered the information it provided and its response to the complaint. I sent Mr X and the Council a draft decision to enable both parties to comment. I took account of the responses I received before I reached a final decision.

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What I found

  1. Paragraph 207 of the National Planning Policy Framework (NPPF) states that effective enforcement action is important to maintain public confidence in the planning system. However, enforcement action is discretionary. So, while councils should investigate any enforcement reports that are made to it, they are not obliged to take formal action. The NPPF says councils should act proportionately when responding to reports of breaches of planning control.
  2. Options available to councils include, taking no formal action, requesting a retrospective planning application to regularise unauthorised development and issuing an enforcement notice. Councils can prosecute for non-compliance with an enforcement notice.

Section 215 of the Town and Country Planning Act 1990 (The Act)

  1. Section 215 of the Town and Country Planning Act 1990 gives councils the power to issue a notice to require land to be improved if its condition is adversely impacting an area. Section 219 of the Act grants councils the power to carry out the necessary clean up themselves and to recover the cost from the land owner.
  2. The power is discretionary, so councils need to decide whether a notice would be appropriate in the circumstances of each case.
  3. Government guidance about Section 215 notices states that Human Rights, while relevant, are qualified in that a person’s right to peaceful enjoyment of their own property must also be set against the general interest, protection and freedoms of others.

Community Protection Notices (CPNs)

  1. Section 43 of the Anti-social behaviour, Crime and Policing Act 2014 allows the issue of Community Protection Notices. They can be issued in respect of conduct or behaviour that has a persistent detrimental effect on people in a locality. They can require someone to stop doing or start doing things or take reasonable steps to take specific results or objectives. CPNs can be issued by a council, the police and some other bodies.
  2. Failing to comply with a CPN is a criminal offence.

The Council’s Planning Enforcement Policy

  1. The Council’s enforcement policy sets out to achieve proportionality, consistency of approach, transparency about how the service operates.
  2. It states that decisions on enforcement are matters of professional judgement and discretionary. Officers will consider many variables including the scale of the impact, matters of fact and degree and any history of previous incidents or breaches. The policy lists various options available.
  3. The policy states the Council will register enforcement complaints in three days, carry out a site visit within 10 days of registration and it should make complainants aware of its decision within 5 days of closing its file.

What happened

  1. Mr X first made reports about his neighbour’s property in October 2016. I have referred to Mr X’s neighbour as Ms Y in this statement. Mr X made a number of further reports to the Council from November 2016 through to March 2018. Mr X’s reports included development that Ms Y was doing without planning permission and issues around the appearance of Ms Y’s property.
  2. There is much correspondence in respect of this complaint. This statement focuses only on key contacts and actions. Key planning enforcement reports in this case were:
    • September 2016: a report made by another neighbour about an outbuilding.
    • October 2016: a complaint by Mr X about an outbuilding Ms Y was building without planning permission and a new side fence/gate was over 2 metres high.
    • April 2017: a complaint by Mr X about a fence being erected in front of Ms Y’s property that was too high. Fence posts around 2.4 metres high had been erected along Ms Y’s boundary with the pavement.
    • June 2017: a report by Mr X that Ms Y was building a lean-to extension and building in the garden that involved cutting into an asbestos roof.
    • January 2018: a complaint from Mr X that Ms Y had not adhered to archaeological requirements when carrying out development.
  3. Key reports about the appearance of Ms Y’s property were:
    • November 2016: a report by Mr X that Ms Y had neglected her land and property. Mr X explained Ms Y’s front and rear gardens and driveway were full of rubbish and an eyesore. He stated neighbours had spotted vermin.
    • In February 2017 Mr X updated the Council saying the state of Ms Y’s property had slightly worsened. He reported later that additional building materials and gardening equipment had been delivered.
    • Mr X was proactive in chasing for updates and for providing the Council with more information about the situation at his neighbour’s property.

Key action the Council took

  1. At visits to Ms Y’s property in September 2016, and December 2016 the Council established the size of the outbuilding in Ms Y’s garden was in accordance with permitted development rights. It found no residential use of the outbuilding. As a result, it was not a breach of planning control but it warned Ms Y its use had to be incidental to her property and it could not be used as a separate dwelling.
  2. In December, the Council served a notice to establish land ownership. It also wrote to Ms Y to request that she improved the condition of her property. It required action by Ms Y within 40 days to remove garden equipment and other items from the front of her property, building and other equipment from the driveway and building and garden equipment from the rear. The Council warned her that if the property continued to deteriorate a Section 215 notice would be issued.
  3. It appears Ms Y did not respond. The Council followed up with Mr X and with Ms Y in February. At the end of February, the Council granted Ms Y more time to respond.
  4. In April, there is evidence the Council was in correspondence with Ms Y about the issues it had raised with her. The Council advised Mr X there were sensitivities involved and it stated some patience may be needed as a result.
  5. In May the Council did a joint visit with a police officer and it received information from third parties providing information about Ms Y that officers took into account. The Council decided that the condition of Ms Y’s front garden had improved and no longer justified action by the Council. But it told Ms Y the fence posts at the front of her property were too high. Permitted development rules only allow fencing up to 1 metre high in that position.
  6. In late June 2017, the Council issued a formal Section 215 notice to Ms Y. It required Ms Y to remove all building, garden and waste materials from her driveway.
  7. The Council responded to a complaint from Mr X in June 2017 about an enforcement officer (referred to in this statement as Officer A). He complained Officer A failed to issue an enforcement notice about the fence. It stated the investigation was ongoing and apologised for the delay. In response to a complaint in October 2017 the Council confirmed Ms Y’s lean-to extension required planning permission and this was also subject to a live investigation. The Council stated while a decision was still to be made, the extension was to the rear and was not considered to cause significant harm to the area.
  8. A note from the Council’s records from July 2017 stated a formal enforcement notice requiring the removal of the fence posts was considered excessive at that time. Officers felt they had only been in position for a few months and they were not dominant features. They did not cause loss of light or significant harm to other residents’ amenity. It stated this decision would be reviewed at the end of September when the Council would consider a formal notice.
  9. The note stated direct action was being considered in respect of the material to be removed from the property and the fence if Ms Y did not comply. The direct action could potentially take place at the same time. The Council noted the sensitivities of the case and work being done with third party organisations involved with Ms Y. The July note did not make reference to the lean-to extension.
  10. At the end of August 2017, the Council issued an enforcement notice. This was re-issued a week or so later due to a drafting issue. The notice required action to resolve the fence issue by 27 October 2017.
  11. At the end of October 2017, the Council told Ms Y that the lean-to extension was not authorised. It told her it should be removed or amended to comply with permitted development rules. The Council said the issues were:
    • The size of the lean-to (it was considered over 3m in depth because it was attached to the other outbuilding and the size of both structures was taken into account).
    • The materials did not match the classing of the existing house.
    • The side windows were not obscure glazed.
  12. In October 2017, a multi-disciplinary meeting took place involving planning and environmental health officers. At the meeting, Environmental Health Officers stated they were satisfied after visiting the site that vermin were not an issue, so the complaints were dealt with as planning rather than environmental health issues.
  13. Officer A visited Ms Y on 7 November to witness whether the enforcement notice relating to the fence had been complied with. It had not. The officer wrote to Ms Y asking her to confirm her intentions. Officer A noted the size of the lean to now met Class1, Part 1 of permitted development rules, but the lean-to extension had to be amended or removed. Ms Y commented in response, and Officer A allowed a further 14 days for compliance. Ms Y did not comply and the Council took direct action to reduce the height of the fence posts in December 2017.
  14. A senior officer met with Mr X and other residents during November to discuss the issues and following the meeting she sent a summary of the action the Council intended to take.
  15. In January 2018, the Council acknowledged Ms Y had taken some steps to tidy the driveway but too many items remained. The Council arranged for revised quotes for direct action to clear the driveway. The Council also wrote to Ms Y about the lean-to. It stated the lean-to could be considered either an enlargement to the house under Part 1, Class A of permitted development rules, or a Porch under Part 1, Class D. To comply with Class A, the materials needed to match the cladding of the original house and the side windows had to be obscure glazed. To comply with Class D it would need to be no larger than three metres square and three metres high.
  16. Mr X complained the action taken in response to the rubbish and waste outside Ms Y’s property was inadequate. He stated the Council only intended to remove a fraction of the rubbish Ms Y had. He said this was not as much as officers had promised previously.
  17. The Council responded to Mr X’s complaint about Ms Y’s driveway in February. It stated since Mr X’s complaint, it had taken direct action to clear Ms Y’s driveway on 1 February 2018. The Council cleared building and garden waste, but left several water butts and a number of plant pots. It explained the reasons some items were not removed. The Council also stated that it felt officers had kept residents up to date and it considered its actions had been reasonable and proportionate.
  18. On 5 February Officer A wrote to Ms Y saying the lean-to was no longer considered a breach of planning control, so it would not be pursuing enforcement action about it.
  19. In March Mr X complained about numerous items in the front garden of Ms Y’s property. he asked the Council to consider issuing a Community Protection Notice.
  20. In June 2018, the Council sent a response to a complaint Mr X made in March 2018 and complaints it had received from other residents. I have not repeated the Council’s response here. However, the Council explained why it had not taken further enforcement action or gone further when actioning the Section 215 Notice. It considered the direct action taken in December 2017 and February 2018 had improved the situation. It stated officers continued to monitor the situation but did not consider there were grounds for further action in respect of the front of the property or the driveway. The Council acknowledged that residents may wish to see more action. However, it noted decisions taken had been escalated and discussed with senior officers and it felt the decisions taken had been appropriate.
  21. It also responded to complaints that insufficient action had been taken about the lean to. The Council stated it could not force someone to submit a retrospective planning application. The lean-to now stood alone from the outbuilding in Ms Y’s garden. So, in terms of size, it met permitted development rules. However, the Council stated the lean-to was unauthorised because the materials used did not match those in the existing house. The Council decided it did not cause unnecessary harm to neighbours and the appearance was not such that it was proportionate or expedient to take action.

Analysis

Planning Enforcement

  1. The law requires councils to investigate reports about breaches of planning control and to determine what action should be taken in response. However, the Council is not obliged to take any specific action. The decision as to whether to act, and what action to take is discretionary.
  2. There is evidence the Council visited Ms Y’s property on a number of occasions, and assessed the outbuilding and the fencing Ms Y erected at the front of her property.
  3. The Council considered Ms Y’s outbuilding was permitted development. It explained to Ms Y that it would remain permitted development provided that it was not used as sleeping accommodation or a separate dwelling. This was a decision the Council was entitled to take.
  4. The Council determined the fence at the front of Ms Y’s property did not have permission. As the fence was over one metre high, adjacent to the highway, it did not conform to permitted development rules. So, it was unauthorised development. The Council began by informally asking Ms Y to reduce the height of the fence or remove it. The issue was raised with Ms Y promptly in April. It reiterated the fence remained unauthorised while contacting Ms Y about other issues, but it did not consider it was appropriate to take formal enforcement action until 30 August 2017. Although this was some time after the first report, the Council explained its reasons. These included its assessment that the impact of the fence was not significant and to an extent, the need to make some adjustments when dealing with Ms Y.
  5. The enforcement notice required action by 27 October. The Council carried out a further visit and allowed Ms Y some additional time to comply. But, when Ms Y’s failure to act continued, it took direct action in December.
  6. I recognise that Mr X was unhappy that it took some time to take formal action, and that the Council did not take further action immediately after Ms Y failed to comply in October. Councils should not unduly delay formal action while corresponding with those in breach of planning control to seek an informal solution. However, it is normal practice to try to resolve matters informally and while it allowed Ms Y additional time before and after issuing the enforcement notice, there is evidence that this was a conscious decision on an enforcement investigation that was being monitored, and not a situation where matters were left to drift. Although this was no doubt frustrating for Mr X and other neighbours, there was no fault in the way the Council dealt with this issue.
  7. There appears to have been some initial delay addressing the issue of the lean-to Ms Y was constructing. It was first raised by Mr X in June 2017. It was not included in the summary review of the case in July 2017. Another neighbour also raised the issue in August 2017. It appears the lean-to had been mentioned to Ms Y by the Council but the first time the Council wrote to Ms Y to explain what she needed to do about this was the end of October.
  8. It was then followed up by Officer A appropriately. There was contact in November and by December Ms Y had separated the extension from the outbuilding, so its size met permitted development rules. In January, the Council explained what permitted development could apply.
  9. However, in February 2018 the Council told Ms Y that it no longer considered the lean-to was a breach of planning control, so it would not be taking action. This could have been more accurately explained. It seems clear the materials Ms Y used had not changed, and the Council had identified, because of this, the extension was unauthorised.
  10. The Council later accepted in response to complaints from residents that the lean-to was unauthorised, but it had taken the decision not to pursue formal enforcement action. The Council explained that it had taken account of what could be permitted in the same position, what impact the lean-to had to the street and on the amenity of neighbours. It said it had decided it was not proportionate to take formal action as a result.
  11. Councils are entitled to reach decisions not to pursue formal action. So, there is no fault in the decision itself. However, it appears residents were not told of the Council’s decision at or around the time it was reached. So, this could have been handled better.
  12. I recognise that separate to the planning issues there have been other tensions between neighbours. I make no comment on these but I recognise that residents sought firm enforcement action and they were disappointed with the outcome achieved. However, planning enforcement powers are discretionary and it is for councils to weigh the various factors that should be taken account. It is not unreasonable that the Council took into account its general duties under equalities legislation. Overall, I found the Council did take reasonable steps to investigate and determine what action to take. It had reqard to its planning enforcement powers, and the requirements of the NPPF.

Section 215 Notice/Clearing items form Miss Y’s property

  1. I found no fault with the way the Council considered the reports about the appearance of Miss Y’s property. The Council visited and witnessed the problems. Officers do not appear to have disputed that action was warranted to improve the situation. Early correspondence with Ms Y indicates this.
  2. However, Mr X’s first reports were made October 2016. So, it was around 8 months before the Council took formal action. This was a quite a long time after the first reports. As I say above government guidance endorses addressing enforcement matters informally provided they are not delayed unduly. Councils need good reasons for any failure to address the matter formally if the someone fails to co-operate.
  3. I note Mr X and other neighbours feel the Council waited too long before taking formal action to force Ms Y to clear up her property. But, I do not consider there has been fault in the way the Council acted. I say this because:
    • The Council recognised that there were some issues of vulnerability and it took these into account. It sought information about this to support its decisions.
    • There was no extended period where the Council took no action at all. It maintained reasonably regular contact with Ms Y about the issues and continued to encourage her to act.
    • The Council involved environmental health officers and established there were no environmental health concerns as part of its decision making.
  4. After the Council issued the Section 215 notice, it went on to take direct action, albeit some months after the time period for compliance expired. Taking direct action is a significant step for councils to take and this would generally be a last resort. It did take the Council longer than usual to initially take formal action and to follow up in respect of non-compliance. However, again, when taking into account the circumstances, I do not consider there was fault.
  5. Balancing the understandable reports and concerns raised residents with the vulnerabilities of their neighbour is a judgement for the Council in the individual circumstances of the case.
  6. I note the Council did not issue a Community Protection Notice in this instance, but it had already addressed the issues complained of using a Section 2015 Notice.
  7. I understand that, at times, Mr X and other neighbours were frustrated that the Council did not explain more about the background to its decisions. However, it had a responsibility to maintain Ms Y’s confidentiality. I have seen but cannot share the Council’s correspondence with Ms Y.
  8. There was a slight delay in responding to complaints Mr X made in March 2018. The Council acknowledged this and apologised to Mr X.
  9. I found the Council could have better explained its decision not to pursue enforcement action against Ms Y’s lean-to. However, overall I do not consider there was fault by the Council that constitutes a finding of maladministration.

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Final decision

  1. I have not found there was maladministration by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman

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