Cherwell District Council (17 015 715)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 14 Jan 2019

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council dealt with her concerns about a neighbour’s development and her subsequent complaint. The Ombudsman does not find fault with the way the Council handled her concerns.

The complaint

  1. Mrs X complained about:
    • the Council's refusal to take enforcement action against a neighbour's back garden development that affects her privacy; and
    • the way the Council has dealt with her complaints about the lack of enforcement action.
  2. She says the Council's actions mean she has lost privacy at the rear of her house and been frustrated in her attempts to get the initial enforcement decision reviewed.

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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 have considered information from:
    • Mrs X’s complaint, documents and photographs she has provided and from a telephone conversation with her; and
    • the Council’s response to my enquiries.
  2. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I have considered the comments received before making this final decision.

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What I found

  1. Planning permission is required for the development of land. The term ‘development’ includes engineering operations such as moving earth and changing land levels.
  2. Councils may take enforcement action if they find a breach of planning control.. However councils do not have to take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207, Enforcement principles)

  1. An engineering operation which has been in place for over four years is immune from enforcement action.

Background

  1. Mrs X lives on a sloping road. Her neighbour’s house is built on higher land than hers. Her rear garden and her neighbour’s rear garden both slope upwards from their houses.
  2. Mrs X’s neighbour had planning permission to build a rear extension to his house. He built the extension but also made changes to an outbuilding and to the levels of his rear garden. Mrs X complained to the Council that the work to the ground levels raised part of the neighbour’s garden. She said this let the neighbour see over her two metre fence on to her patio, and into her patio doors and back bedroom windows. She also complained to the Council about work to the outbuilding but that is not part of her complaint to the Ombudsman.
  3. A Council officer visited the site to investigate what Mrs X said and then wrote to the neighbour. The Council officer then met the neighbour and considered the history of the site. The history showed the Council had considered enforcement in relation to raised land levels next to Mrs X’s house in 2010. The Council has provided photographs from 2010 which show a raised patio area next to the boundary fence. In 2010 the Council had decided the level change was permitted development so took no enforcement action.
  4. Within three weeks of Mrs X’s complaint the Council officer concluded:
    • the previous land levels could not be confirmed so taking enforcement action against the increase of land would be ‘ambiguous’;
    • the land level next to Mrs X’s garden was immune from enforcement action because it had been that high for over four years; and
    • although there may have been a slight change of land level, it was not enough to cause a significant increase of harm to the neighbouring properties compared with the previous level of the land.
  5. Mrs X provided further information to the Council officer to back her view that there was enough evidence to prove a significant change in land levels. She also said the neighbour had now put up a new fence next to her boundary which was higher than the original. Two weeks later the officer confirmed to Mrs X the Council would still not take enforcement action. The officer considered the higher fence did not cause significant amenity or neighbour harm. The officer said the Council had previously concluded the difference in levels between Mrs X’s garden was the result of permitted development.
  6. Mrs X says the Council officer told her the Council would not take enforcement action because the neighbour had threatened police action against the officer for racial harassment. The officer denies any reference to racial harassment. However the officer says the neighbour did feel harassed as the Council had made so many site visits to investigate the various works. The site visits were not solely about the change in land levels but also about other issues Mrs X had raised about the outbuilding.
  7. Mrs X says neither the case officer nor the receptionists she spoke to told her she could make a complaint about the decision not to take enforcement action. She says she was told once the decision not to enforce had been reached there was no further appeal. She found out about the complaints procedure independently and made a complaint two months after the Council’s original enforcement decision.
  8. In its response to the Ombudsman the Council says all its staff are aware of the formal complaints procedure and the expectation would have been for Mrs X to have been told about it.
  9. Mrs X complained to the Council about the decision not to take enforcement action. The Council’s response at Stage 1 of its complaints procedure said the Council believed the raised area at the end of the garden had been in place for a significant amount of time. It said an engineering operation in place for over four years was immune from enforcement action. Mrs X had referred to the area now having a hard surface on top. The Council considered the hard surfacing did not change the level significantly. It said any increased overlooking caused as a result was negligible so it would not be expedient to take enforcement action.
  10. Mrs X asked the Council to consider the complaint at Stage 2 of its complaints procedure. Instead of doing this the Council employed an enforcement professional, Mr Y, to consider the information available and respond to Mrs X.
    Mr Y visited Mrs X and the neighbour. Mr Y accepted the land level in the neighbour’s rear garden had been built up. He said the neighbour’s fence now appears higher probably because it is on top of the new level in the garden. However, he considered there was no satisfactory proof showing where and to what extent the changes to the neighbour’s garden have changed the levels within the garden.
  11. The Council explained Mr Y’s views to Mrs X. She then escalated her complaint to Stage 2 of the complaints procedure. The Council’s response at Stage 2 said the crucial issue about land levels was the lack of evidence about when works in the neighbour’s rear garden took place. It said for the Council to take formal action it had to be confident works had taken place within the last four years. The Council said it considered there was a strong chance that was not the case. This meant the Council would be unable to defend a decision to take enforcement if the neighbour were to appeal against it.
  12. In its response to the Ombudsman the Council says it accepts the neighbour’s rear garden has been remodelled. However, it considers the changes, on top of what it considers the lawful level of the land, are minimal. It says there have always been views from the neighbour’s rear garden towards Mrs X’s property and it considers the recent works have not exacerbated this to the extent that the Council would require planning permission for the works.

Findings

The enforcement process

  1. The Council investigated Mrs X’s concerns about a potential breach of planning control. The case officer visited the site, spoke to Mrs X and the neighbour and considered the previous history of the site. The Council considered its enforcement powers. It decided it had insufficient information to justify taking enforcement action. The Council followed the correct procedures so, even though Mrs X disagreed with its decision, I cannot say there was fault.

The Council’s complaints process

  1. I cannot know exactly what was said when Mrs X spoke to Council staff about her unhappiness with the decision not to take enforcement action. It would have been better had Council staff been clear with her that, even though no planning appeal was available to her, the Council’s complaints procedure was. However, I do not see that Mrs X was significantly disadvantaged by any lack of clarity on the issue. She did access the complaints procedure and I do not find fault with the way the Council carried out the procedure.

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Final decision

  1. I have now completed my investigation because I have not found fault with the way the Council dealt with Mrs X’s concerns.

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Investigator's decision on behalf of the Ombudsman

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