Summary: Mr B complains about the Council’s failure to take action in response to unauthorised works to remove trees and create an access road in a woodland near to his home. He says the loss of habitat has had an adverse impact on the ecology of the area and the amenity of his home. There was fault in the Council’s handling of Mr B’s complaint. There was no fault in the Council’s planning enforcement investigation.

The complaint

1. Mr B complains about the Council’s failure to take action in response to unauthorised works to remove trees and create an access road in a woodland near to his home. He says the loss of habitat has had an adverse impact on the ecology of the area and the amenity of his home.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments

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What I found

What happened

6. Mr B lives in a rural location in an area of outstanding natural beauty. In early 2018 Mr B noticed that a neighbour was undertaking works which appeared to be the creation of a new access road. This involved excavation and removal of trees. He emailed various officers at the Council and his local councillor about it.
7. Mr B was dissatisfied with the response he had from the Council so on 26 April he emailed the customer feedback team and asked for it to be formally considered as a complaint and to be given a complaint reference number. An officer replied giving him a reference number.
8. In June Mr B complained to the Ombudsman. The Council told us that it had not received the complaint so it had not been formally considered. We referred the complaint back to the Council for it to consider. The Council replied to Mr B at stage one of its complaints procedure. It said that it had been in touch with the neighbours who knew they needed to submit a planning application but that it was not expedient to take planning enforcement action. Mr B was not happy with the response and asked for the complaint to be considered at the next stage. The Council sent its final response in November saying it considered the response he had already received was satisfactory.

Planning enforcement action

9. Councils can take enforcement action if they find planning rules have been breached. However councils should not 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 July 2018, paragraph 58)

10. The Council wrote to Mr B in March 2018 explaining its position. It explained an officer had visited the site and had been in touch with the owner. Further works were likely for the erection of an extension and redirection of the existing vehicular driveway. They would be dealt with through the submission of a planning application.
11. The letter explained in general terms about planning enforcement action and permitted development rights (development that can be done without the need for planning permission). The works done included groundworks at the back of the property including alteration to the land levels and construction of a garden retaining wall. The officer said some of the work would be permitted development and some required planning permission. But because the Council did not consider the works caused any significant harm to the landscape character of the AONB it did not consider it was expedient to pursue formal action. The officer said the owners had been told any works done which technically required planning permission remained at risk of enforcement action by the Council. The letter also referred to the involvement of the Council’s Ecology Team who was in contact with the Police Wildlife Crime Team regarding any possible wildlife protection matters
12. The officer went on to refer to trenches that had been dug. The officer said some of the works may technically require planning permission. But as they were not considered to be causing any significant planning harm it was not considered expedient to pursue the matter and no action would be taken. The officer said that he had told the owners that planning permission may be required for further development proposals they had and to check with the Council before undertaking any such works.
13. The Council investigated what was happening on the site properly. An officer visited and communicated with the owners. But Mr B does not recall receiving the March letter explaining the Council’s position and outcome of its investigation. I cannot say what happened here. But the Council has a copy of the email sending the letter so I accept the Council did send it, even if Mr B did not receive it. There was no fault by the Council in how it conducted the enforcement investigation.
14. As work was continuing on the site while the Council was investigating Mr B had contacted his local councilor and made further contact with planning enforcement. The case officer had spoken to Mr B at the end of February. Another officer from the planning enforcement section wrote to Mr B at the beginning of March. This was mainly about another matter Mr B had raised but he also referred to this saying the case officer needed to visit the site. When he wrote he did not know the case officer had already visited the site and had spoken to Mr B.
15. Work recommenced later in March which prompted Mr B to write to the Council again. This concerned moving soil and the removal of trees. The case officer replied saying he had spoken to the owners and no excavation was being done in connection with the possible redirection of the drive. An electricity undertaker was removing some trees. The trees were not protected and the council does not have control over the removal of the trees so it is unlikely that any planning permission would be required in this instance.
16. It would have been possible for the officer to visit the site again in response to Mr B’s continuing concerns but the officer did speak to the neighbor for more information. I do not consider the issues Mr B was reporting were so significantly different that it was fault the officer did not revisit the site.
17. On 9 April Mr B raised the issues again through a planning enforcement form on the Council’s website and then a few days later he wrote to the two planning enforcement officers he had previously been in contact with and his local councillor. The Council did not reply as it considered it was the same issues to which it had already replied. This is not satisfactory and is fault. The Council should have responded to Mr B even if that was only to refer him back to the previous correspondence.

Complaint handling

18. As Mr B was not happy with the responses he had received he emailed the customer feedback team in April and asked for formal consideration of his complaint. Mr B had another complaint with the Council and the officer replying referred to the reference number for the other complaint. When the Council responded in June to Mr B under that reference number the officer also referred to this complaint. She referred to Mr B’s email of April and the substantive response from the Council of March which I refer to above.
19. When Mr B complained to the Ombudsman about this matter the Council said it had not had notice of the complaint. If the Council considered, as it now says, that the letter of June was a response to this complaint then it was wrong it told us that it had not had notice of the complaint. We referred the complaint back to the Council to consider but it did not at that point refer to the response of June but considered the complaint afresh under the corporate complaint process. The stage one response took ten weeks rather than six as specified in the Council’s complaint procedure.
20. The Council has accepted there was some confusion in the complaint handling but the incorrect advice to us that the complaint was premature meant that our consideration of the complaint has been delayed by four months.

Agreed action

21. The Council will, within a month of the decision, apologise to Mr B for the failings in its handling of his complaint.

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Final decision

22. There was fault in the Council’s handling of Mr B’s complaint. There was no fault in the Council’s planning enforcement investigation.

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Investigator's decision on behalf of the Ombudsman