West Devon Borough Council (18 007 938)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 08 Jan 2019

The Ombudsman's final decision:

Summary: Mr B complained about the way the Council carried out an enforcement investigation in 2017. We consider there was fault by the Council in failing to identify an earlier investigation which caused delay to the later investigation. But we do not consider it affected the outcome. The Council has apologised to Mr B for the delay which is sufficient.

The complaint

  1. Mr B complains that West Devon Borough Council (the Council), in dealing with his enforcement complaint in 2017:
    • failed to identify a previous investigation on the same issue which took place in 2013/14;
    • delayed in dealing with the complaint; and
    • gave the owner of the carport too long to submit a planning application, allowing the car port to become lawful and preventing neighbours from commenting on the planning application.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
  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)

Back to top

How I considered this complaint

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

Back to top

What I found

  1. Mr B owns a property on a private road. He purchased the property in 2016. The area at the end of the road had in the past been used as a turning circle for vehicles. In 2013 the neighbour constructed a car port on the land used as the turning circle. A different neighbour complained to the Council. The neighbour said they did not know whether the land was part of private garden or on the road and they did not know who owned the land. The Council carried out an enforcement investigation. It concluded in July 2014 that although the structure should have planning permission, it was likely to be granted and so it was not expedient to pursue enforcement action.
  2. Mr B contacted the highways department at the County Council in June 2017.He said a change of use had occurred from access road/turning head to domestic curtilage and that the structure on the land need planning permission. The County Council referred the matter to the planning department at the Council.
  3. In August 2017 an enforcement officer said he was looking into the matter. He noted that when the owners of the property in question applied for an extension some time ago, the application included a site location plan taken from the Land Registry. This outlined the property and included the area on which the car port has been built.
  4. The officer went on to say the car port itself would require planning permission but before he took further action on this, he requested a further Land Registry check to establish the status of the turning head and if there were any restrictions on development. If there were, he said he would be advising the owners to remove the car port or face enforcement action. If there were no restrictions, they would have the right to submit an application to retain the car port and it would be dealt with on its own merits.
  5. On receipt of the land registry record the officer asked for legal advice on the status of the land. The legal advice given in October 2017 confirmed that the land was in the curtilage of the neighbouring property.
  6. In January 2018 the Council sent the owner of the neighbouring property a letter asking them to submit a planning application for the car port by the end of February 2018. The owner contacted the Council on 12 March 2018 and the Council visited on 14 March 2018 to discuss the situation. It was during this visit that the Council realised the car port had been built in 2013. Mr B says he alerted the Council to the previous investigation in an email on 1 February 2018.
  7. As the structure had been in existence for more than four years (making it immune from enforcement action) the Council invited a Certificate of Lawful Development to regularise the situation.
  8. Mr B also sent an email to the Council at this time asking the Council to take into account the tight space left for vehicles to turn since the car port was built and requesting a visit to one of the other properties affected. He wanted the turning area re-instated.
  9. The Council received an application on 22 March 2018 and sent a notification letter to nearby residents, explaining the purpose of the application and asking for evidence of when the structure was built.
  10. Two residents replied saying it had been built in November 2013. The Council approved the application in June 2018 concluding it had been built more than four years earlier.

Complaint

  1. Mr B had submitted a complaint to the Council on 13 April 2018. He said that the Council had:
    • wrongly determined the car port did not require planning permission, thereby denying neighbours the chance to comment on the loss of amenity from the loss of the turning area;
    • taken too long in administering the recent enforcement investigation as it allowed the structure to go beyond the four years and be lawful; and
    • failed to take into account the information he submitted showing that a change of use had occurred because the land was previously road and turning head. This meant that ten years had to elapse before the change could be deemed lawful;
  2. The Council said that it was only when investigating Mr B’s complaint that it discovered the original enforcement investigation. It replied to Mr B’s complaint on 11 May 2018, saying that:
    • It had concluded in 2013/14 that while the structure did require planning permission it was not expedient to take action against it when an application was not submitted. It followed government guidance in reaching that view.
    • It apologised for not identifying the earlier enforcement investigation and said it would have come to a much speedier conclusion if that information had been available.
    • It apologised for not realising the carport was approaching the four-year date; and
    • It said the erection of the car port was operational development and so the four-year rule applied. The ten-year rule did not apply because the land was privately owned, forms part of the domestic curtilage of the property and there had been no change of use.
  3. Mr B was unhappy with the response and escalated his complaint. The Council reviewed the matter and responded again on 16 August 2018. It upheld its previous response. It said the Council carried out a thorough investigation in 2013 and concluded that the car port needed planning permission but it was not expedient to pursue enforcement action. It agreed that in 2017 when a further enforcement complaint was received, the Council should not have opened another investigation but instead confirmed the 2013 decision. But it noted the 2017 investigation confirmed that it was not expedient to take enforcement action.
  4. The Council accepted that there had been some delays and procedural mistakes for which it apologised but it was satisfied that the original decision was correct and did not consider the Council’s actions had caused Mr B harm or injustice.
  5. Mr B then complained to the Ombudsman.

Analysis

  1. The Council has accepted it was fault not to have identified the earlier enforcement investigation and if it had done so, the investigation in 2017 would have been brought to a speedier conclusion.
  2. Mr B alleges this caused him injustice as the matter took many months to be resolved by which time the four years had passed, preventing the consideration of a planning application. He missed out on the opportunity to comment and he was caused time and trouble in pursuing the matter over this period.
  3. If the Council had acted more quickly and a planning application had been submitted, it is likely to have approved the application. If an application had not been submitted it would have concluded it was not expedient to take enforcement action. So the outcome would have been the same.
  4. The Council has apologised to Mr B for the delay in reaching this point. I consider this is sufficient to put matters right, as the decision remains the same as in 2014.
  5. Mr B has also argued that the Council should have considered his information challenging the status of the turning area and his view that it was a change of use, which can only become lawful after ten years. I consider it was reasonable for the Council to rely on the information from the Land Registry confirming the ownership of the land and its status as part of the domestic curtilage of a property. If Mr B wishes to challenge that information he would need to take legal action as that would be a matter for the courts to decide.
  6. I also note that Mr B purchased his property in 2016, three years after the car port had been built. He was therefore aware of its existence when he bought the property and has not been caused an injustice by it. It was also open to him to establish the status and history of the land through the purchase process, to inform his decision to purchase.

Back to top

Final decision

I have completed my investigation into this complaint as I consider the Council’s apology to Mr B, for the failure to identify the earlier enforcement investigation and the subsequent delay, is sufficient to put matters right.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

;