Colchester Borough Council (18 010 088)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 18 Dec 2018

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint alleging it was slow to act on reports the complainant made of breaches of planning control at a neighbouring property.

The complaint

  1. Mr X says the Council was slow to act on reports he made of breaches of planning control at a neighbouring property. Mr X considers the Council’s planning enforcement officers acted in breach of the Council’s enforcement policy.
  2. Mr X is also unhappy with how the Council dealt with his complaint about the matter. The Council sent a complaint response to him nine weeks after he complained. Mr X also says he felt ‘fobbed off’ by the planning manager who avoided dealing with the breaches of the Council’s planning enforcement policy he pointed out. Mr X is concerned about poor communication from the planning manager which he found to be of a poor standard.
  3. Mr X says the Council provided him with an inadequate planning enforcement service. He says the failure of officers to adhere to the enforcement policy resulted in the continued breach of planning conditions and destruction of trees. Mr X says this adversely affected the privacy of his family. Mr X wants the Council to investigate the matters he raised thoroughly. He says the Council failed to investigate the matters thoroughly and he wants to know why it failed to do so. Mr X wants to know what corrective action the Council will take. Mr X also wants the Council to take corrective action to ensure the planned/promised privacy screening will be delivered as promised.

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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)

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How I considered this complaint

  1. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

  1. Section 4.4 states:

“Only in cases of “emergency”, such as where listed buildings are being demolished or trees are being removed, will complaints be dealt with by telephone. We can then attend the site before irreversible works are undertaken. Complainants will need to be in possession of as much relevant information as possible such as who, what, and where.”

  1. Section 4.8 states:

“In view of limited resources, it is also necessary to give priority to cases where there is the greatest harm in planning terms. Although there are currently no national performance indicators for planning enforcement we do set local standards for measuring delivery of the enforcement service. The planning service commits towards achieving the following:

  • Acknowledging all enforcement complaints within 3 working days of receipt;
  • First site visit, depending on the priority of the complaint:

High priority; 100% of the first site visits occur within 1 working days from receipt of complaint;

Medium priority; 90% of the first site visits take place within 10 working days of receipt of complaint; and

Low priority; 75% of first site visits are carried out within 15 working days of receipt of complaint.

  • Resolving 80% of enforcement complaints within 3 months of receipt.
  • Notifying all parties to a complaint of the Council’s decision (whether or not to enforce) within 10 working days of making the decision.

 

Planning enforcement law and guidance

  1. The Council has discretion to take enforcement action. It may issue an enforcement notice where it appears there has been a breach of planning control; and that it is expedient to issue it, having regard to the provisions of the development plan and other material considerations (The Town and Country Planning Act 1990, section 172(1))
  2. Paragraph 207 of the 2012 National Planning Policy Framework or the NPP says enforcement action is discretionary and local authorities should act proportionately in responding to suspected breaches of planning control. I note the 2012 document has been replaced by a revised NPPF document. However, I refer to the 2012 document as it was the guidance in place at the time of the Council’s enforcement investigation.
  3. Government guidance sets out several options available to local planning authorities to tackle breaches of planning control in a proportionate way including no formal action; allowing submission of retrospective planning applications; or enforcement notices.

Background to the complaint

  1. The Council granted planning permission with conditions for development at a site close to Mr X’s home in 2017. Condition 6 of the permission states:

“Notwithstanding the submitted details (including arboricultural impact assessment) none of the existing tress and hedgerows on the North, South, and East boundaries (side and rear boundaries) shall be removed unless specifically agreed in writing by the Local Planning Authority.

Unless agreed to be removed in writing these trees and hedgerows shall then be monitored and recorded for at least five years following contractual practical completion of the development. In the event that any trees and/or hedgerows die, are removed, destroyed, fail to thrive or are otherwise defective during such a period, they shall be replaced during the first planting season thereafter to specifications agreed, in writing, with the Local Planning Authority.”

  1. Condition 7 states:

“No works shall take place until details of boundary screen planting (including any replacement planting) and an implementation timetable have been submitted to and approved, in writing, by the Local Planning Authority. This planting shall be maintained for at least five years following contractual practical completion of the approved development. In the event that trees and/or plants die, are removed, destroyed, or in the opinion of the Local Planning Authority fail to thrive or are otherwise defective during such a period, they shall be replaced during the first planting season thereafter to specifications agreed in writing with the Local Planning Authority.”

  1. Condition 8 states:

“No demolition or construction work shall take [place] outside of the following times; Weekdays: 08:00-18:00 Saturdays: 08:00 – 13:00 Sundays and Bank Holidays: No working.

  1. Mr X contacted the Council’s planning team on 17 October 2017 to say trees within the neighbouring development site were being removed prematurely in breach of the planning conditions. Mr X says he followed this up with further telephone calls to the planning officer to tell him of continuing removal of trees.
  2. The developer continued removing trees within the site. On 30 October 2017, his wife told the tree surgeon conducting the works to stop the removal of a final tree on the boundary with their home. She also spoke with the developer who said he was unaware of a planning enforcement investigation.
  3. However, a planning officer had contacted the developer three days after Mr X’s initial report of an alleged breach of planning control. The enforcement officer told the developer ‘clearance of condition’ applications had been submitted recently but works should not have started until the applications had been cleared. The officer advised the developer to stop work until the conditions had been cleared. The officer said he would assess the applications soon but could not do so immediately. He said he had made the planning enforcement team aware of the case and so officers may visit the site. He also said concern had been raised about works starting too early and this would be contrary to the relevant condition.
  4. Following the planning officer’s report to the planning enforcement team that team initiated a planning enforcement complaint. On 27 October, the planning enforcement manager made a visit to the site. The officer found the site vacant but took photographs of the site. On 30 October, an enforcement officer visited the site following a telephone call from either Mr X’s wife or the developer.
  5. The enforcement officer telephoned the developer’s agent and advised him to stop tree works until the conditions had been formally discharged by the Council. The officer said further works could lead the Council to serve either a breach of condition notice or stop notice.
  6. The enforcement officer says he considered the expediency of taking formal action but a stop notice would have meant the cessation of all development at the site. As the breach involved prior removal of trees and shrubs the stop notice would not have served any purpose.
  7. The enforcement officer also considered the expediency of serving a breach of condition notice. He said it was not expedient to do so because the planning officer was already working on the discharge of conditions with the developer. So the officer reasoned that service of a breach of condition notice would mirror the work already being done by the planning officer and would not achieve anything worthwhile.
  8. Both planning and planning enforcement officers visited the site again in December 2017 to review the new planting undertaken by the developer. The Council agreed to discharge the conditions pertaining to replacement planting in January 2018.
  9. In May 2018, Mr X complained to the Council. He considered the Council had been slow to act between 17 October and 30 October 2017 when the trees within the application site were removed. He queried why there was a delay in taking enforcement action; why enforcement was passive given he had to inform the developer that enforcement action had been taken; and why no one visited the site given the repeated reports he and his wife made.
  10. Mr X said the planning officer told him trees could be removed at any time because they were not protected. However, Mr X queried the statement given the protection of the conditions.
  11. Mr X said he and his wife suffered noise nuisance outside the permitted hours of construction works. This first occurred on 20 October 2017 when they were woken up by a delivery lorry early in the morning. He said this and other incidents of noise nuisance were reported to the planning officer who assured him the enforcement team would act but then no enforcement action took place.
  12. Mr X wanted to know why the planning officer did not visit the application site to inspect the replacement planting rather than rely on photographs. Mr X said the replacement planting did not provide the privacy that was previously afforded to his family. He said their home was now overlooked by the new development. He queried the planning officer’s statement in an email to him that ‘there is no overlooking from the approved development’.
  13. Mr X said the reason the Council gave for condition 6 was to safeguard the continuity of amenity afforded by existing trees and hedgerows and in the interests of neighbouring privacy. But he wanted the Council to clarify how a statement by the planning officer that ‘the planting would grow to provide adequate privacy’ was in accord with the reason.
  14. The Council’s planning manager provided the first stage response to Mr X’s complaint. In summary, he said both the planning and planning enforcement officers acted in a timely way in response to Mr X’s reports. He explained the work done by both officers and the rationale behind their actions. He did not accept the Council acted slowly and so was responsible for the removal of trees between 17 and 30 October 2017.
  15. The planning manager offered explanations for the statements made by the planning officer. He explained the delivery of materials and plant to the development site outside construction hours was not in breach of condition 8. He said a breach of condition notice involving working outside construction hours had been served on the developer in May 2018.
  16. Mr X complained further. He said the felling of trees was an urgent matter which required an immediate response under the Council’s enforcement policy whereas the planning officer did not contact the developer until three days after his first report. Mr X cited section 4.4 of the Council’s enforcement policy. He queried why the planning and planning enforcement officers did not adhere to the policy and why the planning manager deemed their action acceptable even though they acted contrary to the policy.
  17. Mr X also said the Council’s planning notification letter to residents stated they should report breaches of planning conditions immediately as some breaches cannot be rectified once they have happened such as trees being removed without permission.
  18. Mr X said it should have been obvious to the planning officer that tree works were continuing even after he contacted the developer because Mr X told him so. He said he told the planning officer about being woken up before 7am by the delivery of heavy plant machinery to the site and this should have been of concern to the planning officer.
  19. Mr X said the planning officer acted in an overly casual manner given the seriousness of the breaches of planning control.
  20. Mr X wanted to know how long the planning enforcement officer stayed on site during the site visit of 27 October 2017. He also wanted to know whether both officers contacted the developer or his agent to confirm the enforcement officer’s observation that work had stopped at the time of the visit. He queried the enforcement officer’s judgement that serving a breach of condition notice was not expedient. He said the judgement was astonishing given the planning officer’s comment that the breach of planning consent was the worst breach of planning he had seen in 30 years.
  21. Mr X said the Council had not provided a response to his question about how it reconciles the planning officer’s comment to him that the planting would grow to provide adequate privacy with the reason given for condition 6. Mr X wanted a preservation order to be placed on the replacement planting.
  22. The Council’s final complaint response did not change its position and so Mr X complained to the Ombudsman. In his complaint to the Ombudsman, Mr X expanded on his concerns to include a complaint about the handling of his complaint by the planning manager.

Analysis

Was the Council slow to act on Mr X’s reports of breaches of planning control?

  1. I do not find the Council was slow to act on Mr X’s reports of breaches of planning control.
  2. Protected buildings and trees are usually given the highest priority by local planning authorities when responding to reports of breaches of planning control. However, that level of priority is not given to trees which are not subject to a preservation order. The trees in this case were not protected. So, the Council would not have placed a high priority on Mr X’s reports. I am satisfied it would not have responded within one day as stated in the high priority section of its enforcement policy.
  3. The wording of section 4.4 of the enforcement policy is wrong in that section 4.4 refers to the removal of trees as an emergency whereas it should correctly refer to the removal of protected trees. I will ask the Council to consider correction of the wording of section 4.4. I accept the wording leads a reader to share Mr X’s conclusion that the Council should have acted within a day of receipt of his report. However, I do not consider this was a significant error or that Mr X was misled by the wording. It is evident that Mr X already considered officers were slow to act even before he read the policy and referred to it in his complaint.
  4. I am satisfied the Council acted on Mr X’s reports within the timescales set out in its enforcement policy.
  5. I do not propose to go into the statements allegedly made by the planning officer. It is not for this service to justify the planning officer’s statements. Local authority officers in frontline roles frequently make statements to members of the public in attempts to show empathy or understanding and then find their comments raised by members of the public later on when they are dissatisfied with the officer’s actions or inaction. While I can understand Mr X’s disquiet about seemingly contradictory comments and actions, these are not matters of complaint that the Ombudsman will pursue. Local authority officers will be wise to avoid committing themselves to a fixed position by making statements like ‘this is the worst breach of planning control I have ever seen’ as such statements are hostages to fortune.
  6. The planning manager proffered an explanation of the planning officer’s comments. I appreciate Mr X is unconvinced by the explanations. However, I do not see any public value in this service pursuing a complaint about these statements any further. I note the Council acted to ensure the replacement planting as required by the conditions. I do not therefore consider an enquiry into what officers said at various stages through the process is warranted given this outcome.
  7. Mr X expressed concern about the planning enforcement’s judgement on the expediency of enforcement action following the site visit of 27 October 2017. Having assessed the planning enforcement officer’s reasons against the law and government guidance on enforcement, I do not find fault with the officer’s judgement. The key point here is proportionality. The Council is required to take proportionate action. Having identified a breach of planning control the officer decided it was not proportionate to serve either a stop or breach of condition notice. The officer gave reasoned justification for the judgement because a stop notice would go too far to remedy the breach and a breach of condition notice would not be proportionate given the planning officer was already acting on the discharge of planning conditions.

The handling of the complaint

  1. Mr X says here the Council sent a complaint response to him nine weeks after he complained. Mr X says he felt ‘fobbed off’ by the planning manager who avoided dealing with the breaches of the Council’s planning enforcement policy he pointed out. Mr X is concerned about poor communication from the planning manager which he found to be of a poor standard. Mr X also referred to spelling mistakes and typos in the planning manager’s letter.
  2. Where we do not find fault by a council on the substantive issue of complaint we do not then go on to consider a complaint about the council’s handling of the complaint about the substantive issue. As I do not find fault by the Council on the main issue I do not propose to pursue a complaint about the complaint process.
  3. Even if I considered the matter, I do not find Mr X suffered significant injustice because of the alleged failings to warrant further pursuit of the matter by, or a remedy from, the Ombudsman. I acknowledge, for instance, that the Council took nine weeks to respond to Mr X’s initial complaint. But it apologised for the delay. I do not consider the Ombudsman would achieve a different outcome from the apology already proffered by the Council.

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Final decision

  1. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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