Summary: The Council was at fault in its contact with Miss Y, and in managing her expectations of the Planning Enforcement Team. Although she suffered some stress and annoyance, this fault made no difference to what officers could achieve for her. As the Council has apologised, I have not proposed any further personal remedy. But I have asked the Council to review its protocols relating to enforcement officers’ contact with the public.

The complaint

1. Miss Y complained that the Council failed to act on concerns she reported about breaches of planning controls by the owner of a neighbouring property, and to safeguard her residential amenity. In particular:
1. the lack of enforcement action meant the owner could continue to encroach on and cause damage to her property;
2. the generation of rubbish, and parking of vehicles associated with the development, had obstructed the private access road behind her property; and
3. in addition, the Council had delayed unreasonably in responding to her complaints about the matter. She and her mother suffered significant stress and were put to time and trouble in attempting to rectify matters.

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What I have investigated

2. I have exercised the Ombudsman’s discretion to look back to the end of 2015. This is because of what Miss Y has told me about the Council’s delay in responding to her complaints, and because of personal issues that affected her during 2017 and 2018.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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

6. I have considered information provided by both Miss Y, and the Council.
7. I have written to Miss Y and the Council with my draft decision and considered their comments.

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What I found

Background

8. In 2013 the Council approved a planning application from the owner of the site adjoining and at right angles to Miss Y’s property. The planning permission was for the conversion of a dwelling house into six self-contained flats, including a two storey side extension.
9. Following a complaint from Miss Y, planning enforcement officers visited the site in October 2014 and found the layout of the development differed from the approved plans. Officers told the site owner he needed to comply with his planning permission, or to submit a planning application to try to regularise matters. As he had also not complied with planning conditions relating to the extension, he should submit details for the discharge of these.
10. By early 2015 the site owner had complied with the planning permission as it related to the original dwelling. But, he had not yet submitted an application to discharge the outstanding conditions.

November 2015

11. Late in November, a team leader emailed Miss Y in response to her requests in mid-month for updates about the Council’s progress in discharging the conditions. He said a case officer was currently assessing matters. To manage the enforcement process efficiently, officers intended to deal with all outstanding details in one notice. The team leader said he noted Miss Y’s concerns about works by the site owner potentially damaging her property. He would inspect the premises shortly and update her after his visit.
12. A few days later the team leader confirmed to Miss Y that:
• the current planning permission did not cover a structure to the rear of the property. If the owner applied for planning permission for this, the Council would not approve it;
• the hardstanding at the front of the site was not acceptable. This should be grassed;
• the height, mass and positioning of the dormers was still not acceptable, and would not get retrospective planning permission;
• he had asked the owner to remove rubbish to the front and side of the property immediately; and
• he had asked the site owner’s agent for further information to ensure that outstanding issues were addressed correctly.

December 2015

13. The team leader wrote to Miss Y again early in December. He apologised for delay in updating her, and said:
• officers had instructed the site owner and agent to remove the hardstanding and poorly constructed breeze block structure attached to her garage;
• they then had to implement the planning permission in relation to the bin/cycle store, parking and landscaping.
• they also had to reduce the rear dormer to the approved size;
• officers would serve a Breach of Condition notice, if the site owner did not substantially complete the work within the next week; and
• as the Council had now discharged the outstanding conditions, officers would ensure there were no further delays.
14. During mid and late December, Miss Y asked for further updates. She:
• asked for details of bins/cycle storage and landscaping;
• said the site owner had taken no action to remove the breeze block structure. She asked the team leader to confirm that the Council had served the Breach of Condition Notice, and what the time limit was for compliance with this;
• further asked for confirmation that the site owner would remove the fence post attached to her building wall, and reinstate the boundary fence in its original position;
• said there was increasing evidence of damp in her garage; and
• asked the team leader to confirm she would not be responsible for the cost of repairs to her garage wall, once the site owner removed the breeze block structure and fence post.
15. At the end of the month the Head of Development Management emailed Miss Y, saying the team leader would be away from the office until early January 2016.

January – March 2016

16. Miss Y again asked for an update in mid-January, repeating there was no sign of the owner doing any work. Two weeks later the team leader responded apologising for delay due to his absence from the office. However, he had now completed the relevant documents to enable officers to serve the Breach of Condition Notice.
17. Miss Y asked three more times for updates during February. Early in March she again asked for an update and complained to the Leader of the Council about delays and the failure to update her. The Leader asked the team leader to send Miss Y a prompt response. The team leader sent Miss Y an email setting the outstanding conditions the Breach of Condition Notice covered. He said the site owner had to complete the works by 3 May.

May 2016

18. Shortly after the time limit expired, Miss Y asked when the Council would carry out works in default, as the site owner had done nothing. The team leader responded that he would be meeting the owner as soon as he returned from leave in mid-May. He would then update her as matter of urgency.
19. Miss Y emailed the team leader twice in late May asking for an update. The team leader replied that he had visited the site and intended to return the next day. The owner expected to complete demolition and tidying up works during that week.
20. Shortly afterwards, the team leader emailed Miss Y listing works to be completed within the next 48 hours. These were:
• removal of the bins into a new bin store;
• removal of the front driveway, and re-grassing of the area;

• alteration of the approved driveway in line with the planning permission, and installation of soakaways;
• removal of all rubbish and waste material; and
• reinstatement of the side fence as approved.

21. The team leader also said he would shortly make a further visit together with the owner’s agent about the dormer window.
22. In reply Miss Y said:
• she was disappointed the team leader had not commented on the damage to her garden wall, the fence post still attached to the building wall, the remaining hardstanding, and the boundary fence that needed to be reinstated;
• she did not expect to have to foot the bill for repairs when she had been complaining for months about the boundary issue;
• she did not want the site owner to have any responsibility for the repairs other than financially;
• the service alley was now exposed, and could not be blocked without cutting her off from some of her property; and
• she was asking for confirmation that the bin area was not at the rear next to the service road, as rubbish was simply dumped there.
23. At the end of the month, Miss Y emailed the team leader again. She said that as she had predicted, the builders had simply erected a board to block the gap to the service road. Once again, they had drilled into her garage, although she had explained to them that the boundary was several inches from the garage wall and marked by fence posts. Miss Y asked what action the Council proposed to take about this.

June 2016

24. Early in June, Miss Y again asked the team leader if the Council intended to take any action in relation to damage and encroachment, or if it had approved the boundary treatment.
25. The team leader responded that:
• the Council had approved a scheme in line with the site owner’s boundary, and which allowed for drop kerb access to the parking area at the front and from the shared rear drive for the movement of bins and bicycles;
• he had instructed the workmen not to erect any permanent fencing along her wall until she had met the building contractor. He did not want to find that the completed works had resulted in a further issue that might result in more demolition works on the boundary; and
• he would take the land registry documents for both properties to the next meeting, so a clear line could be drawn. The site owner would resolve all the issues relating to the boundary.
26. Miss Y asked for a further update in mid-month. She said she had understood the bins would be stored at the front. She did not want them stored at the rear of the property because of repeated litter issues, overflowing bins and rubbish dumped in the service road.
27. As she did not receive a reply, Miss Y emailed the team leader again two weeks later. She complained about the building materials piled up against her garage wall. Combined with heavy rain, this meant she had rising damp in her garage.
28. The Head of Service replied that the team leader was out of the office. But he would treat the matter as a priority on his return.

July – August 2016

29. Early in July Miss Y emailed the Leader of the Council complaining about the Council’s lack of response and failure to take action. The Leader asked the Head of Service for a briefing.
30. The Head of Service responded that:
• some issues, like the storage of building materials against the garage wall, were not planning enforcement issues. They were civil matters between property owners;
• the main issue for the Council was reinstatement of the boundary fence. Officers would mark out the alignment with the builder, who would then re-erect the fence in the correct position;
• earlier in the week officers had met the site owner to discuss why he had not addressed several points. They had attended a further site meeting on the previous day to agree on the required works with the owner and the builder;
• these included the planting of the grass frontage to be completed that day, completion of the bin store, and removal of rubbish next to the bin store by the end of the week. Officers would visit every day to bring matters to a close; and
• the owner needed to submit a further planning application relating to the dormer by the end of the week.
31. The team leader made a site visit in mid-July and found the site owner had laid the grass. He had also erected fencing to the side and rear and set this back from Miss Y’s property as per the original boundary line, and removed the builders’ waste from the site and the alley.
32. Meanwhile, Miss Y continued to email the Leader complaining about poor workmanship, incomplete works, and the bin store being built on the boundary with the service road with the bins overhanging the road. Miss Y also asked the Leader to visit. But the Leader responded that he had asked a local councillor to do this.
33. During the second half of July Miss Y and the local councillor exchanged emails in an effort to find a suitable time and place to meet. But they were unsuccessful.
34. Late in August, Miss Y again emailed the Leader. She said:
• the site owner had still not reinstated the boundary fence;
• the Council had done nothing about the encroachment and damage issues;
• the dormer still remained the same size; and
• none of his fellow councillors wanted to visit.
35. The manager of the Leader’s office responded that the Leader was on holiday. She had asked the Head of Service to respond instead. But this did not happen.
36. Meanwhile, in late July, the Council had received the site owner’s application to retain the rear dormer as built.

The Council’s stage 1 complaint response

37. Late in November 2016, the Head of Development Management responded to a formal complaint from Miss Y at stage 1 of the Council’s complaints procedure. He said:
• he could see it had taken some time for officers to resolve enforcement and other issues that arose from the site owner’s lack of compliance with pre-commencement planning conditions; but
• this lack of compliance was not in itself a reason to take enforcement action;
• the Council had to have regard to the Government’s National Planning Policy Guidance (NPPG). This acknowledged that local planning authorities had discretion when considering what enforcement action to take;
• they had to consider the planning harm arising from unauthorised work, and to act proportionately in responding to breaches of planning control;

• the NPPG advised that addressing breaches of planning control without formal enforcement action could often be the quickest and most cost-effective way of achieving a satisfactory and lasting remedy;
• officers could have served a breach of condition notice on the owner to achieve the discharge of the outstanding conditions. But they had tried to work with him to expedite matters, especially as a number of matters lay outside the scope of planning control;
• following the owner’s submission of the relevant details, the Council discharged the conditions in December 2015. But it took until July 2016 for officers to get the developer to undertake the necessary works to comply with these;
• as part of their investigation, officers had found that the developer had not constructed the dormer window in accordance with the approved plans;
• the NPPG advised that local planning authorities should normally avoid taking formal enforcement action where:
1. a trivial or technical breach was causing no material harm or adverse impact on the amenity of the site or surrounding area;
2. development was acceptable on its planning merits; and/or
3. officers considered an application was the appropriate way to regularise the situation;
• in this case, the latter two points were pertinent. Thus, officers invited the site owner to make a retrospective planning application to regularise matters;
• between July and November, officers worked with the owner to get him to submit all the necessary information, so they could register the application. This was due for a decision by the end of December;
• he accepted that this issue had taken longer to progress than officers would have liked. But they did not consider the dormer caused any harm to residential amenity that would justify formal action;
• he noted that officers had secured the removal of the unauthorised breeze block structure attached to the flank wall of Miss Y’s garage;
• unfortunately, their ability to take formal action against the storage of materials associated with building works was limited, even though Miss Y considered this had damaged her property;
• this was because the Council only had the power to take enforcement action where "development" had occurred. The storage of materials did not meet the definition of "development;
• in accordance with the Party Wall Act 1996, the storage of materials against the garage wall was a civil matter for Miss Y to resolve with the neighbouring site owner;
• nevertheless, officers had tried to resolve this problem by negotiating with the developer to remove the materials. This had happened in July 2016. He accepted it had taken some time. But, as explained, there was no breach of planning controls against which officers could take enforcement action;
• the Council had no powers to require or carry out repairs in relation to damage the unauthorised structure and storage of materials had caused to her garage flank wall. Again, this was a civil matter between Miss Y and the site owner;
• he could see Miss Y had raised concerns about encroachment associated with the erection of the boundary fence. Matters relating to boundary disputes and encroachment did not fall within the remit of planning control. These too were civil matters to be resolved between the parties concerned; but
• In response to the circumstances, officers had engaged with the site owner to agree the siting and alignment of the fence;
• clearly, this had taken longer than Miss Y would have liked. In part, the response of the property owner with whom officers had to negotiate had influenced the timescale;
• Miss Y’s email in late August 2016 had referred to the Council's unwillingness to enforce compliance with the planning permission. Having looked into matters, he could only apologise for the failure to respond to this email;
• officers had taken action during July to ensure the site owner addressed all outstanding breaches of planning controls. In the case of the dormer, they had ensured the owner had made a planning application. So, although officers were away during August, this did not excuse the lack of response;
• he could see no fault in officers’ approach to the situation, or in their handling of the enforcement investigation, except for delay in registering a valid planning application to retain the dormer. This was not the Council’s sole responsibility. But, once again he offered his apologies on behalf of the Planning Service; and
• he further apologised because Miss Y had had to seek progress updates on several occasions. Although there were pressures on staff, this was not the level of service they sought to provide.

The Council’s stage 2 complaint response

38. Miss Y remained dissatisfied and escalated her complaint to stage 2 of the Council’s complaints procedure in December 2016. For reasons the Council has not explained, officers did not respond until October 2017.
39. In the stage 2 response, the Chief Executive apologised for the time the Council had taken to conclude its complaint review and endorsed the Head of Development Management’s stage 1 findings.

Refusal of retrospective application to retain dormer

40. Meanwhile, also in December 2016 the Council refused the retrospective application to retain the rear dormer. It did this for the following reasons:
• “the proposed changes to the dormer failed to mitigate the discordant, contrived and bulky appearance of the structure with regard to the street scene, as well as the wider character and appearance of the locality;” and
• the rear dormer would, by reasons of its bulk, size and siting, particularly when considered against the dimensions of the originally approved dormers, be a significant incongruous feature within the rear elevation.”
41. The delegated report noted that:
• the dormer in question was similar to an existing rear dormer at the neighbouring address, also in the ownership of the developer. This existing dormer could not be taken as a precedent, given that it did not match the objectives of the Council’s Development Management Document; but
• the dormer was unlikely to adversely affect neighbouring amenity, by way of light, outlook and privacy. In relation to privacy, the windows in the two originally approved smaller dormers also included two windows. These were identical in size and location to the ones in the as built dormer.

Consideration of further enforcement action

42. The Council told me it did not serve an enforcement notice in relation to the unauthorised dormer because:
• it accepted this did not comply with planning policy. But, enforcement officers also had to consider whether the requirements of any notice they might serve would achieve a sufficient reduction in size, taking into account planning policy and its current impact;
• within the refusal officers had accepted the as built development was unlikely to adversely affect neighbours’ amenity by way of light, outlook and privacy; so
• further formal action on these grounds would not be in the public interest; and
• if the developer challenged the notice through the appeal process, it was likely the appeal would succeed.

The Council’s further comments

43. The Council has confirmed that the service road is privately owned. The removal of accumulations of waste is normally the responsibility of the landowners.
44. The Council also commented that its Waste Enforcement Unit can investigate the dumping of rubbish on public and private land. Where there is evidence, the Council can take enforcement action against the perpetrators and issued Fixed Penalty Notices. It can also serve Community Protection Notices against the perpetrators of eyesore rubbish on private land.

Was there fault and if so, was there injustice requiring a remedy?

45. I do not propose to repeat all that officers said in their complaint responses to Miss Y. I broadly share their conclusions. However, I confirm that the Council did properly consider the impact of the rear dormer, and the expediency of enforcement action in accordance with government planning enforcement guidance.
46. I note that the Head of Service apologised to Miss Y for delay in providing her with updates. I consider, however, that the fault lay more in failing to advise Miss Y that officers’ workloads meant they could not provide updates as frequently as she might have liked. A regular update at agreed intervals; for example, once a month, would have been appropriate. This would have enabled officers to better manage Miss Y’s expectations and lessened the stress and annoyance she felt.
47. I further note that enforcement officers did go some way towards resolving the encroachment problems with the site owner, as they were on site anyway. But the Council was correct in its view that that this and the issue of damage were civil matters between private property owners. Again, officers might have managed Miss Y’s expectations more effectively by stating this clearly throughout the enforcement investigation.
48. It was not open to enforcement officers to require the site owner to change the location of the bin and cycle stores. They were in the position adjacent to the service alley shown on the approved plans. They therefore had planning permission.
49. I understand Miss Y’s repeated concerns about the dumping of refuse in the service alley. This was not really a planning enforcement matter either. Nor was it fly tipping. The alley had not been adopted by the Council in its role as the Highway Authority, and it was not otherwise in the ownership of the Council.
50. Officers’ failure to respond to Miss Y’s email in August 2016 was fault. But, the Head of Service accepted this, and apologised. As this omission made no difference to the substantive issues, I will not pursue this point further.

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Agreed action

51. The Council has told me it is seeking to implement a customer charter that clearly sets out its aims and targets in relation to officers’ contact with members of the public. I am asking the Council to provide a copy of the charter to me within three months.

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Decision

52. For the reasons I have explained above, I have completed my investigation. It remains open to Miss Y to continue to report the dumping of refuse to the Council’s Waste Enforcement Team.

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Investigator's decision on behalf of the Ombudsman