Summary: Mr X complains the Council failed to properly respond to his neighbour’s planning breach, eventually wrongly approving a retrospective planning application. He also says it failed to respond to his complaints about noise from his neighbour and delayed responding to his complaint. Mr X says this caused him an injustice as he now has two unsightly outbuildings along his fence line. The Council has apologised for delay and offered a remedy. We do not consider the remedy sufficient. We consider the Council partially remedied its initial failure to properly assess the development by addressing a retrospective application at planning committee. But it did not demonstrate it fully considered Mr X’s objections. We have recommended a remedy.

The complaint

1. Mr X complains that:
1. The Council wrongly initially said his neighbour’s development did not need planning permission.
2. When the Council reviewed this decision, it realised its mistake but an officer was very rude to Mr X. Officers also contradicted each other in their view of the application, with one officer telling Mr X his neighbour’s building would be subject to a demolition order.
3. Mr X was represented by a friend at the planning committee convened to decide the retrospective application, but his objections to the development were not heard.
4. While the building was ongoing, Mr X reported noise issues, which were ignored. He was never sent diary sheets to report the noise issues.

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The Ombudsman’s role and powers

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)
3. 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)

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How I considered this complaint

4. I made enquiries and further enquiries of the Council.
5. I have examined the relevant law and guidance.
6. I have spoken to and read the complaint file from the complainant.
7. Both the complainant and the Council were invited to comment on this draft decision. I made further enquiries before issuing this final decision.

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What I found

Relevant law and guidance

Noise

8. The Environmental Protection Act 1990 says that noise which is emitted from premises which is prejudicial to health or a nuisance is a statutory nuisance. Local authorities are under a duty to take such steps as are reasonably practicable to investigate complaints about statutory nuisances. If an authority is satisfied that a statutory noise nuisance is occurring or is likely to occur or recur, it must issue an abatement notice. The notice must set out the act that constitutes the statutory nuisance and what a person must do to abate it.
9. The Council’s website says that if people are affected by noise between 9am and 3am on Friday or Saturday night, they should contact the Council by phone. It says the Council will send a complainant a log sheet to fill in so that the Council can have a record of how the noise is affecting the complainant. The website also provides a link to its Noise Log sheets. Below this, there is a section entitled, ‘Report noise from a residential property’. When clicked on, a noise report can be made once an account is set up.

Permitted planning rights

10. Permitted development rights allow householders to improve and extend their homes without the need to apply for planning permission.
11. Permitted development rights do not apply to flats. (Town and Country Planning (General Permitted Development) (England) Order 2015 as amended.)

Enforcement action and retrospective planning permission

12. Councils can take enforcement action if they find planning rules have been breached. But they do not have to take enforcement action just because there has been a breach of planning control.
13. There are various ways to tackle alleged breaches of planning control. Councils should act in a proportionate way. They have discretion to take enforcement action when they regard it as expedient to do so.
14. In considering any enforcement action, councils should have regard to the National Planning Policy Framework, (NPPF) – and in particular, paragraph 207. This 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.”

15. The Plain English Guide to the Planning System says “Although effective planning enforcement is fundamental to the integrity of the system, responses to breaches of planning control should always be proportionate. Where work has been undertaken without the necessary permission, there is scope to apply retrospectively for planning permission. These powers do not condone development being undertaken without the correct permissions, but they do enable local authorities to use their planning enforcement powers proportionately.”

The Council’s policy on outbuildings

16. The Council’s policy on outbuildings says outbuildings will only be permitted if all the following criteria are met:
1. The building must be ancillary to the use as a residential dwelling;
2. The design should have regard to topography;
3. It should not normally project forward of the front building line;
4. Maintain an adequate distance from the dwelling and be of an appropriate height and bulk so as not to adversely impact on the character of the local area and amenities of neighbouring properties;
5. The size and scale and siting of the development must not have an unacceptable impact on the adjoining properties in line with relevant criteria in the Council’s policy on ‘General Standards for New Residential Development’. This sets out that development will only be permitted if developments are, among other things:

• Appropriately located
• Of appropriate scale, bulk and massing
• Would preserve amenity in terms of daylight, sunlight, privacy, overlooking etc

17. The above policy is to be read in conjunction with the Council’s policy on housing quality. This says, among other things, that new housing developments should take account of design and construction policies.

Keeping records of planning decisions

18. The Ombudsman has said in its September 2018 report, Recording Planning Decisions, that communities can only have confidence in the planning process if councils fully and accurately record the reasons for their decisions, including the information they have taken into account to make them.

Case Officer Reports

19. Councils must provide reasons for its planning decisions. These can be in the Planning Officer’s (POs) report or in the decision notice or in a combination of both. Reasons may be brief, but they “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.” (South Bucks District Council and Another v Porter (No 2) 2004)

Background

20. There are conflicting accounts in the records about when the building work relevant to this complaint was completed. The applicant for retrospective planning permission, Mr P, whom Mr X says owns the house next to his house and has allowed his tenant, Miss Z, to build an outhouse and a shed in the garden of the house, said building work started in April 2017 and ended in August 2017. Miss Z said Mr X raised no issues with the work at the time and then began to complain a year later.
21. Mr X said he was initially content for his neighbour to build a summerhouse but when he realised its scale and size he became very concerned.
22. Mr X says that the building work started in April 2018 and continued through to August 2018. This is supported by other evidence. Mr X says he started complaining to the Council in April 2018.
23. The application for retention of the buildings described a summer house measuring 5.3 deep, 4.1 wide and 3.1m high with a flat roof. It says it is positioned at the end of Miss Z’s garden. It also describes a shed which is 2.14m deep, 1.54 wide, 2.53m high with a double-pitched roof. This is positioned at the other end of Miss Z’s garden. It can be seen from Mr X’s patio.

Early complaints about noise and building without planning permission

24. Mr X says he contacted the Council twice in April 2018 and once in June 2018 about noisy building work being undertaken by his neighbours. He said he was passed from person to person.
25. Following further enquiries, the Council has confirmed Mr X called the Council in April 2018 but it has no records for Mr X contacting it in June 2018.
26. It says the Council does not keep detailed records of calls once they are past six months old.
27. The records show Mr X used the Council’s website to create an account and contact the Council about noise on 23 July 2018. He also said his neighbours were building without planning permission. In his complaint, he wrote that the noise had been ongoing from 1 March to 23 July 2018.
28. He was told he would receive a response within ten days.
29. The records show Mr X used the Council’s website to complain three times in July 2018 about noise. On 6 August 2018 he complained that his 23 July complaint about noise had not been answered. He did not mention his phone calls not having been answered or the other complaints he had registered in July.
30. A few days later the Council advised Mr X to use the website again and read the noise advisory letter and use the log sheets. It sent a warning letter to the relevant address.
31. The Council said it could only allocate the complaint to an officer when the log sheets had been returned.
32. Mr X felt the Council ignored his calls in April and his emails in July so that it was futile for him to fill out log sheets in August, after the building work was completed.
33. Mr X emailed the chief executive of the Council at the end of August saying that building work was ongoing all day and every weekend. He did not send the Council any log sheets.

Permitted planning issues

34. Initially the Council considered that Mr X’s neighbour’s development did not need planning permission. It does not have a record of the notes made by the officer who made this decision or a record of the site visit. But it says it was reported that the outbuilding being erected by his neighbours was inspected. It says that no toilet or washing facilities were seen and that although there was a sofa, ‘the use of the outbuilding was clearly ancillary to the occupation of the residential property.’
35. In correspondence with Mr X, it said the dimensions of the outbuildings were taken and, “…there was minimal, if any harm, to existing amenity and thus it was concluded that no further action was necessary.” The case was closed.
36. The Council then realised its mistake. In late August 2019, the Council say Mr X’s neighbours were told they would need to apply for retrospective planning permission. This is confusing because in a response to a later complaint by Mr X, in October 2019, the Council told Mr X that the development constituted permitted planning. But in any case, Mr X’s neighbour’s made a retrospective planning application in September 2019 so must have been told by the Council that it no longer considered the development was permitted planning.
37. Mr X said he understood from the officer that visited the site, Officer A, that a retrospective application would be refused, and a demolition order sought. The Council does not accept this.
38. The Council has apologised for its initial error in considering that the building did not need planning permission.
39. On 21 September 2019 Mr X says Officer A and another officer, whom Mr X says refused to provide his name, visited Mr X. I shall call him Officer B.
40. Mr X says that Officer B rudely dismissed his concerns about the development and instead queried whether a parasol he had outside his house was permitted development.
41. Officer B took a photograph of the parasol. He says he took the photo to show all elements along the boundary with Mr X and his neighbours. He said that Mr X asked him why he was taking the picture and Officer B advised him that as he was concerned/complaining about the impact of light and outlook from his neighbours development, Officer B considered it was necessary to record everything along the boundary.
42. Officer B says he advised Mr X that the parasol’s location could have an impact on his outlook but agreed that it was permitted development. Officer B says he told Mr X that in his opinion the smaller shed was lower and further away from his rear doors than the parasol.
43. Mr X later complained about what he thought was the rude conduct of Officer B. The Council apologised if Mr X felt that Officer B was rude.

The retrospective application

44. Mr X asked a friend who has some planning knowledge to write to the Council on his behalf to object to the application. I shall call him Mr D. He sent a letter to the Council on 25 October 2018.
45. Mr D told the Council that Mr X objected to the retrospective planning application, because of:

• the design purpose and intent of the accommodation. He said the summer house was clearly an addition to the residential accommodation
• quality of building construction; materials adopted and structural integrity of workmanship
• fire risk and other concerns arising from the above factors
• the extremely unattractive; unfinished and overbearing appearance when viewed from the principle windows of his property; from his patio area and gardens
• harm through loss of amenity caused by loss of outlook and overshadowing.

46. Mr X’s local councillor also supported Mr X’s objection, describing the development as a ‘shanty town’ structure.
47. Mr X also added further objections to the application, reiterating personally the points made by Mr D for him above.
48. He said he was not the only person objecting to the application, as stated by Miss Z.
49. Before the hearing of the retrospective application, on 18 January 2019, the Council responded at stage one to the October 2018 complaint Mr X had made about the Council’s approach to the situation. It apologised for its delayed response.
50. Among other things the Council said:

• Mr D and his objections had been taken into account
• It apologised for the initial planning assessment
• Officer A had no recollection of saying that the summer house and shed would definitely be removed
• It would refer the retrospective application to a planning committee so that it could show transparency in decision-making.

51. The committee was held in February 2019. I have read the committee report. Mr X says Mr D’s letter was not mentioned at the hearing. His letter was not specifically referred to in the minutes of the meeting. Although, I have seen evidence the letter was added to the planning file on 22 November 2018. Mr X also provided me with evidence which indicates Mr D’s letter was passed to the leader of the planning committee before the meeting. A summary of the objections made both by Mr X and on his behalf were in the minutes of the meeting.
52. Mr X’s councillor spoke on his behalf. Mr X was also given an opportunity to speak and voiced his objections.
53. The objections were noted. The relevant policy on outbuildings, set out in my para 16 above was considered.
54. Two other main policies were referred to as well. One on residential character and the Council’s policy on achieving high quality design-led development.
55. Mr X was concerned that it was not noted that a sofa had been seen at the summerhouse. It was noted that the summerhouse contained a playroom and a W.C.
56. Officers considered the building was ancillary to the use of the residential dwelling.
57. The officer said the outbuildings would only be ‘slightly visible’ from adjoining gardens. It was noted that existing trees ‘have already screened most of the natural light’ into Mr X’s garden so it was not considered the outbuildings would worsen the situation. The shed was, given its height and size, not considered to unnecessarily impact on amenity.
58. Overall, it was considered that the harm arising from the development was not sufficient to warrant refusal of the planning application.
59. There is no record of how the design and appearance of the outbuildings, particularly the summerhouse, was considered.
60. Mr X says the outbuildings are not only ‘slightly visible’. When I spoke to him about the summerhouse he said he had initially not taken issue with it because he did not use that part of his garden too much. But when he realised the scale and the design of the structure, he became very concerned. He believes the development has had an impact on the value of his property. He says someone is living in the summerhouse structure. He says it could not be a summerhouse because it does not have windows. He says it is residential accommodation.

Complaint handling

61. The Council has apologised for its delayed response to Mr X’s complaint in October 2018. It did not respond until January 2019. There is nothing further the Ombudsman can usefully add about that delay.
62. However, there were other delays. After the Council’s stage one response at the end of January 2019, on 21 February 2019 Mr X said he was unhappy with that response.
63. On 1 March 2019, the Council asked Mr X to be more specific. Mr X said he responded mid-March 2019. The Council did not contact Mr X again until Mr X came to the Ombudsman and we asked the Council to get in contact. We emailed the Council twice before we received a response. We were told then that Mr X would receive a final response to his complaint by 3 May 2019.
64. On the 9 and 15 May we followed this up with the Council as Mr X had still not received a response.
65. A council officer then met with Mr X on 6 June 2019 to discuss the case. This was followed up with an email confirming what was understood in the meeting on 19 July 2019.
66. Mr X agreed those notes and added some further comments a few days later. He was told that a final review would occur by 4 September 2019.
67. By 6 September 2019, Mr X had still not heard from the Council. We asked the Council to respond to Mr X. On 30 September 2019 Mr X received the Council’s final response.
68. The Council accepted it had taken five months to provide its response to the first stage of his complaint and nine months to provide a response to the last stage of his complaint. It offered him £50 by way of recognition.
69. Following the complaint coming to the Ombudsman, there were further delays from the Council in responding to our enquiries.

Analysis

Complaint handling

70. The Council has been at fault in the way it has responded to Mr X’s complaint. This caused Mr X an injustice. He did not consider the Council was taking his complaint seriously. It added to his distrust of the Council. He had to go to some significant time and trouble to chase up his complaint, involving the Ombudsman to elicit a response. Even after he had finally been provided with a final response to his complaint, the Council still delayed responding to our enquiries.
71. We accept that councils sometimes work with stretched resources and it is not always possible to respond in as timely a fashion as might be ideal. But the delays in this case were repeated and over a long period of time. I have suggested a remedy that better reflects the level of acknowledgement I consider the Council should provide for the excessive delay and the injustice this caused Mr X.

Early complaints about noise and building without planning permission

72. Mr X says he made calls to the Council in April and June 2018. The Council has a record of Mr X making calls in this period. However, it does not have a record of what the calls were about. I cannot draw any firm conclusions about what was conveyed in the call without that information. In any event, the Council website sets out what Mr X had to do if he had a complaint about noise. He did not send the Council log sheets. He complained the Council failed to send these to him but he would have been able to access the sheets from the website. He knew how to navigate the website because he had set up an account and registered three complaints. I am unclear about why he did not send log sheets in July or August 2019 because he said noise was ongoing throughout August, so it would still have been useful for him to have done so. I do not find the Council at fault.

Permitted planning issues

73. The Council was at fault and has apologised for its initial error in considering that planning permission was not necessary. It was also at fault for failing to keep records of its decision-making. However, to demonstrate that the process was transparent and without bias, the Council put the case before committee. I consider the apology and the approach it took to try and alleviate Mr X’s distrust because of its mistake, was sufficient remedy to Mr X for its initial error. However, I have made a recommendation for the Council to consider how best to keep accurate records of its decision-making and the reasons for them in enforcement cases. As my para 18 sets out, Councils should keep clear records explaining their decisions.

The retrospective application

74. Mr X said Officer A told him the retrospective application would fail and the shed and summer house would be demolished. If this were the case, such pre-judging would be bad practice. However, I do not consider I have conclusive evidence that this happened. There may well have been a miscommunication but I was not present at the meeting between Officer A and Mr X and cannot comment on what was said.
75. Mr X is concerned that Mr D’s letter was not heard by the committee deciding the application. However, I have seen evidence that the letter was placed on file. Mr X has also provided me with email evidence which indicates the planning committee had sight of Mr D’s letter. Further, Mr X re-iterated his objections to the development at committee and his objections were supported by his councillor.
76. Mr X says the decision to approve the retrospective application was erroneous because in his view it is contrary to the Council’s planning policy. I have examined the relevant policies. I have seen photographs of the development. I do not consider it is in breach of the Council’s policies on outbuildings.
77. In terms of whether the summerhouse is being used for a purpose ancillary to that of a residential dwelling, Mr X says it should have been taken into account that a sofa had been seen in the summerhouse on the first officer visit. He thought it was ominous that this was not mentioned at the committee hearing. I do not agree. I note that at the first visit, the officer did not note that there was a W.C on site, but this was noted at the committee meeting. The Council also noted that there was a playroom on site. The Council gave the matter consideration and it was not unreasonable for it to decide that the building did not appear to be used as a residential dwelling. Further, the planning committee imposed conditions on the development to ensure its use should be restricted. If, as Mr X believes, the summerhouse is being used as a residential dwelling, that is a matter Mr X can raise with the Council.
78. Mr X considers the outbuilding is too high and that adversely impacts on his amenity. But the committee disagreed. The committee saw the same photographs I have seen and viewed the dwelling as acceptable in terms of scale and size.
79. However, I am concerned that the committee do not appear to have considered the design of the outbuildings, in particular the summerhouse. The photographs of the summerhouse appear to show an unfinished building. It was said that because of the proximity of trees the outbuildings could only be slightly seen from Mr X’s garden, but they can be clearly seen from the photographs I have viewed.
80. The committee or planning officers did not demonstrate they considered the objections Mr X raised about the design and quality of the outbuildings and in order to fully comply with the policy on outbuildings, design should have been taken into account. While councils do not have to refer to every point in reports, the design of the outbuilding was a particular sore point with Mr X. It was raised by Mr D, by Mr X’s councillor and by Mr X. While committee members will have had sight of the photographs, there is no mention of the consideration given to how members considered the design might be acceptable. This is fault. It has caused Mr X an injustice because he has lost further faith in the planning process and does not consider his objections were properly looked at. He also considers he has been left with unsightly outbuildings on his fence line.
81. In her accompanying letter to the retrospective application, Miss Z said the summer house could be modified to make the overall height 290 cm at the front and 280 cm at the back. She asked for this to be considered. This suggestion does not appear to have been considered by the committee.
82. As no evident consideration was given to Mr X’s objections to the design of the outbuildings I have made a recommendation to try and help remedy the issue.

Change of perspective of officers and accusation that Officer B was rude

83. As I was not present, I do not consider I have enough evidence to reach a determination on Mr X’s complaint about the officers involved in the case.

Recommended/ agreed action

84. Within one month of the final decision, the Council should:

• pay Mr X the sum of £200 to acknowledge the distress and frustration caused by its repeated delay in handling Mr X’s complaint.
• pay Mr X the sum of £300 to fund any screening of the development Mr X considers might lessen the impact of the development.

Within two months of the final decision, the Council should:

• Review its records systems to ensure it keeps records of all decision-making in enforcement cases. It should provide evidence to the Ombudsman that it has completed the review and taken steps to implement the outcome.

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Final decision

85. I have found the Council at fault and made some recommendations to remedy that fault. I have now concluded my investigation.

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Investigator's decision on behalf of the Ombudsman