London Borough of Hackney (18 013 592)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 09 Apr 2019

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s lack of effective action to address a breach of an enforcement notice against her neighbour, causing her to suffer loss of amenity. The Ombudsman finds no fault in the Council’s decision making or actions.

The complaint

  1. Ms X complains the Council failed to take appropriate action against her neighbour upon breach of an enforcement notice. She says the breach results in loss of light to her property and noise late at night.

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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. 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. 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 spoke to Ms X and considered her complaint. I reviewed documents provided by Ms X and the Council. I gave Ms X and the Council the opportunity to comment on a draft of this decision.

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What I found

  1. Planning enforcement action is discretionary. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.
  1. Government guidance, “Ensuring effective enforcement”, says councils should act in a proportionate way. They have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations.
  2. A local planning authority can, where they consider it expedient to restrain a breach of planning control, apply to the High Court or County Court for an injunction. In deciding whether it is necessary or expedient to seek an injunction, local planning authorities may find it helpful to consider whether:
    • they have taken account of what appear to be relevant considerations, including the personal circumstances of those concerned;
    • there is clear evidence that a breach of planning control has already occurred, or is likely to occur;
    • injunctive relief is a proportionate remedy in the circumstances of the case;
    • in the case of an injunction sought against a person whose identity is unknown, it is practicable to serve the Court’s order on the person to whom it will apply.
  3. A local planning authority can apply for an injunction whether or not it has exercised any other powers to enforce planning control. However, proceedings for an injunction are the most serious enforcement action that a local planning authority can take. A local planning authority should generally only apply for an injunction as a last resort and only if there have been persistent breaches of planning control over long period and/or other enforcement options have been, or would be, ineffective. The Court is likely to expect the local planning authority to explain its reasons on this issue.
  4. The Council publishes its enforcement policy online. This says where it identifies a breach of planning control it will consider whether it is expedient to take action. It may seek to remedy the breach through negotiation with the relevant person. It may also seek an injunction where it considers the breach presents a serious an immediate risk to public health and safety or causes significant undue harm to residential or local amenity.

What happened

  1. Ms X’s neighbour, Mr Y, built a timber structure on the flat roof of the rear first floor extension of his property for use during an annual religious festival.
  2. In 2009 the Council issued an enforcement notice against Mr Y for breach of planning control. The notice required Mr Y to remove the structure within one month or risk prosecution or other action. The notice says the structure was harmful to the visual amenity of neighbouring occupiers.
  3. At the end of August 2018 Ms X contacted the Council to warn Mr Y intended to build the structure again and asked it to take pre-emptive action.
  4. On or about 11 September Mr Y built the structure.
  5. On 13 September a Council officer visited the site and spoke to Mr Y. Mr Y explained the reason for the structure and said he would remove it by 3 October.
  6. On 20 September Ms X complained the Council had allowed the structure to remain temporarily despite the enforcement notice.
  7. On 1 October the Council sent Mr Y a letter seeking he remove the structure by 29 October or risk prosecution.
  8. On 16 October the Council told Ms X it considered it unlikely a judge would grant a pre-emptive injunction and such action would not be proportionate to the impact of the structure.
  9. Ms X complained again with reference to the planning history to show this was a recurrent problem.
  10. On 29 October Mr Y removed the structure, excepting the base.
  11. In correspondence of 12 November the Council told Ms X it had taken fair and proportionate action based on all the circumstances. It considered it was not in the public interest to seek an injunction against a minor and time limited infringement. It also considered it unlikely an injunction would be granted, because of the reasons for erecting the structure and the expected length of time it would be in place.
  12. Ms X remained unhappy with the Council’s response and complained to the Ombudsman.
  13. In response to enquiries the Council explained it had options to:
    • seek an injunction against the person responsible for the works;
    • prosecute for the offence of reinstating the structure in contravention of the (existing) notice;
    • take direct action to remove the structure.
  14. The Council explains it considered the purpose of the structure, its degree of permanency and the planning harm resulting from the breach. Both the Council's enforcement policy and national guidance encourage informal resolution in the first instance.
  15. The Council considered it would not be proportionate to seek an injunction bearing in mind the factors above and the not insubstantial cost of injunction proceedings. The Council felt other options would be more proportionate and effective.
  16. The Council took a view on the prospect of prosecution. While there was sufficient evidence of the offence, following its removal it was no longer in the public interest to take legal action. There was no severe loss of amenity at any point, the offence did not continue, there was no financial benefit from the criminal activity and no further harm to the amenity of the neighbours and any conviction would not result in a high sentence.
  17. The Council considered taking direct action against the breach but the law requires a minimum of 28 days’ formal notice. The Council did not consider this was appropriate taking into account the disproportionately high cost of direct action in comparison to other means of enforcement.

Findings

  1. I cannot say the Council’s decision is wrong simply because Ms X disagrees with it. I must consider whether there was any fault in the way the Council reached its decision.
  2. Ms X asked the Council to take pre-emptive action to prevent Mr Y building the structure. The Council visited the site and spoke to Mr Y. It then decided to take informal action to resolve the breach, by asking Mr Y to remove the structure by a specific date or else risk prosecution. I find this is in line with its policy.
  3. Ms X considers the Council should have sought an injunction to prevent Mr Y building the structure. The Council has explained its view that it was not proportionate to seek an injunction given the impact caused by the breach. And, the Council considered it unlikely a judge would grant an injunction. Although Ms X disagrees with the Council’s decision, I find the Council considered whether it was expedient to take action in line with its policy.
  4. As part of the internal complaints process an investigator asked the Council whether it could insist Mr Y use the garden instead of the roof. The Council said it could not insist on Mr Y using the garden. That is not to say the Council could not take formal action at all, only that it could not insist Mr Y use his garden.
  5. I find no evidence the Council failed to act in accordance with any law or policy. While I appreciate Ms X is unhappy in the circumstances, I am unable to find any fault by the Council.

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Final decision

  1. I have completed my investigation. This is because I find no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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