Rochdale Metropolitan Borough Council (18 014 780)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 09 Apr 2019

The Ombudsman's final decision:

Summary: Mr G complained about a remedy that the Council proposed, after it had failed to enforce a planning condition to erect a fence around his property. I have completed my investigation on the basis there was fault in the way the Council dealt with the remedy, as well as how they responded to his complaints. The Council has agreed to offer an alternative financial remedy to Mr F.

The complaint

  1. The complainant, whom I shall refer to as Mr G, complains that the Council failed to enforce a planning condition that a developer should erect a fence around his property. The Council offered a remedy to resolve the issue, but Mr G feels that it is unsatisfactory.

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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. As part of this investigation, I have:
    • considered the complaint; and
    • reviewed and considered documents provided by Mr G; and
    • considered the relevant policies.
  2. I also sent a draft version of this decision to both parties, and invited their comments.

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What I found

  1. The Council’s complaints policy says that it is important that a remedy is provided as quickly as possible after the conclusion of an investigation.
  2. The policy goes on to say that, in cases where a remedy agreement cannot be reached between the complainant and Head of Service, the complaint should be referred to the relevant Assistant Director for a final decision.
  3. The Ombudsman’s guidance on remedies explains that our key principle is that the remedy should, as far as possible, put the complainant back in the position he would have been in but for the fault.

What happened

  1. In November 2015, the Council approved a planning application to build homes close to Mr G’s property. The Council granted the application on the condition that the developer erect a fence around Mr G’s property.
  2. Mr G started contacting the Council in March 2016, asking when the developers will start erecting the fence. Correspondence was exchanged between the Council and Mr G about this without a resolution until late 2017.
  3. In October 2017, Mr G submitted a complaint about the mater. In its response, the Council said that it had come to light that the developer had submitted an application to discharge the condition to build the fence, but this had not been picked up by the case officer. The Council said that it would work with the developer to ensure a fence was erected.
  4. In January 2018, after the fence had still not been erected, Mr G submitted an appeal seeking a final response to his complaint. Despite several emails asking for updates, a final response was not provided until October 2018.
  5. The Council’s Head of Planning Services responded. He said that the developer would not agree to erect the fence. He went on to say that the Council would authorise a payment of up to £1800 for the fence to be erected. However, payment would only be made once the work had been completed and evidence had been provided. The Council also offered Mr G a payment of £50 for the inconvenience of raising his complaint with the Council.
  6. Mr G said that he could not accept the proposed remedy, as this would mean he would need to pay for the work upfront and wait for payment from the Council. He said that he could not afford to do this, and instead asked the Council to either pay the £1800 upfront, or organise for one of its contractors to carry out the work, but the Council refused Mr G’s proposals.
  7. At this stage, the Council again approached the developers, in order to negotiate a solution. However, this approach proved unsuccessful.

Analysis

  1. The Council acknowledged that it failed to enforce a planning condition to ensure a fence was erected around Mr G’s property, and therefore needed to remedy this. The Councils proposed remedy is dependent on Mr G paying for the cost of the fence upfront, something he says he is unable to do.
  2. At the point that the remedy could not be agreed, the matter should have been referred to the Assistant Director. However, the Council have explained, that in this case it made the decision not to escalate the matter, because the Assistant Director had been involved throughout the process. This is a decision it was entitled to make and I do not find fault with this approach. However, I would consider it to have been best practice for the Council to have made Mr G aware that the remedy had been made with the approval of the Assistant Director in its communications with him.
  3. If the Council had enforced the planning condition a fence would have been erected around MR G’s property. Having considered the remedy proposed by the Council, I do not consider that the Council has put Mr G back in the position he would have been in if this fault had not occurred. This is because he is not able to proceed with the work, as he does not have the funds available upfront. I therefore do not consider this to be a satisfactory remedy. This amounts to fault.
  4. There were significant delays by the Council during the complaints process, and the Council took almost nine months to respond to Mr G’s stage 3 complaint, despite its policy which states that it aims to respond within 25 days. I do not consider that the £50 offered to Mr G reflects the length of delays in processing his complaint. This amounts to fault.

Agreed action

  1. Upon receipt of a quote for works from Mr G, the Council has agreed to:
    • Offer to pay Mr G up to £1800 to cover the cost of a fence around his property.
  2. Within one month of the date of my final decision, the Council has agreed to:
    • Offer a further payment of £200 to reflect the significant time and trouble he has been to in pursuing this matter.

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Final decision

  1. I have completed my investigation into this complaint, with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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