Summary: Mrs X complained the Council installed a ramp at a neighbouring property without planning permission. This was fault by the Council. They also complained about the action the Council decided to take. We found there was no significant injustice caused by the original fault. The planning term took the view that the breach did not cause significant harm. We found no fault in the way the planning team decided not to take formal enforcement action.

The complaint

1. Mrs X complains the Council authorised and constructed a ramp at a neighbouring property without planning permission and without consulting neighbours. She complains the ramp blocks a right of access and causes them a nuisance.
2. The Council advised Mrs X the ramp would be replaced with one of a different design. However, after obtaining planning permission for a replacement ramp, the Council has not carried out the work and Mrs X is unhappy with the Council’s decision not to take planning enforcement action.

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The Ombudsman’s role and powers

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)
4. 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

5. I spoke to Mrs X and considered the information she provided. I considered the planning situation and appropriate legislation. I asked the Council for comments and I considered its response to the complaint.
6. I sent my draft decision to Mrs X and to the Council to enable both parties to comment. I considered the comments received before making my final decision.

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What I found

7. Mrs X and her neighbour live next to each other in a terrace of houses. There is a path directly along the front of the terrace. Mrs X explained the deeds of their properties state that residents should not erect any structure in front of their houses. The deeds also prohibit residents blocking the path because they all have right of access along it.
8. In February 2018 the Council’s accessible homes team installed a timber access ramp up to Mrs X’s neighbour’s front door to access her property. The ramp has hand-rails on either side.
9. Mrs X’s husband complained to the Council that the design of ramp was inappropriate and the Council erected it without giving them a chance to comment. He stated it immediately led to mail delivery staff walking across their lawn because the rails on the ramp blocked the path in front of their houses. He complained the ramp went against the restrictions in all the residents’ deeds.
10. The Council’s accessible homes team consulted the planning department. The planning department confirmed the ramp needed planning permission. As it did not have planning permission, planning confirmed it represented a breach of planning control.
11. In August 2018 the assessible homes team submitted a planning application. It proposed removing the existing ramp and replacing it with a new one. The new ramp was in concrete with metal handrails. It proposed the handrails would not extend right up to the house, to leave the access path clear.
12. The planning department approved the new ramp design in October 2018.
13. By January 2019 the old ramp was still in position, so Mr and Mrs X complained to the Council.
14. In response to the complaint the Council acknowledged the ramp was installed without planning permission, which meant there was no consultation. It upheld this element of the complaint. The Council stated it had amended its processes to ensure site visits took place and to ensure suitable materials were used. It stated closer links were now in place with the planning department. Its response apologised for the inconvenience caused.
15. The Council also told Mr and Mrs X why the ramp was originally installed. It stated since Mr X’s complaint its accessible homes team had tried hard to resolve the situation by obtaining planning permission for a replacement ramp. It had also negotiated with their neighbour and informed her they would be prepared to replace the current ramp. However, Mrs X’s neighbour no longer consented to work on her property. So, the replacement of the ramp had not been possible.
16. The Council’s planning team explained enforcement action was discretionary. It stated action does not automatically follow if there is a breach of planning control. It explained it did not consider it should take enforcement action.
17. Mr and Mrs X explained the impact to them was the appearance of the ramp and that when post was delivered, the delivery people now walked across their lawn. This is because they can no longer use the footpath directly along the front of the terrace.

Relevant Legislation

The National Planning Policy Framework (NPPF)

18. Paragraph 58 of the NPPF states “Effective enforcement is important to maintain 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.”

Analysis

19. One of the Council’s functions is to act as the Local Planning Authority. So, it is inappropriate that another of its functions should take action which leads to a breach of planning control. The failure to apply for planning permission for the ramp before erecting it was fault by the Council.
20. If the Council had applied for planning permission it would have been publicised and it would have given residents a chance to make comments before the application was decided.
21. In situations like these, Councils, acting as planning authorities, commonly ask developers to submit retrospective planning applications. In this case the accessible housing team applied for planning permission to replace the existing ramp with one of a similar design in different materials. The action taken by the planning team to consider a retrospective application was in line with normal planning practice.
22. However, Mrs X owns her own property, it is not owned by the Council. So, while the accessible homes team obtained planning permission to install a replacement ramp, the work itself is only possible with the home owner’s consent. The accessible homes team could not gain consent to replace the ramp, so it could not implement the work it intended to. The accessible homes team have no power to force the home owner to replace the ramp.
23. Because of this the original ramp remains in place and this still constituted a breach of planning control.
24. Councils have a duty to consider any breach of planning control and they must decide what action to take. However, they are not obliged to take formal enforcement action solely because there is a breach of planning control. Rather, they must consider the circumstances and decide whether action is proportionate and necessary in individual cases.
25. I am satisfied that the Council has considered the enforcement situation properly. I say this because there is evidence the planning team considered the relevant factors when reaching its decision. The enforcement officer noted the appearance and scale of the original ramp and whether it is in keeping with the area. They also considered the purpose for which the ramp was installed and comments from Mr and Mrs X. They noted the principle of a ramp had been approved, albeit with a different design.
26. The officer decided, although the appearance of the ramp was not appropriate and it was a breach of planning control, it did not cause a significant degree of harm. They decided the level of harm caused did not justify formal planning enforcement action. This was a judgement that the officer was entitled to make. As it was properly made, I do not have grounds to question it.
27. I recognise Mr and Mrs X noted their deeds include a requirement not to block the path in question. Covenants and private access rights are not issues the planning system can protect or address. As a result, the contents of the deeds do not give the Council any grounds for taking planning enforcement action.
28. Installing the ramp without planning permission was fault by the Council. However, I found this did not lead to significant injustice to Mr and Mrs X. The planning team decided the impact was not sufficient to warrant formal enforcement action. I found no fault in the way the Council responded to the situation or decided against taking enforcement action.
29. I note the Council has taken steps to avoid a similar situation occurring in future.

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Final decision

30. There was fault by the Council. However, I found this did not lead to significant injustice to Mr and Mrs X. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman