Summary: Mr X complained about the Council’s inconsistent position in relation to enforcement action that led to an unnecessary planning application. The Ombudsman has found the Council to be at fault because it missed a number of opportunities to change its position earlier than it did. The Ombudsman has also found the Council to be at fault because it failed to properly explain its decision to alter the site boundary on the decision notice. To remedy the injustice caused by these faults, the Ombudsman has recommended the Council should, apologise, make a payment to Mr X and reconsider the site boundary issue.

The complaint

1. Mr X complained about the Council’s inconsistent position in relation to enforcement action and the need for an unnecessary planning application. In particular, he says the Council:

• Failed to notify him of its intention to not take enforcement action in respect of his home.
• Considered his recent planning application on a different basis to that submitted and to previous advice given by other officers.
• Altered the boundary line on the recent decision notice compared to the original planning consent.

2. This has led to considerable time, trouble and expense for Mr X, as well as uncertainty going forwards.

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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. 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)
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 discussed the complaint with Mr X’s representative and considered the written information he provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint.

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What I found

7. Local planning authorities have no duty to monitor development but, if they receive a complaint about a breach of planning control they have a duty to investigate. Breach of planning control includes failing to comply with conditions attached to a planning permission.
8. The authority has powers to take action but it has no duty to do so. Enforcement action is discretionary.
9. The Ombudsman cannot intervene in discretionary decisions or professional judgments made by officers where there has been no fault in the administrative process, even if we may have made a different decision on the same facts.
10. A lawful development certificate is a certificate issued by a local planning authority under either section 191 or 192 of the Town and Country Planning Act 1990 certifying either that:

• an existing use of buildings or other land, or some operational development, or any other matter constituting a breach of a planning permission, is lawful, or
• a proposed use of buildings or other land, or some operations proposed to be carried out in, on, over or under the land, would be lawful.

11. The lawful development certificate specifies a particular area of land, by reference to a plan or drawing, and confirms that the specified use or operations have been or can be carried on lawfully at the date of the application for the certificate. So, a common use is to certify that an ongoing breach of planning condition or development carried out without planning permission is now lawful.

What happened

12. Mr X applied and was granted planning permission to convert outbuildings into a habitable dwelling in October 2013. The work was completed in May 2014. The development included an area of raised decking.
13. In November 2015, his neighbour made a complaint to the Council about this decking. An officer (Officer B) from the Council’s enforcement team carried out a site inspection and took the view there had been a breach of planning permission because he said the decking was not included in the 2013 planning permission.
14. Officer B told Mr X that in order to retain the decking he should submit a retrospective planning application. He was also advised to include any other alterations/additions he had made within the same application.
15. Mr X’s planning consultant (“the Consultant”) contacted Officer B to explain the decking was included on the original plans and so did not need a further application. He said the planning department had been fully aware of the decking at the time of the application.
16. Officer B responded by saying, “nothing has changed I am afraid. The decking platform was not on the plans approved so you will need to submit a retrospective application to regularise the work. Failure to do so may result in enforcement action being taken against the property”.
17. Neither side took any action for a year. The Consultant contacted the Council in January 2017 to see if the Council maintained its position. He asked if the decking could be considered a “non-material amendment” which did not involve a full planning application. By this time Officer B was no longer working with the Council so this request was considered by a different officer. This officer said the Council’s position remained the same.
18. Mr X continued to try and discuss the matter with the Council. He says he was unable to contact a different council officer who was by that time dealing with the case. He says this officer did not reply to calls or emails.
19. Mr X remained concerned about his property being in breach of planning consent and wanted the matter resolved. He was frustrated by the Council ignoring his attempts to do so. He discussed the matter with his Consultant.
20. They agreed the only way of bringing the matter to a satisfactory conclusion was to make the planning application for a lawful development certificate (“LDC”) on the basis the decking was immune from enforcement action as it had been in situ for over four years.
21. The new planning application required an updated survey and CAD plans. The consultant’s professional fees were over £1000.
22. The application sought to regularise a number of other aspects of the development that, as built, did not conform to the original planning permission.
23. The Council’s case officer considered the application and prepared a report that recommended the application should be approved.
24. The case officer report determined some alterations to the scheme were minor. But in terms of the main contentious issue, the decking, the report stated:

• The initial view of the Council was that the decking did not have planning permission, contrary to the opinion of Mr X.
• This view was later reconsidered by the enforcement team who decided the decking was included and so the enforcement case was closed.
• The case officer agreed with this latter view and that “the original planning permission was implemented”.

25. This application was approved by the Council in November 2018.
26. The reason for approval was that, “the development that was carried out does not considerably exceed the terms of the permission and is considered lawful”.
27. While pleased their application had been granted, Mr X was surprised by this rationale. In his view it meant the application had been unnecessary.
28. Mr X was also disappointed to see there was a discrepancy about the accuracy of the plans attached to the decision notice. The red boundary line was in a different position to the plan he had submitted. Because of the unexpected basis upon which the Council determined the application, this created further uncertainty for Mr X. He complained to the Council.

The complaint

29. The Council partially upheld the complaint. It said the enforcement case should have been closed earlier. In any event when it was closed in April 2018, Mr X should have been notified. The Council offered Mr X £150 as a “time and trouble” payment for this error.
30. The Council did not uphold the rest of his complaint. The complaint responses made the following observations:

• The 2018 planning application for the LDC from Mr X stated the conversion, “did not fully conform to the approved conversion design”. From this the Council took the view Mr X had effectively agreed with Officer B.
• No enforcement action was taken in 2015. Mr X was just advised to regularise the breach by a further application.
• Officer B’s judgement was incorrect. However, the 2018 application was not made in response to this as it came three years later.
• The Council made an objective assessment on the application as it was made in 2018, instead of any previous decisions
• The Council initially accepted there was a discrepancy between the site location plan attached to the 2018 application and the later plan produced by the Council and apologised for this. But there was still inconsistency between the plans submitted with the original planning application, so the officer sought to use her discretion and ensure the plans reflected the current position. Mr X was advised to submit a further LDC application to address the problem if he thought this was necessary.

31. In response to an earlier draft decision, the Council explained that the 2018 application was submitted on the basis that the development, as built, did not comply with the approved plans. The Council said, “the application sought to encompass a much greater element i.e. the whole building”, not just the decking.

Analysis

32. There are two potential areas of fault in addition to that already accepted by the Council. I will address them below.

The enforcement issue

33. The Council has accepted there was some fault by failing to tell Mr X that it did not intend taking enforcement action and offered £150 to remedy the limited injustice caused by this.
34. Mr X says this is inadequate. He says the fault lay in another two areas:
1. Officer B’s incorrect original decision about the decking.
2. The Council’s failure to review this decision on a number of occasions.
35. As stated at paragraph 8 above, enforcement action is discretionary. Officer B made a professional judgement that enforcement action may be necessary and so gave the advice he did to submit a further planning application.
36. Normally the Ombudsman would not interfere with this type of professional judgement. But the Council has already accepted Officer B made a mistake but failed to tell Mr X. At the very latest this should have been communicated to Mr X when the enforcement case was eventually closed in April 2018.
37. This would have prevented the necessity for the recent planning application.
38. I do not accept the Council’s argument that this application, because it was made some years after Officer D’s original decision, was not one the Council could be held responsible for. The case records show both Mr X and the Consultant tried to engage with the Council to change its position on a number of occasions in the intervening period. It is disappointing that some records are missing but those I have seen favour Mr X’s version of events that he tried to discuss the matter with the relevant officer, but she did not reply.
39. It is entirely understandable why Mr X was so frustrated by this. Not only was he correct in his assessment about the decking but no one at the Council was available to talk to him about it. Again, he was understandably worried about what action may be taken against him if he did nothing.
40. The Council assessed the application in 2018, effectively with fresh eyes. I do not criticise the Council for doing so. It could not have agreed with Officer B’s interpretation when the new case officer held a different view.
41. But this was not a case of officers making a different discretionary decision based of the same facts, both being valid. Officer B was wrong when he decided the decking was not included in the original application. To the Council’s credit, it has accepted Officer B made an incorrect decision.
42. The Council had ample opportunity in the following three years to correct Officer B’s mistake but failed to do so. This is fault.
43. Where the Ombudsman makes a finding of fault he must then decide if this fault led to a significant injustice to the complainant that requires a remedy.
44. In deciding on a remedy, wherever possible the Ombudsman aims to put the complainant in the position they would have been in had the fault not occurred.
45. Mr X says his injustice was an unnecessary and expensive planning application.
46. The Council has put forward a counter argument that the decking was only one of many aspects of the development that did not comply with the original planning permission. For this reason, the Council should not be responsible for the costs of the whole application.
47. In reaching my decision about this I have considered the planning statement submitted by Mr X with his application. This sets out a number of differences between what was approved and the reality on site. The statement says, “material discrepancies exist for all four aspects of the building’s principal elevations so every face of the dwelling house is different to the design detailed within the planning permission”.
48. I have taken this into account when making the recommendation below.

The boundary line issue

49. I have found the Council’s position about this to be confusing and, in part, contradictory. On the one hand it had apologised for the decision plan being different to that submitted. Later the Council said that the planning officer had used her discretion to amend the plans to reflect the reality of the site and so there was no fault.
50. The Ombudsman cannot interfere with this type of discretionary planning decision. But I have found the Council to be at fault by its contradictory explanation. I cannot say with any certainty whether the planning officer was correct or not in what she did.
51. In reaching my decision about this I have also had regard to an internal email from this planning officer to her supervisor asking for the case to be taken off her because she was doing work that was beyond her pay grade. This suggests she may not have had the necessary expertise and experience to make the decision she did. The Council has strongly rejected this suggestion.
52. On balance, I have decided this, together with the contradictory explanation meant there is uncertainty about her decision. This is fault. While I am unable to make a recommendation that the plans should be changed, the remedy below seeks to address the uncertainty caused which is the injustice here.

Agreed action

53. To remedy the injustice caused to Mr X, the Council has agreed to take the following action within four weeks from the date of my final decision:

• Apologise in writing to Mr X.
• Pay Mr X £500. This being part of the cost of the fee he paid to his consultant to make the 2018 planning application. This sum reflects the fact the application related not solely to the decking area but sought approval for a number of other aspects of the development.
• Pay Mr X £206. This represents a partial refund of the application fee that would have been payable had it been made solely in respect of the decking.
• Pay Mr X a further £100, in addition to the £150 already offered to acknowledge his time and trouble bringing this complaint.
• Reconsider the issue of the amended boundary line. This should be done by a senior planning officer. Mr X should be invited to make additional comments about it, including the potential consequences to him. If the Council decides its original actions were incorrect and a further planning application is necessary to rectify this, the Council should cover the cost of such an application.

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Final decision

54. The Council was at fault in the way it dealt with an enforcement case and related matters. The Ombudsman has recommended a suitable remedy.

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Investigator's decision on behalf of the Ombudsman