Summary: Mr X complained the Council failed to take action about unauthorised development by his neighbour. We found the Council’s decision not to take action was flawed. We recommended the decision was reviewed and the Council paid Mr X £250.

The complaint

1. Mr X complains the Council unreasonably failed to take action in respect of earthworks undertaken by his neighbour on a hillside above his property. He says the hillside is prone to landslips, the earthworks are unstable and landslips are a risk to him and his property.

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The Ombudsman’s role and powers

2. 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)
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

4. I spoke to Mr X and considered the information he provided. I made enquiries of the Council and considered its response to the complaint. I sent my draft decision to Mr X and to the Council to enable both parties to comment. I considered the comments I received.

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What I found

5. In May 2018 Mr X made a report to the Council about works his neighbour carried out (I have referred to Mr X’s neighbour as Mr Y in this statement). Mr X lives on a hillside and Mr Y’s property is on the hill above his.
6. Mr X stated over a period of time Mr Y dug out the area behind his house. He deposited the earth on the slope to the front of his house; this was below Mr Y’s house, and above his house. Mr X estimated his neighbour had moved hundreds of tonnes of earth.
7. Mr X said he had taken advice. He said some earth Mr Y moved last year was sliding slowly down the hill and he was concerned the earth could come down upon his property, particularly if there was heavy rain. He asked the Council to investigate.
8. An enforcement officer visited Mr Y. Mr Y told him they had cut out several bands of soil to create a stronger bank [behind his property] which was shortly to be supported by a retaining wall of metal posts and railway siding panels. The spoil had been deposited further down and had created a 45-degree slope where previously it was a sheer drop.
9. The notes stated “He [Mr Y] thought the works were landscaping, but advised that we were way beyond that and I believe it to be operational development thus requiring planning permission”.
10. The enforcement officer discussed the case with his manager and wrote to Mr Y on 1 June. He told Mr Y the works constituted operational development and they were unauthorised. He gave Mr Y a month to put in a retrospective planning application. He extended this by a further month following a request for more time from Mr Y.
11. In August the enforcement officer wrote a report concluding it was expedient to take formal enforcement action. The officer’s report noted two relevant policies; SD1 and LD1.

12. Policy SD1 concerns sustainable design and energy efficiency. Part of the policy states development “should also not contribute to or suffer from, adverse impacts arising from land instability or cause ground water contamination.”
13. Policy LD1 refers to the need to conserve and enhance the scenic beauty of important landscapes. This includes Areas of Outstanding Natural Beauty. It says development proposals should incorporate new landscape schemes…to ensure development integrates appropriately into its surroundings.

14. The officer noted there were signs of instability of the land and there had been no attempt to safeguard neighbouring properties or protect the landscape. He noted the site was in the Wye Valley Area of Outstanding Natural Beauty.
15. As Mr Y had not put in a retrospective planning application, the officer decided the Council should issue a formal enforcement notice.
16. However, Mr Y submitted a request for pre-application planning advice on 17 August. As a result of the request, a Development Manager reviewed the case, visited the site and wrote to Mr Y. His letter stated:

“I consider that the nature and extent of the re-grading is particularly relevant. Whilst the work was being undertaken, the visual appearance of un-vegetated bank was quite dramatic in appearance but it appears to me that it has been re-profiled and graded in a manner that is not dissimilar to the original landform and the reseeding of the embankment has been successful such that it is not entirely evident that any significant work has been undertaken and there is certainly no sense that the works have materially changed the appearance of the site of adversely affected the wider landscape setting. I therefore consider that on balance, the extent of the work undertaken to date is such that it would not constitute development, since it broadly preserves the appearance of the site.”

17. The Development Manager stated “I recognise that the main concern arising is the potential instability of the deposited soil but this in itself is not a reason for veering from the position I have set out above”.  He stated the instability was something Mr Y should satisfy himself of, in terms of any residual risk of possible damage to his neighbour’s property should the worst happen.
18. The enforcement officer wrote to Mr X on the same day, 25 September. He stated the situation had been discussed with the Development Manager. His opinion was that the movement of soil by Mr Y was not development, so no further action would be taken.

Mr X’s complaint

19. Mr X engaged a solicitor. They wrote to the Council in mid-October questioning the change in the Council’s view. The solicitors stated a conservative estimate of the area of earth deposited to the front of Mr Y’s property would be around 30m long by 3m high, 1.5m deep, 135 cubic metres. They stated there had been movement already and the danger of landslip was obvious.
20. Mr X complained on 19 November because the Council had not responded.
21. The Council replied on 5 December and apologised for the failure to reply to his solicitor. The Council re-iterated what the Development Manager had decided. It stated he had decided the work did not require planning permission, because it did not constitute ‘development’.
22. Mr X was dissatisfied. The Council stated it had nothing to add to its previous response. It stated the Development Manager was of the view the works were incidental albeit on a grander basis than normal. He felt the general appearance of the site was not out of character with the area. Accordingly, the works undertaken did not require planning permission.

Relevant Legislation/Background

The National Planning Policy Framework (NPPF)

23. 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.”
24. A breach of planning control occurs when someone has carried out ‘development’ without the required planning permission. Planning permission can be through ‘deemed’ or ‘express’ consent. Deemed planning consent is permission that exists through permitted development rules. Express consent is permission that is granted by the local planning authority as a result of a planning application.

Analysis

25. I found no fault in the way the enforcement officer investigated or reached his initial decision. He conducted a site visit and decided the works carried out by Mr Y were significant and constituted ‘development’. He allowed some time for him to submit a retrospective planning application. When this was not forthcoming, he recommended issuing an enforcement notice. He explained his decision in the context of relevant planning policy. These were appropriate and proportionate actions to take.
26. However, I found fault the decision reached by the Development Manager in September 2018 was flawed.
27. It is not necessarily fault for a council to change its view on a planning matter. However, we would expect there to be clear, valid reasons for doing so.
28. The Development Manager’s letter of 25 September set out the Council’s revised position. In it he stated because the appearance of the site was broadly preserved by the works Mr Y carried out, they did not constitute ‘development’.
29. The Development Manager confused the question of whether development had occurred with the impact of that development. This was fault. There is a need to first decide if development has occurred before going on to consider its impact. The appearance of the site after works had been carried out is not a deciding factor in whether Mr Y has carried out ‘development’ works in the first place.
30. Councils are not obliged to take enforcement action if they find there have been breaches of planning control. So, the Council could have decided not to take formal enforcement action if it considered the appearance of the area was not detrimentally affected by unauthorised development referencing Policy LD1. However, this is not what the Development Manager decided. Also, if this was its intention, it could not have reached a decision not to take action based on policy LD1 alone. It would have been necessary to consider the Council’s policy SD1 and the issue of land stability. There is no dispute that the safety and stability of the bank is a material planning consideration.
31. The Council confirmed land stability was not an issue the Development Manager considered because of his decision that there had not been ‘development’.
32. The Council’s position is further confused by its statement in response to our enquiries that the work Mr Y carried out had deemed consent under permitted development rules. The Development Manager’s letter makes no reference to permitted development. This is not the decision the Council reached in September 2018. The letter stated the works were not considered ‘development’. If development has not occurred, it needs no planning consent, deemed or otherwise.

Agreed action

33. Within four weeks of my final decision, the Council agreed to arrange for a senior officer of a neighbouring planning authority to;
1. Review its decision that the works by Mr Y did not constitute development. This should take account of the works to the front and rear of Mr Y’s property.
2. If they conclude that development has occurred, to properly consider whether enforcement action should be taken and what action(s) the Council should take.
34. The Council agreed to apologise to Mr X and pay him £250 to recognise the time and trouble he spent pursuing the complaint. It should do this within four weeks of my final decision.

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Final decision

35. There was fault by the Council. As the Council has agreed to take the recommended actions, I have completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman