Summary: Ms Y complains about the process followed by the Council when enforcing against breaches of planning control at a site close to her home. There was fault because the Council incorrectly drafted two Enforcement Notices. This meant Ms Y suffered injustice in the form of overlooking and noise from the car park. The Council has agreed to pay £1800 in recognition of the impact on her amenity and a further £200 for Ms Y’s time and trouble. There was no fault in the other matters complained about.

The complaint

1. The complainant, whom I will call Ms Y, complains about the process followed by the Council when dealing with breaches of planning control at a site close to her home. In particular, she says:
• the Council issued two defective Enforcement Notices against the site, both of which were later quashed by the Planning Inspectorate;
• the Council’s Planning Committee gave assurances in October 2017 that the Council would pursue formal enforcement action to ensure permanent removal of the car park. Despite this, the Council later decided to ‘under-enforce’ and issued a third Enforcement Notice which Ms Y says is defective and does not mitigate the impact on her amenity;
• the Council issued a last-minute Addendum to the Committee Report, thus hindering her preparation for the April 2018 meeting;
• she was asked to speak first at the April 2018 Planning Committee meeting, which Ms Y says was disadvantageous. Ms Y also says the Council did not allow her the full two minutes speaking time; and
• the Committee considered irrelevant, non-material matters when making its decision. Ms Y says this calls the Committee’s decision into question.
2. Ms Y says she has suffered injustice in the form of lost amenity because of the Council’s ineffective enforcement. She says she has suffered lost privacy and noise from people using the car park and the vegetation also used to screen her view of nearby flats.

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The Ombudsman’s role and powers

3. 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)
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. During my investigation I have:
• Discussed the complaint with Ms Y and considered any information she submitted;
• Made enquiries of the Council and considered its response; and
• Consulted any relevant planning law and guidance.
6. Both parties had a draft of this statement and were invited to comment on it. I have taken into account the comments of Ms Y and the Council.

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What I found

Brief background information

7. In 2012 a business behind Ms Y’s house demolished a single storey hut without first seeking planning consent from the Council. The business also removed a 1.8 metre timber fence which had previously prevented vehicle access to the area where the hut had stood.
8. After demolishing the hut, the business owner tarmacked and used the land to extend an existing car park. In doing so, Ms Y says her residential amenity has been adversely affected. From both her home and rear garden Ms Y is now able to see the business premises, the car park and the increased vehicle access as well as a nearby block of apartments previously screened by the hut and fence.
9. Ms Y made several reports to the Council between 2012 and 2015 about the alleged breaches of planning control. The Council decided the use of the land for car parking needed planning permission as it represented a change of use.
10. Ms Y complained to the Council about its failure to effectively enforce against the breaches. Dissatisfied with the Council’s response, Ms Y complained to the Ombudsman. I will consider her complaints below.

Enforcement notices

11. After looking into the reported breach, the Council invited the business owner to put in a retrospective planning application to regularise the change of use. They refused. The Council decided it was expedient to pursue planning enforcement action and issued an Enforcement Notice on 21 October 2015. This said:

“without planning permission, within the last four years, the laying of hardstanding…and its resulting use for the parking of vehicles in unacceptable detriment to the amenities of the neighbouring residential properties…the Council do not consider that planning permission should be given because planning conditions could not overcome these objections….What you are required to do:

1. “Permanently cease the use of the land for car parking”
2. “Erect a fence in the location shown marked in a blue dotted line on Plan 3”
1. The Council withdrew the above Notice after receiving a letter from the Planning Inspectorate (PI) raising concerns about the compliance of the Notice. The PI said “… items not covered in the allegation are introduced and the allegation itself is not addressed. The requirements cover a use of the land, not the operational development as detailed in the allegation…”
2. Following this, the Council issued an amended Notice on 9 December, which instructed the business to:
1. “Permanently cease the use of the hardstanding for car parking. The approximate position of which is shown for identification purposes only, marked as ‘A’ and outlined in blue on the attached Plan 2”
2. “Erect a wooden fence of between 1 metre and 2 metres in height in the location shown marked in a blue dotted line on Plan 3”
3. The business appealed to the PI. The PI upheld the appeal in October 2016 due to non-compliant wording which made the second Notice invalid. The PI also found the Council had acted “unreasonably” in issuing a second Notice with the same flaws as the first Notice, despite being aware of the inconsistences.
4. The Council’s Planning Committee met in October 2017 to consider whether the Council should issue a third Enforcement Notice. Ms Y attended the meeting with her legal representative and presented her representations; namely about the impact on her amenity and the effect of the non-compliant Enforcement Notices previously issued. The Committee agreed:

“Members sympathised with the neighbouring resident, [Ms Y], and appreciated her concerns due to the property’s close proximity to the hardstanding, and given the history of the case, felt enforcement action would be necessary. After some discussion, the Head of Planning and Development suggested an alternative solution to address the issues raised by the neighbour and the car park issues for the business. The Officer stated the Committee could agree to proceed with the Enforcement Notice, but the Notice could contain certain conditions to allow the car parking use to continue whilst mitigating the harm to the neighbouring resident. Members agreed with the Officer’s revised recommendation”

16. Following the Committee meeting, the Council met with the business owner in November 2017. The Council then contacted Ms Y’s legal representative with a draft copy of a proposed Enforcement Notice. Ms Y’s representative said the Notice seeks only to replace the fence, but not in its original position, defeating the purpose of protecting Ms Y’s amenity.
17. After corresponding with all affected parties, the Council’s Planning Committee met again to consider the proposed third Enforcement Notice. Ms Y attended with a relative and both presented their objections. Ms Y complains about the conduct of the meeting, but I will address that complaint separately in the section below.
18. The Council proceeded with the third Enforcement Notice in May 2018, which stated:

“without [planning permission], the unauthorised change of use of part of the land from a D2 use to a mixed use for parking, and parking ancillary to the D1 use of a building at the land as a clinic (health centre). As part and parcel of and integral to the unauthorised change of use, the laying of hardstanding …is a material change of use requiring planning permission. No application for [planning permission] has been made for that change of use and the use is therefore unlawful”

1. “Cease the use of the part of the land hatched blue on plan 2 for the parking of any vehicles other than for a purpose ancillary to the D1 use of a building at the Land [business type removed]”
2. “Erect and maintain a closed panel wooden fence of at least 1.8 metres in height in the location shown”
3. “Maintain the existing planting bed with a mixture of shrubs and trees with a width of 2.44 metres and a length of 13.65 metres in the location shown…”
1. Ms Y complains that, even after putting forward her objections and explaining why the Notice would not serve the required purpose, the Council proceeded to issue. She says the Notice is ineffective because it does not remedy her lost amenity.

Was there procedural fault causing injustice to Ms Y?

20. It was administrative fault for the Council to issue two non-compliant Enforcement Notices in 2015 and 2016. I am mindful the oldest of these events dates back four years. The Local Government Act 1974 says the Ombudsman should not investigate matters which the person affected has been aware of for more than 12 months, unless there is good reason to do so. For example, if it was not reasonable for the person to have complained to us sooner.
21. Ms Y says she had no cause to complain in 2015 and 2016 because she believed the matter would be resolved with an effective Enforcement Notice. Ms Y says she only had cause to complain from mid 2018 when the Council issued its third and final Enforcement Notice. It was from this point Ms Y says she realised the matter would not be resolved to her satisfaction. As the injustice Ms Y claims has been ongoing, I have exercised my discretion to consider matters from the first Enforcement Notice.
22. The fault with the Enforcement Notices means that Ms Y’s amenity has been impacted for longer than necessary. Had the Council issued compliant notices when it first identified the breach of planning control in 2015, the fence and planting would have been reinstated much sooner. The PI concluded the Council had acted unreasonably in continuing to pursue a Notice which was not legally compliant. I am also mindful that Ms Y experienced avoidable time and trouble in pursuing matters for longer than necessary.
23. Ms Y also claims for loss of earnings for the period in question, but the Ombudsman does not have the same powers as the Courts to compensate for any such loss. We ask councils to make token payments to recognise the effects of injustice, unless there is clear quantifiable loss arising directly from the fault identified. I do not consider the Council’s fault has caused quantifiable loss.
24. Instead, the Ombudsman’s ‘Guidance on Remedies’ suggests the following approach:

“Where a loss of amenity was temporary (for example, pending remedial or enforcement action), we normally recommend a payment in the range of £75 to £350 a month, taking account of the severity of the loss and the circumstances of the complainant. So a lack of screening might cause a moderate loss of amenity at the lower end of the range where there was no overlooking and the complainant was out during the day; but the loss of amenity would be at the higher end of the range where a lack of screening caused window-to-window overlooking, and therefore a significant loss of privacy, to a housebound complainant”

25. There are 30 months between the first defective notice and the compliant notice eventually issued in 2018. When calculating a remedy for this case I have discounted six of these months. This is because the business owner was entitled, according to the terms of the Notice, one month to comply. I have discounted a further three months because I consider this would be a reasonable period for the Council to have re-drafted the Notice following the PI’s ruling. The business owner would again have one month to comply from the date of any new notice. I have also discounted an additional month because there was some delay in correspondence from Ms Y’s legal representative in late 2017.
26. I have considered Ms Y’s claimed injustice and how she says the enjoyment of her home has been impacted. We can measure the extent of that injustice because we now know the terms of the third Notice. The main loss to Ms Y was screening and planting. The Council, using its professional judgement, has not asked for the removal or restriction of the car park as Ms Y would have hoped for. Because of this, I consider Ms Y is entitled to a payment at the lower end of the recommended scale for 24 months. This amounts to £1800.
27. In addition, the Council should also apologise and pay £200 for the avoidable time and trouble Ms Y went to during this period, and for the effects of its delay in handling Ms Y’s corporate complaint.
28. In addition to her complaint about delay, Ms Y also complains about the contents of the third Notice. She argues the Notice is ineffective and is further evidence of procedural fault. I have considered Ms Y’s argument. I am not persuaded that there is fault as Ms Y suggests.
29. Planning law and guidance gives councils wide discretion around enforcement. Councils may decide not to formally enforce, even when it is satisfied a breach of planning control has occurred. Councils may also decide to ‘under-enforce’ as explained in the Government Guidance ‘Enforcement and Post Permission Matters’:

“A local planning authority may decide not to require action be taken to remedy the whole of a breach of planning control. This is known as “under enforcement”.

Where an enforcement notice identifies a breach of planning control which could have required any buildings or works to be removed, or an activity to stop, but has stipulated some lesser requirements, and all the requirements of the notice have been complied with, then planning permission is deemed to be granted for those remaining operations or use (section 173(11) of the Town and Country Planning Act 1990)”.

30. In this case, the Council decided there was a breach and that it was expedient to under-enforce via an Enforcement Notice. While I appreciate Ms Y’s dissatisfaction with the Notice, the Ombudsman cannot interfere with the professional judgement of officers and we cannot question the merits of the decisions they make, unless there is procedural fault which undermines that decision. Based on the evidence seen so far, there is no such fault in this part of the complaint and so the merits of the third Notice are not open for us to question.
31. In response to the draft decision statement Ms Y said that I had not taken into account the degree of overlooking and that previously the car park was smaller and further away, and she was screened from it. However, any remedy must flow from the injustice caused by the Council’s shortcomings. In this case, there is no basis for me criticise the Council’s decision making, apart from that it took too long and it issued defective notices. Had the Council not made these mistakes, it would have made its decision that the car park could stay with suitable screening much sooner. It is the difference between the larger car park unscreened and screened that Ms Y has had to suffer unnecessarily. This means the remedy cannot take into account that the car park has been extended or that the hut has been demolished.

Committee meeting and its decision

32. The Council notified Ms Y that it intended to put the matter of the third Enforcement Notice before its Committee. The Council confirmed the proposed date, giving one month’s notice. Following internal discussions with its legal services, the Council sent a copy of the proposed third Enforcement Notice to Ms Y and her legal representative eight days before the scheduled meeting.
33. Both Ms Y and her representative argued that the third Notice failed to mitigate the impact on her amenity. Ms Y’s representative referred to planning legislation and case law to explain why she felt the Notice was not compliant.
34. Following consideration of those points, the Council consulted with its legal services and made some changes to the wording of the Notice. It shared the updated Notice via an Addendum with Ms Y and Committee members three hours before the scheduled meeting. The Addendum proposed the following changes to the draft Notice:
• amended and clarified the position of the proposed fence
• sought retention of existing planting, rather than planting subject to a landscaping scheme
• parking to be ancillary to the building
35. After considering the officer’s report, the representations received and the Addendum, the Committee voted in favour of the third Enforcement Notice. The Council issued the Notice in May 2018. The Council says it is satisfied the business owner has now complied with the Notice, and so there is no further action for it to take.

Was there procedural fault causing injustice to Ms Y?

36. Ms Y raises the following complaints about the Planning Committee’s decision:
• Ms Y was asked to speak first, which was disadvantageous.
• the Council submitted the Addendum too late
• the Council did not allow her the full speaking time
• the Committee considered irrelevant, non-material matters when making its decision.
37. The Council’s published ‘Public Speaking at Planning Committee’s’ Procedures’ state that, “The order, and time allowed, for speaking at meetings will be:
• Objector(s) maximum of three speakers, 2 minutes each
• Up to 2 Ward Councillors or 1 and an adjacent Ward Councillor (or in exceptional circumstances another Councillor) 5 minutes each. Or at Chairman’s discretion if appropriate
• The applicant or agent/supporters: maximum of three speakers, 2 minutes each
• The Committee, to discuss the planning application, involving the officers as necessary: no time limit at the meeting”
38. But, conversely, the Council’s website suggests a time limit of three minutes per speaker.
39. There was no fault in response to point a) because the order of speaking was in accordance with the Council’s published procedures. I appreciate Ms Y feels this was disadvantageous, but it is not evidence of procedural fault. Having considered the audio recording of the meeting, there was no fault with the duration of time allocated to Ms Y for her oral representations. Although there is some inconsistency with the information published by the Council, I am satisfied that Ms Y had at least three minutes to present her objections. The audio reveals that Ms Y started speaking before her microphone was in place, but this was accounted for as Ms Y spoke for a total of 3 minutes 20 seconds. Ms Y was not interrupted or stopped by the Chair, and did not ask for additional time.
40. In response to my enquiries the Council said, “The Addendum and revised notice was prepared after the publication of the agenda and in response to comments from [Ms Y]. The notice however was very similar in terms of steps required to mitigate the harm to the notice and email correspondence with [Ms Y] and her legal adviser some months before.   
41. I have referred to the Council’s Constitution, as well as the government’s guidance 'Probity on Planning’. Neither of these set out any timescales for submissions to Committee members. I agree with Ms Y that giving three hours’ notice of the proposed change is short. However, I am also mindful that the changes between the two Notices were relatively minor and had sought to clarify issues which Ms Y and her representative had previously raised, such as the position of the fence and details of the planting. Furthermore, Ms Y did not raise any concerns about the short notice or request an adjournment during the Committee meeting. I find the short notice did not create the injustice Ms Y claims.
42. Finally, Ms Y says the Committee considered irrelevant and non-material matters when making its decision. She says the report presented to Committee:
• incorrectly paraphrased the original planning permission granted in 1990
• failed to consider the option of restricting the hours of parking use
• refers to Ms Y’s strong contention, suggesting she is uncompromising
• places emphasis on there being no other objections to the breach
43. Having listened to the audio recording, I do not agree the Committee’s decision was impacted by irrelevant or non-material factors. There was adequate discussion about the original planning permission and background information within the report which would have assisted the Committee in making its decision. Ms Y also made it clear that it was her intention to seek restriction of the hours of use. The officer clarified to members why, in the Council’s view, a restriction of use was not possible.
44. Whilst one Councillor did ask whether other neighbours had complained, I do not consider this was an irrelevant consideration which impacted on the decision. The Committee’s role was to consider the degree of harm caused by the breach and whether the Notice was enough to mitigate this. I do not think it was unreasonable for members to clarify whether other neighbours also living alongside the boundary had raised similar concerns.
45. Nor do I consider that Ms Y was portrayed as being “uncompromising”. To the contrary, some Councillors appeared to sympathise with her position and expressed a desire to seek a long-term resolution.
46. It was for the Committee to determine whether the officer report and presentation were misleading or irrelevant. The Committee had the option to defer the application and further consider the matter if enough members were persuaded by Ms Y’s representations. But the Committee decided to vote on the application and approved it. Whether the Committee’s judgement was right or wrong is not for the Ombudsman to now adjudicate

Agreed action

47. Within four weeks of my final decision, the Council will show the Ombudsman it has:
• Apologised and paid £1800 to Ms Y for the loss of her residential amenity in the period identified;
• Apologised and paid a further £200 to Ms Y for the delay in its complaint handling and her the avoidable time and trouble caused by the Council’s delay; and
• Reviewed the wording on its website regarding the public speaking times to ensure this is consistent with the wording in the Constitution.

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Final decision

48. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions remedy the injustice caused by Council fault.

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Investigator's decision on behalf of the Ombudsman