Hartlepool Borough Council (19 001 590)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 10 Sep 2019

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s lack of enforcement action for breaches of planning control by his neighbour. The Council failed to properly record its ongoing consideration of the action it should take. However, this did not impact the overall outcome as the breaches were non-material and have been regularised. The protracted timescales involved in resolving this issue were not due to fault by the Council. It has agreed to issue a staff reminder about record-keeping.

The complaint

  1. Mr X complained the Council did not respond properly to his concerns his neighbour was not building their outbuilding in line with the planning permission the Council granted in 2017. He is concerned the neighbour plans to use the outbuilding for commercial purposes. He says the development has impacted on his privacy. He had to pay for a solicitor and CCTV.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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

  1. I considered the information Mr X provided.
  2. I made enquiries of the Council and considered the comments and documents it provided.
  3. I looked at the relevant law and guidance, including the National Planning Policy Framework (2018).
  4. I considered the Ombudsman’s guidance on remedies.
  5. I wrote to Mr X and the Council with my draft decision and considered their comments before issuing this final decision.

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What I found

  1. Councils may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary and must be proportionate.
  2. In deciding whether it is ‘expedient’ to take enforcement action, councils take account of several different factors. These include national and local planning policies, whether deviations would likely be granted planning permission in any event, and the need to achieve a balance between protecting amenity and allowing development which is acceptable.
  3. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory outcome. Councils may invite retrospective applications to regularise development which has already been undertaken. This may include where changes are ‘non-material’ or ‘minor-material’. Where it is expedient to take more formal action, councils can serve various notices on developers.
  4. There is no statutory definition of what makes an amendment ‘material'. This is because it will depend on the context of the overall scheme - an amendment that is non-material in one context may be material in another. There is also no statutory definition of a 'minor material’ amendment. This is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.
  5. The Council’s planning enforcement guide sets out how it deals with reports of planning breaches. It explains a breach in itself is not usually illegal and that it will often invite retrospective applications to regularise breaches. It explains it will negotiate where remedial action appears to be possible within a reasonable timescale.
  6. The guide explains “Formal enforcement action is discretionary and the Council must be satisfied that it is expedient, having regard to all the relevant planning circumstances in each case. If initial warnings and/or negotiations fail to remedy a breach, action will not be delayed if it is deemed necessary”.

Record-keeping

  1. Written records must be produced as soon as reasonably practicable after officers make decisions, and must contain the following information—
    • the date the decision was taken;
    • a record of the decision taken along with reasons for the decision; and
    • details of alternative options, if any, considered and rejected. (The Openness of Local Government Bodies Regulations 2014, section 7)

What happened

  1. In April 2017, the Council’s committee granted planning permission for Mr X’s neighbour to build an outbuilding. Mr X had objected to the application.
  2. Mr X later noticed his neighbour was not building the outbuilding in line with the approved plans. In May 2018, he advised the Council of deviations in the finish and doorways.
  3. The Council wrote to the neighbour and carried out a site visit at the end of May. It found the neighbour had created an opening in the rear and constructed decorative brickwork on the front corners. The Council told the neighbour to submit a non-material amendment application to regularise the works undertaken.
  4. At the beginning of June, the Council sent the neighbour the application form for the brickwork, and advised they brick up the doorway and render elevations in line with approved plans. It explained it may take formal enforcement action if the neighbour did not send an application.
  5. The Council wrote to Mr X at the end of June. It explained it had asked the neighbour to take the above actions. The Council explained in the first instance, it would look to negotiate with the neighbour without having to resort to formal enforcement action. It explained it could not give an estimated timescale, but that it would consider formal action if the neighbour did not take that action.
  6. In August 2018, the Council contacted the neighbour again to ask about their intentions. It sent Mr X an update letter explaining this. The Council visited the neighbour at the beginning of September and found the breaches were still in place. The neighbour told the Council they planned to render the outside of the building in line with the approved plans, but that they would prefer to keep the doorway at the rear. The Council advised, as the changes would no longer be considered “non-material”, a minor material application was instead needed.
  7. The Council sent a further update letter to Mr X. It explained it would await the neighbour’s application and Mr X would have the opportunity to comment. It also wrote to the neighbour reiterating the need for a new application.
  8. Mr X complained to the Council. Along with the above issues, he told the Council the neighbour:
    • had not installed a 2-metre high fence, which planning permission required;
    • intended to use the outbuilding as a commercial gym rather than personal; and
    • was not sticking to suitable start and finish times for works.
  9. The Council responded at the end of October. It explained the fence was required once the outbuilding was brought into use, and not during building works. It explained there was no evidence the neighbour planned to use the building for commercial purposes. It explained the start and finish times of works was an environmental health issue, which Mr X followed up separately. The Council reiterated the steps it had asked the neighbour to take.
  10. The Council wrote to the neighbour again asking them to submit the application as soon as possible. The Council said the situation was not acceptable and it may take formal enforcement action. It asked the neighbour to contact it within 14 days to clarify their intentions. The neighbour visited the Council offices, explained why the outbuilding was not yet complete and confirmed they did not intend to keep the doorway in the rear. The Council advised therefore the only application they needed to submit was a non-material amendment application for the brickwork, which it said it could deal with at a later date.
  11. Mr X contacted the Council in early February 2019 to say the building was still not to plan. He asked the Council how long it would give the neighbour to comply before taking formal action. The Council carried out a further site visit and the neighbour repeated he would remove the door at the back after building works were complete. He said he would render but keep the decorative brickwork. He advised the Council of further changes he intended to make.
  12. The Council considered this new information, and decided the neighbour needed to make an application to vary a condition of the planning permission. This would cover the additional changes and the existing decorative brickwork.
  13. The neighbour then provided further information about the extra changes, and the Council decided a non-material amendment application and an application to discharge a different condition would be sufficient. The Council wrote to the neighbour in February 2019 to stress the matter had become protracted and asked them to submit the applications immediately.
  14. The Council sent Mr X a further update letter. It explained there was a breach of planning control, and reiterated it had asked the neighbour to make retrospective applications, which Mr X could comment on. Mr X expressed concern that nine months had passed with no substantive changes. He asked the Council how long it intended to give the neighbour to comply.
  15. The neighbour sent a retrospective non-material amendment application at the end of February 2019. Mr X objected. The Council approved the application in May. The officer’s report said the amendments were minor and did not raise any significant issues for neighbours’ amenity. Mr X asked in his objection “why has no enforcement action been taken/why is a retrospective application being considered”. The Council responded to this in the case officer’s report, saying the differences were minor and there were no material impacts on amenity of neighbours, the visual amenity of the site or the character of the area. As the applicant had sought to regularise these non-material amendments by submitting the necessary non-material amendment application, it said it was therefore not expedient to take enforcement action at that time.

Analysis

  1. Mr X raised concerns in May 2018 the development was not being built in line with the approved plans. The Council responded promptly by visiting the site and advising the neighbour to make further applications, as it agreed there was a breach of planning control. However, the neighbour did not send any applications until February 2019, nine months later.
  2. Government guidance encourages informal enforcement where suitable. The Council asked the neighbour to make further applications and to make changes to comply with the permission. The Council was entitled to pursue these informal routes to seek compliance. The Council chased the neighbour from time to time and there were no extended periods of inaction. The timescales of this case were affected by the neighbour’s changing intentions, which meant the Council’s advice about which type of application they should make changed several times.
  3. The Council’s planning enforcement guide does not say what timescale is considered ‘reasonable’ for informal action, before formal action should be considered. The law requires that officers keep clear, contemporaneous records about their decision-making. I would expect planning enforcement officers to show ongoing consideration of the action they should take, on a case-by-case basis. The Council’s records do not show consideration of the suitable approach given the protracted timescales, and the potential that any deviations could mean changes in impact on neighbours’ amenity. The Council referred to its power to take formal action in its letters to the neighbour, but did not record a decision about whether it should take formal action until its case officer report of 2019, at which point action was not necessary because of the neighbour’s application which regularised the breaches. I would expect the Council to have clearly recorded decisions about possible courses of action intermittently as time went on, explaining the reasons for taking a particular course of action as opposed to other options. The Council’s lack of records in this case is fault.
  4. However, had the Council recorded ongoing consideration clearly, on balance it would not have taken a different approach. There was no evidence the deviations in the design of the outbuilding were causing any significant detriment to Mr X. This fault did not change the outcome of the Council’s enforcement case against Mr X’s neighbour, and ultimately the changes did not make a material difference to the outbuilding’s acceptability. The fault did not cause Mr X an injustice.
  5. The Council says in relation to record-keeping, it was evident “the deviations from the proposed plans were of a very minor nature and had no significant impact upon the neighbouring properties or the visual amenity of the area, as concluded when the application was ultimately considered. Had the impacts been considered unacceptable it is unlikely we would have invited an application in the first place”. It says there was no indication the neighbour would not send an application, and had this been the case it would have considered other enforcement options. The Council accepts, however, the case notes about its decisions were brief.
  6. An explanation of what happened that is given after the events, either in a complaint response or during our investigations, may provide relevant evidence. However, it will not necessarily prove the Council acted without fault. This is because we need evidence that shows the Council exercised its discretion properly at the time its decision was made. Officers must keep contemporaneous case notes. While I accept Council officers may have considered their decisions were the obvious ones to make, they should have recorded them clearly in their case notes.
  7. Councils are not required to give complainants a detailed running commentary on enforcement cases. Mr X expected the Council to take formal action. However, the Council explained in June 2018 the process it would take and explained it could not say how long it would be until the breaches were resolved.
  8. Mr X says he has experienced a loss of privacy during building work due to the height of the fence and he would like a 2-metre fence to be installed before the outbuilding comes into use. The planning permission of 2017 did not require the fence to be in place until the outbuilding comes into use. If his neighbour does not build the fence before the outbuilding comes into use, this will be a new planning enforcement issue that Mr X should raise with the Council.
  9. Mr X states the outbuilding is going to be a commercial building once building work has completed. The planning permission included a specific condition saying this should not be the case. This would also be an issue that Mr X should raise with the Council if there is evidence of this after the outbuilding comes into use.
  10. Mr X also says the plans approved via the most recent application still do not match the outbuilding. If this remains the case when the development is completed, Mr X would need to raise this as a new enforcement issue.
  11. Mr X was concerned about start and finish times of works by his neighbour. The planning permission included no condition about start and finish times for works. The Council signposted him to its environmental health officers, and their involvement is discussed in a separate Ombudsman decision.
  12. Mr X says he had to pay for a solicitor and he has fitted CCTV for his own safety due to threats from his neighbour. He took these steps because of the behaviour of his neighbour and not because of fault by the Council.

Agreed action

  1. Within one month of my final decision, the Council has agreed to issue a staff reminder to encourage its planning enforcement officers to record clear decisions, with rationale. They should be encouraged to review these decisions at regular intervals, the frequency of which the Council may decide.

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Final decision

  1. I have found fault, but this did not cause Mr X an injustice. The Council agreed to my recommendation to reduce the chances of fault reoccurring. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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