Summary: There was fault by the Council as its planning system did not correctly show that houses had permitted development rights removed. Officers remedied this fault and there was no fault in the enforcement officer’s decision not to take action over unauthorised decking or removal of trees, other than to require replanting.

The complaint

1. The complainant, whom I shall refer as Mr B, complains the Council has failed to enforce a condition requiring maintenance of planting. He complains the Council has not told the owners of the trees that they should not be trimmed/cut down.
2. Mr B also complains the council has allowed unauthorised decking on properties to remain. And, the Council had incorrect records which did not tell residents or officers the Council had removed permitted development rights.

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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 read the papers put in by Mr B and discussed the complaint with him.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. I gave the Council and Mr B the opportunity to comment on my draft decision.

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What I found

Key facts

8. Mr B lives in a house at the bottom of a steep cliff. There are houses that back onto the top of the cliff. When he bought his home, the Council told his solicitor the planting and maintenance requirements for a landscaping scheme behind the houses at the top of the cliff was ongoing. There was no copy of the landscaping scheme available.
9. Mr B complained in November 2018 that a neighbour had built decking behind the houses, which increased overlooking of his garden. He also said the owners had removed shrubs and trees.
10. The planning enforcement officer told Mr B the decking was permitted development in November 2018 and no action would be taken. The Council told him it would reassess the matter in December 2018 as it agreed that permitted development rights had been removed.
11. The officer visited the site on 15 February 2019. The notes say there is a ‘top decked area 14 cm above the natural ground level immediately next to a decked area, decked steps in the middle leading down to a lower decked area which is 20 cm above ground level’.
12. Mr B complained to the Council in November 2018 the owners of the houses on the cliff had removed trees in a conservation area.
13. The officer visited the site on 14 January 2019. The officer noted that work had been started to clear the bottom of the overgrown garden at house 3. The officer spoke to the owner of house 4, who said they carried out some work to their garden a couple of years ago and that they had replaced the shrub that they cleared. The officer visited house 5 and could see that work had taken place to clear the bottom of the garden.
14. The enforcement officer wrote to Mr B on 13 March 2019. The officer confirmed the decking at house 5 would normally need planning permission. But, an officer had assessed the site and concluded the principle of the development in this location was accepted because the garden area was on a steep site. He said that most of the houses on the road had decking to the rear, the materials were not at odds with the property and the design was acceptable as it reflected the character of the area.
15. The enforcement officer said that while the decking would harmonise more in the setting if the lower tier was sunk into the ground, the Council could not justify taking action on it when the materials were not at odds with the area and host building and where it does not cause any other significant harm in its locality and does not detrimentally harm the street scene due to its position.
16. The officer’s opinion was that when stood on the top part of the decking he could not see into any neighbouring properties. When stood on the lower decking there was some overlooking, however, due to the topography of the land there is an element of mutual overlooking on all plots. He said that Mr B’s house was at least 22 meters from the lowest part of the decking. He did not get a clear view into the windows or amenity area of the Mr B’s house and due to the land levels you naturally look over the top of the houses rather than down. In view of this he did not consider the development unacceptably harmed the amenity of neighbouring houses. Mr B says there is clear visibility into his property and his neighbours roof windows.
17. The enforcement officer told Mr B that ‘Planning Practice Guidance states that enforcement action should be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case. In deciding, in each case, what is the most suitable way forward, local planning authorities should usually avoid taking formal enforcement action where there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area'.
18. The enforcement officer decided that while the works were a breach of planning control, it would not be expedient to pursue enforcement action.

My analysis

Complaint about decking

19. The Council has said there was a technical error which meant the planning officer was not initially aware that permitted development rights had been removed from the houses Mr B complains about. This is fault by the Council which has been remedied as the site area is now correct.
20. The Council accepts the owners of house 5 have built the decking without planning permission, as it is not permitted development.
21. Mr B wants the Council to take enforcement action against the unauthorised decking as he says it overlooks his garden. The Council has decided not to take enforcement action.
22. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. It is for the planning authority to decide whether it is expedient to take action. If a council decides not to take enforcement action we would expect it to explain its decision.
23. Mr B says the Council made the decision without all the relevant information, as the planning officer did not visit his garden to see the impact on his house.
24. Clearly enforcement officers visited the house with the decking and could see for themselves the view the neighbour had into Mr B’s garden. The officer also looked at photographs sent by Mr B. While I appreciate Mr B would have liked the officers to visit his garden, I do not consider it was necessary to make a decision. I find no fault on this point.
25. It is clear the Council has responded to Mr B’s complaint and considered his objections to the decking. I have looked at all the information and I find no fault with the process leading up to the decision not to take enforcement action. The planning officer has visited the site, looked at the impact on Mr B’s home and garden and considered the work and material was acceptable in planning terms. While Mr B disagrees with the Council’s final decision, I consider it was a decision taken properly, without fault. The fault in recording the removal of permitted development rights did not affect the result of the decision on enforcement action.

Complaint about trees

26. The Council has said there is no copy of the original landscaping scheme available as the planning application is 30 years old. Mr B says this is a failure by the Council to keep the relevant documents, although he did know there was no copy of the landscaping scheme available before he bought his house. Given the time that has elapsed there is no way for me to find out what has happened, whether the documents were not submitted or whether it was sent into the Council but then lost or destroyed as part of file management prior to records being computerised. I cannot find out whether there was fault on this point or what might have been in the landscaping scheme.
27. The Council says there is no breach of planning control at house 3.
28. The Council accepts the neighbour at house 5 has removed planting and it is keeping the matter under review. The enforcement officer consulted the Councils Tree Officer, who asked the homeowner to replant. Mr B complains the beech trees proposed are unsuitable as they will take time to grow and are not evergreen. The Council has said the enforcement officer will visit later in the year to check these are establishing and are acceptable to mitigate the harm caused by the removal of the previous trees. And, the Council may reconsider if the planting is not to its satisfaction. This is a reasonable response and I find no evidence of fault.
29. The Council has said it is aware the owners of house 4 have pruned some trees but it is not expedient to take enforcement action. The Council’s tree officer was consulted on works, including photos of the site. The tree officer considered the works were acceptable and so the Council had no reason to take action as it would not be in the public interest. I see no evidence of fault on this point. I have also found no evidence the Council has wrongly advised householders they can cut back the trees without permission. The fact the planning officer has monitored the works and asked householders to replant does show that officers have not given the wrong advice. It may be that a local Councillor gave house owners the impression that permission was not needed, but without details of who said this and when, it is not possible to find out what happened.

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Final decision

30. I have completed my investigation of this complaint. This complaint is partially upheld. There was fault by the Council, in recording the loss of permitted development rights but this is now rectified and has not changed the outcome of Mr B’s enforcement complaint.

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Investigator's decision on behalf of the Ombudsman