Summary: There was no fault by the Council in a complaint alleging bias and inefficiency in the Council’s handling of the complainants’ reports of possible breaches of planning control at a neighbouring property.

The complaint

1. Mr and Mrs X complain of bias and inefficiency in the Council’s handling of their reports of possible breaches of planning control at a neighbouring property. Mr and Mrs X say:
• There was ineffective and biased action from the planning department from 2016 when their neighbour applied to build a house in the back garden of an acquired property.
• The planning department failed to act on complaints or to follow published procedure in responding to a complaint including failing to take appropriate action against violent behaviour or to take appropriate steps to protect a member of the public.
• The planning department failed to complete due diligence in planning assessment.
• There was ineffectual management and handling of an unapproved development.
2. Mr and Mrs X say their privacy is threatened because their neighbour raised the level of land within his curtilage without planning permission.

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What I have investigated

3. I have investigated the complaint there was ineffectual management and handling of an unapproved development. My reason for not investigating the other aspects of this complaint is set out in the final section of this statement.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. I reviewed the complaint and background information provided by Mr and Mrs X. I discussed matters with Mrs X by telephone. I sent a draft decision statement to all parties and considered their comments on my draft decision statement.

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What I found

Background

9. Mr and Mrs X say the Council allowed their neighbour to raise the land within his curtilage without planning consent.
10. This matter was first raised with the Council by another of their neighbours in May 2018. Mr and Mrs X say they also contacted the Council by phone.
11. Planning enforcement officers visited their property in June 2018. Mr and Mrs X told officers that their neighbour added a gravel board and changed the fence panels in June 2017. They said their neighbour then raised the height of the ground when approximately 20 to 30 tonnes of aggregate was delivered to the property in May 2018.
12. Mr and Mrs X provided photographs which they say shows the original height of the land. They also point to photographs from previous planning applications.
13. A planning enforcement officer wrote to Mr and Mrs X in July 2018. The officer expressed a view that their neighbour had placed a stoned surface in the existing garden area. The officer said the Council would seek further information on the works from their neighbour before it could determine whether the works required planning consent.
14. The officer wrote to Mr and Mrs X again in August 2018. This time he said the works required planning permission and so he would ask their neighbour to submit a retrospective planning application. The officer asked their neighbour to submit the application within 28 days.
15. After expiry of the 28 day period, Mr and Mrs X contacted the planning enforcement officer. The officer told them the Council would serve a planning contravention notice as the Council had not received any contact from their neighbour.
16. Mr and Mrs X contacted the Council again in early 2019 as they had heard nothing further on the matter. They left a telephone message for the case officer but received no response. After three weeks, they called the officer again. The officer told them the matter had been passed to the Council’s legal department. They telephoned the legal department and received a response that the case was under consideration.
17. In February 2019, an officer wrote to them on behalf of the Chief Executive. The officer said the Council had reviewed the information and photographs provided by Mr and Mrs X as well as the information provided by their neighbour’s agent following service of the planning contravention notice. The Council’s conclusion was there was insufficient evidence to show a significant increase in land levels had taken place and so planning permission was not required. The Council said it would not take further action.
18. Mr and Mrs X telephoned a planning enforcement officer as well as the officer in the legal department who wrote to them. They wanted further information on the decision. They say the officer in the legal department told them the Council would look at the case again.
19. At the end of March 2019, the Council told them it would not change the decision.
20. Mr and Mrs X say the provision of information from the planning department is insufficient or inadequate or non-existent. The Council did not keep them informed. Timescales were fluid and published processes were not followed. They query why they had to chase information.
21. Mr and Mrs X say their questions were disregarded or ignored. They say they were not given any information on why the evidence was insufficient. They received no explanation on why there was a U-turn by the Council. They say the only member of the planning department to visit the site and assess their property advised them orally and in writing that there was sufficient evidence of a change in land levels whereas the rest of the decision makers reached an outcome without having witnessed the change or visited the site.
22. Mr and Mrs X formally complained to the Council in May 2019. In its response, the Council explained planning enforcement officers initially concluded, on the balance of probability, that the land had been raised sufficiently to amount to an engineering operation which required planning permission. Officers then asked the landowner several times to submit a planning application unsuccessfully.
23. The Council explained the case was reviewed in the early part of 2019 with a view to commencing enforcement proceedings. The Council considered the information provided by the owner in the planning contravention notice. The Council said the owner provided clear photographic evidence that the land was not raised to an extent that would need permission. This was in the form of before and after photographs. The Council was satisfied the photographs indicated the land had not been raised based on fixed datum points.
24. Nonetheless, the Council pointed out it could monitor the finished floor level to ensure the proposed new dwelling would be in accordance with the approved plans and so constructed at the correct level.
25. Mr and Mrs X asked for consideration of the complaint at the second and final stage of the Council’s complaints process. There was a delay before the Council completed and sent its response. The Council’s position remained the same.

Finding

26. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)
27. I do not find fault in the way the Council reached its decision on the report of a change in land levels at the neighbouring property. It is clear planning enforcement officers visited the site on several occasions. They obtained information from Mr and Mrs X as well as the landowner. It was then for the Council to weigh up the evidence and make a decision on enforcement action. I am satisfied officers acted in accordance with the Council’s planning enforcement procedures.
28. That the decision was made by officers who had not visited the site is not material. The evidence obtained by officers who visited the site was part of the process the Council followed in making its decision.
29. Mr and Mrs X clearly disputed the Council’s decision and wanted more information on how the decision was made. I note officers spoke to them by telephone to try and explain the decision unsuccessfully. But it was not for the Council to provide Mr and Mrs X with the evidence it obtained from the landowner. That would be a breach of data regulations. I recognise this leaves Mr and Mrs X with doubt about the outcome but there is nothing further the Council can do to reassure them of the decision.
30. I find the Council’s communication with Mr and Mrs X was poor. The Council should have kept in touch with them at regular intervals while the matter was under consideration. But I do not consider the communication failings were significant to warrant further pursuit of the matter by, or a remedy from, the Ombudsman. I urge the Council to remind its officers of the need for courtesy and timeliness in dealing with members of the public.

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Final decision

31. There was no fault by the Council in the matters raised here. I have therefore closed the complaint.

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Parts of the complaint that I did not investigate

32. I did not investigate Mr and Mrs X’s complaints that:
• There was ineffective and biased action from the planning department from 2016 when their neighbour applied to build a house in the back garden of an acquired property.
• The planning department failed to act on complaints or to follow published procedure in responding to a complaint including failing to take appropriate action against violent behaviour or to take appropriate steps to protect a member of the public.
• The planning department failed to complete due diligence in planning assessment.
33. These complaints involve matters that occurred in 2016 and 2017. The law requires complaints to be made to the Ombudsman within 12 months of a complainant’s awareness of the subject of the complaint. I am satisfied Mr and Mrs X were aware of the matters that comprise these complaints in 2016 and 2017. They did not complain to the Ombudsman until October 2019. The complaint about these matters is late.
34. I have considered whether a late complaint should be accepted. The Ombudsman’s Guidance on Jurisdiction says that when deciding whether to investigate a late complaint the following should be considered:
• We are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• We are satisfied that the complainant could not reasonably be expected to have complained sooner.
35. I consider a sound, fair and meaningful decision on whether the Council acted with fault could be made in this case. However, I am satisfied Mr and Mrs X could reasonably be expected to have complained sooner. I note there was a delay by the Council in dealing with their attempted complaint in 2017. But the delay notwithstanding, Mr and Mrs X could have complained to the Ombudsman within the material time. The issues that comprise their complaint are distinct enough for several complaints to have been made earlier. For instance, the matter of what their neighbour told them about securing planning permission ‘at the first stage’ occurred in 2016. There was nothing to stop them complaining about it. Mr and Mrs X did not need to wait until 2019 for a consolidated complaint about all their grievances.

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Investigator's decision on behalf of the Ombudsman