London Borough of Waltham Forest (19 009 912)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 02 Jun 2020

The Ombudsman's final decision:

Summary: Mr B complains the Council has not taken enforcement action against a building that does not have planning permission. He says the building is an eyesore, overshadows his garden and has reduced his property value. The Ombudsman does not find fault in how the Council decided whether to take enforcement action. However, we find fault in how the Council responded to Mr B’s complaint.

The complaint

  1. The complainant, who I refer to as Mr B, says his neighbour built a structure in the middle of their garden without planning permission. The building is next to his garden fence. Mr B says the Council should have taken enforcement action to remove the building. He says, at first, the Council wrongly measured the building and did not update him after it took further measurements.

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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. 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. 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)
  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

  1. I considered the information Mr B provided and spoke to him about his complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

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What I found

Legislation and Guidance

  1. Planning permission is required for the development of land. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
  2. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
  3. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
  4. Permitted developments include any building incidental to a house. This does not apply if that building is within two metres of the boundary and is more than 2.5 metres high.
  5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:
    • “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58)
  6. Where there is a planning breach in respect of building without permission, councils cannot take enforcement after four year since the building was completed.

Council Enforcement Policy

  1. The Council’s planning enforcement policy sets out when it should take enforcement action. It says the decisive issue is whether the breach would unacceptably affect public amenity.
  2. The policy says it is normally inappropriate to take enforcement action against a trivial, technical breach that causes no harm to amenity in the locality of the site. It says the Council will not normally take enforcement action to remedy a slight variation over what would have been a permitted development.

Background

  1. There is long history of planning complaints and enforcement action relating to the property neighbouring Mr B. I have only investigated the issues that relate to a building in the middle of the neighbour’s garden.
  2. The neighbour constructed the building in 2012. Mr B complained to the Council, who then visited the property. A council officer took measurements and found the height of the building was 2.3 metres. The officer recorded the building was in line with permitted development rights so did not take enforcement action. Mr B says the Council did not tell him the outcome.
  3. In 2016 Mr B raised the issue of this building with the Council again. He said it did not have planning permission and the Council should take enforcement action to remove the building. Mr B said the building was an eyesore, blocked light to his garden and had decreased his property value.
  4. At first, the Council said it would not take enforcement action because the building was immune, having been in place for four years. However, it then said immunity was not an issue as the building was in line with permitted development rights. It sent Mr B information on permitted development rights.
  5. In 2017 Mr B measured the building from his side and found it was 2.85 metres. He contacted the Council again to say the building was no within the permitted development rights. The Council directed Mr B to its complaint’s procedure.
  6. Mr B wrote to the Council again in September 2018, raising concerns about the building. He sent a complaint in October 2018. The Council responded in November 2018. It said an officer had visited the property previously and found it was 2.3 metres in height, so was a permitted development.
  7. Mr B continued to raise concerns about the building in early 2019. Internal correspondence shows council officers again advised the building was immune due to the four-year rule. However, it responded in April 2019 to say that it is not immune but is a permitted development as it is only 2.3 metres high.
  8. Mr B responded that he had measured the building and it was 2.85 metres. The Council said it would arrange to measure the building again and update him. In June 2018 the Council measured the building again and the measurements suggested it was 2.8 metres tall on the boundary with Mr B, sloping down to 2.65 metres on the other side. However, the Council did not update Mr B.
  9. The Council says it can no longer take enforcement action because the building is immune in line with the four-year rule. It says it would not have taken enforcement action anyway, as the height is only slightly over the permitted development rights. It says the building is placed away form the main houses and does not have any significant impact in loss of light.

Findings

  1. I have set out the full history and background in the above paragraphs, to give context to the case. However, my investigation is focussed on the events in the 12 months before Mr B complained to the Ombudsman. I have not exercised discretion to investigate further back, for the reasons outlined in the following paragraphs.
  2. As outlined at Paragraph 4, we cannot investigate late complaints. Mr B first complained about the building in 2012. I have not seen any record the Council told him it had visited the site or that it was a permitted development. However, there is also no evidence Mr B followed up on this point until 2016.
  3. Mr B could have followed up on any concerns about the building in 2012. If he did not receive a response from the Council, or was not satisfied with its response, he could have complained to the Ombudsman then. Therefore, there are no grounds for me to look into whether there was fault in the way the Council took enforcement action in 2012.
  4. I have investigated the Council’s decision not to take enforcement action, following updated measurements in 2019. I acknowledge these measurements show the building is not covered by permitted development rights. However, I do not find fault in the Council’s decision in 2019. This is because the building is now immune, having been in place for more four years.
  5. I accept the Council’s new measurements suggest it likely made a mistake when deciding the building was a permitted development in 2012. However, there is nothing in the legislation that suggests the four-year rule would not apply because of a prior mistake by the Council.
  6. As already outlined, if Mr B felt the Council had not properly followed up on his complaint about a breach in 2012, he could have complained to us at the time.
  7. The Council has also briefly set out that it would not have taken enforcement action regardless of the four-year immunity. It says this is because the building is only slightly higher than the permitted development rights. I have not made a finding on this point. Any question about whether enforcement action was expedient or proportionate, was relevant in 2012. However, it is no longer relevant as the building is immune from enforcement action.
  8. I find fault in how the Council communicated with Mr B in 2019. This is because the Council did not respond or update Mr B following its new measurements, despite saying it would do so. The Council accepts this and apologises for the lack of communication. However, the Council says it would not have taken enforcement action anyway.
  9. I accept the Council would not have taken enforcement action anyway, because of the four-year rule. However, it is my view this did cause an injustice to Mr B in uncertainty about what decision the Council would make. That injustice is limited, as there is no evidence Mr B chased the Council for a response. Although I understand the complaint had been ongoing for some time.
  10. I recommend the Council apologise to Mr B in writing.
  11. I also note the Council’s responses to Mr B’s various complaints are slightly confused. In certain responses the Council says the building is immune and in others it says it is a permitted development. However, much of this correspondence took place outside the 12-month period I have looked into, and it would not have changed the Council’s decision on whether to take enforcement action. I have therefore not made a finding on whether this is fault.

Agreed action

  1. The Council has agreed to, within a month of this decision:
    • Provide evidence it has apologised to Mr B in writing for the fault in not responding to him after it took new measurements in June 2019.

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Final decision

  1. The Council is not at fault in how it decided whether to take enforcement action. However, I find fault in how the Council responded to Mr B’s complaint.

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Investigator's decision on behalf of the Ombudsman

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