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London Borough of Merton (19 015 422)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 28 Sep 2020

The Ombudsman's final decision:

Summary: Mr D says the Council failed to enforce planning conditions on a neighbouring property to prevent a loss of privacy. There is fault by the Council including considerable delay. The Ombudsman has upheld the complaint and completed the investigation. The Council agrees to pay financial redress to Mr D and has given an undertaking to progress the case.

The complaint

  1. The complainant (whom I refer to as Mr D) says the Council failed from April 2018 onwards to enforce a planning condition at a neighbouring property to prevent a loss of privacy.

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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. 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 have spoken to Mr D and considered the information he provided. I also asked the Council questions and considered its response.
  2. I shared my draft decision with both parties and considered their responses.

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What I found

What happened

Background

  1. The Council granted planning permission for a block of flats two doors down from Mr D’s home. A balcony of one flat (flat A) would overlook the rear of Mr D’s home. The Council included a planning condition requiring obscured glazing and a 1.7 metre high fixed artificial hedge to provide screening.

Events I have investigated

  1. In April 2018 Mr D contacted the Council stating that flat A had not retained the artificial hedge and was in breach of the planning conditions. I cannot see the Council took any action. Mr D chased it up on 8 May. Ten days later the Council opened a Planning Enforcement Team investigation case. I again cannot see any significant action was taken until 29 June when the Council sent a letter to what they thought was flat A. The flats had been renumbered and so it appears all correspondence in 2018 and the first part of 2019 was sent by the Council to a neighbouring flat (flat B) not flat A. The letter requested access to see if conditions had been met. The Council visited on 4 July and could not gain access. Mr D chased it up on 6 July and the Council apologised for the delay. On 10 July, the Council the hedge had been installed and this was confirmed at a site visit six days later. However, it appears that all contact was with flat B not flat A. The Council also closed its investigation and did not notify Mr D.
  2. Mr D emailed the Council on 9 August stating that some obscure glazing had been fitted at flat A but not in line with the planning permission and conditions. Furthermore, no hedge had been installed. Again, I can see no action by the Council. Mr D contacted the Council on 29 October and sent a complaint. The Council failed to reply, and Mr D emailed again on 3 December. On 11 December the Council apologised for the delay and said an Officer was on sick leave.
  3. On 2 January 2019 Mr D asked the Council to escalate his complaint because he had not received a reply. On 1 February, the Council sent a response. It apologised for the delay. It also said that obscure glazing was fitted at flat A and no further action would be taken. It incorrectly stated there was no planning condition requiring a hedge at flat A. Mr D then wrote back to the Council pointing out the planning conditions for flat A and they had not been complied with.
  4. On 14 March the Council told Mr D the complaint response had been incorrect, and a planning enforcement case had been opened. I cannot see any significant action by the Council until 20 June when it told Mr D it had written to flat A and given the owner 28 days to respond on how they would comply with planning conditions. On 19 July, the Council spoke the resident of flat B (to whom they had been writing and visiting by mistake) and realised there had been a numbering change to the flats in 2018. An Officer then made contact with the correct flat A and the owner agreed to fit screening.
  5. On 12 August Mr D told the Council that bamboo screening had been installed at flat A, not the required hedge. The bamboo was see-through, flimsy and easily removed. Mr D chased up the Council on 10 September and again on 2 October when he also complained about a lack of action. A month later the Council had still not contacted Mr D and he asked to lodge a formal complaint. On 6 November, the Council told Mr D he could go to the Ombudsman as his complaint had already been considered earlier in the year.
  6. The Council tells me it was “in regular contact” with flat A in 2020. I have no evidence of the dates or whether Mr D was kept informed. The Council says the owner of flat A is out of the UK until mid-November. It will “not take enforcement action” at present. When the owner of flat A returns to the UK it will “allow him a short period of time to rectify the situation. If this does not happen then enforcement action will be taken”.

What should have happened

  1. If a person reports a breach of planning conditions the Council should log the report and open a planning enforcement investigation. The case is assigned to an Officer. The Officer should carry out a site visit within 15 days to decide if there is a breach of planning conditions. Where a breach is identified the Council will usually aim to resolve informally by obtaining an agreement for when the breach will be rectified. However, if the owner is not compliant the Council can take formal enforcement action and serve a Notice requiring the works are complete within a set timeframe (usually within 28 days).
  2. The Council can close a case if the matter is resolved or if they find no evidence of a breach. The Officer should write to the complainant to explain the decision.
  3. Officers log actions on a database and can run reports to see which cases are outstanding. The current system does not prompt Officers when an action is outstanding or late.
  4. The Council’s corporate complaint policy says it is set up so “those responding to complaints have the authority and expertise to get at the facts”. It also states that “problems are resolved as soon as possible after they are identified” and that complainants receive a “timely response”. An initial complaint should be replied to within 20 working days. An escalated complaint within 25 working days.

Was there fault by the Council

  1. There are numerous and serious failings by the Council in this case.
  2. The Council failed to meet any of its limited targets in respect of planning enforcement investigations. Mr D reported the breach in April 2018, no action was taken until two months later after prompting by Mr D. Again, there is another period of delay until the Council contacted the wrong flat in June. Officers could and should have ensured they were in contact with the correct property. The change in numbering should have been apparent when visiting the flats in July given flat A is the only property with a rear balcony overlooking Mr D. Yet Officers failed to notice the mistake and incorrectly closed the case. I also cannot see Mr D was notified of the decision.
  3. Mr D then had to pursue the case in August through to March 2019. The Council says it was short staffed but that is no reason to repeatedly fail to respond to reports of a planning breach or to ensure the correct address is being pursued. Even when a new enforcement case was opened by the Council in March no significant action was taken until June. At that point the Council was still writing to the wrong flat and only clarified this in July. Despite then gaining an agreement from the owner of flat A to fit screening the Council failed to check the condition had been complied with. Mr D also showed evidence that incorrect screening had been installed in August. The Council should have responded but failed to do so. It remains unclear how the case was progressed during 2020 and why no formal action was taken. Because of the delays and errors by the Council it now has to wait for the owner of flat A to return in November to get the hedge installed. That delay was completely avoidable had the correct process been followed and Officers been diligent. By November Mr D will have been subject at least 29 months delay, and that takes into account a reasonable period for the Council to have investigated and served a Notice after informal measures to enforce. Such delays and poor case handling are unacceptable.
  4. The Council also failed to properly manage Mr D’s complaints. He first complained at the end of October 2018 and the Council failed to respond despite Mr D chasing it up. Instead his case was escalated (at his request) and finally replied to on 1 February 2019: a delay of two months. To compound the failings the complaint response was inaccurate and stated there was no requirement on flat A to have a hedge. Given the Council’s policy states responses will “get at the facts” and be “timely” the poor service afforded Mr D is extremely concerning. When he complained a second time in October 2019 the Council was given another opportunity to take control of the case and resolve its errors. Instead it failed to respond until Mr D chased it. Then it suggested he go to the Ombudsman to avoid further delays. This is an inadequate approach and response.

Did the fault cause an injustice

  1. The delays by the Council mean Mr D has experienced a loss of amenity covering three years. Because the matters cannot now be resolved until November Mr D will be subject to 29 months delay and loss of amenity through no fault of his own. Indeed, the case has only ever progressed because of Mr D chasing up the Council.
  2. Mr D has been caused significant time and trouble pursuing his case due to repeat failings by the Council and this spans from 2018 to 2020.

Agreed action

  1. The Council accepts there has been errors in its handling of the case and it told the Ombudsman it would pay Mr D £100 for time and trouble. It is also planning to install a new database system in 2021 that will allow Officers to more easily track cases and be prompted to take action. Whilst it was positive the Council recognised that redress was required the sums offered did not take account of the extreme delay and significant time and trouble incurred by Mr D pursuing his case. In order to remedy the injustice to Mr D I asked the Council to consider:
    • Paying Mr D £300 for his time and trouble;
    • Paying Mr D £75 per month for loss of amenity, this needs to cover a 29 month period of delay and total £2,175;
    • Write to Mr D setting out what will happen in November and also ensure that an Officer keeps Mr D updated in November;
    • If there is additional delay by the Council after November, then it should consider paying Mr D £75 for each extra month of avoidable delay;
    • Confirm to the Ombudsman what actions have been taken to improve complaints handling and planning enforcement investigations to ensure cases are logged and responded to correctly.
  2. The Council has accepted all these actions. It should pay the redress and confirm this to the Ombudsman within four weeks.

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Final decision

  1. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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