Summary: Mr X complains the Council did not enforce a reported breach of planning permission. He says this caused him unnecessary stress, lack of privacy and financial loss. The Ombudsman finds no fault in how the Council made its decision but has found fault in how it handled the complaint. The Council has agreed to apologise to Mr X and ensure target timescales for responding to complaints are met.

The complaint

1. Mr X complains the Council did not enforce a reported breach of planning permission.
2. Mr X told the Council a neighbour had breached a condition of their planning permission when building an extension to their property. Mr X asked the Council to tell him what it would do about the breach and is unhappy the Council decided not to take enforcement action. He says the Council’s decision has caused him unnecessary stress and a lack of privacy.
3. Mr X was concerned about potential encroachment onto his land resulting from the extension and complained about the construction of his neighbour’s outbuilding in their garden. Mr X says he has incurred financial loss because he sought legal advice from a solicitor.

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What I have investigated

4. I have investigated Mr X’s complaint that the Council did not enforce a reported breach of planning permission. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
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 considered the information provided by Mr X.
9. I made enquiries to the Council and considered the information provided by it.
10. Both parties have had the opportunity to comment on a draft of this statement. I have taken the comments of both parties into account.

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What I found

Law and guidance

11. 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)

12. The Council’s enforcement policy refers to local authorities’ discretion to take enforcement action when it is considered to be expedient. In considering any enforcement action, it says the decisive issue for the Council will be whether the breach of control would unacceptably affect public amenity or an existing use of land and buildings meriting protection in the public interest.
13. The policy says the emphasis of South Hams District Council’s policy is on persuasion, influence and education. It also says care will be taken to ensure the merits of each case are carefully considered.
14. The Council’s enforcement policy provides examples of circumstances where it is responsible for investigating breaches of planning control. This includes non-compliance with conditions of a planning permission. It also provides examples of circumstances which it will not investigate. This includes boundary disputes.
15. Boundary disputes can occur where there is disagreement about where the boundary between two properties lies. Resolution may be sought via a mediation service but if this is unsuccessful, disputes may be settled via the courts.
16. The Council’s complaints policy says it will acknowledge a complaint within five working days and send a stage one response within 30 consecutive days of the acknowledgement where practical. If not practical, the Council will let the complainant know and give an indicative timescale of when a full response will be provided. The policy says a stage two response will be provided within 30 consecutive days of acknowledgement where practical.

Background

17. In late 2017, Mr X’s neighbour sought planning permission to build an extension to their property.
18. In early 2018, the Council granted planning permission to Mr X’s neighbour, but with conditions. One of the conditions was that prior to occupation of the extension, Mr X’s neighbour should erect a fence or wall along the boundary. This was to protect the privacy of the occupants of the extension and Mr X.
19. Mr X’s neighbour moved out of the property whilst building work was carried out.
20. In late 2018, and before building work had been completed, Mr X’s neighbour moved back into the property. The builders removed the boundary fence as part of the ongoing construction work.
21. Mr X informed the Council his neighbour had moved back into the property and that the boundary fence was not in place. Mr X told the Council he was concerned about the lack of privacy resulting from the absence of the boundary fence, and that he was concerned about the boundary line. Mr X and his neighbour disputed the boundary line and Mr X was concerned that building work may encroach on to his property.

What the Council did

22. The Council told Mr X it would investigate the alleged breach of planning conditions and would keep him updated with its findings.
23. The Council contacted the agent acting for Mr X’s neighbour and reminded them of the condition regarding the erection of the fence prior to occupation.
24. A few days later, the Council emailed Mr X to tell him it would monitor “ultimate compliance” with the outstanding planning condition. It said it informed Mr X’s neighbour that enforcement action would be taken if the condition was not complied with. The Council also provided the contact details of a mediation service and said the matter could be resolved more swiftly if Mr X and his neighbour worked together to cooperate with one another.
25. In March 2019, Mr X emailed the Council to say there had been little development over the past three months. Mr X asked if there was a time limit for his neighbour to complete the approved plans and asked if the Council had any power to enforce the completion of the work to be carried out.
26. The Council told Mr X it had added his email to the case file and the officer dealing with the case would view the document in due course.
27. The Council continued to communicate with Mr X’s neighbour and their agent about the boundary fence and the ongoing dispute. The dispute remained unresolved with the matter potentially progressing to legal action.
28. In June 2019, Mr X asked the Council to ensure compliance of the conditions within the approved planning permission. Mr X asked the Council to tell him what it intended to do about this matter.
29. The Council monitored the case and continued to correspond with Mr X’s neighbour and their agent.
30. In September 2019, the Council told Mr X his neighbour intended to apply to vary the conditions of the planning permission. The application would vary the condition for the timescale to erect the fence. It said the ongoing boundary dispute made compliance with the condition protracted and it would not involve itself in this matter.
31. In December 2019, the Council granted the application to vary the conditions of the planning permission. The timeframe to erect the fence was fixed to a date in March 2020.
32. Mr X’s neighbour erected the fence in March 2020 before the deadline specified in the varied planning permission.

The complaint to the Council

33. Mr X complained to the Council on 24 September 2019 because he was unhappy it had not enforced the conditions of the planning permission.
34. The Council acknowledged receipt of the complaint on 27 September 2019.
35. On 1 November 2019, Mr X emailed the Council to say he had not received a response to his complaint. The Council apologised and said it would provide a response by 6 November 2019.
36. The Council provided its Stage 1 response on 6 November 2019. It acknowledged there had been a breach of planning control but said the ongoing boundary dispute meant Mr X’s neighbour was unable to erect the fence. The Council said it could not intervene in this matter. The Council said it has discretion about its use of enforcement and was monitoring the breach.
37. Mr X told the Council he was unhappy with the Stage 1 response. On 12 November 2019, the Council said it had escalated his complaint to Stage 2.
38. On 13 December 2019, Mr X emailed the Council as he had not received its response.
39. The Council provided its Stage 2 response on 24 December 2019. It said that a planning application to vary the approval was determined on 23 December 2019. This gave approval to vary the timescale to erect the fence by a given date in March 2020. The Council said it had fully addressed the complaints raised by Mr X in its Stage 1 response and found the Council had not acted improperly.
40. Mr X remained dissatisfied so complained to the Ombudsman.

Analysis – was there fault leading to injustice

The Council’s decision

41. Mr X disagrees with the Council’s decision not to take enforcement action. I have seen no evidence of fault in the way the Council made its decision, and no fault in its enforcement policy. It acted in line with its policy when investigating the breach by considering all the circumstances before making its decision. It also considered the impact of Mr X’s concerns about the boundary line and the subsequent boundary dispute.
42. The Council decided it was not expedient to take enforcement action and showed its consideration in the planning application report.
43. Mr X is unhappy the Council did not take enforcement action prior to the start of the boundary dispute, which he says started in early 2019. He is also dissatisfied the Council did not impose a deadline to erect the fence until December 2019, despite reporting the breach in late 2018.
44. As previously stated in paragraph 11, enforcement action is discretionary. Councils are not obliged to take enforcement action just because there has been a breach of planning control.
45. Once the Council was aware of the boundary dispute, it considered the implications of this regarding enforcement action. The Council says it considered that had it served a Breach of Compliance Notice to Mr X’s neighbour, it would have been unlikely to achieve a successful outcome. The Council says it considered the courts would likely find the defence of Mr X’s neighbour (that they were unable to erect the fence due to the boundary dispute) to be reasonable.
46. I have seen no evidence of delay by the Council in investigating the report of the breach. And I have seen no evidence the Council told Mr X’s neighbour they were permitted to move into the property prior to compliance with the planning conditions.

Keeping Mr X updated and complaint handling

47. I have seen no evidence the Council answered the question asked by Mr X in March 2019 regarding the timescale for compliance. Although the Council acknowledged Mr X’s email, I have not seen that it provided an answer.
48. And in June 2019, Mr X asked the Council to inform him what action it intended to take. The evidence shows the Council responded in September 2019 (three months later) to inform Mr X that an application to vary the planning conditions would be made.
49. I acknowledge the Council was corresponding with Mr X’s neighbour and their agent to establish what action was being taken and so may not have been able to provide a substantive update to Mr X during this time. However, this was not explained to Mr X. I consider three months to provide a response to this question to be avoidable delay and fault by the Council.
50. From the evidence I have seen, the Council did not meet the timescales set out in its complaints policy when providing a formal response to Mr X’s complaint, at both stage one and two. The response at stage two was 42 consecutive days after the acknowledgement. This was provided after the planning application to vary the conditions had been determined. It is possible the Council wanted to wait for the outcome of this application before providing its response, but this was not explained to Mr X.
51. By delaying in providing Mr X with a response to the above, the Council did not clarify its position and did not adhere to its complaints policy. I consider this to be fault by the Council.
52. The injustice flowing from this fault is uncertainty and frustration caused to Mr X at not receiving clarification about what action the Council was going to take. Mr X also took time and trouble to chase responses to his complaint at both stages. I acknowledge however, that Mr X was aware the boundary dispute was ongoing at this time and the Council had previously explained the impact this had on the case.
53. Mr X says the Council’s actions caused him stress, a lack of privacy and financial loss due to him instructing a solicitor. However, this is not caused by the fault identified, but by the Council’s decision not to take enforcement action and Mr X’s decision to seek legal advice. As there is no evidence of fault in the way the Council made its decision, I do not recommend a remedy for the stress and/or inconvenience this caused.

Agreed action

54. To address the injustice arising from the fault identified, I recommended the Council take the following action:

• Provide an apology to Mr X within four weeks of the final decision in recognition of the delay and time and trouble incurred;
• Remind staff to respond to requests for information in a timely manner and to ensure target timescales for responding to complaints are met.

55. The Council has agreed with these recommendations.

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Final decision

56. I have completed my investigation and have found fault in the Council’s handling of Mr X’s complaint, and in delays in responding to some of Mr X’s correspondence. The Council has agreed to my recommendations.

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Parts of the complaint that I did not investigate

57. I have not investigated Mr X’s complaints about his neighbour’s outbuilding or the boundary dispute.
58. This is because the boundary issue is a civil matter, and the complaint about the outbuilding is premature with the relevant planning permission still under consideration.

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Investigator's decision on behalf of the Ombudsman