Summary: Mr X complains about the actions of the Council’s former planning enforcement officer and delays in responding to his client’s enquiries. The Ombudsman will not investigate this complaint. It is unlikely an investigation will lead to a different outcome.

The complaint

1. Mr X complains for his client Mrs Y. He says a former Council employee acted unreasonably when dealing with planning enforcement matters at Mrs Y’s home causing her distress and upset.
2. He also complains the Council delayed in responding to requests for updates on Mrs Y’s case.
3. Mr X wants the Council to pay Mrs Y compensation for the distress caused and the unnecessary expenses she has incurred.

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The Ombudsman’s role and powers

4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A (6), as amended)
5. 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

6. I considered the information provided by Mr X, including the Council’s responses to his complaints.
7. Mr X commented on the draft version of this decision.

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What I found

8. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA).
9. A full planning permission will grant permission for all aspects of a proposal, though usually permission is subject to planning conditions.
10. It is sometimes necessary to make changes after planning permission is given. In these cases, the developer can make a non-material amendment application.
11. Where planning permission is subject to conditions, it is possible to apply for a permission to vary or remove those conditions.

What happened

12. Mrs Y lives in an annexe to a property I will call house B. The Council granted permission for Mrs Y to build a granny annexe to house B to provide self-contained living accommodation for a family member.
13. In June, the Council’s planning enforcement officer contacted Mrs Y and her agent Mr X. He said the Council had concerns the annexe was not built according to the approved plans. The changes from the approved plans included a change in the pitch of the roof, changes to the location of doors and windows and minor alterations to the internal layout. He told Mrs Y to put in a new planning application for the annexe, to regularise what had been built.
14. Mr X put in a non-material amendment application on Mrs Y’s behalf, to address the changes to the annexe from the approved plans.
15. The officer wrote to Mrs Y saying a full planning application was required. He also stated Mrs Y had severed the link to house B by creating a new land registry title thus making the annexe a new property. The officer advised he had told the planning case officer the non-material amendment application would be withdrawn, and to refund the application fee.
16. The letter says that if Mrs Y did not respond positively to the content of the letter, the Council would have no alternative than to consider formal enforcement action against her. However, the officer also wrote that if Mrs Y wanted to discuss anything he had raised, she should not hesitate to contact him.
17. The planning case officer decided the changes to the annexe could be dealt with by varying the conditions.
18. The non-material amendment application was withdrawn, and Mr X applied on Mrs Y’s behalf for a variation of the planning conditions.
19. In July, the Council approved the application to vary the condition on the original permission for the annexe. This regularised the breaches of planning control at the property.
20. At the end of July, the enforcement officer wrote to Mrs Y again. This time the letter concerned a possible breach of planning control at a nearby development. He asked Mrs Y to correct the breaches at these listed buildings. Mr X says the development had been completed some years ago and the individual properties sold to new owners.
21. In September, the Council assigned a new enforcement officer to the case. He told Mrs Y that he would issue a Planning Contravention Notice (PCN) to find out the situation regarding the occupation of the annexe.
22. An LPA may serve a PCN when it appears that a breach of planning control may have occurred and they want to find out more information before decided what, if any, enforcement action to take. A failure to complete or return a PCN within 21 days is an offence. It is also an offence to provide false or misleading information on the notice. (Town and Country Planning Act 1990 s 17D)
23. In October Mr X asked the Council when it would serve the PCN. The Council advised it would be sent the following week.
24. At the end of October, Mr X asked the Council again when it would send the PCN as Mrs Y was anxious to resolve the matter.
25. The Council served the PCN in the first week of November. Mr X returned the completed notice on 11 November.
26. In December, Mr X asked the Council to confirm what action, if any, it intended to take having received Mrs Y’s completed PCN. The Council did not respond.
27. In January, Mr X complained to the Council about the original enforcement officer’s action which he said Mrs Y had found intimidating and distressing. He also complained about the delay in confirming what action it would be taking.
28. Three weeks later the Council responded under stage 1 of its complaints’ procedure. It advised it has considered the information in Mrs Y’s response to the PCN and is satisfied there is no breach of planning control with the occupation of the annexe. It confirmed it will not be taking any further enforcement action on this matter. It also confirmed it will not take any action about the possible breaches at the nearby development.
29. The Council also apologised for the 6-week delay between advising it would be issuing a PCN and sending the document to Mrs Y and the delay in responding to the returned document. It explained this was due to pressure of work.
30. It also confirmed the original enforcement officer no longer works for the Council. It apologised if his actions had caused Mrs Y any distress. However, as he was no longer employed, it could not question him about this.
31. Mr X escalated the complaint to stage 2 of the process. He said the Council is not absolved of responsibility for the officer’s actions just because he is no longer an employee. He said Mrs Y wanted compensation for the distress caused and the added expenses she had incurred. Mr X told the Council Mrs Y would withdraw her complaint if the Council agreed to pay her £1,500.
32. The council responded under stage 2 of its complaints’ procedure. It advised it had already apologised to Mrs Y if the officer’s conduct had caused distress and for the delays. However, it confirmed it has a duty to investigate suspected breaches of planning control. It will not pay Mrs Y compensation. Mr X complained to the Ombudsman.

Assessment

33. Mr X says actions of the former enforcement officer were based on ‘inaccurate and non-factual assumptions.’
34. The Council’s duty is to investigate suspected breaches of planning control. Once it is satisfied it has enough information, it must then decide what action, if any to take. It states it had received a report that the annexe was not being occupied according to the planning permission. I do not consider the letter sent by the enforcement office in June to be aggressive. If the officer was wrong in his assertions, it was for Mr X or Mrs Y to provide the correct information. I note the letter specifically states the officer would be happy to discuss the matter with Mrs Y and she should not hesitate to contact him.
35. The Council has apologised for any distress felt by Mrs Y because of the actions of the officer. However, he is no longer an employee and the Ombudsman could not question him as part of a robust investigation. Mr X suggests an investigation would reveal why the officer left the Council’s employment. I do not agree. Any information relating to the officer’s employment, including personnel or disciplinary matters are confidential. To release any information about this, including whether any other complaints had been made against the officer, would breach data protection regulations.
36. Mr X also suggests the Council should have made attempts to locate the former officer and obtain a witness statement. Again, I disagree. The Council cannot demand a witness statement from a former employee. Nor do I consider an attempt by the Ombudsman to locate the former officer and obtain a witness statement to be a good use of public funds.
37. The Council has apologised if the officer’s actions distressed Mrs Y. I consider to be a suitable remedy to this part of the complaint.
38. There was a 6-week delay between advising Mrs Y that a PCN would be issued and sending the document. After Mr X chased the Council for the document, he was told it would be sent the following week. It was not. This is fault. I understand the delay may have increased Mrs Y’s anxiety. However, the Council has apologised for this. Again, I consider this to be a suitable remedy to this part of the complaint and do not believe an investigation on this point would lead to a different outcome.
39. Finally, Mr X complains the Council failed to advised Mrs Y whether it would be taking any action once it had received the completed document. There is no requirement for the Council to respond to a completed PCN within a specific period. I understand Mrs Y will have wanted to know whether the Council intended to take any enforcement action as soon as possible. But I cannot say the Council was at fault for failing to inform her immediately. It is regrettable the Council took roughly 12 weeks (including the Christmas break) from receiving the completed PCN to confirming it will not be taking any action. However, there is no statutory requirement for it to do so any sooner.
40. Mr X says because of the Council’s actions, Mrs Y incurred added expenses as she had to have new plans drawn up after the officer threatened enforcement action. He says this is unreasonable and the Council should pay for this because the approved roof pitch had to be changed to accommodate the request of the Council’s conservation officer who wanted slate roof tiles used instead of the originally proposed cedar shingles.
41. To recommend that the Council reimburses Mrs Y for the costs of new plans, I need to see evidence which shows fault by the Council which led directly to Mrs Y requiring new plans. Mr X says Mrs Y had to engage him to defend herself against the actions of the enforcement officer. However, other changes had been made to the building such as alterations to the location of doors and windows. This means the property was in breach of planning control for other alterations, not just changes to the roof. I do not agree with Mr X’s assertions that the new plans were a required solely to remedy the alterations to the roof which had been made following the Conservation Officer’s request that Mrs Y use slate tiles on the roof.

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Final decision

42. I will not investigate this complaint. The Council has apologised for any distress the actions of its former employee may have caused. And it has apologised for the delay sending the PCN to Mrs Y. I consider this to be an appropriate remedy to the complaint. And I consider it unlikely that further investigation will lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman