Summary: Ms B complains about the Councils handling of planning and enforcement at a site next to Mr C’s property. We found fault with the way the Council investigated some of the issues. There was also fault with the way it communicated with Ms B. The Council agrees actions to remedy the injustice.

The complaint

1. Ms B complains on behalf of Mr C. Ms B complains about the Council’s failure to control development on a site next to Mr C’s house. She says the Council has lost control of planning on the site and failed to take enforcement action.
2. She also says the Council has demonstrated an inexplicable and unacceptable leniency towards the landowner of the site.
3. Ms B says Mr C has suffered a loss of amenity and ongoing disruption from the unauthorised development.

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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’. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 spoke to Ms B and considered the information provided with the complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
9. Ms B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

Planning permission

10. Planning permission is required for the development of land (including its material change of use).
11. Planning permission may be granted subject to conditions relating to the development and use of land.
12. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Decision making and material considerations

13. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
14. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
15. Where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
16. 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.
17. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
18. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Enforcement

19. 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)

What happened

20. Ms B represents Mr C. Mr C’s house is next to a site which has been subject of several planning applications, building works and enforcement issues over many years.
21. The site is a main house with a large yard and various barns, outbuildings and land.
22. Ms B complained to the Ombudsman in 2018. We found fault with the Council and it agreed actions to remedy the injustice to Mr C.
23. Ms B has been in regular contact with the Council since the 2018 decision.
24. Ms B wrote to the Council in April and May 2019 because she remained unhappy with the Council’s handling of ongoing planning and enforcement issues at the site.
25. In May 2019 the Council met Ms B and caried out a site visit. It followed up with a letter summarising its findings and views on the issues Ms B raised in her letter.
26. In July 2019 Ms B replied and outlined her outstanding concerns.
27. There was correspondence between Ms B and the Council about ongoing issues at the site from August to November 2019.
28. In January 2020 Ms B complained to the Council. She summarised her complaint as:

“In conclusion the Council has ignored the previous Ombudsman findings and continues to fail in its duty to protect the settings of listed buildings, failed to keep accurate records and are unable to justify the rationale when deciding not to take enforcement action”.

29. The Council responded in February 2020. It did not uphold Ms B’s complaint or Mr C’s requested outcomes.
30. Ms B was unhappy with the Council’s response and complained to the Ombudsman in February 2020.

My findings

31. Ms B’s overarching complaint is the Council lost control of the site in terms of both planning and enforcement. She says the landowner continues to carry out unauthorised and unlawful building and development at the site. She says this has been going on for many years and has caused Mr C significant injustice. The injustice being; noise, disruption and a loss of amenity.
32. My investigation must consider the individual issues on their own merits rather than the overarching complaint about loss of control, which is too broad to be investigated.
33. I reviewed a wide range of issues during my investigation. I have summarised my findings under the headings I think are the main issues. On each issue I have considered whether there has been any fault. If there was fault, I also considered the injustice to Mr C within the context and nature of the site.

Failing to comply with the previous Ombudsman findings and recommendations

34. We were satisfied the agreed actions from the previous complaint were completed. If Ms B did not think the actions were completed this should have been raised at the time. This part of the complaint is too late to investigate.
35. The issues relating to lost documents and record keeping were investigated in 2018. Further investigation is unlikely to add to the previous investigation or result in a different outcome.

Failing to require compliance with an enforcement notice

36. I do not find fault with the Council for its decision not to require a concrete base to be removed.
37. Ms B says the Council failed to require a building to be demolished and completely removed, as set out in an enforcement notice. She says although the elevations were removed the concrete base was left and this caused damage to Mr C’s tree.
38. The Council says it consulted the tree officer who found the tree was heavily pollarded so any amenity value that may have needed protecting no longer existed.
39. The Council decided it was not expedient to require the base to be removed.
40. Where there does not appear to be fault with the way the decision was made, we would not question the professional judgement of the decision maker.

Unauthorised stable block

41. The previous Ombudsman decision found fault with the record keeping associated with the stable block.
42. The Council decided it was not expedient to pursue the unauthorised work any further.
43. The Council feels this matter was dealt with in 2018 and has no further update. Ms B disagrees with the Council’s decision not to take action.
44. More recent site photos show this remains an incomplete building. I do not propose to investigate this any further because it was considered as part of the 2018 complaint and there are no new matters to investigate.

The Pool House

45. The Pool House is situated some distance from Mr C’s house. There is a yard and several farm buildings between the two houses.
46. In 2010 the Council granted retrospective planning permission for the pool house. It was conditioned for ancillary use to the main house. The officer’s report said planning permission would be required if it was used as a separate dwelling.
47. Ms B says the Pool House has been used as a separate dwelling for several years. The Council also accepts this.
48. Ms B says it is in breach of the conditions and the Council should take action. The Council says it is immune from enforcement action because it has been used as a dwelling for over four years.
49. During a site visit in June 2019 a planning officer recorded the Pool House was occupied and there was no planning permission in place for this. They told Ms B:

“(the Pool House).. appears occupied in breach of that condition and (the Council) will pursue further”.

50. The officer also made enquiries with the Council Tax team but did not follow this up.
51. In August 2019, a planning officer carried out another site visit and recorded they were in no doubt the Pool House was occupied as a family home. They told Ms B they would carry out further research.
52. The officer sought legal advice and wrote to Ms B in October 2019. They said the building had been used as a main dwelling for more than four years, so it was immune from any action.
53. The Council failed to evidence how it investigated the reported breach to establish when and if it was occupied as a main dwelling. I have not seen any photographic evidence over the period in question which could have proved or disproved the alleged development and change of use.
54. It is also likely the Council’s lack of investigation over several years contributed to the Pool House becoming immune due to the passage of time. This is the position it is now relying on to explain why it is not expedient to take any enforcement action.
55. The Council’s legal advice suggested:

“… in terms of investigating this matter you may need to carry out another site visit and inspect the inside of the buildings to ascertain whether a material change of use is taking place”.

56. There is no evidence this site visit was carried out. The Council relied on the landowner’s agent to provide information about the Pool House occupation rather than carrying out its own investigation.
57. I find fault with the way the Council investigated reported breaches of the planning conditions it imposed on the use of the Pool House.
58. However, the fault did not cause Mr C a significant injustice. Due to the location of the Pool House in relation to Mr C’s house its use as a main dwelling does not cause a significant injustice to Mr C.

Parking of commercial vehicles

59. Ms B says commercial vehicles parked on the site are in breach of planning control because the land is agricultural. She says this is one example of the commercial use of land by the owner.
60. The Council carried out several site visits and recorded work vans parked on the site. However, it told Ms B it did not consider the “…scale and use of the site for parking of commercial vehicles to constitute a material change of use”.
61. I do not find fault with the way the Council responded to Ms B’s reports of commercial vehicles parking at the site. It responded to the report and investigated the issue. The Council visited the site and decided it was not expedient to take action based on the evidence it found. Ms B may disagree with the decision, but I did not find fault with the way the Council reached its decision.

Water pipes

62. In May 2019, the Council received a report the landowner was laying water pipes in connection with a business, for which there was no planning permission.
63. A planning officer carried out a site visit. They recorded:

“.. pipes have been buried and trench filled… this would be classed as development under definition… and is unauthorised. To be investigated with X (landowner)”

64. There is no evidence of further investigation, such as enquiries with the water company. In June 2019, a planning officer carried out a further site visit. They recorded the water pipes replaced were for an existing building and did not require any action. I saw no evidence to support this decision.
65. I find fault with the way the Council investigated reports of water pipes laid at the site. There is no significant injustice to Mr C from the Council’s failure to properly investigate the water pipes. The water pipes are not close to Mr C’s house and are not visible.

Delays responding to Ms B and complaint handling

66. The Council should have ensured it understood all the issues Ms B raised and provided its final response on each point.
67. It should have identified it as a complaint earlier and used its corporate complaint process to respond. This would have avoided the lengthy email exchanges that took place over several months. This was unproductive and caused delay and frustration.
68. I find fault with the Council for the way it communicated about the issues Ms B raised on behalf of Mr C.
69. The fault caused Mr C an injustice. It caused delays resulting in additional time and trouble. It also caused frustration because the responses were not clear and failed to address all the points put to the Council.

Unacceptable leniency towards landowner

70. Ms B says the Council actively colluded with the landowner to enable unauthorised development of the site. She says the Council showed them inexplicable and unacceptable leniency and made excuses for failing to take action.
71. The Council denies all of Ms B’s claims. It says a variety of officers dealt with the planning and enforcement issues and each case was decided on its own merits.
72. There is no evidence of collusion. However, there is evidence of poor practice in the investigation of planning and enforcement issues at the site. I have addressed this in my findings above. Whilst I cannot say the poor practice is evidence of leniency, I can understand why Ms B and Mr C were concerned about some of the Council’s responses to their concerns.

Conclusion

73. I found some fault with the way the Council investigated reports of planning and enforcement matters. However, I did not find the fault lead to a significant injustice. In reaching my decision I considered the direct impact of any fault on Mr C. I took into account the context and nature of the site and the location of the individual areas of concern.
74. Ms B argued there were wider concerns about injustice because there are listed buildings surrounding the site and each of the breaches impacts the setting of the listed buildings. I took this into account during my assessment of injustice. I recognise Ms B and Mr C’s concerns, but it does not affect my view of injustice. Even taking the personal and wider injustice together there is no significant injustice caused from the fault I identified.
75. I think there is learning for the Council with both its investigation and recording of reports where there are multiple issues on one site. The Council should be able to evidence its decision making in respect of each issue.
76. There is also learning in respect of its complaint handling. It should ensure it recognises a complaint and responds with its complaint procedure in a timely manner. This would avoid delay and frustration. It would also provide the complainant with a clear final response.

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Agreed action

77. Within one month of my final decision the Council agrees to:
• Apologise to Mr C for the faults identified in this statement.
• Pay Mr C £250 in recognition if the frustration, time and trouble it caused.
78. Within two months of my final decision the Council agrees to:
• Remind planning officers of the definition of a complaint and when to use the corporate complaint procedure.
• Review how it investigates, and records reports of planning and enforcement issues where there are multiple reports associated with one site. It should ensure it can evidence its decision making in respect of each individual issue.

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Final decision

79. I find fault with the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman