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East Hertfordshire District Council (20 013 791)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 30 Nov 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to take planning enforcement action against his neighbour, who installed noise generating equipment near the shared boundary. There was fault in the way the Council acted, as it did not make its planning enforcement decision within a reasonable time. The Council has agreed to remedy the injustice caused to Mr X by apologising for what has happened and to make its decision without further delay.

The complaint

  1. Mr X complained the Council failed to take enforcement action against his neighbour who installed an air conditioning unit (the equipment). Mr X said the equipment had been installed too close to the shared boundary and fails other permitted development criteria, including compliance with industry standards.
  2. Mr X said noise from the equipment disturbed his amenity and devalues his property.

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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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed what had happened with a planning manager.
  2. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • views from a property;
    • the impact of development on property value; and
    • private rights and interests in land.
  4. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
  5. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
  6. Though planning enforcement is discretionary, we expect councils to respond to reports of planning breaches, investigate and decide whether or not to take enforcement action without undue delay.

What happened

  1. Mr X’s neighbour installed the equipment near the boundary without seeking planning permission. Mr X said the equipment is noisy and affects his enjoyment of his garden. Mr X also thought the equipment did not meet permitted development requirements for several reasons, and so he complained to the Council’s planning enforcement officers.
  2. I spoke to the Council’s planning manager, who told me:
    • The Council opened a planning enforcement file after receiving Mr X’s complaint in October 2020.
    • Originally, the Council took the view that the equipment installation was permitted development but later changed its mind. The Council invited the neighbour to make a planning application.
    • In the early part of 2021, planning enforcement asked environmental health officers to assess the noise impact caused by the equipment.
    • Environmental health said they have yet to decide whether the equipment causes a statutory nuisance and may consider the matter further once the planning enforcement process is complete.
    • In the summer of 2021, the Council told the neighbour that the equipment was not permitted development and the developer said they would move the equipment. The Council did not know whether this had happened.
    • The planning enforcement officer left the authority, and the case has not progressed.
    • This case was affected by the COVID-19 lockdown and the Council is still dealing with a backlog of cases caused by the pandemic.
    • The Council is experiencing difficulties caused by staff turnover and retention.
  3. Mr X said the equipment is still in place near the boundary and noise disturbance is still affecting his amenity. Mr X said that the Council has since confirmed that the equipment is not permitted development, regardless of where it is situated.

My findings

  1. We expect councils to carry out their enforcement functions without undue delay. Mr X complained about a breach of planning control more than a year ago, but the Council has still not decided whether to take enforcement action. Mr X used the Council’s complaint procedure, but it did not resolve his complaint.
  2. We recognise that the COVID-19 pandemic has caused severe disruption to the Council’s ability to deliver its services, and some of the delay here is likely to have been caused by the emergency and the backlog it created. We also recognise that many councils experience problems recruiting and retaining qualified and experienced staff and that this affects delivery of public services.
  3. However, councils are obliged to consider allegations of breaches of planning controls and should so without undue delay. Undue delay can cause individuals to suffer the consequences of uncontrolled development longer than is necessary and it can also affect the chances of a successful enforcement outcome.
  4. The delay in reaching a conclusion of over a year and counting, is significant. The delay is fault, and it has caused Mr X an injustice. Because of the fault, Mr X was caused frustration in having to repeat his complaints and chase responses. He was also caused worry and uncertainty as to what might happen next.
  5. I recommended action to remedy the injustice to Mr X caused by the fault I have found. The Council has accepted my recommendations.

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Agreed action

  1. To remedy the injustice caused by the fault I have found, the Council has agreed to:
    • Apologise to Mr X for the frustration and inconvenience caused by its failure to act within a reasonable time; and
    • Carry out any necessary investigation and make its planning enforcement decision without further delay.
  2. The Council will apologise to Mr X within 1 month from the date of our final decision. It will inform Mr X and the Ombudsman of the outcome of its investigation within three months from the date of our final decision.

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Final decision

  1. I found fault causing injustice to Mr X. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman

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