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Rother District Council (20 014 240)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 13 Dec 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to respond to his correspondence or take appropriate and timely enforcement action in relation to a breach of planning control at a neighbouring property. The Council’s failure to deal with this matter in a proactive manner and the repeated delays and periods of significant drift amount to fault. As do the Council’s failure to respond to Mr X’s emails, keep him updated and the delays in dealing with his complaints. These faults have caused Mr X an injustice.

The complaint

  1. The complainant whom I shall refer to as Mr X complained the Council failed to respond to his correspondence or take appropriate and timely enforcement action in relation to a breach of planning control at a neighbouring property.
  2. Mr X also complains the Council did not respond to his complaints in accordance with its complaints procedure.

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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. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mr X;
    • Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mr X contacted the Council in early February 2020 as his neighbour, Mr Z had erected a large scaffolding structure in Mr X’s garden without permission. Mr X reported that Mr Z had moved a huge amount of earth/ soil to the bottom of his garden which in heavy rains had run down the bank into Mr X’s garden as a mud heap. Mr X considered the amount of soil Mr Z had moved was dangerous and extremely unstable.
  2. Mr X visited the Council offices a few days later and discussed the structure with a planning enforcement officer, Officer 1. He then sent Officer 1 photographs of the structure. Officer 1 told Mr X they would write to Mr Z to arrange a visit. Mr X sent Officer 1 further photos showing Mr Z had carried out further works on the structure and was pouring tons of brick and rubble into the structure.
  3. Officer 1 visited Mr Z on 16 March 2020. The records of this visit state Mr Z explained the structure had been erected due to land slip following heavy rainfall. Mr Z told Officer 1 it was a temporary measure and once the land had dried out he intended to install stepped retaining walls to consolidate the land. Officer 1 noted the structure is approximately seven metres in height.
  4. Following this visit Officer 1 wrote to Mr Z advising that the Council was unlikely to support an application to retain the current structure and that it should be removed. Alternatively he could submit an application for another structure to replace the scaffolding.
  5. Mr X wanted the scaffolding to be removed immediately and was unhappy the Council had invited Mr Z to submit a planning application. He contacted the Council again in the following months requesting an update. As he did not receive a response, in October 2020 Mr X submitted a complaint. Mr X states the Council’s complaints department contacted him to apologise for the lack of response to his emails and confirmed Officer 1 would contact him.
  6. The Council has not provided a record of Officer 1’s call, but Mr X states Officer 1 called him on 21 October 2020 to apologise for not responding. Officer 1 confirmed they had invited Mr Z to submit a planning application and would chase this up. Mr X states that Officer 1 also agreed to keep him updated. The Council closed Mr X’s complaint following Officer 1’s contact with him. Mr X chased Officer 1 for an update in November and December 2020 but did not receive a reply.
  7. In early January 2021 Mr X made a further complaint and received an automated acknowledgement. On 23 March 2021 the Council confirmed it would consider Mr X’s complaint at stage two of its complaints process. As he heard nothing further, on 4 March 2021 Mr X checked the Council’s online portal which showed both his complaints were closed. Mr X contacted the Council who confirmed Officer 2 would respond to the complaint and address the issue of the structure by 23 March 2021.
  8. When the Council did not respond to Mr X’s complaint by this deadline, Mr X contacted the Council for an update. Mr X states the Council confirmed it would uphold his complaint and that the planning enforcement team would address the issue of the structure. Officer 1 visited the site again on 8 March 2021.
  9. On 26 March 2021 Officer 1 advised Mr X they had asked Mr Z to remove the structure and to provide the Council with an intended course of action and timeframe within two weeks. Officer 1 confirmed they would update Mr X when they heard from Mr Z. Over the following months Mr X chased the Council for an update and for a response to his complaint.
  10. The Council responded to Mr X’s complaint on 27 May 2021. It set out the action it had taken in relation to the scaffolding structure and confirmed that the enforcement case was still live. The Council stated that if Mr Z did not submit a planning application by 27 June 2021 it would progress formal enforcement action.
  11. In addition the Council confirmed its failure to respond to Mr X’s emails or to provide updates was fault. It also found fault in the way the Council had handled his complaint in terms of the delays in investigating and in providing a response. The Council apologised for these failings.
  12. The Council stated the planning department had been severely impacted by increased work volumes, long term staff sickness and vacancies. And that COVID-19 had disrupted the planning department more than any other department. In addition it stated planning enforcement complaints had doubled in the previous 12 months so that the Council’s focus had shifted to ‘high priority’ breaches of planning control only. The Council stated it was working on improving this situation.
  13. As the Council’s website did not show Mr Z had submitted a planning application, Mr X contacted the Council on 29 June 2021 for an update. The Council advised there was a nine week backlog for planning applications to be validated so it was possible Mr Z had submitted an application which had not yet been processed. They would check the position and confirm.
  14. On 1 July 2021 the Council advised Mr X that the enforcement action was on hold as it was satisfied Mr Z was taking steps to make a planning application. The Council was unable to disclose the details but confirmed it had evidence a structural survey had recently been conducted. It stated the scaffolding was a temporary solution to stop land slippage as there was evidence from another neighbour who had suffered this and had partially exposed foundations.
  15. The Council was satisfied an application was imminent and as such formal enforcement action was not currently appropriate. It confirmed it was monitoring the site to ensure action was being taken. The Council also noted that there was no guarantee that planning permission would be granted and if this was the case it would take action.
  16. In relation to Mr X’s concerns about boundary encroachments, the Council advised this was a civil matter which Mr X would need to pursue personally.
  17. Mr X remains unhappy with the Council’s actions and has asked the Ombudsman to investigate his concerns. He complains that months later Mr Z has not submitted a planning application, but the Council has not taken any action.
  18. In response to my enquiries the Council states the case was category B priority and of medium priority. Due to workloads and given this level of priority it was not progressed from late 2020 to after the second lockdown. The Council states that when the matter was picked up again in March 2021, little had changed on site. Mr Z told the Council he would instruct someone to prepare an application and in June 2021 provided proof of his contact with planning consultants and arrangements for a survey to be undertaken.
  19. The Council states the enforcement case is still live, and it is chasing Mr Z for an application.
  20. The Council has offered to pay Mr X £150 in compensation for the poor communication he has experienced.

Analysis

  1. The Ombudsman is not an appeal body. It is not the Ombudsman’s role to decide whether or when the Council should take enforcement action; that is the Council’s job. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
  2. The Council states Mr X’s case was category B priority and of medium priority. It is unclear what is meant by this, or the criteria used for these categories. The Alleged Breaches of Planning Control page on the Council’s website refers to low priority cases and high priority cases but does not specify the criteria for either category. There is no reference to a medium priority case or a category B case.
  3. The Council did not inform Mr X of the priority allocated to his case, or what that would mean in terms of its investigation.
  4. It is nevertheless clear from the documentation that there have been delays in investigating Mr X’s concerns and the matter has been allowed to drift. The Council told Mr Z in March 2020 that the scaffolding structure had to be removed, but there is no evidence it followed up on this instruction. The Council appears to have accepted Mr Z’s explanation that it was a temporary structure and would be replaced by an alternative solution. However, there are no records of any attempts to monitor the situation or to confirm what action Mr Z was taking.
  5. The COVID-19 pandemic and national lockdowns may have impacted on the Councils’ ability to carry out site visits but would not have prevented officers from requesting information or evidence from Mr Z to confirm he had removed the structure.
  6. The Council visited the site again in March 2021 and again advised Mr Z the structure should be removed. Having given Mr Z a two week timeframe to confirm he would remove the structure the matter was allowed to drift again as the Council did not chase a response for over 10 weeks.
  7. Mr Z provided the Council with a copy of his correspondence with agents in June 2021. While these emails refer to a survey, they do not refer to a planning application for the scaffolding structure or any alternative solution. And I have not received copies of any further correspondence between the Council and Mr Z since June 2021.
  8. The scaffolding structure is still in place and a search of the Council’s website suggests that five months later Mr X has still not submitted a planning application. The Council’s failure to deal with this matter in a proactive manner and the repeated delays and periods of significant drift amount to fault.
  9. The Council’s failure to respond to Mr X’s emails and the delays in dealing with his complaint also amount to fault.
  10. This fault has added to Mr X distress and frustration and has put him to unnecessary time and trouble in trying to resolve this matter.

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Agreed action

  1. The Council has agreed to apologise to Mr X and pay him £300 in recognition of the distress and frustration, and the unnecessary time and trouble he has been put to as a result of the Council’s delays and periods of inactivity.
  2. The Council has also agreed to arrange for a senior officer to review the enforcement case and decide upon the next course of action, which should include a clear timeframe. The Council should write to Mr X every four weeks to provide an update on the progress of the case
  3. The Council should take this action within one month of the final decision on this complaint.

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Final decision

  1. The Council's failure to deal with this matter in a proactive manner and the repeated delays and periods of significant drift amount to fault. As do the Council’s failure to respond to Mr X’s emails, keep him updated and the delays in dealing with his complaints. These faults have caused Mr X an injustice.

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Investigator's decision on behalf of the Ombudsman

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