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West Lindsey District Council (21 001 434)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 06 Dec 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council unnecessarily delayed in taking planning enforcement action against her neighbour. She also complained about how it updated her on its progress. The Council was at fault for allowing the case to drift for a short period of time. The Council will apologise to Mrs X. It has taken suitable action to prevent the fault occurring again.

The complaint

  1. Mrs X complained the Council unnecessarily delayed in taking planning enforcement action against her neighbour. She also complained about how it updated her on its progress.
  2. Mrs X says this was distressing and meant she had to buy a fence to hide the neighbour’s structure and protect her children from harm.

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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 have considered:
    • all the information Mrs X provided and discussed the complaint with her;
    • the Council’s comments about the complaint and the supporting documents it provided; and
    • the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
  2. Mrs 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

Relevant law and guidance

  1. Planning authorities may take enforcement action where there has been a breach of planning control. The Town and Country Planning Act 1990 says a breach is when development is carried out without the required planning permission.
  2. 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’.
  3. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider the following before deciding how to react.
    • What harm is caused to the public.
    • Whether they might grant approval if they were to receive an application for the development or use.
  4. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  5. Government guidance encourages councils to resolve issues through informal action such as negotiation and dialogue with developers. If the Council decides formal action is needed, it has a range of options including Planning Enforcement Notices. Enforcement Notices require the person to take action to remedy a breach. An Enforcement Notice creates a right of appeal to the Planning Inspectorate. The person has 21 days to appeal.
  6. The Council's enforcement policy says it allocates a potential breach a priority status which is determined by the severity of the breach. Low priority potential breaches are those that do not result in significant or irreversible harm.
  7. The Council will review low priority potential breaches within three working days and visit the site within fifteen. It will then decide if a breach of planning control has occurred. The Council will contact the person who reported the alleged breach within 20 working days of the report.
  8. The policy says the frequency with which the Council updates the person who reported the breach is dependent on the action that it takes.

What happened

  1. In September 2019, Mrs X contacted the Council to report that her neighbour had built a structure between their homes that was dangerous and unsightly.
  2. The Council categorised the breach as ‘low priority’ and visited within one week. It decided to take informal action and first contacted the neighbour in early October. The neighbour did not respond to the Council and it visited again at the end of the month. The neighbour told the Council they would make changes to the structure. The Council decided the amendments to the structure would mean it would be permitted development. It therefore closed the case and told Mrs X its decision.
  3. In mid-December Mrs X sent the Council evidence the neighbour had carried out more work on the structure. The Council wrote to the neighbour to remind them of the requirements for the structure to be permitted development. It decided to wait until early 2020 to check if there had been any changes before considering further action.
  4. In late January 2020, the Council decided to seek advice before taking formal action. In mid-February, the Council wrote to the neighbour again setting out what changes they needed to make to the structure so that it would comply with permitted development. The Council said if they did not comply in 21 days, it would issue an Enforcement Notice.
  5. The neighbour responded in early March to challenge the Council's view that the structure breached planning control. The neighbour said they would make the changes but needed more time due to issues caused by the COVID-19 pandemic. The Council explained this to Mrs X.
  6. The Council wrote to Mrs X in May to say it would visit the site and see if the neighbour had made any changes to the structure now that the first national lockdown had ended.
  7. Mrs X complained in early June. She said enforcement had agreed the structure was not allowed but it had not issued an Enforcement Notice.
  8. The Council responded to say:
    • it had no power to immediately remove the structure;
    • the neighbour’s contact in early March had required a response so it could not issue the Enforcement Notice as it had planned;
    • there had been some delay progressing the case as its officers had been sent to other departments due to the COVID-19 pandemic;
    • it was mindful the neighbour had said they could not make the changes the Council required due to problems getting building materials and legal advice during the lockdown. It said the courts would consider this ‘mitigating circumstances’ if it prosecuted;
    • it planned to issue an Enforcement Notice at the end of the month.
  9. In late June, the Council issued an Enforcement Notice as the neighbour had not made the changes it asked for.
  10. In early August, shortly after the end of the appeal period on the notice, the neighbour installed a fence along the edge of, and taller than, the structure. The Council visited the site at the end of the month and again at the end of September to assess the fence. It decided the fence did not mean the previous structure was compliant with the Enforcement Notice.
  11. In early October the Council decided to start prosecuting the neighbour. It later decided it needed to confirm if the fence was a new breach of planning control instead of a failure to comply with the first breach. Throughout late 2020 the Council carried out site visits and took legal advice. It decided it needed to issue a new Enforcement Notice as the fence was a new breach of planning control. It did this in mid-December 2020.
  12. Mrs X’s neighbour complained to the Ombudsman about the enforcement and the Council decided to wait for the outcome of our investigation.
  13. The Ombudsman ended its investigation in early February 2021. The Council did not take any action until late May when its legal team asked it to clarify the situation.
  14. In late July the Council visited the site and confirmed there had been no change to the structures. Its legal team apologised for allowing the case to ‘slip’ and asked for more information in August. Throughout September 2021, the Council began preparing the documents for prosecuting the neighbour.
  15. In response to my enquiries the Council said:
    • the delay from February to April 2021 was due to high workloads. The delay since then has been due to its legal team;
    • it had seen a large increase in reported breaches during lockdown which had affected its ability to progress cases. It had temporarily hired an extra member of staff to help;
    • it had also reconsidered its approach to low priority cases. It would now be unlikely to take enforcement action on them. However, in Mrs X’s case, it has decided to continue with action because it has already started;
    • it is working to review how it progresses cases to reduce case numbers and allow it to work faster. This will match up with its Local Enforcement Plan due in early 2022.

Communication

  1. I have reviewed the Council's communication with Mrs X. It is clear Mrs X was keen for a resolution therefore frequently chased the Council for an update before it gave her one. However, the Council did contact Mrs X after it had substantive updates including when it completed a site visit, issued an Enforcement Notice or made a decision on how to progress the case.

Findings

  1. The Ombudsman is not a planning authority and cannot determine action the Council should take to resolve a breach of planning control. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
  2. When Mrs X first reported her concerns about the neighbours building work in September 2019, the Council responded within the time frames set out in its policy. It decided that, providing the neighbour made the amendments they said they would, the structure would be permitted development. The Council considered the relevant information in making its decision; it was not at fault.
  3. When Mrs X reported further development in December 2019, the Council decided the development was breach of planning control. It took informal action first, writing to the neighbour several times from December to February. It then decided to proceed to formal action, issuing the first Enforcement Notice in June 2020. The Council has confirmed it intends to prosecute Mrs X’s neighbour and is currently preparing documents. The government encourages councils to resolve planning control breaches informally and to use formal action as a last resort. The Council acted in accordance with government guidance so was not at fault.
  4. The Council accepts there was some delay between contacting the neighbour in February 2020 and issuing the Enforcement Notice in June 2020. It says this was because of issues the neighbour raised with it which it needed to address and due to the impact of the COVID-19 pandemic. I accept the Council's explanation and do not find it at fault.
  5. The neighbour subsequently made further changes to the structure including adding a large fence along its edge. The Council reassessed whether the fence was a new breach of planning control before deciding to proceed with prosecution. It did not unduly delay doing so. The Council was not at fault.
  6. The Council decided to halt progress on the case while Mrs X’s neighbour complained to the Ombudsman. This was not fault. However, our investigation ended in February 2021. The Council did not take any action until the end of May 2021. The Council then made little progress on the case until September 2021 when it began preparing the prosecution evidence. I have considered the Council's explanation for the delay in that period but still consider there was unnecessary drift. This caused Mrs X avoidable frustration. I have therefore made a recommendation in paragraph 37. I am satisfied the Council has made suitable efforts to prevent the fault again by hiring an extra member of staff and reviewing how it responds to low priority cases.

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Agreed action

  1. The Council will offer Mrs X a meaningful apology for the frustration caused by the delays in progressing the case in 2021. It will do this within one month of the date of my final decision.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice. The Council has taken action to prevent the fault occurring again.

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Investigator's decision on behalf of the Ombudsman

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