Epsom & Ewell Borough Council (21 001 670)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 30 Mar 2022

The Ombudsman's final decision:

Summary: Mr X says the Council failed to act on his reports that his neighbour carried out development on a front driveway without planning permission. Mr X also complains the Council unreasonably decided to apply its policy on vexatious or persistent complainants to him. There was fault by the Council because it did not inform Mr X of the outcome of its planning enforcement investigation. It consequently improperly applied its policy on vexatious complainants. The Council agreed to apologise to Mr X and make a payment to him to address the injustice he suffered in consequence of its fault.

The complaint

  1. I refer to the complainant here as Mr X. Mr X says:
    • The Council failed to act on his reports that his neighbour carried out development on a front driveway without planning permission.
    • The Council unreasonably decided to apply its policy on vexatious or persistent complainants to him.
    • The Council did not respond to his complaint about its former Chief Legal Officer.
    • The Council did not give him information despite being told to do so by the Information Commissioner.

Back to top

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)

Back to top

How I considered this complaint

  1. I considered the complaint and background information provided by Mr X. I made enquiries of the Council and considered the information it provided. I sent a draft decision statement to Mr X and the Council. I revised my draft decision findings based on comments from Mr X and the lack of a reply or contrary evidence from the Council. I considered the comments of both parties on the revised draft decision statement.

Back to top

What I found

Planning enforcement guidance

  1. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
  2. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) as:
    • The carrying out of development without the required planning permission; or
    • Failing to comply with any condition or limitation subject to which planning permission has been granted.
  3. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to act.
  4. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This makes clear enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control.

The Council’s unreasonable behaviour policy

  1. The Council defines unreasonable behaviour as those complainants who, because of the nature or frequency of their contacts with an organisation, hinder the organisation’s consideration of their, or other people’s complaints.
  2. Unreasonable behaviour may include one or two isolated incidents; as well as unreasonably persistent behaviour which is usually an accumulation of incidents or behaviour over a longer period.
  3. The policy says customers may have justified complaints or requests but may pursue them in appropriate ways for example lengthy phone calls, emails expecting immediate responses, detailed letters or emails every few days or constantly making complaints when they do not achieve their outcome. Contacts may be amicable but still place very heavy demands on staff.
  4. A customer whose behaviour has been judged to be unreasonable will have restrictions imposed on their contact with the Council. When
  5. When a decision is taken to apply the policy the Council will contact the customer to:
    • Detail the action taken and why
    • Explain what it means for the customer
    • Advise how long the restrictions will last and when the decision will be reviewed
    • Enclose a copy of the policy for the customer’s information.
  6. The Council will specify a date to review the restriction on access.
  7. The Council says it will seek to ensure it is appropriate and proportionate to apply the policy. Before deciding to apply any restrictions, it will ensure that:
    • The behaviour, original complaint or request for information, has been dealt with properly and in line with the relevant procedures and statutory guidelines.
    • Every effort has been made to satisfy the request or resolve the issue/complaint.


  1. The Council opened an enforcement investigation into the alleged breach of planning control involving the front driveway of a neighbouring property in October 2020. The report was added to an already open planning enforcement investigation.
  2. Afterwards, Mr X sent a number of emails to the Head of Development Management as well as photographs. He also contacted the enforcement officer who was dealing with the case.
  3. Mr X reported other concerns about development by his neighbour including building of a wall, drainage systems, lack of screening, a failure to screen off the building site and raising of the height of the garden.
  4. The enforcement officer visited the site. Mr X says the Council did not tell him when it would visit his neighbour so the officer could meet with him afterwards. Mr X made a complaint about the enforcement officer to the Head of Development Management.
  5. The enforcement officer drafted an enforcement report in December 2020. Before the report was sent to him, Mr X complained to the Head of Development Management that he had waited three months without any action by the Council.
  6. The Head of Development Management acknowledged receipt of the complaint and said he would act on it. He told Mr X an enforcement report had been drafted and would be issued shortly.
  7. The report allegedly explained the Council’s conclusions on the driveway development. The Council says it concluded there was no justification for taking enforcement action. The Council claims the Head of Development Management sent the report to Mr X in December 2020. The Council closed the enforcement investigation in February 2021.
  8. The Head of Development Management did not respond to the complaint he received from Mr X in December 2020 before he left the Council’s employment around the end of January 2021.
  9. Mr X asked the Council for information on the planning enforcement investigation in January 2021 which it did not give to him. Mr X then made a stage one complaint to the Council about the actions of its Chief Legal Officer. The Chief Legal Officer had written to Mr X in January 2021. Mr X said the officer was protecting his neighbour. He said the officer had repeatedly ignored his correspondence and threatened to block his emails while making an allegation of defamation against him.
  10. Mr X said he had spent time with an officer from the planning department after the officer contacted him expressing a desire to help him. Mr X provided the officer with the email exchange he had with the Head of Development Management. However, the officer then informed him that he would not be dealing with the matter any further.
  11. I shall not repeat all the email exchanges between Mr X and the former Chief Legal Officer here for the sake of brevity but also because it is unnecessary to do so. However, it is evident that there had been exchanges between the officer and Mr X before the planning enforcement investigation was registered in October 2020. The contacts all involved Mr X’s neighbour. The contacts continued to the summer of 2021. Mr X contacted other council officers and complained to the Information Commissioner about the Council’s refusal to give him information.
  12. The former Chief Legal Officer wrote to Mr X in August 2021 to inform him the Council would restrict contact with him under its unreasonable behaviour policy. The letter referred to Mr X’s contact with the Council concerning his neighbour over a three year period.
  13. The letter said most of the correspondence or the complaints Mr X sought to make did not fall within the definition of a complaint the Council could deal with. The letter said the context and nature of Mr X’s correspondence threatened the welfare of council employees. It set out examples of unreasonable behaviour by Mr X.
  14. The officer said Mr X would be restricted to a single point of contact and the restriction would remain in place for six months.


The Council failed to act on Mr X’s reports that his neighbour carried out development on a front driveway without planning permission

  1. A breach of planning control does not automatically mean a local planning authority will ask a developer to remove or stop whatever they have done. Rather, planning enforcement is a discretionary power that should only be used to put right any harm caused by the failure to comply with planning control. When there is no harm or it is insignificant, enforcement action is generally not justified.
  2. The Council says there is a planning enforcement report that sets out its conclusions on the various reports of breaches of planning control made by Mr X. It has not provided the report despite a request I made for it. So, it appears the Council did act on Mr X’s reports but it has not provided evidence on its conclusions.
  3. Government guidance as well as the Council’s own enforcement policy is clear that the person who makes the reports of alleged breaches of planning control should be kept informed of the enforcement investigations and its conclusions.
  4. Mr X says he was not informed of the outcome of the enforcement investigation. The Council claims the report was sent to him in December 2020 but has not provided any evidence to support this claim.
  5. Based on Mr X’s statement that he did not receive the report and the Council’s failure to provide evidence that the report was sent to him, I conclude, on the balance of probabilities, that the report was not sent to Mr X.
  6. This is significant because Mr X’s further contacts with the Council from January 2021 over the planning breaches were justified.

The Council unreasonably decided to apply its policy on vexatious or persistent complainants to Mr X

  1. I am not satisfied the Council acted appropriately and proportionately when it applied its unreasonable behaviour policy to Mr X.
  2. The Chief Legal Officer triggered the policy even though the Council had not dealt with Mr X’s reports of breaches of planning control properly and in line with relevant procedures and statutory guidelines.
  3. The Council has not provided evidence it informed Mr X of the outcome of the planning enforcement matters he raised. So, it was not appropriate for the Chief Legal Officer to conclude Mr X’s continued contact was unreasonable.

The Council did not respond to Mr X’s complaint about its former Chief Legal Officer

  1. Mr X wrote to the Chief Legal Officer directly to complain about her. The officer did not respond to the complaint. Mr X also sent the complaint to the Council’s general email address. He did not receive a response.
  2. Mr X made this complaint before the Chief Legal Officer left the Council’s employment and before the restriction on his contact was in place. I consider the Council should have responded to the complaint. This was fault.

The Council did not give Mr X information despite being told to do so by the Information Commissioner.

  1. This is a matter for the Information Commissioner to adjudicate and not the Ombudsman. The Information Commissioner is the statutory body for addressing complaints about information and it is for the Information Commissioner to consider any sanctions on the Council for a failure to give Mr X information.


  1. Where we find fault by a council we must go on to consider the injustice to the complainant and a possible remedy for the injustice. Here, there is fault because the Council did not inform Mr X of the outcome of the planning enforcement investigation and, consequently, it improperly triggered its unacceptable behaviour policy.
  2. To address the injustice to Mr X, I made the following recommendations:
    • Apologise to Mr X for its failure to deal properly with the planning enforcement investigation and its decision to apply the unacceptable behaviour policy to him.
    • Pay £500 to Mr X to reflect the distress he suffered in consequence of the identified faults and the time and trouble he was put to in pursuit of this matter with the Council and the Ombudsman. This is composed of £300 for distress and £200 for time and trouble.
  3. The Council agreed to implement the recommendations.

Back to top

Final decision

  1. I found fault by the Council. The complaint was closed because the Council agreed to remedy the injustice to Mr X.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings