Summary: Mr X complained that the Council’s planning enforcement team failed to respond to queries he made in 2020. When he complained in 2021 he says the Council began a vindictive and retaliatory planning enforcement investigation against him. We found there was a failure to respond to Mr X and some confusion caused by the way it responded to the complaint. This warranted a remedy. We found the Council’s actions when following up a separate planning enforcement complaint were appropriate.

The complaint

1. Mr X complains that:
• The Council’s Planning Enforcement Team failed to respond to a planning query that he made in March 2020.
• When he complained about the matter in or around March 2021, the Council did not respond to the issues he raised in his complaint.
• The Planning Enforcement Team did not check with the ASB Team to establish what had been discussed about the matter already.
• After his complaint the Council began a planning enforcement investigation against him and threatened him with enforcement action. Mr X considered this to be vindictive and to punish him for making the complaint.
• Mr X noted that when responding to the complaint investigation, a senior officer exonerated the officer Mr X had been dealing with. Mr X considered this unreasonable. He complained that the way the Council responded to the complaint indicated chaotic management, poor record keeping and a culture of vindictive harassment and corruption.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mr X and considered the information he provided. I asked the Council for information. I considered its response and how it dealt with Mr X’s complaint.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Background

6. In July 2019 Mr X contacted the Council about ant-social behaviour (ASB) in the area immediately outside his home. This followed his neighbour contacting the Council about the issue. Mr X explained the problem and how the ASB was affecting him and his family.
7. In August 2019 the Council wrote a brief report noting the high levels of ASB in this location. The report suggested various steps be taken to tackle ASB. The proposed actions included cutting back foliage, brighter lighting, regular cleaning and changes to walls and paving to discourage loitering.
8. The report explained that a footpath widened out adjacent to Mr X’s property. A triangular area of paving created an enclosed area where a group congregated on a regular basis.
9. The report stated there was some ambiguity about the ownership of this land. It was partly Mr X’s and partly the Councils. Mr X explained to us that he owns the freehold of the walkway, but it is an adopted public footpath.
10. Mr X explained he discussed the triangular piece of land with ASB officers. There is evidence that ASB officers made enquiries of the planning enforcement team and highways teams in December.
11. In February 2020 an ASB Officer wrote to Mr X to state the ASB team considered that it would reduce or prevent ASB if Mr X fenced in the triangular area to make it part of his garden. It stated “this is subject to and must not breach any conditions relating to land registry and planning legislation. Therefore, you are not permitted to block or obstruct the footpath or public right of way…. Planning Enforcement have advised that any fencing or boundary should not exceed 2m, or 1m if facing the public highway. The Council will not fund the provision of this fencing.”

What happened

12. Mr X wrote to the planning enforcement team in March 2020 to follow up the issue of the anti-social behaviour. He referred to the contact between the ASB and planning enforcement team and explained the situation. He stated he was keen to fence off the triangular area of land and erect a fence the other side of the short wall (the wall encouraged loitering). Mr X asked for contact to discuss and agree the design formally. Mr X did not receive a reply so in April 2020 Mr X chased for a response. Again, he received no reply.
13. Mr X told us in Autumn 2020 he erected a fence around the triangular piece of land.
14. In March 2021 Mr X complained to the Council about its failure to respond to his requests for help in 2020. He provided a copy of his correspondence and his complaint was logged.
15. The planning enforcement manager (Officer A) responded to the complaint stating that his query about the proposed fence should be directed to the pre-planning advice team.
16. Over several emails Mr X explained his complaint was that the planning enforcement team had failed to respond to his earlier correspondence. Mr X noted the ASB team had liaised with the planning enforcement team about the potential for fencing off the area in question. He stated the ASB team had agreed this action but he wished to formalise it with planning enforcement to ensure everything was done correctly. Officer A seemed unaware of the background. In his responses he apologised that he had misinterpreted Mr X’s complaint. However, he stated, if the works required planning permission, the only way to formally regularise the works allowed by the ASB department would be to apply for planning permission.
17. In his response to Mr X, Officer A noted there was an “open planning enforcement case [at Mr X’s address], where the investigation centres around the alleged erection of structures without planning permission and a fence, I am now thinking that this is the development you are referring to….”. Officer A stated he would speak to the case officer, and the alleged breach of planning control would need resolving as soon as possible.
18. Mr X said he was shocked and distressed to be told this and he knew nothing of this. He asked for details and Officer A stated the officer would be in contact shortly.
19. On 17 March Mr X asked for his complaint to be escalated to Stage Two of the complaints process. He noted his complaint was about the Council’s failure to respond to his 2020 correspondence. Officer A had tried to offer advice in response, but he had not addressed the actual complaint.
20. A council officer carried out a site visit on 16 April to consider the enforcement report it had received. It seems this was only to view Mr X’s property/garden from the adjacent footpath. The officer noted the fence was under 2m high and because it was not alongside the highway, this was fine. He also noted there was large structure in the garden and a smaller shed.
21. The Council responded to Mr X’s complaint in May. It stated its response was at Stage One of the complaint process. In it the Council noted the ASB team supported the erection of the fence around the triangular plot of land. However, it stated the planning enforcement team’s role was to consider suspected breaches of planning rather than advise on changes to the layout of footpaths. The Council noted that Mr X’s 2020 queries and his complaint had been conflated with a separate enforcement report the Council had received in 2020. It noted the planning enforcement team did not pass on Mr X’s query to an appropriate team to respond to.
22. The Council’s response found no fault with Officer A’s reply in 2021. It stated it was not his intention to misinterpret the complaint or provide spurious information. The Council stated Officer A had done his best to help and he did not know the background.
23. The Council did acknowledge there had been a failure to respond to Mr X’s queries in 2020 and that Mr X’s queries should have been redirected to the correct team. It noted some mitigating factors but apologised for the inconvenience and delays. The response stated an officer (Officer B) would be in contact with Mr X to consider the enforcement report further.
24. When Officer B made contact in May, Mr X said he was unhappy about the accusations. He told the Council he considered the investigation was being carried out as retaliation for the complaint he made about the planning enforcement team.
25. Mr X asked the Council to escalate further. He reiterated his concerns. This included that the complaint response purported to be a response at Stage One of the process, when Mr X had already rejected what he took to be a Stage One response received from Officer A.
26. On 24 June the Council responded to the complaint further. It stated this was Stage Two response. The Council reiterated its apology that Mr X’s emails from 2020 were not replied to. It also apologised that it appeared Officer A was deliberately avoiding responding to the complaint. The Council stated Officer A’s emails following Mr X’s complaint were not intended to represent the Stage One complaint response and there was no intent to delay Mr X making a complaint to the Ombudsman.
27. The Council apologised that Mr X felt the Stage One response did not fully apologise for the errors and delays that occurred. It stated officers had been reminded about the correct complaints procedures and that correspondence should be responded to in a timely way.
28. The Council stated there had been no intention to harass Mr X when following up the enforcement report, but the Council had a duty to do so.
29. In respect of the fencing of the area in question, the Council highlighted a highways officer that Mr X could contact to confirm the situation with fencing in the triangular area of land. It reiterated apologies for the errors and delays in correspondence when Mr X was trying to resolve the situation.
30. In June, separate to the complaint response, Officer A explained to Mr X that the enforcement report about his property was actually received at the Council in March 2020. It stated the officer who dealt with the report had since left and there was little on the Council’s records to show what had been done to consider it before it was allocated to Officer B to investigate in 2021.
31. In June Officer A exchanged emails with Mr X about visiting his property to investigate the enforcement report. The Council told Mr X as he had declined to allow access to his property for officers to carry out a site visit the Council would have to apply for a warrant from the magistrates court to enter his property. The Council stated it was their duty to investigate and determine whether planning permission was required.
32. Mr X told the Council its demand to enter his home to carry out investigations was not reasonable as allegations against him had not been made clear enough. Mr X stated he had complied with permitted development rules. Mr X considered the vigour with which the Council was investigating the enforcement report against him after a year was in retaliation for his complaint about planning enforcement’s service. Mr X declined to give permission and asked the Council to log the issue as a further complaint.
33. On 30 June the Council asked Mr X if he would be prepared to take photographs of the outbuilding inside and out and to show any physical connection with the house. It also asked for a measurement of the height. The Council stated what it was attempting to do was check whether the outbuilding met permitted development rules. It stated it would be preferable for both Mr X and the Council to avoid a warrant.
34. Mr X sent photographs to the Council in early July, from which the Council was able to confirm the structure met permitted development rules and did not require planning permission. It confirmed its file was closed as a result.

Enforcement Report about Mr X’s property

35. Because Mr X was concerned that the action taken by the Council was retaliatory, we obtained a copy of the enforcement report. We cannot share this with Mr X because the identity of someone making an enforcement report must be kept confidential.
36. The enforcement report was received in March 2020. It questioned whether fencing and structures erected at his property constituted breaches of planning rules. It should be noted the report did not refer to or relate to the fencing around the triangular plot of land that Mr X erected later in 2020.
37. The Council provided us with notes on its files showing how it considered the matter. The actions taken in response to the report is set out in the section above. After confirming Mr X’s outbuilding met permitted development rules, the file was closed.

Was there fault by the Council

38. It was fault that the Council did not respond to queries from Mr X in March 2020, and did not pass them onto another team if this was considered appropriate.
39. There was also fault in the way the Council responded to the complaint. Mr X’s complaint was about the failure to respond. This was logged as a formal complaint. Officer A’s subsequent correspondence appeared to be a response to that complaint. However, Officer A’s response did not address the complaint. It commented on the queries that Mr X had raised in 2020. As this was logged as a formal complaint it should have been clear if Officer A’s correspondence was the Council’s formal response at Stage One of the complaints procedure. The lack of clarity about whether it was a Stage One formal response could have been avoided and that was fault.
40. It may helped avoid confusion had Officer A sought information from the ASB team before responding to Mr X. However, I found that Officer A was genuinely attempting to address the original query, and while the complaint itself should have been addressed and more background could have been established first, I found there was no deliberate intent to avoid responding.
41. When the Council did then respond formally, the original lack of clarity led to further frustration for Mr X because it then only responded at Stage One of the complaint process. Mr X considered the Council should be responding at Stage Two, as he understandably took Officer A’s correspondence to be the response at Stage One. Greater clarity at the outset may have avoided this.
42. When the Council did respond formally to the complaint, it did look back at how the ASB team had been involved and it explained its position taking this into account.
43. I can see why the timing of the reference to the enforcement investigation concerned Mr X. However, we have seen the enforcement report that the Council received. It is very unfortunate that the Council did not address this at the time it was received in March 2020. The Council has been unable to explain why the matter was left unattended for so long. The failure to hold a proper record of this and the delay here was fault. That said, the delay does not cause injustice to Mr X in itself and the report made was genuine (even though no breach was later found to have occurred).
44. I found no evidence the Council’s response to the report was vindicative or retaliatory. I say this because the Council’s actions in following up the report were proportionate and those we would normally expect to see. It sought only to consider the issues and determine if planning permission was needed or not. It decided fairly quickly that the fencing complained of was satisfactory. It then needed to satisfy itself that the size and use of his outbuilding was permitted development. When it had done this the case was closed promptly. So, aside from the initial delay in acting I found no fault in the way the enforcement report against Mr X’s property was handled.
45. It should be noted that Councils are required to investigate reports they receive, and it is common for them to seek to visit a property to carry out an investigation. This, in itself, does not mean there has been wrongdoing by the person the Council seeks to visit. Site visits are what help to determine if a breach has occurred.
46. I found that the Council’s Stage One complaint response could have acknowledged better that Mr X’s complaint itself was not responded to in Officer A’s initial correspondence. However, the Council noted Officer A was attempting to address the original queries and trying his best to help. The Council did acknowledge that it was at fault in not having responded to Mr X’s queries when he raised them in 2020. So, overall I do not consider the Council’s comments in response to the complaint unreasonably exonerated Officer A or constituted fault. I do not consider there is evidence the officers responding to Mr X were acting deliberately or wilfully to delay or obstruct his queries or complaint.
47. I note the Council has apologised for the issues with its response to Mr X’s correspondence in 2020 and its complaint response.

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Agreed action

48. The Council should pay Mr X £100 to recognise the time and trouble he spent pursuing the complaint and the frustration caused by the way the initial complaint was handled.

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Final decision

49. There was fault by the Council. I have completed my investigation and closed the complaint on the basis the Council takes the agreed action.

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Investigator's decision on behalf of the Ombudsman