London Borough of Merton (21 002 909)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 21 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take action when he reported his landlord had erected a temporary structure in front of his property without planning permission. Mr X further complained about the way the Council handled his complaint about the matter. There was no fault in how the Council responded to Mr X’s report against his landlord. There was fault in the way the Council communicated with Mr X about the matter which the Council has agreed to apologise for.

The complaint

  1. Mr X complained the Council failed to take action when he reported his landlord had erected a temporary structure in front of his property without planning permission. Mr X further complained about the way the Council handled his complaint about the matter. He said the Council:
    • did not follow the complaint process;
    • unduly delayed in its responses; and
    • a Council Officer was bullying and patronising in a phone call to him.
  2. Mr X said this caused him frustration, inconvenience and distress.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. 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 documents provided by Mr X and discussed the complaint with him.
  2. I considered the documents provided by the Council in response to my enquiries.
  3. 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

Permitted development

  1. 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’.
  2. Part 4 of The Town and Country Planning (GPD) order 1995 sets out what is permitted development in relation to temporary buildings and uses. It states ‘the provision on land of buildings, moveable structures…required temporarily in connection with and for the duration of operations being or to be carried out on…that land” is permitted development.

Planning enforcement

  1. 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 what harm is caused to the public before deciding how to react. 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.

Section 20 consultation

  1. Section 20 of the Landlord and Tenant Act 1985 sets out that a freeholder (landlord) of a building must consult leaseholders (tenants) about major works to the building where the leaseholders would be liable for the cost. The consultation process can take a number of months to complete before work can begin.

Complaint process

  1. The Council’s complaint policy states it will investigate and respond to a complaint at stage 1 within 20 working days. If the complainant is dissatisfied with the response at stage 1, they can request an escalation to stage 2. The Council will usually complete a stage 2 investigation within 25 working days.

What happened

  1. Mr X lives in a ground floor flat and owns the leasehold on it. In November 2020 the freeholder of the building began a section 20 consultation process with the leaseholders about proposed work on the building.
  2. Mr X stated in December 2020 contractors working on behalf of the freeholder placed three temporary structures on the estate where he lives. One of the structures was placed directly outside Mr X’s kitchen window.
  3. In February 2021 Mr X contacted the Council. He stated the structures were not in use and there was no start date for the proposed work and so they should not be there. He asked the Council to investigate the matter.
  4. In March, Council Officer A phoned Mr X to discuss the matter. Mr X stated Officer A was bullying and patronising in the call. The Council states Mr X shouted at Officer A who ended the call.
  5. Officer A then sent Mr X an email and told him they had spoken to the contractors. There was a delay in starting work due to the ongoing section 20 consultation. Officer A said the structures were on private land in connection with planned work and did not need planning permission. The records show Officer A closed the investigation the following day on the same basis.
  6. Mr X complained to the Council the following day and stated he disagreed with Officer A’s decision. He said:
    • Officer A was unpleasant and asked if the phone call was recorded;
    • the structures had been in place for over three months without any work ongoing and there was no planned start date; and
    • Officer A spoke to a contractor and not the freeholder during their enquiries.
  7. Four days later Officer B contacted Mr X via email and stated the Council needed evidence of harm to visual amenity before it would consider starting enforcement action. Mr X responded and provided photographic evidence of the structures. Mr X also asked if the call with Officer A had been recorded.
  8. In May, Mr X contacted the Council again. He stated the work had still not started. He said the Council had ignored his complaint and he wished to escalate the matter to stage 2. The Council responded and stated it would consider the matter at stage 1 and would respond within 20 days.
  9. In July the contractor began work on the building.
  10. In August, the Council responded to Mr X. It said:
    • it upheld Mr X’s complaint about the delay in dealing with his complaint and apologised;
    • it would review how the department records and tracks complaints;
    • it had spoken with the freeholder and understood the section 20 consultation process had delayed the start of the planned work; and
    • it was satisfied there was no breach of planning control and so it had no planning enforcement power.
  11. In September Mr X complained to the Council at stage 2. He stated an apology was inadequate. He disagreed the structures did not breach planning control as they were in place for six months before any work began. He also said the Council had not considered his complaint about Officer A’s conduct.
  12. The Council responded and declined to consider the matter at stage 2. It stated:
    • the apology was in line with the Ombudsman’s guidance on remedies;
    • the Council could not take enforcement action and further investigation of his complaint would not alter that fact;
    • the call with Officer A was not recorded and therefore an investigation into the matter could not reach a safe conclusion; and
    • it apologised for failing to address Mr X’s complaint about how Officer A handled the telephone call.
  13. Dissatisfied with the Council’s response Mr X complained to us.
  14. In response to my enquiries the Council stated it could not locate the review referred to in paragraph 24. It stated there had been improvements in complaint acknowledgement, tracking and response.

My findings

  1. We are not an appeal body. Our role is to review the process by which decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
  2. The Council considered Mr X’s complaint about the temporary structures. It decided the structures did not need planning permission and therefore they did not breach planning control. The legislation states temporary structures are permitted development for the duration of operations being “or to be carried out”. The legislation does not specify timescales. The structures had been in place for three months when the Council made its decision, which was not excessive. There was no fault in the way the Council made its decision.
  3. When Mr X complained to the Council about its decision it stated it needed evidence of harm to visual amenity to take enforcement action. Mr X provided photographic evidence, but the Council did not respond. That was fault and raised Mr X’s expectations the Council would reconsider its decision on the matter.
  4. Mr X complained to the Council in March. The Council did not acknowledge the complaint until May and did not respond to Mr X at stage 1 until August. That was 66 days longer than the Council’s policy allowed. The Council has already apologised to Mr X for the delay which is an appropriate remedy.
  5. The Council declined to consider Mr X’s complaint at stage 2 as further investigation could not achieve the outcome he wanted. The Council directed Mr X to us. There was no fault in the Council’s actions.
  6. The Council did not respond to Mr X’s complaint about Officer A’s conduct in a phone call for six months. When it did so it apologised to Mr X for the delay and for Mr X’s dissatisfaction with the officer’s conduct. The call was not recorded, and Mr X’s recollection of the call and the Council’s differs. There is insufficient evidence available for me to be able to make a finding on this matter and further investigation is unlikely to provide a different outcome. In any event the Council has already apologised for the matter.

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Agreed action

  1. Within one month of the final decision the Council will:
    • write to Mr X and apologise for the raised expectation caused by it asking for further evidence on a matter it had already decided; and
    • provide evidence of the improvements in complaint handling as set out in paragraph 28.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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