Summary: The Ombudsman found no fault by the Council on Mrs P’s complaint about it failing to take enforcement action for a breach of planning consent against neighbours who erected fencing and gates round their properties. The Council responded to her reports, contacted the neighbours, and negotiated the submission of applications.

The complaint

1. Mrs P complains the Council failed to take enforcement action for a breach of planning consent against neighbours who repeatedly made unsuccessful applications to keep the acoustic fencing and gates erected when they removed hedging; as a result, she suffers from reflected noise from passing traffic which affects the enjoyment of her home and business.

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What I have investigated

2. The paragraph at the end of this statement explains why I have not investigated the Council’s actions before May 2020.

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The Ombudsman’s role and powers

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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

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How I considered this complaint

7. I considered all the information Mrs P sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a partial copy of which I sent her. I did not send her a complete copy because she will have seen many of the documents already, such as copy correspondence with her. Other documents need to remain confidential as they contain information about third parties. I sent a copy of my draft decision to Mrs P and the Council.

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What I found

8. Mrs P and her family live and work opposite two neighbouring properties facing her home. These are separated from hers by a road. In breach of planning consent, hedges surrounding these properties were removed and a 1.8 metre close boarded fence and gates erected instead. The combined length of the fencing is about 80-100 metres. For Mrs P, the problem is the fencing reflects noise from the road back towards her property. This affects her quality of life and impacts on the business she runs.
9. She complains the Council failed to take prompt, effective enforcement action against the owners. When she contacted the Council about the breach, officers assured her they were responding to her reports.
10. She is also unhappy it failed to act when the owners moved the fence away from the road by about 0.5 metre and claimed they had erected new fencing rather than just re-positioning the existing one. It took the Council until August 2021 to issue an enforcement notice against the owners.
11. She also says her reports about noise nuisance from the fence were ignored by the Council and is unhappy it accepted various applications from the owners to legalise the fencing.
12. In response to my enquiries, the Council provided the following information:

• A planning condition for the owners’ properties required the retaining of the hedgerow;
• The current owners bought the properties from the developer who had installed the main gate posts. One of the owners removed the hedge but both erected the gates and close boarded fencing without consent;
• It took no enforcement action about the removal of the hedgerow because the owners carried out new planting. Mrs P says no new planting was done by the owners until November 2020;
• Officers wrote to the owners, and had telephone contact with them and their agents, about the fencing. The owners confirmed they would send a planning application about the fencing. Part of the fencing was on highway land which meant the owners also had to meet with the highways department;
• In early 2020, it received amended plans from the owners in support of their applications to gain consent for the fencing. Its landscape officer had no objection to the proposal. The Council refused the initial application because of the appearance of the fencing and the lack of space infront for planting. The development control committee authorised enforcement action for the removal of the fence and gates;
• Following further discussions, the owners intended to erect a 1 metre fence within their properties with planting on the highway side. The Council accepts an officer gave the owners incorrect information about what would amount to permitted development in October (permitted development rights are where the law automatically grants planning consent for certain building works, for example, without having to formally apply for planning consent);
• In November, the officer confirmed she had given incorrect advice to the owners about permitted development. The Council received a planning application from the owners but before it decided it, the owners moved the fence away from the highway and carried out planting. The Council discussed the need to send a further planning application with the owners because of the new location of the fence and planting;
• The owners confirmed they would apply for a certificate of lawful existing development instead (this is a way of getting a decision from the Council that the works do not need planning consent and are legal). Officers sent updates to residents;
• In February 2021, the Council warned Mrs P it was unlikely to take enforcement action now because it was waiting for the owners to send a fresh planning application showing the fence in its new position;
• In March, the agent told the Council it was preparing a certificate of lawful existing development to send. An officer chased the agent towards the end of the month as it had not received it. The Council also refused the previous planning application;
• The Council finally received the application for a certificate of lawful existing development in April;
• Mrs P’s solicitors wrote to the Council in June asking it to take enforcement action; and
• The Council refused the application in July. The same month it completed an enforcement report and served an enforcement notice on the owners.

13. In response to her reports and complaints, the Council told Mrs P that under its own Planning Enforcement Statement, enforcement action is discretionary and all relevant planning circumstances need taking in to account on each case. Considering a planning application is the preferred way of carrying out an assessment of a development, which also takes account of the views of the public.
14. In response to my enquiries, the Council confirmed the environmental health team were consulted on planning applications received from the owners. It also confirmed it refused planning applications from the owners in 2020 and 2021 and an application for a certificate of lawful existing development in 2021 as well.

Analysis

15. I found no fault on this complaint. In reaching this view, I took the following into account:
1. Enforcement action is discretionary under national guidance.
2. The Council’s own Planning Enforcement Statement confirms enforcement is discretionary. It explains officers must decide whether it is ‘expedient’ to take formal action for a breach. This means officers must look at whether unauthorised activities are causing harm when considered against its Development Plan and other material planning considerations. It notes government guidance states usually, formal action should be a last resort and councils are expected to give those responsible the chance to put matters right before serving a formal notice. Where a breach is causing unacceptable serious harm, or nuisance to public amenity, formal action will not be delayed by protracted negotiation. Enforcement action will be commensurate with the seriousness of the breach.
3. Its Statement says the first priority is to try and resolve a breach of planning control through negotiation. It will also, where appropriate, invite the relevant party to make a retrospective planning application for the development. This is the case where officers consider there is a reasonable likelihood it will succeed.
4. Under its Statement, formal action is taken where negotiation does not result in compliance.
5. I am satisfied the Council responded to Mrs P’s reports. In line with government guidance, and its own Statement, officers contacted the owners and attempted to negotiate with them about the breach. The owners also had to meet with the highways department as some of the fencing was on highway owned land.
6. The Council received a planning application in March 2020 and later, amended plans. As part of this process, an environmental health officer was consulted, and a noise assessment submitted after receiving objections. The application was refused about six months later. During this time, had the Council tried to take enforcement action, the owners could have reasonably defended such proceedings by pointing out they had sent a planning application to legalise the breach which the Council had yet to decide.
7. There were further discussions with the owners and the Council accepts an officer gave them incorrect advice about permitted development rights. I note the officer quickly corrected this advice.
8. In November, the Council received a second planning application. Officers contacted the owners about the need to send a further revised planning application because they had since moved the position of the fence and carried out some planting.
9. Instead of a further planning application, the owners sent an application for a certificate of lawful existing development in April 2021. Officers had chased the owners and their agents about sending this application as it took about 4 months to submit it. During most of this period, the Council had yet to decide the second planning application. Again, had it taken enforcement action, the Council would have been vulnerable to the defence it had yet to make a decision on it.
10. It took the Council until July to decide the application. During this time, the Council explained it received an objection from Mrs P and then a letter from her solicitor against the application. About a week after the determination date, the Council received a 12-page letter from her solicitor making further representations against the application. This was after an officer wrote to Mrs P to apologise for the time taken to process it. The delay dealing with this application was because of officer workloads. It explained while it seeks to meet target dates where possible, it can give applicants extensions of time. In this case, an officer was on sick leave, the case was complex, and it had received several representations from legal representatives. The following month, an officer said it would expect to decide the application later that month, which it did. The Council refused it.
11. The Council accepted it had a target date of eight weeks to determine the certificate of lawfulness and instead, took about 13 weeks. It confirmed the reason for the delay was due to high officer workloads. The case officer was on short term sickness. This officer had the knowledge of the case and the site history. It did not have the resources to simply reallocate the case because of short term sickness. It also argued the legal arguments received needed to be carefully considered.
12. In all the circumstances, I am not satisfied taking an additional five weeks to decide this application amounted to fault. This is because of the need for the Council to give proper consideration to the legal representations received. In addition, the officer who had knowledge of the application and site history, was on short term sick leave. I also note government guidance allows for extensions to target dates anyway. All the Council had to do was reach an agreement to extend the target date with the applicant.
13. It was not fault for the Council to accept, and process, th applications from the owners. It has a duty to process them. A failure to process an application carries appeal rights to the Planning Inspectorate which might have cost consequences for the Council.
14. The evidence shows environmental health officers were consulted on the planning applications. The Council has no powers to control noise from traffic on a public highway. This means noise from traffic using the road outside of Mrs P’s property cannot amount to a statutory nuisance.

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Final decision

16. I found no fault on Mrs P’s complaint against the Council.

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Parts of the complaint that I did not investigate

17. I did not investigate any complaint Mrs P had about the Council’s actions taking place before May 2020. This is because the law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something council has done.
18. As Mrs P complained to us in May 2021, any complaint about actions taking place before May 2020 is late. I have seen nothing to suggest I should exercise discretion to investigate a late complaint.

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Investigator's decision on behalf of the Ombudsman