Summary: Mrs X complained about the way the Council responded to reports about planning and safety issues from a neighbour’s building site during the first COVID-19 national lockdown. The Ombudsman found no fault in the Council’s investigation, and it was not responsible for any significant delays.

The complaint

1. Mrs X complained about the way the Council responded to reports about noise nuisance, anti-social behaviour, planning and safety issues from a neighbour’s building site during the first COVID-19 national lockdown.
2. Mrs X is unhappy about delays, lack of action, and with the attitude of Council staff, who she says were rude and dismissive.

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What I have investigated

3. This decision statement considers Mrs X’s planning and safety complaints only.
4. Her complaints about noise and anti-social behaviour have been considered separately.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. 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),
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. 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

9. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• Town and Country Planning Act 1990.
• The Council’s Planning Enforcement Policy.
10. 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

Planning Enforcement

11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. This means councils can decide whether not it is ‘expedient’ (worth) enforcing a breach, having regard to its particular circumstances and potential impact on amenity.
12. A breach of planning control is defined in s.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.
13. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is “expedient” to do so under s.172 of the Act. It is for the planning authority to decide whether it is “expedient” to take action.
14. Section 215 of the Act gives councils the power to require land to be cleaned up when its condition adversely affects the amenity of the area.
15. The Council has the power to take a range of actions, but it has no duty to do anything more than consider the position. If the breach is trivial, no action would be proper. The key issue is whether the alleged breach of control “would unacceptably affect public amenity or the existing use of land or buildings meriting protection in the public interest.”
16. Government policy in the National Planning Policy Framework says councils should “act proportionately” in responding to possible breaches. The Government’s Planning Practice Guidance also refers to “proportionate” council enforcement action.
17. The Council’s policy is to resolve serious breaches of planning control. There must be harm to public amenity, safety, or the environment. If a breach is considered acceptable it will not take action. The Council will explore other approaches before resorting to formal action.
18. Things which the Council considers are not normally breaches of planning control include:
• Obstruction of a highway or right of way.
• Parking commercial vehicles in residential areas.
• Operating a business from home where residential use remains the main use and there is no serious impact on neighbours.
• Health and safety issues, including construction sites.
19. The Council will acknowledge planning enforcement complaints within seven days and carry out a site visit, where required, within one month. It will make a preliminary assessment about whether a breach has occurred within two months.
20. The Council’s planning enforcement service does not deal with neighbour disputes.

Site visits

21. Because of government social distancing rules in response to COVID-19, the Council decided not to carry out routine site visits when considering planning enforcement complaints.
22. Guidance from the Local Government Association on planning applications told councils to consider the need for site visits on a case-by-case basis. They are not always essential or necessary but can be helpful. Councils should consider whether they can make a robust decision solely on the application information. They may also consider photographs, video footage, or online satellite images in place of a site visit.

What happened

23. I have summarised below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
24. Mrs X telephoned the Council on 23 April to complain about her neighbour’s building work. She said the noise was unbearable, and workers weren’t following social distancing guidelines. She also said they were rude, offensive, and racist towards her.
25. The Council told Mrs X there are no COVID-19 measures that restrict noisy construction during normal daytime hours. It referred to the Control of Pollution Act 1974, which permits noisy construction from 8am to 6pm Monday to Friday and 8am to 1pm on Saturdays. It said Mrs X could get back in touch if the noise significantly deviated from those hours.
26. Mrs X’s father emailed the Council the same day. He summarised the problems by saying their neighbour had:
• Erected scaffolding which reduced their access.
• Piled up rubbish on the garden shed.
• Unlawfully extended the roof of an outbuilding used for storing rubbish.
• Removed their fence without permission.
• Carried out noisy and dirty work on the shared driveway.
• Worked at unsociable hours.
• Used foul language and racist remarks.
27. The Council emailed Mrs X on 24 April in reply to her earlier emails. It copied in the planning enforcement and nuisance control teams so they could offer further advice. It said Mrs X should contact the Police if she is being harassed.
28. The planning enforcement team contacted Mrs X on 27 April to tell her there was no action it could take. It said it could not deal with boundary disputes or scaffolding issues as they are civil matters and the neighbours had planning permission for the work.
29. Mrs X said her neighbour’s planning permission was irrelevant, she was complaining about the multiple car ports and sheds erected which were not in compliance with rules or regulations.
30. Also on 15 May, the Council’s planning enforcement manager told Mrs X they would investigate the neighbour’s multiple outbuildings once it is safe to site visits again.
31. Mrs X denied there were long-standing poor relations with the neighbours. She said the Council ignored the fact her neighbour took down her fence without permission and threw away some of her belongings in a skip. Mrs X accused her neighbour of running a building business from the garden and asked the Council if that was allowed.
32. In early June, Mrs X reported her neighbour was using the property to store building materials and had employees coming and going.
33. The Council told Mrs X it had allocated the case to an enforcement officer on 5 June. However, it said it was not carrying out site visits due to COVID-19. It said this meant enforcement investigations were likely to be delayed.
34. An officer from the Council’s nuisance team told Mrs X on 7 June that the other matters she reported (theft, destruction of property, verbal abuse and racism) were matters for the Police and the Council’s community safety team. The officer referred Mrs X’s comments to them. The officer confirmed, generally, people can operate a business from their home, but this should not result in nuisance to neighbours. He notified the planning enforcement team of Mrs X’s concerns.
35. The Council’s planning enforcement team emailed Mrs X on 17 June. It said it would investigate her concerns, but site visits were not taking place. It said running a business from a home, providing residential use is still the main use, is not a breach of planning control. It clarified that planning permission is not required to take down a fence in that part of the Borough. It said the Council does not have the power to enforce private property rights or assist with boundary disputes.
36. Mrs X brought her complaints about noise and anti-social behaviour to the Ombudsman on 14 July 2020. We referred the complaints back to the Council so it could provide a response.
37. A planning enforcement officer visited Mrs X’s neighbour’s house to assess the complaint on 23 July. They wrote to Mrs X’s neighbour on 31 July with their observations.
38. Mrs X’s neighbour replied on 17 August, explaining their position and views about what happened.
39. The officer decided what they witnessed did not justify enforcement action. However, because the work had gone on for an extended period (about four months), and because of the condition of the neighbour’s garden, the officer decided it was adversely affecting the amenity of the area.
40. The Council issued an enforcement notice to Mrs X’s neighbour under Section 215 of the Town and Country Planning Act 1990 on 26 August. This required the neighbour to:
• Remove building materials, tools, waste and debris to the rear.
• Remove skips to the front.
• Tidy the front and rear.
• Restore the garden to its original condition.
41. The notice took effect on 5 October and the work had to be complete by 5 November. Correspondence from Mrs X’s neighbour shows the work was completed by 3 November.
42. In November, Mrs X told the Council, according to the government, the Police and council can issue fines for gatherings of different households. She said the Council failed to investigate her reports about breaches of social distancing rules.
43. The Council told Mrs X it had no power to fine people for gatherings, only the Police could.
44. Mrs X made a formal complaint about the planning department on 17 November. She said an officer told her to ‘shut up’ on the phone and their manager did not want to resolve her concerns. She also complained about her neighbours running a building business from their house since March, which she reported to the Council, but it gave the wrong advice and then ignored her for two months.
45. The Council responded to Mrs X’s planning complaint on 8 December. It said the planning department became aware of the issues on 7 June, when the Council had suspended site visits. Visits started again in July, but the Council had a backlog and could not attend until 23 July.
46. The Council’s investigations found the building firm were doing lawful projects at several houses on Mrs X’s street. Some of the builders kept their equipment at Mrs X’s neighbour’s house. The Council decided the scale of the activity did not justify enforcement action. However, the officer did issue a notice requiring her neighbour to tidy up the land.
47. The Council concluded that, despite delays, it investigated within a reasonable period.
48. The Council apologised Mrs X was upset by a conversation with an officer. It said using the words ‘shut up’ was not acceptable but the officer denied using those words. The officer’s manager acknowledged he could have been clearer in condemning the use of such language.
49. The Council could not reach a conclusion on what happened but said all staff will be reminded of the need to be professional and polite.
50. Mrs X brought her complaint back to the Ombudsman on 16 December. After months of waiting, she was not satisfied with the remedy the Council offered.

Response to my enquiries

51. The Council’s planning enforcement team was satisfied issuing a Section 215 notice was the most appropriate action to take. The team followed up on the notice to ensure prompt compliance. The Council considers the planning enforcement complaint was dealt with quickly despite the difficulties of COVID-19.

Analysis

52. Mrs X first made the Council aware of her planning complaints in April 2020. Its officers did not do a site visit until July. The Council then took enforcement action in August. I can therefore appreciate Mrs X’s frustration. She had to live with the problems for several months, and at a time when she could not leave her house because of the COVID-19 national lockdown.
53. Mrs X said her neighbour was illegally running a business from their house. In line with its policy, the Council told Mrs X that is generally permitted. Initially, the planning enforcement team thought it could not assist.
54. When it saw Mrs X’s photographic evidence and learned of the other issues she was complaining about, it agreed to investigate.
55. However, as early as May, the Council’s planning enforcement team told Mrs X it was not doing site visits.
56. On three occasions in total the Council told Mrs X site visits were not taking place. It also told her planning enforcement investigations would be delayed as a result.
57. Mrs X therefore knew the Council was unlikely to be able to take immediate action and there would be delays to any investigation.
58. Government guidance at the start of the COVID-19 pandemic confirms councils were not expected to carry out site visits, and other evidence could be considered instead. I therefore do not find fault with the Council for suspending site visits and being unable to meet the usual deadlines of its enforcement policy.
59. Mrs X did provide photographic evidence. I have therefore considered whether the Council could have taken enforcement action sooner, on the strength of that evidence.
60. Mrs X’s photographs show a generally untidy garden to the rear of her neighbour’s house with lots of what looks like building equipment.
61. However, I am mindful of the fact that when the Council eventually carried out a site visit, it decided there were no planning breaches. It did issue a Section 215 notice, but that required Mrs X’s neighbour to clear not only the rear of the house but also the front, to return the garden to its former state, and to remove building equipment and skips.
62. I therefore do not consider Mrs X’s allegations and photographs were enough on their own for me to say the Council had strong enough evidence at that stage to support issuing a Section 215 notice.
63. I have not seen evidence to establish the Council would have issued a formal notice without carrying out a site visit.
64. I therefore do not consider there is evidence of fault on the part of the Council’s planning enforcement team.
65. Under normal circumstances, the Council could have done a site visit relatively quickly. That may have brought about a quicker improvement for Mrs X.
66. The main delays were a result of the COVID-19 pandemic rather than through inaction by the Council.
67. Once the Council restarted site visits in July, an officer visited Mrs X’s neighbour’s house within a month and issued an enforcement notice within two months. While I appreciate this was a frustrating delay for Mrs X, I do not consider it was a significant delay in the context of what happened or given the impact of the COVID-19 pandemic.
68. There is not enough evidence for me to make a finding on Mrs X’s telephone calls with planning enforcement officers. However, I am satisfied the Council acted appropriately by speaking to the officers and reminding staff of their responsibilities.
69. Mrs X accused her neighbour and their builders of breaking social distancing rules. The Council has no power to deal with this and rightly referred Mrs X to the Police.

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Final decision

70. I have completed my investigation. There was no fault in the Council’s planning enforcement investigation.

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Investigator's decision on behalf of the Ombudsman