Summary: Mrs X complained the Council delayed enforcing a planning condition and wrongly decided there was no breach of planning control, causing her distress, noise and loss of privacy. We find fault in the Council’s communications that did not affect its decision outcomes. We recommend the Council apologise to Mrs X and act to prevent recurrence.

The complaint

1. Mrs X complains the Council delayed enforcing a planning condition and wrongly decided there was no breach of planning control on changes to the development. She says she has suffered distress, loss of privacy and noise.

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What I have investigated

2. I have investigated the complaint above. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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)
5. 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)
6. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating or, any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
7. If we are satisfied with an organisation’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

8. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
9. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

10. Planning enforcement action is discretionary. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.
11. Government guidance, “Ensuring effective enforcement”, says councils should act in a proportionate way. They have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations, which include the National Planning Policy Framework (“NPPF”). This says:
12. “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. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”

Planning permission

13. Planning permission is only needed if the work being carried out meets the statutory definition of ‘development’ as set out in section 55 of the Town and Country Planning Act 1990.
14. Development includes:
• building operations (eg structural alterations, construction, rebuilding, most demolition);
• material changes of use of land and buildings;
• engineering operations (eg groundworks);
• mining operations;
• other operations normally undertaken by a person carrying on a business as a builder;
• subdivision of a building.
15. Works that do not amount to development are set out in section 55(2) of the Town and Country Planning Act 1990. These include:
• interior alterations;
• building operations which do not materially affect the external appearance of a building;
• a change in the primary use of land or buildings, where the before and after use falls within the same use class.

What happened

16. The Council granted planning permission for a café near to Mrs X. It imposed a condition that the rear doors should only be for emergency use. This was to ensure they were not left open or used regularly, to protect residential amenity.
17. In 2020 the café owner built a new patio for customer use.
18. In May 2021 Mrs X complained to the Council the café was playing music and leaving the doors open continuously, causing her to suffer from the noise. Further that she had complained to the Council from June 2020 but it had ignored her emails and only called once to say it would not take action.
19. In May 2021 the Council wrote to Mrs X regarding her enforcement complaint. It referred to the NPPF and planning guidance on enforcement action which made clear it should only act where expedient to do so. It said the use of the rear yard was ancillary to the main use of the building and so did not need planning permission. As to the use of the rear door, COVID-19 guidance was to leave doors open. Further, customers could access the rear yard whether using the doors or not. This meant the impact of customers using the yard could not be reduced through planning control. It therefore considered taking enforcement action simply to achieve technical compliance would be contrary to Government policy. It suggested Mrs X could raise any noise complaint to the environmental enforcement team.
20. In June 2021 the Council replied to Mrs X’s corporate complaint. It said the decision not to enforce the condition took into account the advice published in respect of COVID-19, (to keep doors and windows open). No officer gave approval for the doors to remain open at all times and, if the evidence demonstrated an unacceptable impact on adjoining occupiers, it would enforce the condition. It was unaware of any calls that it had not responded to however apologised for the delay in responding to an email. The owner sought advice from the department in respect of the patio area and it confirmed these works were permitted development and did not require planning permission. Similarly, there were no outstanding issues in respect of the fencing.
21. Mrs X escalated her complaint as she felt the Council had not addressed all her points and she was unhappy it had not visited the site before responding. She added that in May 2020 she told the Council the café owner had built a patio, raising the ground level by 50cm and so reducing the privacy offered by a fence. She had sent many emails but received no reply. She also complained about the use of the rear doors and received no reply.
22. The Council’s stage 2 response mirrored its stage 1. It did not add any further explanation as to why the patio was acceptable or any further comment on the complaints of poor communication. However, confirmed it would monitor the use of rear doors and noise to establish whether it should take enforcement action given the Government had now eased COVID restrictions.
23. Mrs X complained further that the Council should have taken action to enforce the condition on the use of the rear doors earlier and should have acted when she complained about the patio. She had received third party advice that this was a breach of planning control.
24. The Council told Mrs X it would not offer a further response as her complaint largely related to the professional judgement of planning officers and it had already provided a detailed explanation for these.
25. Mrs X says in September 2021 the Council issued an enforcement notice asking the café to keep the doors closed and they have remained closed since.
26. Mrs X then complained to the Ombudsman that the Council had delayed taking enforcement action. Further, that the raised patio and noise from customers left her unable to use her garden and caused her distress.
27. In response to enquiries the Council referred to a site visit carried out in June 2020 and provided supporting photos. The Council said enforcement officers visited the site in June 2020 and were unable to determine the original ground level as the patio had already been constructed. The site visit looked at the path round the side of the conservatory from the front of the property to the rear, noted the step down from the conservatory to the patio area and the ground level of the garden area serving the adjoining property.  From this the Council decided there had been no significant change in levels at the rear of the site.  
28. The Council added, it decided this was a permitted development because no engineering operation was undertaken in relation to the levels from the change from grass to paving slabs. It therefore found there was not a ‘material alteration’ to the property.     
29. When I spoke to Mrs X she said the Council had since approved a change in the planning conditions, meaning the café could now use the rear doors. Further that the patio and lower fence height remained an issue. She felt unable to use her garden due to lack of privacy. And she was unhappy the Council had refused to visit the site when she complained to assess the impact.
30. In comments on a draft decision Mrs X said:
• The Council did not visit the site in June 2020. She provided:
1. An email from her neighbour dated June 2020 informing the Council of the newly built patio and providing photographs of the site;
2. A letter from the Council to her neighbour dated June 2020 which says the Council considered the patio to be permitted development based on the information provided and without an inspection of the site.
• She asked the Council to visit the site in August 2021 but it refused. She provided:
1. An email from her to the Council dated August 2021 asking it to visit the site to see the impact on her privacy;
2. An email from the Council to her dated August 2021 which says it took the view there was no planning requirement or need for a further visit. They were a small team struggling to deal with their current workload and could not afford to make unnecessary visits.
• The patio is not properly supported and so presents a safety risk. However, when she raised this with the Council it dismissed her concerns.

Findings

31. In May 2021 the Council decided there was a technical breach by the café in leaving the rear doors open. However, it decided it was not expedient to take enforcement action because the Government had told businesses to keep doors open during the pandemic and because any action would not resolve the disruption caused by use of the patio. The Council gave clear evidence based reasons for its decision taking into account the information available at the time and in line with the law. I find no fault in its decision making process.
32. That the Council decided to take enforcement action in September 2021 does not mean it should have acted sooner. We expect councils to reach decisions based on the circumstances and information available at the time. Given the six months that had passed and the change in COVID-19 rules over that time, it seems likely circumstances had changed by September. However, I will not investigate this further as there is no evidence of fault in the May decision.
33. In May 2021 the Council told Mrs X there was no breach of planning control regarding the patio because it amounted to permitted development. However, the Council did not give clear evidence based reasons for its decision with reference to the law. This is fault. This caused Mrs X uncertainty as to whether the Council reached its decision properly and she was put to time and trouble pursuing a complaint. This is injustice.
34. In response to enquiries the Council referred to evidence gathered in June 2020 leading it to conclude the patio did not amount to a development and so did not require planning permission. It is up to the Council to consider the available information and decide in line with the law. I find no fault in its decision making. I appreciate Mrs X may disagree with the Council’s decision. If she has evidence to the contrary she may wish to provide this to the Council for its consideration.
35. Mrs X has evidenced the Council reached its decision in June 2020 without visiting the site. However, the Council is not required to carry out a site visit. It is up to the Council to decide if it needs to do so, to reach a decision.
36. Mrs X has also evidenced the Council refused a site visit in 2021. However, the Council did not have to carry out a visit simply upon request and it gave clear reasons as to why it would not.
37. Mrs X says the fence between the properties is effectively lower and offers less privacy given the increased height of the patio. However, the Council has found no change in the levels. I cannot say the Council’s judgement is right or wrong. I can only investigate whether it followed a proper decision making process, as I have done above.
38. I note Mrs X’s concerns about the safety of the patio. However, I will not investigate this further because there is insufficient evidence of fault. The Council found the patio was not subject to planning control and so it had no powers or obligations in this respect.

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Agreed action

39. To remedy the injustice set out above I recommend the Council take the following actions within one month of my decision:
• Provide Mrs X with an apology;
• Remind complaint handling staff of the need to provide evidence based reasons for decisions.
40. The Council has accepted my recommendations.

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Final decision

41. I found fault in the Council’s communications with Mrs X that did not affect its decision outcomes. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

42. I have not investigated Mrs X’s complaints that the Council provided poor customer service from June 2020 because these are out of time and because it is unlikely any fault caused significant injustice.

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Investigator's decision on behalf of the Ombudsman