Summary: We found the Council’s apology had suitably addressed the injustice to Mr X arising from its handling of planning matters concerning a caravan near his home.

The complaint

1. Mr X said the Council failed to communicate with him in line with its enforcement policy and delayed investigating his report of development not complying with a planning condition. The Council then decided there was no breach of planning control because the development had not needed planning permission.
2. Mr X said the Council had misled him and caused avoidable distress, time and trouble in granting conditional planning permission but 18 months later deciding it was not needed. Mr X also said the development overlooked his home and considerably reduced his privacy.
3. Mr X wanted the Council to review its procedures and establish how and why it made two inconsistent decisions about the development within 18 months. Mr X also continued to seek enforcement action to secure removal of the development.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. Where we find fault, we must also consider whether it 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), 26A(1) and section 34(3), as amended)
5. 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

6. I:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s response to the complaint with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

Development management and planning enforcement

7. Most development, as defined in the Town and Country Planning Act 1990, as amended, (‘the 1990 Act’) needs planning permission from the council. The 1990 Act also sets out matters that are not, for planning purposes, development. So, for example, the use of buildings or land within the curtilage of a house for purposes incidental to the enjoyment of the house is not development. (A ‘curtilage’ is the land around and linked to a house, which for many people would be their garden.)
8. The law also provides blanket planning permission (‘permitted development’) for many, usually minor, developments. Subject to the specific nature of the works, councils have no control over such developments. Sometimes people are unsure if, and or may want a formal view on whether, their proposals are development or permitted development for planning purposes. So, people may apply to their council for a lawful development certificate (LDC) for their proposed development. The council must then decide whether, as a matter of law and fact, the application proposals would be lawful for planning purposes. If satisfied the Council will issue a LDC and, if implemented, the development described in the LDC is presumed lawful for planning purposes.
9. If development takes place that does not comply with planning rules, there will be a breach of planning control. Councils should investigate reported breaches but are not obliged to act against every breach they find. Rather, planning enforcement is discretionary. And the Government’s National Planning Policy Framework says councils should act proportionately in responding to suspected breaches of planning control. Government guidance also encourages councils to resolve issues through negotiation with developers. Councils should consider whether they would have approved the unauthorised development if they had received a planning application. And, in deciding whether to take formal action, they should consider the level of planning harm to the public caused by the unauthorised development.
10. The Council has a Planning Enforcement Plan (‘the Plan’), which reflects Government policy and guidance. The Plan says the Council will acknowledge a reported breach within three working days. It will also give the person reporting a breach the name and contact details of the planning enforcement officer. The timing of what happens next depends on whether the Council assesses the reported breach as a ‘high, medium, or low’ priority for investigation. The Plan also sets out how the Council will investigate a reported breach, including deciding whether ‘development’ for the purposes of the 1990 Act has taken place.
11. The Plan recognises people may get frustrated if not kept informed about progress with the investigation into a breach they reported. The Plan refers to cases involving protracted negotiations that may mean there is nothing to report. The Plan says those reporting breaches “will be kept informed as regularly as resources allow”. And an initial response will be sent within 28 days of the reported breach, except for low priority cases where the response will be sent within 42 days. Further updates will be at each stage of an investigation, for example, after a site visit; and on closing a case.
12. The Plan also says, if people are not satisfied with the enforcement service, they should first contact the Corporate Manager for Planning Enforcement. If their concerns are not resolved by the Manager, people may use the Council’s formal complaints procedure to present their concerns.

The Council’s complaints procedure

13. The Council’s Complements, Comments and Complaints Policy (‘the Policy’) includes a two stage complaints procedure. Under the Policy, where a resident complains using the Council’s website and its ‘contact us’ form, an automatic acknowledgement is issued with a reference number. At stage 1 further contact is made within the next five working days to give the resident the name of the person investigating their complaint. This person will be the manager or deputy manager of the department responsible for the service complained about. They will respond to the complaint within 10 working days or contact the resident to discuss any time extension. If not resolved by the service department, the resident may take their complaint to stage 2 for consideration by a Council customer liaison officer. The customer liaison officer will review matters and may give the resident reasons for not accepting or responding to the complaint at stage 2. If a complaint is investigated at stage 2, a response will be sent within 20 working days, which time may be extended by a further 10 working days.

What happened

14. The Council received a planning application (‘the Application’) for a static caravan in the garden of a house (‘the Site’) near Mr X’s home. The Council also received information, containing personal details, with the Application about why the caravan was needed as a temporary home. The Council publicised the Application and Mr X objected to the impact of the caravan on his home.
15. A Council planning officer prepared a report assessing the Application. The report identified the impact of the caravan on residential amenities as a main issue in deciding the Application. The report assessed the caravan as not affecting the visual amenity of nearby properties or causing unacceptable harm from overlooking, overshadowing or loss of privacy. Overall, the report found the caravan acceptable as it was in line with planning policies and would cause no demonstrable harm on substantive planning grounds.
16. The Council granted planning permission for the caravan subject to conditions. One condition limited the use of the caravan as an annexe to the house to 12 months from the date of the planning permission (‘the Condition’). The Condition said after 12 months the caravan should be removed and the Site reinstated in line with a scheme (to be submitted by the developer and) approved by the Council. Mr X said, while disappointed, he decided not to challenge the Council’s decision because the Condition limited the planning permission to one year.
17. The caravan was not removed from the Site after 12 months. Mr X contacted the Council to report the developer’s failure to comply with the Condition. The Council wrote to Mr X acknowledging his report and giving him the name of a planning enforcement officer. The Council said it would “endeavour to update [Mr X] in accordance with the timescales detailed in [the Plan]” and tell him of the outcome of its enforcement investigation. The Council’s letter also gave a link to the Plan. The planning enforcement officer looked into the case and then made a site visit.
18. A month after reporting the breach Mr X chased the Council for an update. Eleven days later, having received no reply, Mr X again chased the Council. After another two months, and having telephoned the enforcement case officer, Mr X complained to the Council about its failure to respond.
19. The Council responded to the complaint about three months later (‘the Letter’). It said, placing a residential caravan within the curtilage of the nearby house was not ‘development’ under the 1990 Act as long as it was used for purposes incidental to that house. The Council said it was unclear why the Application had been made when it was not needed. But it recognised it had then granted planning permission for the caravan and applied the Condition. However, its enforcement investigation had found the caravan was incidental to the use of the house on the Site and so there was no breach of planning control. The Council recognised it had not responded to Mr X in a timely manner or updated him about progress with, and the outcome of, the enforcement investigation. The Council therefore partially upheld his complaint and apologised for its poor response performance.
20. A few days later a senior Council officer considered, and accepted, the case officer’s enforcement report, which recommended closing the investigation. The enforcement report referred to the case officer’s visit, which found the caravan was within the curtilage, and being used for purposes incidental to the enjoyment, of the house on the Site. The case officer therefore said that, as a matter of fact and degree, there was no breach of planning control. The report noted that, if unsure about the lawfulness of the caravan, the developer should have applied for a LDC and not an express planning permission.

The Council’s response to Ombudsman

21. The Council said people could make an application, which it could determine, even if their proposal did not need planning permission. And people often did this for small house extensions as they preferred the certainty of a planning permission rather than relying on permitted development rights. Here, in granting planning permission, its approach was not about whether the caravan needed its ‘consent’ but that it was acceptable on planning grounds. When its enforcement officer considered the case, their view was ‘consent’ based and found the caravan did not need planning permission. However, it had now taken the opportunity to provide officer training about caravans as ‘development’ under the 1990 Act.
22. The Council explained that after starting its enforcement investigation, team members left, and it was only partially successful in recruiting new officers. A backlog of cases (and then complaints) started to form, and its remaining officers had to further prioritise investigations. The Council pointed to the Plan saying updates were linked to resources (see paragraph 11) and said it had placed a ‘note' on the enforcement page of its website about the situation. It accepted it would have been prudent also to have given this update to people whose reported breach was being investigated.
23. The Council offered Mr X its further apologies for the delay in responding to his stage 1 complaint. Officers in another department were now helping with enforcement stage 1 complaints. They were, for example, gathering relevant information about complaints for use by the senior officers responsible for responding to complaints. The Council said the number of cases where it met the stage 1 response time target was increasing for enforcement complaints.

Consideration

24. Mr X was understandably concerned when the Council did not act to remove the caravan given the time limit imposed by the Condition. His frustration was compounded when the Council then said it would not act as the caravan did not breach planning control. However, we are not an appeal body and do not tell councils what decisions they must make. Our role is to consider whether there is evidence of fault in how councils reached their decisions. Here, in considering the Council’s enforcement decision, I also took account of its earlier decision to grant planning permission for the caravan.
25. The Council said, having received the properly made Application for the caravan, it could determine it. However, the Council also recognised it might have questioned the Application with the developer. I cannot now know what would have happened if the Council had raised the need for the Application with the developer. The developer might have withdrawn the Application or replaced it with a LDC application.
26. However, processing the Application had implications for Mr X as he took the time to make representations about the caravan and send them to the Council. I recognised Mr X might now view this as a waste of his time given the Council’s later enforcement decision. But if the caravan had appeared without notice near Mr X’s home, it seems likely he would have written to the Council given the concerns raised in his representations on the Application.
27. After the Council granted the time limited planning permission, Mr X also lived for 12 months with the expectation the caravan would be removed. Mr X reported the retention of the caravan soon after the 12 months expired. The Council started to investigate the reported breach but took seven months to send the Letter to Mr X, which set out its enforcement decision. The Letter also responded to the complaint Mr X had made about four months earlier.
28. The Letter explained that officer vacancies affected both its ability to investigate reported planning breaches and then enforcement complaints. And, while it updated its website to advise residents of likely delays, it did not contact people whose cases were under investigation. Unfortunately, Mr X did not see the website information and was faced with unexplained delay. While I recognised the difficulties the Council faced, as it accepted, it would have been good practice to have let Mr X, and others in his position, know about case delays. I agreed and therefore found fault here. I also found the Council’s apology in the Letter, for its poor communication, suitably addressed the injustice to Mr X arising from its delayed enforcement decision and complaint response.
29. The Council has now closed its enforcement investigation, having told Mr X it found no breach of planning control on the Site. The Council provided photographs to evidence its enforcement officer visit and a copy of its report finding no breach of planning control. The Council’s photographs showed windows in the caravan looking towards Mr X’s home were obscured. And Mr X advised the caravan was not now occupied. I therefore found the Council acted properly to investigate the breach Mr X reported and so had no grounds to question its resulting decision (see paragraph 4).
30. I recognised the continuation of the caravan on the Site was not the outcome sought by Mr X. However, if the Council had not accepted and processed the Application, the caravan would have been brought to the Site and temporarily occupied. Mr X would likely have contacted the Council with his concerns about the impact to the caravan on his home. The Council would then have carried out an enforcement investigation and reached the view the caravan did not breach planning control. I therefore found Mr X would be in the same position as he now finds himself but sooner. Overall, given the Council’s earlier apology about poor communication, I found no outstanding significant injustice to Mr X that I now needed to remedy.

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Final decision

31. I completed my investigation finding the Council’s apology had already suitably put right the injustice Mr X was caused by its delays and poor communications.

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Investigator's decision on behalf of the Ombudsman