Summary: X complained about the Council’s failure to act in a timely and effective manner, which led to development near their home becoming immune from enforcement action. The Council accepted its poor record keeping and delay caused X avoidable time, trouble and distress. The Council agreed to improve its offer to put matters right by paying X £600 in recognition of the injustice arising from its fault.

The complaint

1. X said the Council delayed dealing with a breach of planning control, which led to development near their home becoming immune from enforcement action.
2. X said the development seriously impacted on their home and living conditions. And, as it had issued enforcement notices in 2014 and 2020, the Council knew the development was unacceptable but now sought to suggest it had no substantive impact on their home.
3. X found the Council’s apology and offer of £300 for their time and trouble unacceptable. Rather, X sought substantive financial compensation from the Council for sound insulation work and consequential redecoration; acoustic fencing; CCTV; and loss of value to their home.

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The Ombudsman’s role and powers

4. 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)
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 X’s written complaint and supporting papers;
• talked to X about the complaint;
• considered relevant development management and planning enforcement information available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments with X; and
• shared a draft of this statement with X and the Council and considered any comments received before making a final decision.

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What I found

Background

Development management

7. Most development needs planning permission from the local council. However, Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.
8. The law gives councils powers to remove permitted development rights, for example, by making an ‘article 4 direction’. Article 4 directions do not prevent the development from taking place. But, where they exist, a developer cannot rely on their permitted development rights but must apply to their council for express planning permission to carry out that development.
9. The Council has an article 4 direction that removes permitted development rights to change a single dwellinghouse to a house in multiple occupation (HMO) by not more than six residents. (An HMO occupied by up to six residents is known as a ‘small’ HMO.)
10. The Council has a 2012 Local Plan that sets out its development management policies. Policy DM01 is about protecting Barnet’s character and amenity and includes:

“Conversion of dwellings into flats in roads characterised by houses will not normally be appropriate.”

And

“Loss of houses in roads characterised by houses will not normally be appropriate.”

11. The Council also has a 2016 Residential Design Guidance Supplementary Planning Document (RDG SPD). The RDG SPD includes information about how the Council will consider planning applications to convert single houses into flats and HMOs. The RDG SPD refers to policy DM01 and says, “whether or not a conversion is acceptable in principle will depend on the character of both the house and the street.” And the “sensitive use of landscaping can soften the impact of bin storage areas when it is necessary for them to be sited to the front of a property”.

Planning enforcement

12. Councils can take enforcement action if they find a breach of planning rules. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the unauthorised development or use.
13. Planning enforcement action is subject to legal time limits. For example, councils have four years to take enforcement action against the change of use of a building to a use as a single dwelling house. Once the time limit has passed it is not normally possible to take enforcement action. However, where councils have taken enforcement action, they may take further action against the breach within the following four years. The Government’s Planning Practice Guidance (PPG) calls this ‘the second bite provision’. It mainly deals with cases where ‘in time’ enforcement action is later found to be defective and allows further action that may be outside the normal time limit.
14. If councils wish to act, they usually have choices. To issue a formal planning enforcement notice, councils must be satisfied it is ‘expedient’ to do so having considered their planning policies and any other material planning considerations. An enforcement notice will set out the alleged breach of planning control and what steps must be taken, and by when, to address the breach. Councils also have powers to vary and withdraw their enforcement notices.
15. People receiving an enforcement notice have a right of appeal to the independent Planning Inspectorate (PINs). The law sets out the grounds for an appeal, which include, that when the notice was issued, it was not possible to take enforcement action against the breach.
16. It is a criminal offence not to comply with an enforcement notice once it has taken effect.

What happened

17. The Council issued an enforcement notice to a developer that required a semi-detached property (‘the Property’) to be returned to use as a single dwelling. X lived in the other semi-detached property.
18. About four years later, the Council was considering how to deal with the developer’s non-compliance with the enforcement notice. The Council then found it had mislaid information about the enforcement notice, which its legal advisers considered necessary to take legal action to secure compliance.
19. Two years later, the Council prepared a report recommending the issue of a second enforcement notice. The report said the Property was in a road that was predominantly residential in character. And its change from a single home into five housing units was out of character with the area. It also meant the loss of a single house in a road characterised by houses. The report raised planning concerns about the accommodation within the Property. The report concluded that use of the Property caused significant harm to the character and appearance of the area, and its existing and future occupiers, contrary to planning policy.
20. The report had set out six grounds to explain why an enforcement notice was necessary. Four grounds related to the five housing units within the Property. A fifth ground referred to the lack of suitable provision for waste and recycling bins having a detrimental effect on the character and appearance of the Property and adjacent road. The sixth ground said conversion of the Property into multiple housing units was an over intensive use with increased comings and goings detrimental to the character and appearance of the area contrary to policy DM01 and the RDG SPD.
21. The Council issued a second enforcement notice (‘the Notice’), which replicated the contents of the first enforcement notice. The reasons given in the Notice to explain why it had been issued repeated the six grounds set out in the report (see paragraph 20). The Council also formally withdrew the first enforcement notice.
22. The developer appealed to PINs against the Notice. The grounds of appeal included that, when the Notice was issued, enforcement action could not be taken against the alleged breach. In response to the appeal, the Council said the breach of planning control at the Property was not immune from enforcement action because it had issued the first enforcement notice. The Council also said partial use of the Property as an HMO ‘introduced considerable comings and goings and an over intensive use detrimental to the character and appearance of the area’.
23. PINs found the Property was not an HMO. PINs said the Council had had four years from the issue of the first enforcement notice to take further enforcement action. The Notice was issued about six years after the first enforcement notice. And the balance of the evidence showed the use had taken place and continued without significant interruption for more than four years before the issue of the Notice. PINs found the change of use of the Property was immune from enforcement action and upheld the appeal quashing the Notice.
24. More than seven years had passed since the Council issued the first enforcement notice. Throughout those seven years, X had kept in touch with the Council urging it to act against the breach of planning control at the Property. After the developer appealed the Notice, X said the Council told them not to worry as it would not be upheld. Then, when PINs upheld the appeal, it again told them not to worry as it intended to challenge the decision.
25. About three months after PINs decision, the Council updated X on its position. The Council said, having taken external legal advice, it faced evidential and interpretational difficulties in challenging PINs decision. It had therefore decided it was not in the public interest to pursue the matter. The Council, while recognising it might be of little comfort, apologised to X.
26. X complained saying, in summary, they were appalled, shocked and dismayed by the Council’s decision. X pointed to the Council’s repeated assurances, which they had accepted, over nearly eight years that it was dealing with the breach of planning control. X said the Council’s massive errors had now left them permanently living with a constant level of unacceptable noise and disturbance from the Property. And, as the Council had admitted it made mistakes, its apology was insufficient. X said the Council should fully compensate them for the harm caused by the Property.
27. In response, the Council recognised X’s frustration given its administrative error. The Council also acknowledged its delay in issuing the Notice. The Council upheld X’s complaint but said there was no evidence to substantiate X’s views about noise, disturbance and loss of value to their home. The Council said it did not consider X’s compensation claim proportionate as family homes could generate noise and disturbance leading to neighbour disputes. However, in recognition of X’s time and trouble, the Council offered them £300.
28. In coming to the Ombudsman, X said they were shocked and insulted by the Council’s response to their complaint. X said the Council’s reasons for issuing the Notice included the increased comings and goings and noise caused by the Property. The Council was now contradicting itself in claiming noise and disturbance from the Property was the same as a single family home. And its change in view attempted to cover up its mistakes. X also pointed to the Council’s recent decision, upheld on appeal to PINs, to refuse planning permission for a similar change of use at another semi-detached home (‘the Other Case’). X said they had been patient for many years, but the Council’s false promises had left them in an unbearable position. Their claim for compensation was reasonable as it sought to directly put right the harm caused by the Property.

The Council’s response to the Ombudsman

29. The Council said there were two issues underlying its decision to take enforcement action against the change of use of the Property. First, the effect on the character and appearance of the area and second, the quality of the converted accommodation. The direct impact of the Property on neighbours’ amenities did not justify enforcement action. Its concern about noise due to increased people movements linked to the impact this had on the character of the area rather than individuals.
30. The Council said planning applications for conversions like that at the Property were relatively common within its borough. It referred to seven cases where it had granted planning permission to convert properties, including semi-detached homes, to self-contained flats or an HMO. The seven properties were in the same general post code area as X’s home.
31. The Council fully accepted it was at fault in being unable to secure enforcement action against development it assessed as harmful and contrary to good planning. However, there was no specific harm to X beyond the general harm to the area. And, if PINs had considered the substantive planning issues at the appeal into the Notice, it was confident they would have agreed with that assessment. (X dispute this.) The Council therefore said its apology and offer of £300 compensation suitably addressed X’s time, effort and inconvenience.
32. The Council also explained its updated administrative procedures for enforcement notices. These aimed to prevent a recurrence of the problems that had arisen with the first enforcement notice issued for the Property. The Council said it now carried out a monthly enforcement records check and its internal training sessions regularly stressed the importance of good file management.

The Other Case

33. The Other Case (see paragraph 28) X referred to concerned a proposal to change a semi-detached house to a small HMO. The Other Case was the subject of an unsuccessful appeal to PINs. The Council had found the proposal resulted in the loss of a single family home, for which there was an identified local housing need. And an HMO in an area characterised by single family homes would be harmful to the local character of the area. The HMO would also harmfully increase noise, disturbance and disruption to neighbouring properties because of increased activity in an area of single family homes. The proposal was therefore contrary to local planning policies, including policy DM01 and the RDG SPD.
34. PINs findings included the area around the appeal property having a residential character and there being no identified need for the HMO. PINs also said the proposed six separate households would likely increase people movements to and from the property at different times of day compared to a single household of six people. This would lead to uncharacteristic noise and disturbance detrimental to the residential character of the street. The level of activity would also likely be noticeable to neighbouring occupiers, and associated noise and disturbance would detract from their living conditions “albeit to a modest degree”. Overall, PINs found the proposal conflicted with planning policies, including policy DM01 and the RDG SPD.
35. The developer then made a further application to the Council seeking planning permission for an HMO for up to four people. The Council’s assessment of the application took account of PINs appeal decision (see paragraph 34). The Council found two main differences in the new application. First, the HMO was now for up to four households rather than six. Second, the developer had provided information about local need for an HMO.
36. The Council recognised HMO use of the property would be materially different to use as a typical family household. However, it found the proposal for a four household HMO would not, on balance, lead to significant harm, from noise and disturbance to neighbouring properties. The Council accepted the developer’s information showed a degree of local need for an HMO. It balanced this against the aims of policy DM01 to protect against the loss, and conversion, of houses in roads characterised by houses. The Council found the HMO conflicted with the prevailing character of the road and would result in the loss of a family home. It therefore found the proposals contrary to planning policies, including policy DM01 and the RDG SPD, and refused planning permission. (PINs have yet to decide the developer’s appeal.)

Consideration

37. The Council had accepted it was at fault in dealing with the planning enforcement case for the Property. I agreed. The evidence showed there was poor record keeping, which was compounded by protracted internal discussions about how to move the case forward. The resulting delay in issuing the Notice then led PINs to find conversion of the Property was immune from enforcement action.
38. The Council also recognised its fault caused X injustice. I agreed. Over about eight years, X had their expectations raised that the Council was taking effective enforcement action against the converted Property. X were understandably distressed and frustrated when the Council ultimately decided not to further pursue the enforcement case following PINs appeal decision. The evidence also indicated that X were put to avoidable time and trouble initiating contact with the Council for information about progress with the enforcement case.
39. The key difference between X and the Council was whether the injustice arising from fault went beyond avoidable time and trouble, distress and frustration. X sought substantive financial redress to address the impact of the use of the Property on their living conditions. The Council did not consider there was any specific harm to X beyond the general harm to the area. I could make recommendations to address injustice caused by fault (see paragraph 4). So, here, the key issue for me was whether the injustice X raised about the impact of the Property on their living conditions arose from the Council’s fault.
40. There was no certainty about what PINs decision would have been if the appeal against the Notice had considered the substantive planning issues relevant to conversion of the Property. However, the Council was confident that PINs would not have granted planning permission for use of the Property as five housing units. The Council and X referred to cases showing both refusal and approval of planning permission for developments like the conversion of the Property. The cases showed the Council’s approach to the conversion of single family homes to multiple housing units and its application of policy DM01 (see paragraph 10). And, on balance, I accepted that consideration of the substantive planning issues would likely have led to the Notice being upheld on appeal. X therefore now lived next to property converted for occupation by five separate households rather than a single family home.
41. The Council gave six reasons for issuing the Notice. Four concerned the converted housing units within the Property. I did not find these four reasons, either individually or cumulatively, directly or significantly affected X and their home.
42. A further reason concerned the lack of suitable provision for bin storage, which affected the appearance of the Property and the street scene. However, councils cannot force people to put their bins in any particular place within their own property. And many people do leave their bins in front of their homes whether for convenience, due to their limited mobility, or another reason. I doubt that lack of suitable provision for bin storage alone would normally justify either a refusal of planning permission or the issue of an enforcement notice. And, here, the Council’s reason did not say the lack of suitable provision adversely impacted neighbour amenities. So, while I recognised X might likely be upset if bins were left in front of the Property, I did not find this caused significant injustice for which I ought now propose a remedy.
43. The Council’s final reason for issuing the Notice concerned policy DM01 and the RDG SPD. The Council said the Property was in a road “predominately residential in character”. And conversion of the Property to house five separate households resulted in an over intensive use, with increased comings and goings, detrimental to that character. That was the planning harm the Council sought to address. The Council did not refer to express impacts on neighbouring amenities.
44. I recognised that, as immediate neighbours, X would likely feel most impacted by increased ‘comings and goings'. It was also understandable that X would seek redress following conversion of the Property. Indeed, I recognised that, in the Other Case (see paragraph 34), PINs found activity levels and associated noise and disturbance, would likely be noticeable to, and detract to a modest degree on, neighbouring occupiers. However, here, there was no evidence the Council identified unacceptable planning impacts on neighbouring occupiers as a reason for issuing the Notice. In the circumstances, I did not find it appropriate to recommend the Council put right the planning harm X identified to their amenities when it was not satisfied any such harm justified enforcement action.

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Agreed action

45. I identified fault causing injustice (see paragraphs 37 and 38). The Council had apologised and offered X £300 financial redress to address X’s injustice. I did not find the Council’s offer of £300 adequate given its enforcement case and contact with X about the Property covered nearly eight years. I found that in recognition of X’s time, trouble, frustration and distress, a payment of £600 would be proportionate, appropriate and reasonable. The Council agreed to pay X the £600 within 30 working days of this decision statement and to provide us with evidence it had done so.
46. The Council had already acted to prevent a recurrence of what went wrong in this case. I therefore saw no need now to recommend service improvements.

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Final decision

47. I completed my investigation, finding fault causing injustice, when the Council agreed the recommendation at paragraph 45.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman