Summary: Mrs X complains about a lack of enforcement action by the Council after a developer removed an understory that provided privacy to her property. We have concluded our investigation having made a finding of fault by the Council. We found there were significant delays in the process which have impacted the time taken to find a resolution and restore privacy to Mrs X’s property. The Council have accepted our recommendations.

The complaint

1. Mrs X complains about a lack of enforcement action by the Council after a developer removed an understory that provided privacy to her property. Mrs X says that as a result of the removal, a cycle path and two houses now look directly into her property. Mrs X would like the Council to ensure there is adequate privacy protection put back in place.

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The Ombudsman’s role and powers

2. 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)
3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. I spoke with Mrs X and considered the information she provided. I also raised enquiries with the Council and considered the information it provided. Mrs X and the Council both had an opportunity to comment on my draft decision and I considered any comments put forward.

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What I found

Planning law and guidance

6. 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 development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
7. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within legal limits.
8. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
9. This may happen where:
• the Council has already granted planning permission for the development or land use;
• a use, development or proposal is deemed lawful because it complies with regulations and so needs no permission from the Council; or
• the development or use was unlawful, but the time limit for enforcement action by the Council has now passed.

Planning Policy

10. The Council has a planning enforcement policy. This sets out what is considered potential breach of planning control. This includes failing to comply with any condition subject to which planning permission has been granted. The law says that Councils should only take enforcement action when it is satisfied that the proposed action is expedient and proportionate.
11. The Council policy identifies three priority levels that it uses to prioritise reports of alleged planning breaches. Officers have discretion which priority a case is allocated.
12. The Council has a target to achieve an ‘identified action’ in relation to alleged breaches of planning control within 8 weeks of receiving the enquiry. The ‘identified actions’ include:
• identifying no breach and closing the case,
• deciding action is not expedient,
• negotiating with the developer to resolve the breach,
• requesting a planning application,
• issuing a notice, and
• taking legal action.
13. If the Council decides to negotiate with the developer, the policy adds a condition. Negotiations should not be allowed to hamper or delay the consideration of enforcement action where a breach of planning control causes serious harm to amenity.

Discretion to investigate

14. Events in this complaint begin in August 2022 when the developer removed the understory near Mrs X’s property, and in the same month she raised a complaint with the Council. As per paragraph 3, we cannot investigate late complaints unless we decide there are good reasons. The Council has been aware of the matter since August 2020 and when Mrs X brought her complaint to our service, the issues were still ongoing.

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What happened

15. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
16. The Council granted planning permission for Application A in August 2019. The permission was subject to a number of conditions. Condition X states ‘revised landscaping details for the site shall be submitted to and approved in writing by the Local Planning Authority within 3 months of the commencement of the development hereby approved.  The landscaping scheme shall include details of hard landscaping, planting plans, written specifications (including cultivation and other operations associated with tree, shrub, hedge or grass establishment), schedules of plants noting species, plant sizes, the proposed numbers and densities and an implementation programme.  The development shall be carried out in accordance with the approved details’.
17. In 2019, the developer submitted an application to discharge the requirements of Condition X. The plans showed that the existing understorey would be retained.
18. In August 2020, the developer removed the understory. Mrs X says she liaised directly with the developer who assured her the removal of the understory did not breach any planning conditions.
19. In August 2020, Mrs X complained to the Council. The Council informed Mrs X that it had contacted the site manager and would be undertaking a site visit. The Council allocated the case as a Priority 2, the middle priority.
20. In January 2021, Mrs X contacted the Council to chase an update. The Council informed Mrs X that its investigation would be concluded at the end of January 2021.
21. In April 2021, the Council sent Mrs X a letter to inform her that it had been delayed in providing her with a response.
22. The Council says that in June 2021, the removal of the understory was brought to the attention of the developer. The Council says it informed the developer that a further application would be required to discharge Condition X. The Council says the developer was of the opinion that the landscaping had been carried out with the approved scheme.
23. In June 2021, the Council emailed Mrs X to say the developer had informed it that planting had been carried out. The Council informed Mrs X that it was in the process of verifying that any breaches in planning control had been remedied. Mrs X responded to the Council providing photos to demonstrate that the trees had not been planted.
24. At the end of June 2021, the Council wrote to Mrs X to inform her it had escalated her complaint. In July 2021, the Council wrote to Mrs X informing her of delays in its Planning Service due to insufficient resources. The Council apologised to Mrs X and informed her that an officer had since re-visited the site and was in discussion with the developer about how they intended to resolve the matter.
25. In January 2022, the Council met with the developer to review the planting which had taken place. The Council says the developer acknowledged that there were omissions in the planting and that a further application would be submitted in relation to Condition X. The application was received in November 2022, and due to be determined in January 2023.
26. The Council says the amended landscaping scheme proposes the planting of two additional trees to the rear of Mrs X property, in addition to a native hedgerow. The Council says once the application has been approved, the planting will be carried out within the planting season, by the end of March 2023.

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Analysis

Planning Control Enforcement

27. The Ombudsman is not an appeal body. It is not the Ombudsman’s role to decide whether or when the Council should take enforcement action; that is the Council’s job. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
28. As stated at paragraph 6, planning enforcement is discretionary. As a result, Councils may decide to take formal/informal action or may decide not to act at all. Before taking action, councils must satisfy themselves that such action is the right thing to do, (that it is expedient).
29. In this case, the Council decided not to take enforcement action regarding the planning control breaches. This is a decision the Council is entitled to make.

Delays in the process

30. Mrs X’s concerns were first brought to the attention of the Council in August 2020 when she complained to it about an alleged planning breach. There have been significant delays in the process which has contributed to a lack of resolution to restore privacy to Mrs X property.
31. As per paragraph 12, the Council has a target to achieve an ‘identified action’ in relation to alleged breaches of planning control within 8 weeks of receiving the enquiry. Following Mrs X’s complaint to the Council, it did not achieve an ‘identified action’ until June 2021. The Council says that during this period of delay, it was experiencing a significantly busier period than usual. The Councils says it experienced an increased number of applications and enforcement complaints and its limited resources meant that ordinary service had been impacted. The Council was proactive in its approach to informing customers about potential delays through its website. Whilst this represents good administrative practice, the time taken to achieve an ‘identifiable’ action took significantly longer than the Council’s target of 8 weeks
32. In January 2022, the Council met with the developer to verify that any breaches in planning control had been remedied. It was established that matters had not been resolved and so the Council continued its negotiations with the developer, where it was agreed that the developer would submit an application with respect to Condition X. The developer did not submit an application under November 2022, and I have not seen any evidence from the Council of any action in took during this time to progress matters.
33. Whilst I acknowledge the Council’s comments that it was in negotiations with the developer, who it says was willingly engaging in resolving the matter, the Council has failed to adhere to its own policy, and a significant period of time has passed without any substantive resolution being put in place. As per paragraph 13, negotiations should not be allowed to hamper or delay the consideration of enforcement action where a breach of planning control causes serious harm to amenity.
34. The period between Mrs X raising her complaint in August 2020 and June 2021, represents a period of 10 months of delay before the Council achieved an identifiable action. The period between January 2022 when the developer acknowledged that there were omissions in the planting, and November 2022 when the developer submitted its application represents a further 10 month delay without the Council taking any substantive action to progress the matter.
35. The Council did not manage the negotiations with the developers to resolve the matter in a timely manner and here I have made a finding of fault. The removal of the understory compromised the privacy of Mrs X property causing her an injustice. Enjoyment to her home has been impacted and caused her inconvenience and frustration since August 2020. On balance, had the Council progressed matters quicker and without delay, the breach of planning conditions would have been remedied quicker, and privacy would have been restored to Mrs X property much sooner.
36. Following the developers application to the Council, the Council says it anticipates that planting will be carried out within the current planting season, by the end of March 2023.
37. The Council has said should the application be refused, it is at that point it would be appropriate to consider formal action. The Ombudsman cannot seek to pre-empt the Council’s decision about an ongoing application, but the Ombudsman accepts this as the point with which a solution has been found and established.

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Agreed action

38. As per our guidance on remedies, where a loss of amenity is temporary, we normally recommend a payment in the range of £75 to £350 a month, until a permanent solution is found and established.
39. I consider there is a total of 14 months of avoidable delay, this considers the 10 months between August 2020 and June 2021, and the 10 months between January 2022 and November 2022. I have reduced the total number of months to account for the Council’s targets, and some additional time for the application to have been submitted by the developer. I have also used the bottom range of the recommended payment to suggest an award of £1,050.
40. To resolve matters, the Council have agreed to:
1. Apologise to Mrs X for delays throughout the process and failing to negotiate a meaningful resolution with the developer in a timely manner.
2. Pay Mrs X an amount of £1,050 for the inconvenience and distress caused by the delays in the process which has subjected her property to an ongoing lack of privacy.
3. Inform the Ombudsman of the outcome of the developers application and confirm whether the planting has taken place by the end of March, or what action it intends to take going forward.
41. The Council have agreed to complete action a and b without one month of the Ombudsman’s final decision, and action c within two months of the Ombudsman’s decision.

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Investigator's decision on behalf of the Ombudsman