Summary: The complainant, Mr X, complained the Council failed to take appropriate enforcement action against alleged breaches of planning conditions at a neighbouring property. We find the Council was at fault for a delay in investigating the report Mr X made. However, on balance we found the outcome was unlikely to have been different. The Council has agreed to apologise to Mr X and review its procedures to ensure better communication between teams.

The complaint

1. The complainant, Mr X, complains the Council has failed to take appropriate enforcement action against alleged breaches of planning conditions at a neighbouring property.
2. Mr X said this caused a significant loss of outlook and is an eyesore.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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

7. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
8. Mr X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Enforcement

9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. Government guidance says: “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.” (National Planning Policy Framework July 2021, paragraph 59)

Time limits for enforcement

12. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Tree preservation orders

13. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• willful damage and destruction.
14. Government guidance says anyone who contravenes an order by damaging or carrying our work on a tree protected by an order without getting permission from the Council is guilty of an offence and may be fined. It is for the Council to decide whether to pursue prosecution.
15. The guidance states when there are unauthorised works to protected trees the Council may:
• do nothing- but only if justified by the particular circumstances;
• negotiate with the owner to remedy the works to the satisfaction of the Council;
• consider the option of issuing an informal warning;
• seek an injunction to stop on-going works and prevent anticipated breaches; or
• consider whether the tests for commencing prosecution are met.

Certificate of lawfulness

16. 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.
17. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

The Council’s enforcement policy

18. Anyone can make a complaint about a breach of planning control. The Council will update the complainant of progress during and at the conclusion of investigations.
19. There are a number of enforcement actions which the Council can take. One of these is a planning contravention notice which is a legal notice served on the owner, requiring the recipient to provide specific information. This is often undertaken to determine if there is a breach of planning control and to decide an appropriate course of action.

What did happen?

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Mr X contacted the Council in July 2020. He said his neighbour had extended their boundary into council owned woodland. He also said his neighbour had built a permanent marquee structure which he said had caused damaged to a tree.
22. The Council agreed to pass this on to the environment team. It said it had requested colleagues investigate and take appropriate action.
23. In November 2020 Mr X asked the Council for an update.
24. The Council apologised and said there was some confusion as to who was dealing with it. It gave Mr X details of the officer who would deal with both issues. It said after inspection, the officer would instruct the team to act if there was an encroachment issue.
25. Mr X asked for an update in June 2021. He contacted the Council again in February 2022.
26. The Council visited the site in early 2022. It told Mr X in May 2022 it had issued an enquiry to planning enforcement to look into the issues raised. It said it would be in touch with Mr X once it had investigated.
27. The Council notes stated it visited the site the following month. It said both Mr X and his neighbour had encroached on council owned land. It said its property team were seeking an amicable solution. The team said it had an ariel shot from 2012 showing the decking area at Mr X’s neighbours’ property being constructed. It said this meant this issue was beyond the 10-year enforceable time for change of use. The Council said this was explained to Mr X.
28. Mr X asked the Council for an update on the investigation in July. He asked if the Council had visited the site and whether a report had been issued. The Council provided him with details of the planning officer he needed to contact. Mr X was advised the matter was being investigated and he would be contacted in due course.
29. Mr X complained to the Council in October 2022. He said he first reported this in 2020 and the issue was still ongoing. He said there had been a lack of action or resolution to his complaints.
30. The Council responded to Mr X’s complaint at stage one of its complaints process and said:
• investigations were underway regarding planning enforcement and encroachment of garden area into the Council-owned woodland;
• a visit to the site in 2020 observed some minor damage to the tree. But it said this did not warrant any action with regard to the protected tree status. This was the same outcome following a recent inspection;
• a planning contravention notice (PCN) would be served on the neighbour which would require information and evidence to be provided regarding the date as to when the timber structure and marquee were constructed.
31. A member of the Councils property management team met Mr X on site in late 2022. In December 2022 Mr X provided the property team with various images including an image from 2018 showing the neighbours marquee taken down. He asked the following month if his complaint was still at stage one of the Council's complaints process.
32. In January 2023 the property team agreed to chase planning enforcement for an update. In February they updated Mr X and stated they were waiting for an update from its planning team as to progress with the PCN notice. The property team act for the council in its role as the landowner. They stated the encroachment onto council land could be regularised in a positive way by agreeing periodic tenancy to address the issues. In principle, the same approach could be taken with Mr X as with his neighbour. It said this was subject to findings of any PCN enquiries and the advice of planning enforcement.
33. Mr X was unhappy with this. He wanted the Council to remedy his neighbour’s works which he considered an eyesore which affected the value of his property.
34. Mr X chased for progress with the response to his complaint on several occasions between the end of January and March.
35. In March 2023 planning enforcement told its property team that issuing a PCN seemed futile given discussions the council had to date had indicated there was no specific evidence of the construction timescales. A planning officer commented that the aerial images did not give a clear view of when the structure had been erected. He stated Mr X’s neighbour had agreed to regularise the works through appropriate means, possibly via a Certificate of Lawful Development application. This information was relayed to Mr X by the property team.
36. In September 2023 the Council wrote to Mr X’s neighbour following previous discussions. It said if the works had been erected for more than four years, they would need to submit a lawful development certificate. Mr X’s neighbour provided the Council with the decking guarantee dated 2008 and evidence the marquee was purchased in 2010.

Analysis- was there any fault by the Council causing injustice?

37. We would not usually investigate events that occurred more than 12 months before a person complains to us. I have exercised discretion to investigate from July 2020.
38. From a landowner perspective the Council’s property team was satisfied that it could agree a tenancy for any encroachment into council land to regularise it. The Council, as landowner, was entitled to agree this as a way forward. It was not fault that the Council agreed to resolve land encroachment by Mr X and his neighbour in this way.

Planning Enforcement

39. Separately to the issue of encroachment onto the Council’s land, the planning enforcement team had to decide if the decking and marquee represented a breach of planning control, and what (if any) action it should take under planning legislation. In deciding what action to take the Council should consider any material planning consideration, including potential impacts on neighbour’s amenity.
40. It was not until May 2022 that the Council referred Mr X’s neighbour’s actions to its planning enforcement team. At that point, the Council concluded his neighbour’s decking had been constructed beyond the 10-year enforceable time for change of use. It told Mr X this.
41. Following Mr X’s complaint, the Council told him investigations were still ongoing. The Council originally intended to issue a PCN to obtain more evidence. It decided against this in March 2023 because it did not believe it would give them further information. This decision was relayed to Mr X. The Council reached a decision in 2023 not to take the matter further. It told us this was because Mr X’s neighbour’s development was immune from planning enforcement action.
42. We found there was fault in the way the Council considered the matter. The council’s decisions were based on receipt of Mr X’s complaint in 2022. But Mr X contacted the Council initially in July 2020. There is no evidence to suggest the Council investigated the planning situation until 2022.
43. When it investigated in 2022 the Council took account of an aerial photograph from its property team which showed the decking under construction in 2012. It stated, as of 2022 this made any change of use immune from planning enforcement action as it was built over ten years ago. However, the potential change of use was not immune when Mr X made his complaint in 2020.
44. The Council told us that aerial photographs showed the timer decking structure/marquee in situ in June 2017, which was over four years after the first complaint it received. So, it decided the development itself was also immune from action. Again, Mr X had originally complained in 2020, so this was not immune at that time.
45. Mr X was told in 2020 the Council would pass his concerns onto the environment team to investigate. After Mr X chased an update, the Council apologised in November and said there was confusion around who was dealing with the matter. The Council should have referred the case to its planning team in 2020. As of 2020, the evidence the Council relied upon would not have shown the development or change of use to be immune. This causes some doubt about whether a different decision may have been reached if the matter was considered in 2020 when Mr X first raised it.
46. Although there was fault, I cannot say the outcome would have been different had the fault not occurred. I say this because the Council later received evidence in September 2023 suggesting the development and encroachment could have occurred earlier – in 2008/2010. Given the information it had received, on balance, I do not consider it is clear that but for the Council’s fault, a different decision would have been made.
47. I understand Mr X’s neighbour is in the process of submitting an application for a Certificate of Lawfulness to regularise the works and the Council said it would update Mr X when this is submitted. I note Mr X says he has provided proof to the Council that the marquee has not been up continually for four years. He said this defeats his neighbours application for a Certificate of Lawfulness. This would be for the Council to consider as and when a certificate application is submitted.

Protected Tree

48. Mr X also reported damage to a protected tree. In response the Council carried out two site inspections. It said minor damage was observed. But it said it did not warrant any action. As stated in paragraph 17 the guidance does allow councils to not take any action if justified by the particular circumstances. The Council has clearly evidenced why it did not take action and there is no fault in how this decision was reached.

Complaint response

49. Mr X complained to the Council in October 2022 and stated there had been a lack of action. The Council responded in the same month as detailed in paragraph 29. Mr X requested updates on his complaint between the end of January and March 2023. The Council explained his neighbour had agreed to regularise the works through appropriate means. Whilst I understand Mr X was unhappy with this response, the Council had clearly explained what action had been agreed. The stage one response also explained Mr X had the right to escalate his complaint to stage two. But he did not make a request.
50. I recognise Mr X was unhappy with the Council’s response to his report. We found there was fault because of the delay in taking action. The Council should apologise to Mr X but on balance I found the outcome was unlikely to have been different had the fault not occurred. So I have no grounds to seek further remedy for Mr X.

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Agreed action

51. To address the injustice caused by fault, within one month of my final decision the Council has agreed to;
• apologise to Mr X for the delay in dealing with his initial complaint; and
• review the processes and procedures in place for liaison between the land/estates team and the planning enforcement function of the Council. This is to ensure timely referrals of relevant enquiries and reports in future.

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Final decision

52. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman