Summary: Mr X complained the Council did not properly investigate when he reported a planning enforcement issue. There was no fault in how the Council made its enforcement decision, but it took too long to investigate and did not communicate properly with Mr X. This caused Mr X distress and frustration for which the Council apologised when it considered his complaint. The Council will also issue a reminder to its planning staff about appropriate communications with complainants.

The complaint

1. Mr X complains the Council did not properly investigate when he reported a planning enforcement issue in 2021 which he said impacted on his amenity. He says the Council:
• took too long to make its enforcement decision and did not tell him the outcome;
• did not consider and respond to all the concerns he raised and wrongly decided not to take enforcement action;
• did not communicate with him properly and politely about these issues; and
• did not ensure an impartial investigation of his complaint because it discussed the issues with staff with prior involvement.
2. Because of this Mr X says his home and garden are overlooked and he has lost privacy. He wants the Council to take enforcement action against the neighbour in question.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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

9. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

Planning permission

11. Planning permission is required for the development of land (including its material change of use).
12. Section 55 of the Town and Country Planning Act 1990 defines ‘development’ as “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”.
13. Government guidance, ‘When is permission required?’, says planning permission is only needed if the work being carried out meets the statutory definition of development set out above. The guidance says development includes:
• building operations (for example, structural alterations, construction, rebuilding, most demolition);
• material changes of use of land and buildings;
• engineering operations (for example groundworks); and
• other operations normally undertaken by a person carrying on a business as a builder.

Permitted development

14. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
15. Schedule 2 of The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the various classes of permitted development. This includes:
• Class A “The enlargement, improvement or other alteration of a dwellinghouse”.
• Class E “The provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure”.
• Class F “Development consisting of the provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such”.
16. Development under class A or class E is not permitted if “it would consist of or include the construction or provision of a verandah, balcony or raised platform”.
17. The statutory guidance, ‘Permitted development rights for householders: technical guidance’, says:
• a ‘building’ as referred to in class E includes “any structure or erection, but does not include… gates, fences, walls, or other means of enclosure”;
• a ‘raised platform’ as referred to in the permitted development restrictions is “any platform with a height greater than 0.3 metres”;
• “class E allows garden decking [as permitted development] provided it is not more than 0.3 metres high”;
• height should be measured from ground level; and
• “ground level is the surface of the ground immediately adjacent to the building in question, and would not include any addition laid on top of the ground such as decking. Where ground level is not uniform (for example if the ground is sloping), then the ground level is the highest part of the surface of the ground next to the building”.

Planning enforcement

18. 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. The National Planning Policy Framework says planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
19. 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.
20. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.

The Council’s planning enforcement procedures

21. The Council updated its Planning Enforcement Protocol in July 2022, after it carried out its enforcement investigation for this case. I considered the protocol which was in force at the time, and is no longer in use.
22. When someone complains about a breach of planning control, the Council says it will acknowledge this within three days and provide officer contact details.
23. On receipt of the complaint the Council will also assign it a priority level of 1, 2, or 3:
• Level 1 Works are being carried out which will cause irreparable harm/damage.
• Level 2 Works or uses are causing a significant harm to amenity or safety hazards, or the reported breach is time-sensitive.
• Level 3 Development which has a limited degree of impact on local residents’ amenity, or causes limited damage to the environment, or any other complaints which do not fall within levels 1 or 2.
24. After carrying out background research, the Council will, in the majority of cases, carry out a site visit to view the alleged breach. It aims to carry out site visits within:
• 1 working day for level 1 complaints;
• 10 working days for level 2 complaints; and
• 20 working days for level 3 complaints.
25. The Council will update the complainant on the progress of its investigation within 15 working days of the site visit. If an update is not possible at this stage, this will happen at the earliest opportunity.
26. If the Council decides there has been a breach of planning control, it will usually invite a retrospective planning application from the developer. It will then consider the planning merits of the case, and whether it could impose any planning conditions to alleviate any harm caused by the breach. However:
• for level 1 cases, it will consider whether it should take enforcement action instead of inviting a retrospective application; and
• for extremely minor breaches of planning control, which have no obvious impact on amenity, it may decide not to take any enforcement action, or to invite a retrospective application.

What happened

27. Mr X complained to the Council about an alleged breach of planning control in mid-2021. He said a neighbour had completed works to raise the ground level of some land around their property without planning permission. He said some paved areas of this land now overlooked his home and garden and caused a loss of amenity.
28. A month later, Mr X had heard nothing further so chased the Council. It told him it was investigating his concerns and would try to respond in two weeks, but this would likely take longer due to a backlog of enforcement cases.
29. Five months later, the Council visited the site to inspect the alleged breach. The enforcement officer noted landscaping had taken place resulting in a raised ground level in the neighbour’s garden. They decided any effect on Mr X’s amenity was minimal and closed the case.
30. In March 2022, having not heard from the Council for nine months, Mr X chased the enforcement outcome. The Council told him its decision that it would not take enforcement action.
31. Mr X asked the Council to review its decision and provided comments. It was reviewed by a manager. The Council said:
• it had considered the various classes of permitted development set out in planning legislation. It noted Class A and Class E include a restriction on ‘raised platforms’, so for works which fall within these classes, a raised platform would not be permitted development. The Council said it did not consider the works completed by Mr X’s neighbour fell under the definition of either of these classes. Therefore, the restriction on raised platforms did not apply;
• it had considered the statutory definition of ‘development’. It did not consider the works completed met this definition. It considered the works to be landscaping of the grounds of the property, rather than development works;
• there was no breach of planning control at the site because the works were not planning development works;
• the Council would not take enforcement action; and
• Mr X could complain about the enforcement investigation via the Council’s corporate complaints procedure if he wished to do so.
32. Mr X complained in October 2022. A month later the Council issued its Stage 1 complaint response. It apologised for the delays in the enforcement investigation and that it did not tell Mr X the outcome when it closed the case. However, it did not change its position on the enforcement issue.
33. Mr X provided further comments following the Stage 1 response. As a result, the senior member of department who had issued the response visited the site to view the issues in person. They issued a further response at Stage 1 to explain the Council’s position in more detail.
34. Mr X escalated his complaint to Stage 2. The Council reiterated its apology for the delays and failings in communication but did not change its position on the enforcement issue. Mr X then came to the Ombudsman.

My findings

35. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to do so. Mr X came to the Ombudsman in June 2023. I decided there are good reasons to investigate what happened from May 2021 onwards, when Mr X raised the enforcement complaint. This is because the Council took longer than it should have to investigate the concerns, and then took too long to tell Mr X the outcome. This in turn delayed him in coming to the Ombudsman.

Enforcement investigation and decision

36. We are not a planning appeal body. Our role is to review the process by which councils make planning decisions. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of planning decision makers where this was not affected by fault. Planning enforcement is discretionary, and it is up to councils to decide whether they need to take enforcement action.
37. In considering an alleged breach of planning control, it is for the Council to consider whether planning rules have been breached. Where it decides a breach has occurred, the Council then must consider whether it would be proportionate to take enforcement action.
38. The Council decided there was no breach of planning control, because its view was the works did not fit the statutory definition of planning development. I recognise Mr X strongly disagrees with this position and believes the Council is wrong in its interpretation of the legislation and guidance. However, it is not for the Ombudsman to decide whether the Council’s interpretation is correct. Our role is to decide whether the Council properly considered its decision about this and gave due regard to the relevant guidance.
39. In deciding there was no breach of planning control, the Council considered:
• observations made by three Council staff across two site visits;
• relevant legislation and guidance;
• Mr X’s views; and
• a decision by the Planning Inspectorate about a similar case. The Planning Inspectorate is the body responsible for considering appeals from planning applicants about council decisions. In the similar case the Council considered, the Inspectorate decided based on relevant caselaw that the works did not constitute development works.
40. The Council properly considered its decision there was no breach of planning control, and fully explained its rationale to Mr X. As there was no evidence of fault in how the Council made this decision, we cannot question the outcome.
41. The Council also considered the impact on Mr X’s amenity. Following the first site visit, it decided any effect on Mr X’s amenity was minimal. Following its second site visit, the Council told Mr X it had considered the ground level increase, both at the point of greatest increase, and at the “area closest to the [neighbour’s] property, where there is no significant difference with that of neighbouring properties”. It also said between its two site visits, Mr X’s neighbour had installed a taller fence next to the shared boundary. The Council’s view was this had resulted in “a greater degree of privacy than was there historically between the gardens of the properties” before the works began. The Council formed this view based on thorough observations made by different staff across multiple visits.

Delays in enforcement investigation

42. The Council accepted it was at fault because it took too long to carry out its enforcement investigation and failed to tell Mr X the outcome until he chased this. This caused Mr X distress and frustration. The Council apologised to Mr X and explained the steps it had taken to improve its services for the future. I consider this apology was suitable to remedy the injustice caused.

Communication with Mr X

43. Mr X said a member of Council staff was impolite when he communicated with them by phone and email to query the enforcement decision. The Council did not keep recordings of the phone call which concerned Mr X. I considered the Council’s email communications with him and found the tone of some emails to be unprofessional and obstructive. On the balance of probabilities, I consider it likely the tone of the phone call was the same. This was fault, which caused Mr X distress.
44. The Council apologised if Mr X found the staff member abrupt on phone calls and said it would address the matter internally. I do not consider any further apology directed by the Ombudsman would be of value. However, I recommended the Council should provide evidence to us that it has addressed this issue with its staff.

Impartiality of the complaint investigation

45. A senior member of the planning department responded to Mr X’s complaint at Stage 1 of the Council’s corporate complaints procedure. Mr X was concerned the Council had not ensured its complaint investigation was impartial because the manager who reviewed the case at service level was consulted as part of the complaint investigation.
46. It is not a requirement of the Council’s complaints procedure that Stage 1 investigators cannot consult with staff with prior involvement in the case. I consider it was necessary for information to be sought from the service area to answer the complaint and do not consider this to be inappropriate. The Stage 1 investigator visited the site and responded to the points Mr X raised in detail. They reviewed the issues thoroughly, rather than simply restating the findings of the service area. I found no evidence the Council was biased in its view of Mr X or its consideration of his complaint.

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Agreed action

47. Within one month of our final decision, the Council will issue a reminder to its planning staff about the standard of communications it expects, to ensure communications with complainants are always professional.
48. The Council will provide us with evidence it has complied with the above action.

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Final decision

49. I have completed my investigation. There was no fault in how the Council made its enforcement decision, but it took too long to investigate and did not communicate properly with Mr X. This caused Mr X distress and frustration for which the Council apologised when it considered his complaint. The Council agreed to also issue a reminder to its planning staff about appropriate communications with complainants.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman