Summary: Mrs C complained the Council’s Planning Enforcement Team did not carry out a proper investigation into a large outbuilding in a neighbouring garden. She says it is too large and the Council has not dealt with issue of increased ground levels. The Council’s communications with her have been poor. Mrs C says she feels the structure is unsafe and so a danger to her family. We uphold the complaint, due to delay. The Council has agreed to our recommendations.

The complaint

1. The complainant (Mrs C) complains the Council’s planning enforcement team did not carry out a proper investigation into a large outbuilding in a neighbouring garden. She says it is too large and the Council has not dealt with issue of increased ground levels. The Council’s communications with her have been poor.
2. Mrs C says she feels the structure is unsafe and so a danger to her family.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we have used the word ‘fault’ to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred.
4. 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)
5. 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)
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 considered evidence provided by Mrs C and the Council as well as relevant law, policy and guidance.
8. I sent my draft decision to Mrs C and the Council and invited their comments.

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What I found

Legal and administrative background

Planning enforcement

9. Councils can take enforcement action if they find planning rules have been breached.
10. Government guidance says:

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases unauthorised development and take action where appropriate.”

(National Planning Policy Framework December 2024, paragraph 60)

11. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

The Council’s “guide to enforcement”

12. The Council’s “guide to enforcement” says:

• its Planning Service applied enforcement priorities to allow it to deal with the most urgent and important complaints more speedily. The policy names the Council’s priorities for enforcement.
• it would not register and investigate certain breaches, unless its workloads allowed it to process the complaints. These issues included domestic sheds, garages, fencing and walling to the side and rear of domestic properties;
• its investigating officers would always try to negotiate a solution to a problem, and try to persuade a contravener to voluntarily remedy the breach of planning control.

Permitted development

13. Not all development needs 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”.

What happened

14. In June 2021 Mrs C’s relative (who owned the property at that time) emailed the Council’s planning enforcement team as a neighbour had built a building on the boundary between their properties. She advised she was sure it contravened planning laws.
15. The Council’s Planning Enforcement Team sent an advisory letter to the neighbour. It also forwarded the matter to the Council’s building control team.
16. The Council’s building control team carried out an inspection and advised the neighbour of steps they needed to take. The neighbour took those steps so building control advised, from its perspective, the neighbour could start works (although noting this was not the same as any planning contravention).
17. By early 2022 Mrs C was the owner of the property. She contacted the Council asking for an update. In early May a Council Enforcement Officer advised he had been allocated the file and needed to carry out a site visit to measure the property. He would not provide further information until he had done that.
18. The Enforcement Officer attempted a visit in June and updated Mrs C. By August she had heard nothing further so contacted the Officer.
19. The Enforcement Officer visited the neighbour in early September. He inspected the property and took measurements.
20. By October 2022 Mrs C had heard nothing further so she contacted the Officer asking for an update. At the end of the month the Enforcement Officer provided an update about his September visit.
21. Mrs C contacted the Council’s complaint team in January 2023. She did not receive a response, so at the end of July contacted the Ombudsman. We asked the Council to respond to Mrs C’s complaint.
22. The Council advised us that its Planning Enforcement Team’s delays in responding were due to “department workloads and staffing issues”.
23. The Council’s complaint responses (August and September 2023) advised it:
• apologised “if you were not able to ger the updates you would like”;
• considered the outbuilding to be permitted development;
• noted the neighbour had taken steps to more generally raise the level of their garden. The Council’s view is that might need planning permission, so it remained in contact with the owner.
24. Mrs C complained to the Ombudsman. In response to my enquiries, the Council advised:
• its enforcement file remained open and enquiries were ongoing. Mrs C’s complaint was not one it had decided to not register or investigate (see paragraph 12);
• it had taken no further actions since its response to Mrs C’s complaints;
• its Planning Enforcement Team had a significant backlog cases and its staff resources were very limited. It said this had unfortunately led to delays in the progression of this and other case files.

Analysis

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
26. The Council’s own guidance sets out a range of complaints it will not treat as a priority for investigation, until such as time as resources allow. That is a policy that is in line with the wide-ranging discretionary decisions Government guidance allows (see paragraph 10).
27. The Council did decide to investigate part of Mrs C’s complaint. Its investigation led to a conclusion outbuilding was permitted development. As I see no fault in how the Council reached that view, the Ombudsman cannot question its merits (see paragraph 5).
28. But the Council did find a potential breach in the neighbours changing the levels of their garden. It is now over two and a half years since the Council visited the site. And over a year and a half since the Council responded to Mrs C’s complaint. In that response, the Council accepted delay. It advised this was because of inadequate resources that led to staff shortages and case backlogs.
29. I acknowledge the Council’s information about continuing lack of resources within its Planning Enforcement Team. This is a situation many councils’ planning enforcement teams face. But my decision is the length of inaction on the case amounts to fault, by way of service failure.
30. That the matter was not appropriately progressed in a timely manner will have caused avoidable distress and frustration to Mrs C.
31. I will recommend an apology to Mrs C for the disappointment and frustration the service failure will have caused. The apology offered in the Council’s complaint responses (see paragraph 23) does not meet the standards about effective apologies set out in out guidance on remedies.

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Agreed action

32. To remedy the injustice caused by the fault I have found, I recommended that, within a month of my decision, the Council:
1. apologise to Mrs C for the disappointment and frustration its fault has caused; and
2. provide an update to Mrs C about when she can expect further action by its Planning Enforcement Team regarding the open investigation.
33. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

34. My decision is I find fault causing injustice. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman