Summary: Ms T complains the Council failed to follow its planning enforcement policy when investigating her reports of planning breaches. There was fault, and the Council has agreed a remedy.

The complaint

1. Ms T complains the Council failed to follow its own planning enforcement policy when investigating her reports about planning breaches. She says the Council delayed, failed to communicate and gave misleading information. As a result, she says the Council caused her severe distress and frustration.

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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 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)
3. 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

4. I have discussed the complaint with Ms T and considered the emails, photos and videos she provided. We considered the documents the Council provided. Ms T and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance: Planning enforcement

5. 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.
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.
7. 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.
8. 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 September 2023, paragraph 59)

Law and guidance: Permitted development

9. 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’.
10. Schedule 2 of The Town and Country Planning (General Permitted Development) (England) Order 2015 (the GDPO) sets out the various classes of permitted development. This includes:
11. 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”.
• 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”.
12. 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”.

The Council’s planning enforcement procedures

13. The Council’s planning enforcement action policy is in appendix E of its Corporate Statement of Enforcement Policy. This sets out the performance indicators or time targets for the investigation stages to progress each case.
14. The Council’s policy states that it seeks to update reporters and other interested parties at key stages of the investigation. However, it also says “it should be noted that investigations are undertaken to bring unauthorised development in line with planning requirements rather than on behalf of reporters, therefore information shared will outline the progress in general terms.”

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What happened

15. The following is a summary of the key events and is not intended to cover everything that happened.
16. In April 2023 Ms T and her partner told the Council that an adjacent neighbour had built two structures in their garden which were too high and led to overlooking into their home. They said this invaded their privacy and they could not use rooms in their home or use the garden.
17. The Council acknowledged the report 10 days later.
18. Ms T chased the Council for an update a week later. The Council replied it had attempted to inspect the site and would keep her updated.
19. Ms T chased the Council in in May and June for an update, but had no reply.
20. At the end of June, Ms T’s partner complained to the Council at stage one of its complaint procedure. He said that they had called and emailed for an update but had no response since early May. He said the Council’s website said it would keep people reporting planning breaches updated with any significant developments in its investigation throughout the enforcement process.
21. Ms T later emailed the Council that the structures were over the 30cm allowed under permitted development and so should require planning permission. She was disappointed the Council had not taken enforcement action.
22. In early July the Council replied that the enforcement case was still live. However, its policy was not to disclose any information regarding a live enforcement case and therefore it could not provide an update on the progress of the investigation.
23. The Council visited the site later in July and also visited Ms T’s home. The officer called Ms T afterwards and advised they had asked the neighbour to remove one of the structures within 4 weeks. This was not a formal notice. They were still considering the second structure.
24. The Council then advised Ms T the second structure was on an approved planning application from some years earlier. Therefore, the Council could not take any enforcement action regarding this.
25. Ms T disputed the Council’s view regarding the second structure having planning permission. She said it was not related to the earlier planning approval.
26. In September 2023 Ms T said no action had been taken to remove the first structure. She asked the Council what it was doing and what it had decided about the second structure.
27. The Council replied that it was still investigating the matter, but it was unable to disclose any information.
28. In early November the Council advised Ms T that if the first structure was not removed it would issue an enforcement notice.
29. Ms T complained to the Council about delay in the process. It was now seven months on and there was no resolution. She said the delay had seriously affected her mental health. In her view the Council failed to keep them updated and had unreasonably delayed:
• assessing if there was a breach of planning control
• deciding how serious the breach was and what action it would take
• taking enforcement action where it accepted it was justified.
30. In November the Council replied to Ms T’s complaint. It agreed progress had been slow and there had been lack of communication with her. It had given some information, but it said it was not its standard practice to disclose progress on a live enforcement case. It apologised for the poor level of customer service. It said it had given a deadline for the removal of the two structures in the next few days. It also advised it had a new team leader who would aim to reduce delays.
31. The Council visited the site to check progress.
32. In December Ms T complained at stage two of the Council’s complaint procedure. She repeated her earlier complaints and said that the Council had not met its timescales. Its most recent reply said both structures would be removed by a certain date, but work and only started on one. This was causing them distress. She asked the Council to take action and compensate her.
33. The Council inspected the site. It also visited Ms T, and an officer explained the Council’s decisions.
34. The Council wrote to Ms T following the visit.
• It did not agree with Ms T’s view the Council had been negligent.
• It did not consider the Council’s site visit was inadequate as Ms T suggested. However, it said it would introduce a new documenting process to ensure full information was recorded the first time to minimise the need for return visits.
• The Council noted Ms T’s complaint regarding poor communication and apologised for Ms T’s experience. It said it would review the current processes and take steps to engender a culture of continual improvement.
• Ms T felt the Council’s actions showed it was not impartial. The Council said it sought to manage cases with integrity and undertake robust investigations with fair outcomes. It said it had introduced a collaborative, check and challenge forum for some officer decisions to ensure robust decisions.
35. The Council sent Ms T a detailed explanation on its planning decision. It agreed some of its communications had been unclear. It found no breach of planning regulations, so it could not take enforcement action. It referred to the statutory GDPO 2015 regarding permitted development. Class E allows raised platforms provided they were not more than 0.3 metres high from ground level. As the land was sloping, the ground level measurement was taken from the highest part of the surface of the ground adjacent to it. The Council considered the overlooking Ms T experienced was due to trees being removed and this was intensified by the installation of the structure.
36. The Council also responded to Ms T’s point that the second structure was not covered by the earlier planning permission as the officer stated. The Council said it should have worded its response more clearly. It had not intended to suggest the structure was approved. It should have made clear that a structure was already in place when the application was made some years earlier. Therefore, it was immune due to time or not expedient to take action. The Council apologised for the confusion this caused.
37. In January 2024 the Council responded to Ms T’s complaint. It said officer views could change following visits, review, research and internal consultation. The case was now closed, and it had explained its decision in December 2023. The Council said it had taken a long time to the case resolve. Due to the large number of cases and limited staff resources, it had to prioritise cases. It was not always possible to meet the timescales set out in the policy. It noted Ms T’s complained about lack of communication, but there was a limit to the amount of information it could provide in an ongoing case.

Analysis

38. 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.
39. I have not found fault in the Council’s decision making. The Council visited and took account of relevant factors, planning law and guidance.
40. However, there were delays progressing this case and the Council did not meet its timescales. While I can see that the Council was carrying out work on the case which it could not advise Ms T about, there were also periods with no action. The delay is fault, but it has not caused a significant injustice because the Council’s decision would not have changed. The Council has apologised for its delays. This is a suitable remedy. The Council has also made service improvements regarding ensuring all the information is obtained on the first visit. This should reduce delays and prevent injustice for others.
41. The Council has explained in an open enforcement case it is not able to give details of its actions. Its policy says it will outline progress in general terms. I consider the Council did update Ms T but there were limits to the information it could give. I have not found fault here.
42. The Council gave information which was unclear, and it also gave incorrect information which raised expectations.
• It appeared to state one structure already had planning permission.
• It stated in its complaint response in paragraph 30 above, that it was seeking removal of two structures when this was not the case.
43. This was fault and caused injustice to Ms T. The Council has already apologised that the first point caused confusion. But it has not apologised for the raised expectations it caused and frustration due to the second error. I have recommended a remedy.

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Agreed action

44. I recommend that within six weeks of my decision the Council should:
• Apologise to Ms T for the frustration it caused in giving incorrect information about removal of both structures.
• issue a written reminder to its enforcement staff about the need for clear and accurate communication with residents on enforcement cases. The aim being to ensure officers do not inappropriately raise residents’ expectations about what action it would take and by when. 
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. The Council has agreed an appropriate remedy. I have to completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman