Summary: Mr B says the Council failed to properly investigate a breach of planning control and relied on inaccurate information when responding to his complaint. There is no fault in how the Council considered the breach of planning control. The Council failed to explain the dates used in the complaint response properly. An apology is satisfactory remedy.

The complaint

1. The complainant, Mr B, complained the Council:
• failed to properly investigate a breach of planning control and consider whether to take enforcement action;
• relied on inaccurate information when responding to his complaint; and
• misled him about whether it held information on the enforcement file.
2. Mr B says the Council’s actions mean he and his neighbours are unable to use their gardens.

Back to top

The Ombudsman’s role and powers

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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)
7. When considering complaints 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.

Back to top

What I have and have not investigated

8. I have investigated Mr B’s concerns about how the Council dealt with enforcement matters and his complaint. I have not investigated Mr B’s concerns about information held on the enforcement file for the reasons given at the end of this statement.

Back to top

How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The Council’s Enforcement Plan

11. This says the purpose of planning enforcement is to investigate:
• breaches of planning control;
• beaches of the conditions attached to planning permissions;
• allegations of unauthorised development.
12. It says it investigates those matters where they cause harm to public amenity and, when considered expedient to do so, take formal action where a satisfactory outcome to the breach cannot be achieved by negotiation.
13. It says just because there may be a breach of planning control this, in itself, is not sufficient reason to take enforcement action. Instead, the Council must decide, having given regard to policies contained within the Local Plan and the National Planning Policy Framework, whether it is “expedient” to take formal action.
14. It says formal action will be taken where a satisfactory outcome cannot be achieved by negotiation and the demonstrable harm caused by the breach is deemed substantial enough to warrant such action.

What happened

15. The Council began receiving complaints about a dome close to other residential properties. Between 2020 and 2022 the Council carried out site visits which included measuring the height of the dome. The Council considered the height within permitted development rights limits.
16. In 2024 the Council granted a 12 month planning permission for a change of use for the dome up to a maximum height of 2.4 metres. The conditions imposed on the permission restricted the hours of use for the dome and says the applicant can only use the dome between October and April. That 12 month planning permission will expire in February 2025.
17. In 2024 Mr B raised further concerns with the Council about the height of the dome exceeding 2.4 metres. The Council refused to visit again to measure the height as it is satisfied it has measured the dome on several occasions and the photographs Mr B has provided show the dome height is like those previously considered.

Analysis

18. Mr B says the Council failed to properly investigate a breach of planning control at his neighbour’s property. Mr B says he has shown the height of the dome exceeds 2.5 metres in height which is more than the height approved as part of a planning application.
19. It is clear Mr B has been complaining about the height of the dome since 2020. The Ombudsman will not normally consider a complaint about matters which occurred more than 12 months ago. I am therefore not considering everything that has happened since 2020 as there is no reason Mr B could not have complained to the Ombudsman earlier.
20. However, it is clear following a grant of planning permission in 2024 the Council refused to visit the site to measure the height of the dome again when Mr B raised concerns about a breach of the conditions on the planning permission. The Council refused to do that as it had measured the height of the dome previously and found it compliant with the height approved. As the Council is relying on site visits between 2020 and 2023 I have considered whether the Council properly considered the height of the dome between those dates.
21. The evidence I have seen satisfies me the Council visited the site between 2020 and 2022 and measured the height of the dome on 10 February 2022, 1 March 2022 and 4 May 2022. On each of those occasions the Council was satisfied the dome did not exceed 2.5 metres in height. As the Council has visited the site and measured the height of the dome on those occasions I could not say it failed to consider Mr B’s concerns. Clearly the Council has reached a decision with which Mr B strongly disagrees. However, as I have found no evidence of fault in how the Council reached its decision I have no grounds to criticise it.
22. In reaching that view I recognise Mr B has referred to a site visit in 2020 where the officer referred to the dome as ‘considerably more than 2.5 metres high’. That is accurate. However, the officer that made that comment did not record she had measured the height of the dome. The Council says she did not and it was her observation rather than a measurement. I consider that likely, on the balance of probability, given the officer did not refer to measuring the height of the dome. As all the measurements the Council has undertaken since then show the dome is not higher than 2.5 metres I cannot criticise the Council for relying on that information when deciding not to take enforcement action.
23. I appreciate though Mr B believes the applicant partially deflated the dome during officer visits and therefore it has never been measured at its full height. I am satisfied though that besides the measurements undertaken the Council has also considered the photographs Mr B provided. Taking that into account the Council remains of the view the dome does not exceed 2.5 metres in height. Again, as the Council has decided that after considering all the evidence I have no grounds to criticise it.
24. I am aware though Mr B says he had invited the Council to view the dome from his property and carry out measurements. The Council says that is not suitable because it has to measure the height from the highest ground level immediately next to the building. In those circumstances I could not criticise the Council for failing to carry out measurements from Mr B’s property, particularly given the distance and as it appears to be at a slightly lower level, which will affect the view from his property.
25. That is not to say the dome is not visible from Mr B’s property. It is clear it is. In fact, the report for the planning application made clear the dome was visible from neighbouring properties. The Council also points out though perception of the height of the dome may be affected by the fact the site on which the dome sits is higher than the surrounding properties that have complained. That appears accurate based on the documentary evidence I have seen. As the Council has measured the height of the dome on several occasions though I could not criticise it for deciding not to pursue enforcement action further. That is because the Council does not consider there is a breach. That is a decision the Council is entitled to reach and not one I could comment on, no matter how much Mr B disagrees with it.
26. The Council has also explained because the dome is only inflated for six months during the winter when people are less likely to use their gardens, because wind movement will cause changes in the daily height and because the site is at a slightly higher level it would not consider it expedient to enforce even if the dome exceeded the permitted height. I recognise that is a view Mr B is likely to strongly disagree with. However, as I have made clear, the Council does not have to take enforcement action even if there is a clear breach of planning control. Instead, in each instance the Council has to decide whether it is expedient to take enforcement action. While the Council does not consider the dome exceeds the permitted height I could not criticise it for taking into account the length of time the dome is erected, the time of year the dome is erected at and the differing heights of the land in reaching a decision about whether it is expedient to enforce should that position change.
27. Mr B says the Council included inaccurate information in its response to his complaint at stage one and failed to address those issues in the stage two response. In response the Council says the issue with some dates in the stage one complaint response is because Mr B has interpreted those dates as the date of a site visit when instead it relates to the date the case was opened. While I understand the Council’s point, I see no reason why Mr B would have understood that given the letter did not explain it. I therefore consider some of the information included in the Council’s complaint response at stage one misleading and the Council did not clarify that in the stage two response. I consider an apology satisfactory remedy for that.

Back to top

Agreed action

28. Within one month of my decision I recommend the Council apologise to Mr B for the frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet.

Back to top

Final decision

29. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

Back to top

Parts of the complaint that I did not investigate

30. I have not investigated Mr B’s concerns about whether the Council misled him about the information held on the enforcement file. That is because I am satisfied this is a matter the Information Commissioner is considering. That matter therefore falls outside the Ombudsman’s jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman