Summary: X complained about the Council’s planning enforcement decisions relating to development on land next to their home. We decided not to investigate this part of their complaint further, because we consider it is unlikely to result in a finding of fault or any other meaningful outcome for X. X also complained that the Council restricted their contact with officers. We found no fault with this part of the complaint because the Council considered and followed its policy.

The complaint

1. The person that complained to us will be referred to as X. X complained about planning decisions relating to development on land next to their home. X says that the development impacts their amenity and may lead to damage to their property.
2. X wants the Council to:
• answer questions about the development's impacts on them;
• give an assurance their property's boundary will be protected from further damage;
• strictly apply planning enforcement deadlines;
• pay for the harm they allege has been caused to their property; and
• adhere to the governments’ public service principles.
3. X also complained it was wrong for the Council to restrict and manage their contact with its officers. X says the Council has defamed their character and caused upset. X wants the Council to end the restrictions.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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. 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)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
9. 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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What I have and have not investigated

10. I have not investigated the original planning permission for the neighbour’s house. This is because the planning application approval was approved over four years ago and any complaints relating to it are considered late. X was engaged with the planning process at the time and could have come to us sooner.
11. I have not investigated matters that were considered in X’s judicial review cases. In general terms, these relate to X’s allegation that the development was too high and so it had not been built in accordance with approved plans.
12. I have investigated the issues set out in paragraphs 2 and 3 above. They related to more recent events, including planning enforcement matters and persistent and unreasonable complainant policy matters.

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How I considered this complaint

13. I read X’s complaint, and I read the Council’s response to it. I considered documents from its planning files, including the plans, the case officer’s report and two decisions made by the High Court after cases were brought by X against the Council.
14. I gave the Council and X an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

15. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
16. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
17. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
19. 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.

The Council’s persistent and unreasonable behaviour policy

20. This sets out what the Council believes to be unreasonably persistent behaviour or if a complainant’s behaviour is unacceptable or vexatious.
21. The Council will ask the individual to change their behaviour. If the Council considers that behaviour continues, it can restrict the person’s contact with the Council and its officers. The Council will write to the individual and explain:
• it uses this policy as a last resort;
• what action it is taking;
• that it will review the arrangement after six months; and
• how to challenge its decision.

Principles of public life

22. Government guidance sets out seven principles of ethical standards expected of public servants, and they are often referred to as the ‘Nolan Principles’. These are that public servants should act with selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

Background

23. X lives in a single storey house, and their neighbour received planning permission to build a similar house with accommodation in the roof space on land next to X’s home. The side elevation of the new house is about 15 metres from the nearest part of X’s house. The side elevation of the new house facing towards X’s home has two windows on the ground floor, one serving a utility room, and another opening into a study. There are three car parking spaces, one of which is next to the hedge on the boundary with X’s land.
24. X made an earlier complaint about the development to the Ombudsman, which we decided in 2022. X had asked us to request the Council revoke the permission and return the land to garden land.
25. We decided not to investigate this complaint further, because we could not add anything to the Council’s own investigation or achieve the outcome X had requested. Our decision can be found here.
26. X complained to the Council’s planning enforcement officers that the new house did not accord with the approved plans. The Planning Enforcement Officer made measurements and found there was no breach of planning control.
27. X applied to challenge the Council’s decision by way of judicial review in the High Court. The application was unsuccessful, and the judge’s reasons explained this was because:
• Whether to issue an enforcement notice was a matter for the Council to decide.
• Whether permission was capable of implementation was a matter for the Council to decide.
• It was for the Council to decide whether any departures from approved plans were material or not, and there was no evidence that the Council had failed to consider the main issues.
• There was no evidence to show the Council’s decision was unreasonable or otherwise unlawful.
28. Later, X went back to the High Court with a second judicial review of the Council’s decision. Again, the application was refused, the judge finding no fault in the way the Council had acted or used its discretion.
29. X has now come back to the Ombudsman and complains about five issues, which are:
• Vehicles parked close to the boundary might cause damage to vegetation on X’s land.
• The neighbour intended to install an Air Source Heat Pump (ASHP) which might affect X’s amenity. X believes the ASHP will need to be large, and so will generate more noise.
• One of three parking spaces was in breach of planning controls.
• There was overlooking into X’s property from the new house.
• Some hedges, one to the rear of the site and another on the opposite side of the development, were removed in breach of planning control.
30. In response to the issues X raised in this complaint to the Ombudsman, the Council has said it had decided to pause its enforcement investigation because:
• the building is not complete yet and some of the conditions are only enforceable upon occupation, but this has not happened;
• the neighbours’ personal circumstances meant that enforcement action would not be proportionate at this time;
• there was a significant distance and a dense hedge between X and the site, and so the issues X complained about were unlikely to cause significant harm; and
• the impact on amenity, including privacy were, in any event, considered at the time the planning decision was made.
31. The Council also said the ASHP had not been fitted at the time X made their complaint, but it will be lawful provided it is fitted within the limits of permitted development regulation limits. The Council added that that Government is proposing to relax limits on ASHPs, but it will consider the situation once the house is occupied and it has had the opportunity to consider enforcement issues on the site.
32. Last year, the Council wrote to X several times to warn them it considered their behaviour was unacceptable. It said this included continuing to email Council officers to ask for a response despite it having responded, adopting a ‘scatter gun’ approach, making excessive demands on the time and resources of staff, repeatedly arguing points with no new evidence and refusing to accept the decisions. For example, X sent six emails of complaint about planning matters in a three-week period.
33. Later, the Council decided X had not changed their behaviour and was considered persistent and vexatious within the terms of its policy. It decided to impose a single point of contact for X. The Council also restricted X’s contact with another department. The Council’s letter explained it would review these restrictions in six months’ time.
34. X says the Council has no right or justification to give them a bad name or restrict their communication.

My findings

Planning enforcement complaint

35. The law says we cannot look at any of the complaints X raised as part of their two judicial reviews about actions of the Council’s planning department. My investigation can only look at matters unconnected to those court cases. The scope of my investigation is limited to the issues set out in paragraphs 2 and 3 above.
36. 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.
37. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
38. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
39. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others.
40. I should not investigate this complaint further, and my reasons are as follows:
• Before a planning enforcement decision was made, the Council considered the allegations and its planning powers, carried out an investigation and decided to defer further action. This is a decision it is entitled to take and further investigation is unlikely to result in a finding of fault.
• I have seen no evidence to suggest that X is caused a significant injustice by their neighbour’s development. This is because there is a high hedge and a significant distance between the properties. I appreciate X does take a different view to me on the injustice they feel they have been caused but the courts have confirmed it is for us to decide the question of whether particular circumstances lead to injustice.
• X wants assurance from the Council that their property boundary will be protected from further damage. Boundary disputes and allegations of damage to one landowner’s property by the actions of a neighbour are civil matters. They are private matters between the landowners and not for the Ombudsman or the Council to resolve.
• X is not a party to the planning decisions the Council has made and has no right of appeal to them. While we expect councils to be helpful, open and transparent, they are not obliged to continuously debate their opinions and judgements with individuals. In planning cases, we do expect them to publish certain details about decisions on their websites and planning register, which is available at its offices. In general terms, we expect councils to provide enough information to show what decisions they make on key issues, a summary of reasons why decisions are made, and details of the documents and background information that were relied on. If a council has done this, it can simply direct complainants to this information, which is found on its website and held for public view at its offices.
• X complains about the loss of privacy caused by the new development. The Council considered amenity during the original planning application, and this happened long before our 12-month time limit. I saw no good reason to exercise discretion to extend my investigation this far back. X could have come to us sooner.
• Within the limits of my investigation, as set out above, I have seen no evidence so far that persuades me officers acted outside the Nolan Principles.

Persistent and unreasonable behaviour complaint

41. The Council acted in line with its policy when it decided to restrict X’s contact. It warned X several times, the decision was taken by the correct officer, gave X a single point of contact, and agreed to review its decision in six months’ time. Because there was no fault in the process it followed, I cannot question its decision no matter how much X disagrees with it.
42. The Ombudsman cannot decide if there was defamation because that is a legal matter. If X believes the Council has defamed them, it is open to X to seek redress in court.

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Decision

43. There was no fault in how the Council placed contact restrictions on X. I found no evidence of fault or a significant injustice we might remedy for X’s complaints about the planning enforcement and so further investigation is unlikely to result in a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman