London Borough of Barnet (17 017 802)

Category : Planning > Other

Decision : Not upheld

Decision date : 19 Oct 2018

The Ombudsman's final decision:

Summary: The Council reached a view on the lawfulness of a development through the correct process and properly investigated other concerns about breaches of planning control caused by the complainants’ neighbour. The Ombudsman cannot comment on the matter which has been appealed to the Planning Inspector because that process is not yet complete.

The complaint

  1. The complainants Mr and Mrs X, complained the Council approved an application to site a caravan in their neighbour’s garden without consulting them.
  2. They also complained the Council failed to take action to deal with a breach of planning control over the neighbour’s fence and that the Council has failed to protect a tree which has a Tree Preservation Order.
  3. Mr and Mrs X say the impact of the Council’s actions means they now have an eyesore of the caravan in the outlook from their house and have been frustrated and suffered considerable anxiety and time and trouble due to the Council’s alleged inaction on enforcement.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’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

  1. I have spoken with Mrs X and considered information she has provided, including photographs of the neighbour’s garden and caravan.
  2. I have considered comments from the Council and information provided in response to my enquiries.
  3. I have considered information available on the Council’s public planning records.
  4. I have considered the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
  5. I have written to Mr and Mrs X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) allows certain development without the need for planning permission. This is known as ‘permitted development’. Permitted development rights are subject to limitations and exclusions, but when a proposal falls within the parameters of development allowed by the Order it will not require planning permission; the Council therefore has no basis to stop it.
  2. Although permitted development does not require planning permission a person may apply to the local planning authority for a certificate of lawful development (CLD) for their proposal. An application for a CLD determines whether the development proposed is permitted or whether it requires planning permission.
  3. If the proposal is permitted development, and if the applicant carries out the development in accordance with the approved plans, the Council has no basis to stop it. If an applicant submits plans which suggest the proposal is permitted development but then carries out work which is not allowed, the Council could investigate as a possible breach of planning control.
  4. Part VII of the Town and Country Planning Act 1990 sets out the Council’s enforcement powers. Council’s must investigate a complaint or report about a possible breach of planning control but then its actions are discretionary. The Act sets out a range of formal enforcement actions available to the Council, but the Council must decide whether formal action is proportional to any harm caused by the breach and whether it is expedient to pursue formal action (is it likely to be successful, cost effective and resolve the breach in a timely way for example).

What happened

  1. Mr and Mrs X’s neighbour, Mr Y, applied for a CLD for his proposal to site a caravan in his garden for use by a relative with health issues. The Council accepted the caravan was for use incidental to that of the main house and therefore complied with the General Permitted Development Order (GDPO). Mr and Mrs X were unhappy the Council did not consult them on the proposal before it granted the CLD.
  2. Mr and Mrs X later notified the Council of a possible breach of planning control. They said Mr Y altered the level of his garden and constructed a base for it out of concrete. They were concerned this damaged the roots of a tree subject to a tree protection order (TPO). They complained about the height of the fence Mr Y installed to the rear of the caravan. They also said the caravan installed on the site contained a kitchen which was not shown in the plans and meant it could be used in future as self-contained living accommodation.
  3. Mr and Mrs X are unhappy the Council has declined to take any formal enforcement action.

Analysis

The siting of the caravan

  1. The CLD does not provide authority for the development; it merely confirms the proposal as shown in the plans complied with the GDPO. It is the GDPO itself which allows Mr Y to site the caravan on his land. Mr Y’s plans, on which the Council based its decision to grant the CLD, showed the proposal was allowed as permitted development. The decision is therefore unlikely to amount to fault and, because the development is permitted by law, it is not the cause of the injustice Mr and Mrs X claim.
  2. The Council has nevertheless investigated Mr and Mrs X’s concerns about the use of the caravan. It explained to them that although the caravan may contain a kitchen area, there is no sign that cooking facilities have been installed. It does not therefore consider there is a breach of planning control.
  3. The Council visited the site in June 2018 and has photographs showing the inside of the caravan at that time. I have seen a picture of the kitchen area which has no cooking facilities within it.
  4. I therefore do not find fault in the Council’s handling of this matter.
  5. If Mr and Mrs X have evidence to show cooking facilities have been installed and are in use they should report this to the Council in the usual way. The Council would then investigate further and decide whether there is a breach and, if so, if it is expedient to take formal action. But planning enforcement is discretionary; there is no duty to take action against every breach identified and the Council’s powers to deal with breaches are broad. If it finds Mr Y has breached planning control it could require removal of the caravan from the land or could simply ask him to submit a retrospective application for planning permission.
  6. Mr and Mrs X are unhappy they were not informed about the application but there is no requirement in law for the Council to consult them on an application for a CLD. As detailed above, the application seeks to confirm if a proposal is permitted development and in this case the plans as submitted complied with the GDPO. The Council therefore had no basis to refuse the application or to stop Mr Y from proceeding with the work.
  7. Mr and Mrs X also complained their neighbour altered the level of their garden and installed a concrete base for the caravan.
  8. The Council investigated this concern and visited the site, with a tree officer from the Council’s Greenspaces Team in May 2017. The officers identified that Mr Y had used a no-dig method meaning no excavation around the Root Protection Area (RPA) of the protected tree. The ground had been built up under the caravan but its wheels were still attached and it could therefore be removed. The land levels met the requirements of the GDPO, therefore the work did not require planning permission. The Council therefore had no basis to take enforcement action.

The TPO tree

  1. If Mr Y damaged the roots of a tree subject to a TPO it is for the Council to determine whether it should take action against him. The Council has investigated the tree’s health, is satisfied it has not been damaged and will monitor it annually. The tree is within public space controlled by the Council therefore its decision does not affect Mr and Mrs X personally beyond their general appreciation of the tree.

The fence

  1. The Council investigated the concerns about the height of the fence Mr Y put up behind the caravan, and about an access gate on a side fence. The side gate met permitted development rules as it was no higher than the fence into which it was inserted.
  2. The Council was not satisfied the rear fence was acceptable. Mr Y made an application for planning permission for the fence, an acceptable course of action to rectify a breach of planning control, which the Council refused. Mr Y has appealed against that decision to the Planning Inspector. As that process has not yet been completed I cannot comment further on the Council’s actions. The Inspector may or may not uphold the appeal from Mr Y and so the outcome is not yet certain.
  3. Therefore overall I do not find fault in the Council’s actions on the matters Mr and Mrs X complained about.

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Final decision

  1. I consider the Council:
    • reached a legitimate view that the caravan in the neighour’s garden was permitted development following due investigation. I find no fault in that process so cannot question the Council’s judgement;
    • investigated concerns about the TPO tree and reached the view the tree had not been damaged and will monitor it in line with its tree management protocols. I do not find fault in the Council’s actions on this; and
    • investigated concerns about the fence put up by the neighbour. It took enforcement action against the breach of planning control for the fence, which is ongoing, so I cannot comment further on that.
  2. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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