Summary: Mr B complains about how the Council dealt with an alleged breach of planning control at his property. The Ombudsman finds that the Council’s communications about this matter were not clear enough and that this led to injustice for Mr B. The Council has agreed to apologise to Mr B and to pay him £250.

The complaint

1. The complainant, whom I shall call Mr B, complains the Council treated him unfairly in the way it responded to complaints from neighbours about tyres on his property. He complains the matter was not investigated properly and that the Council gave him contradictory information and advice. He feels that the Council treated him badly and made it difficult for him to understand its requirements, as well as causing him expense.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of all the information it provided in response. I obtained a copy of the Council’s planning enforcement policy from its website.
5. I have taken account of the Ombudsman’s guidance on remedies.
6. Mr B and the Council had an opportunity to comment on a draft of this decision, and I considered all responses received before making my final decision.

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What I found

Legal and administrative information

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
8. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

9. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
10. While councils can take enforcement action if they find planning rules have been breached, they should not take enforcement action just because there has been a breach of planning control. 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 July 2018, paragraph 58)
11. The Council has a planning enforcement policy which sets out its approach to dealing with suspected breaches of planning control. The policy notes that Government guidance sets out principles of good enforcement practice which include providing information and advice in plain language, to discuss problems with anyone experiencing difficulties with a possible breach of planning control, to operate affair and transparent decision-making process, and to explain any actions taken and any rights of appeal.

Background

12. Mr B is disabled and has a brain injury resulting from a road traffic accident. He has a court-appointed deputy at a firm of solicitors to deal with his health and welfare matters and with his property and financial affairs.
13. Mr B says he has been the victim of harassment by his next-door neighbours. He was storing tyres along the boundary in his back garden, and says the reason for this was to stop his dog escaping into the neighbour’s garden. Mr B also had concerns about electronic equipment being used on him and his dog and he felt the tyres would serve as a barrier to this.

Complaint about storage of tyres

14. In March 2019 Mr B’s neighbours complained to the Council about issues allegedly arising from the storage of tyres on Mr B’s property. Following some liaison between the Council’s environmental protection and planning departments, in April the Council’s planning enforcement department contacted Mr B’s court-appointed deputy about its intention to make a site visit. The Council said it was happy for Mr B to have a solicitor present if he wished: Mr B felt this indicated he should have a solicitor present and so he made arrangements for this. The solicitor then contacted the Council and said he wished to be present at any site visit.

The site visit

15. On 7 May the Council wrote to the firm of solicitors Mr B had engaged to represent him in this matter advising that officers intended to visit the following day in respect of an alleged breach of planning control due to material change of use because of the storage of materials. The visit was made as proposed and was attended by officers from both planning enforcement and environmental protection. Mr B was not present himself, but his solicitor and his carer were there.
16. The Council states that at the visit its officers noted that adjacent to a neighbouring brick boundary wall there were tyres being used as a second boundary wall, with some tyres placed above the rim of the boundary wall reaching a height of more than 2m in one area. Measurements had not been taken however because of trees preventing access. The Council also says bad weather had made the ground very slippery. A photograph was taken however. The Council says that the height of the tyre wall was discussed with Mr B’s solicitor on site, and that advice was given that a planning application to regularise the development where tyres were over 2m would likely be refused, as it was not deemed an enhancement of, or benefit to, the conservation area. The officer advised that if the tyres were reduced below the rim of the wall then no enforcement action would be expedient.

What happened next

17. Following the site visit the Council wrote the same day to the solicitors. It noted that Mr B’s property is in a conservation area. With regard to the front of the property (the principal elevation) it said the storage of tyres, caravans and what it referred to as ‘scrap materials’ leant towards a material change of use of the land. At the rear it said the storage of tyres ‘bonded to form an enclosure’ could only be seen from above the adjacent 2 metre brick wall. Mr B has confirmed there is in fact no brick boundary wall at the rear, only at the front of the property. This is important because, as I set out later in this statement, in its communications with him the Council repeatedly referred to a wall at the rear, leading to a lack of clarity and calling into question what had in fact been observed on site. The officer went on to say that in their experience, if this tyre storage was left unchecked a material change of use would occur and be enforceable in the near future. The officer said that to prevent the matter becoming enforceable under planning legislation they recommended Mr B take action within 21 days. In respect of the rear garden the recommendation was to “reduce the rear stacked tyres to below ridgeline of whole length adjacent neighbouring boundary wall, and store scrap materials appropriately. Tyres should sit below the rim wall and not upon it”. The Council set out that once all recommendations had been complied with the matter would be closed as no breach of planning control.
18. Mr B then contacted Council about what he needed to do “to satisfy the order”. He said that the tyres were not above 1.8 metres at the rear and that his land is higher than his neighbour’s land. The Council replied to him saying it had advised the tyres only had to be reduced below the rim of the wall on the photograph or at 1.8m high. It offered a further visit. Mr B continued to query the matter. It was clear from Mr B’s correspondence that he was seeking to clarify how the Council had reached its conclusions about what the situation was at his property and how it had concluded there was a breach, and what he should do to address this to satisfy both himself and the Council. On 20 May the Council told Mr B that if he could provide photographs to show the rear tyres were below the rear boundary then that matter would be closed.
19. On 16 June Mr B submitted some photographs of works he had completed. On 19 June, the Council replied saying: “The remaining issue without further dispute is to ensure that the rear neighbouring boundary enclosure does not show any tyres above the rim level. Therefore you are required to reduce those tyres to below that side rear boundary. Once this has been complied with I will seek to close this matter in full under planning remit”. Mr B sent in more photographs and on 20 June the Council confirmed the case was now closed and no further visit would be made unless new evidence was provided that an increase had occurred or ‘a new breach of planning control’ had taken place.

The Council’s communications about the matter

20. Mr B asserts that at the site visit his representatives were given the clear view by officers that the situation as it stood at that time did not require him to take action, there being no breach of planning control. That seems to have been reinforced by the Council saying in its follow-up correspondence that if the storage was ‘left unchecked’ there would be a material change of use, the implication being that the current position did not amount to that. If there was no breach, no remedial action could be required. Yet the letter set out recommendations for certain action within a specified timeframe and said that once this had been done the matter would be closed as no breach of planning control. The Council’s enforcement policy states that after the site visit the officer will confirm whether or not a breach of planning control has taken place, as well as the steps required to resolve the issue, the options available, and the reasoning behind the decision and the need for action. While it is not fault for the Council to give advice to seek to prevent a breach, or to seek informal resolution where a breach has been identified, the Council’s communications did not make it clear to Mr B whether its position was that there was a breach of planning control requiring remedial action, or not. That should not have been the case.
21. It was also unclear whether the Council’s position in respect of the rear tyre wall related to the height of that structure, or its impact on amenity in a conservation area, or both. Planning permission is required for a boundary wall exceeding two metres in height, and there was some discussion about the height which Mr B referenced in his communications with the Council as he sought to understand how it had reached the view that the structure was higher than two metres. But there was also the Council’s view that reducing the tyres below the ridge line of ‘the brick wall’ was appropriate to address adverse visual impact on neighbouring amenity. The Council’s communications did not make this clear, which meant that Mr B sought to clarify issues around the accuracy of measurements of the tyre wall. Opportunities to clarify the matter were missed. I have not seen evidence that the Council clearly stated anywhere in communications with Mr B that the reduction in height of the rear tyre wall was to address the neighbouring amenity issue rather than to bring it within permitted development rights on the basis of its height.
22. Also on the matter of communications with Mr B, as noted at paragraph 12 above Mr B has a court-appointed deputy to deal with his affairs but once they had been notified about the intention to visit regarding this enforcement matter, Mr B instructed another solicitor from a different firm to deal with this issue. The Council then communicated with that solicitor. After the visit Mr B began contacting the Council himself to seek information and clarity about the matter, as he was entitled to do, and the Council then responded directly to him. However, when Mr B sent emails regarding a wish to meet with a community safety officer, the Council wrote instead to his deputy. The Council says it did so because it had received several emails from Mr B about the matter and there seemed to be misunderstanding about the need for the meeting Mr B was requesting. I can see no good grounds for the Council failing to reply to Mr B as it had been doing, and it would have been helpful to have at least copied him into the correspondence with his deputy.
23. When it responded to Mr B’s complaint, the Council acknowledged that there had been delay in replying to some emails, for which it apologised. It also apologised for wrongly telling Mr B that it did not have a community safety officer, and it said staff had been advised appropriately about this.

Analysis

24. As set out above, the Council’s communications on this matter should have been clearer. The lack of clarity, and the failure to respond consistently to Mr B directly or alternatively to make clear what its route of communication with him would be, was fault. As a result, Mr B was caused unnecessary anxiety and put to avoidable time and trouble seeking to resolve the matter.

Agreed action

25. In recognition of the injustice caused to Mr B by the faut identified in this case, I recommended that within four weeks of the date of the decision on this complaint the Council issues him with a formal written apology and pays him £250.
26. I also recommended that in the same timescale the Council reviews lessons learned from this complaint and reminds staff of the importance of clear communications in respect of enforcement matters.
27. The Council has agreed to my recommendations.

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Final decision

28. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman