London Borough of Southwark (19 015 579)

Category : Planning > Other

Decision : Upheld

Decision date : 30 Sep 2020

The Ombudsman's final decision:

Summary: Mr B complained that the Council took inadequate action to remove a flagpole from a neighbour’s garden, which did not have planning permission. We find no fault with the Council’s decision not to take enforcement action but we do find fault with the way it reached this decision and the time taken to communicate it properly to Mr B. The Council has agreed to pay Mr B £250 to recognise the frustration, inconvenience and his time and trouble.

The complaint

  1. Mr B complains that the London Borough of Southwark (the Council) has failed to take appropriate enforcement action to ensure his neighbour removes a flagpole from their front garden. The Council’s communication has been confusing, it has taken too long to address the matter and the Council has changed its mind on the action it can take without providing an adequate explanation.
  2. Mr B says the continued existence of the flagpole has significantly affected the price he can obtain for his property in an ongoing purchase.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Enforcement

  1. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control includes carrying out of development without the required planning permission.
  2. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so. It is for the planning authority to decide whether it is expedient to take action.
  3. The government’s current guidance on planning enforcement includes the following:

Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.

  1. If the development has been substantially completed for more than four years and the Council has not taken enforcement action, the development is immune from any enforcement action.

What happened

  1. Mr B bought his property in February 2014. In August 2019 he contacted Housing Services at the Council asking whether his neighbour had permission for a flagpole on their property.
  2. Housing Services replied in September saying it could not give information about permission due to data protection. It said that planning permission was required if the pole was more than 4.6 metres high and it would arrange to measure the pole. It also said it could arrange for the pole to be removed if it was more than 4.6 metres high.
  3. Mr B complained the next day because he was unhappy that the Council had not provided a date when it would be removed. He said the presence of the flagpole was affecting the value of his property, which he wanted to sell. A few weeks later the Council informed Mr B that it could not investigate the situation at present due to the sensitivity of the case. Mr B chased the Council several times.
  4. The Council responded at the end of November 2019. It apologised for the delay, said the flag had been removed, the pole was an acceptable height and was not causing any issues so no enforcement action would be taken. Mr B responded the same day saying the Council was wrong about the height and provided a photograph showing a measurement up to his first-floor window. He had already provided the photograph in September.
  5. In December 2019, after visiting the neighbour, the Council (Housing Services) agreed that the pole was over 4.6 m. It apologised for the previous misinformation and said it would ensure it was removed. Mr B complained to our office.
  6. In early January 2020 the Council wrote to the neighbour giving them 28 days to remove the pole. It said if the pole was not removed, it would take further action. It also informed Mr B that it would monitor the removal of the pole.
  7. A journalist contacted the Council later in January 2020 asking for a comment on the case. The journalist said the neighbour had obtained planning permission for the pole before it was put up, over twenty years ago. The Council obtained information from both Housing and Planning Services for some information on the case.
  8. Planning services said it had no record of planning permission being granted and if the pole had been there for more than four years it was immune from enforcement action. Housing services said it had no record of granting permission as a landlord and it was not aware of the ‘four year rule’, but the neighbour had recently agreed to reduce the height of the pole to below 4.6 metres.
  9. The neighbour informed the Council before the end of January, that, due to safety reasons, it could only reduce the height of the pole to about six metres.
  10. In mid-February 2020 Mr B asked the Council to provide the date the pole would be removed and nothing else. He said the Council’s refusal to do so was blocking the sale of his property.
  11. On 24 February 2020 the Council informed Mr B that the planning department would not enforce removal of the pole as it had been there too long and no other complaints had been received. But it would ask the neighbour to reduce the height of the pole. The Council apologised for the inconvenience and time taken.
  12. At the beginning of March 2020, the neighbour provided a statement from the person who had installed the pole originally. He confirmed he had put it up over twenty years ago and due to its construction, it would be unsafe to reduce it lower than six metres.
  13. Mr B pursued his complaint with us. He is sure the flagpole has not been there for longer than four years. The Council said in response to my enquiries that the resident services officer for the area had worked there since 2013 and was sure it had been there all that time.

Analysis

  1. The Council has concluded that the flagpole has been there for at least four years and is immune from enforcement action. It has reached that view based on the view of the neighbour, its resident services officer and a statement from the person who erected it. It has also considered the fact that neither Mr B or anyone else had complained about the flagpole previously, it was in a private garden and did not affect light or case anti-social behaviour. I am satisfied that the Council has properly considered whether or not to take enforcement action.
  2. But I consider there was fault in the way it reached this decision and the time it too to do so:
  3. When the Council first responded to Mr B’s query it should have clarified that there were possibly two different permissions involved: planning permission, if the pole was over 4.6 metres and general consent from the Council as landlord. It should have contacted the planning department to obtain complete advice on the issue. The failure to do so was fault.
  4. The Council gave only partial information to Mr B about the planning requirements but failed to properly understand how enforcement worked and that the pole could be immune from enforcement action due to the length of time it had been in place. Instead it gave an assurance to Mr B that the pole would be removed. This falsely raised Mr B’s expectations that he could achieve his desired outcome.
  5. I cannot criticise the Council for taking two months to respond to Mr B’s complaint as this was due to personal circumstances affecting his neighbour. But when the Council did respond, it wrongly claimed the pole was below 4.6 metres. This was fault.
  6. It corrected this in December 2019 by visiting the property and measuring the pole. However, it still failed to check the situation with the planning department and again raised Mr B’s expectation that it would remove the pole. This was fault.
  7. It was not until the journalist contacted the Council in January 2020, that it actually asked the planning department for advice. Planning confirmed it had no record of planning permission but if it had been in place for more than four years it could not take enforcement action. The neighbour said they had put it up over twenty years ago. This meant it could not take any action to remove or alter it. The Council should have made this clear to Mr B in response to his original query, five months earlier.
  8. The Council did attempt to resolve the situation by achieving a small reduction in the height of the pole but due to safety reasons it could not be reduced any further.
  9. The Council should have obtained the correct advice and communicated its decision to Mr B much sooner than it did. Mr B’s expectations were raised unnecessarily due to the inaccurate information the Council gave about removing the pole. This caused him frustration and inconvenience, along with additional time and trouble in pursuing the matter.

Agreed action

  1. I recognise that the Council has apologised for the fault, but I asked it (within one month of my final decision) to:
    • pay Mr B £250 for the time it took to make an informed decision about the flagpole and communicate it to Mr B; and
    • to ensure all its housing staff are aware of the need to obtain full information from the planning department when they receive a query about planning permission.
  2. The Council has agreed to my recommendations.

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Final decision

  1. I consider this is a proportionate way of putting right the injustice caused by the fault, and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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