Summary: There was no fault by the Council in a complaint that it did not take enforcement action against a breach of planning control at a neighbouring property.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council did not take enforcement action against a breach of planning control at a neighbouring property.
2. Mr X also says the case was ignored by the Council for months and it made false accusations in its response to his complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered the complaint and background information provided by Mr X and the Council. I discussed matter with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

Planning enforcement

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
7. 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.
8. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.
9. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018), and in more detail, in its online guidance, ‘Ensuring effective enforcement.

“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.”

Background

10. Mr X reported a breach of planning control at a neighbouring property in April 2020. Mr X said the property owner had recently added to decking at the property which increased the height of the structure.
11. The neighbouring property owner had planning permission to modify an existing timber patio decking. This was granted in 2015. A condition of the planning permission required the development to be carried out in accordance with the approved drawings. Another condition required a privacy screen to be provided along the rear and side boundaries of the property and for details of the privacy screen to be submitted to the Council for approval prior to commencement of the development.
12. I am unclear about the action taken by the Council between April and October 2020. Mr X made a complaint to the Council in October after approaching the Ombudsman.
13. Mr X said a structure had being built differently to the approved one and he contacted planning enforcement which had agreed to assess and resolve the situation. However, Mr X said he had then been ‘fobbed off’ by the department. He said the planning officer in charge only communicated through an intermediary. Mr X said he had asked officers to provide documents to his solicitor on many occasions but they had not. Mr X said he had received poor service and it had taken eight months for his complaint to be ignored.
14. Mr X wrote to the senior planning enforcement officer who was investigating the planning enforcement matter later in October 2020. Mr X asked the officer for a final decision notice. He said the document should be forwarded to his solicitor. He iterated his concerns about the breach of planning control.
15. The senior planning enforcement officer wrote to Mr X on the following day. The officer said he had measured the decking and it had been increased in height by 23 centimetres. The officer said a reduction in the height of the decking would not lead to the desired effect of preventing overlooking of Mr X’s property. The officer said further action was neither necessary nor within the public interest. The officer said the Council would not take any further action.
16. On the privacy screen, the officer said any permanent screen to raise the height of the rear of the patio fence would be at odds with the rest of the fence line and provide an incongruous and unnecessary element. So, the officer decided to ask the property owner to erect a temporary screen to prevent occupiers from being able to purposely peer into Mr X’s garden.
17. The officer also said he advised the property owner that a dim view would be taken of any anti-social behaviour that may lead to intimidation. The officer said he did so to try and de-escalate matters between Mr X and the property owner. The officer said the property owner denied the allegations of anti-social behaviour made by Mr X.
18. The Council then responded to Mr X’s complaint at the first stage of its complaints procedure.
19. On Mr X’s request for documents to be sent to his solicitor, the Council said it was unclear what documents Mr X wanted. It assumed the request referred to details of the 2015 planning permission and so directed Mr X to its website.
20. On the privacy screen, it said the senior planning enforcement officer had explained action to be taken by the neighbouring property owner.
21. As Mr X had complained the decking encroached on his land, the Council explained that was a civil matter between Mr X and the property owner.
22. On Mr X’s complaint about poor customer service, the Council accepted there had been some delay in investigating his complaint which was partly due to the impact of the Covid19 pandemic. But it said his complaint had been thoroughly investigated and he had been kept apprised of progress by the senior planning enforcement officer.
23. Mr X asked the Council to escalate his complaint to the final stage of its complaints process. Mr X insisted the development was different from the one approved by the Council and so it should take enforcement action. Mr X said the temporary screen recommended by the senior planning enforcement officer did not work. He said there was reference to civil matters in the stage one complaint response which was bizarre. Mr X iterated the Council had not sent documents to his solicitor.
24. The Council’s stage two response provided a more detailed explanation of the planning enforcement process. This provided more context to its decision not to take formal enforcement action.
25. The Council said the senior enforcement officer would visit the site and consider the privacy screen erected by the property owner given Mr X’s statement that it did not work.
26. The Council explained the stage one complaint response referred to civil matters because of Mr X’s own reference to encroachment on his property.
27. The Council remained unclear about the information Mr X wanted it to send to his solicitor.
28. In December 2020, the Council wrote again to Mr X. It explained the action taken by the senior planning enforcement officer on the privacy screen since it last wrote to Mr X. It was satisfied the screen minimised opportunities for overlooking into Mr X’s home.

Finding

29. On the Council’s decision not to take further action on the breach of planning control at the neighbouring property, I do not find fault in the process leading to the Council’s decision.
30. Enforcement action is not mandatory. This means a planning authority does not have to take enforcement action because it establishes a breach of planning control. It must consider whether it is expedient to take action. In this case the Council identified the height of the decking had been increased by 23 centimetres and the property owner had not provided details of a privacy screen before starting development. It explained why it did not find it was expedient to take formal enforcement action. I do not find fault with its approach to the enforcement investigation and its decision.
31. There may have been unreasonable delay before the Council conveyed its decision to Mr X in October. It does not appear the Council acted substantially between April and October 2020. The Council’s complaint response acknowledged delay and referred obliquely to the impact of the Covid19 pandemic.
32. But I do not consider further enquiry by the Ombudsman into the matter of delay is now warranted. This is because I did not find fault by the Council on the substantive matter of the enforcement investigation and decision. I do not therefore consider Mr X suffered a significant degree of injustice on the matter of delay to warrant further pursuit of the point by the Ombudsman.
33. I do not find the Council made false accusations in its responses to Mr X’s complaint.

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Final decision

34. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman