The Ombudsman's final decision:
Summary: Ms X complains about her dealings with the Council over an outbuilding built by her neighbour initially without planning permission. There was unreasonable delay by the Council in dealing with the planning enforcement complaint. The Council should now apologise to Ms X for the delay.
- Ms X complains about her dealings with the Council over an outbuilding built by her neighbour initially without planning permission. Ms X says:
- Her neighbour built an outbuilding in his garden without planning permission. She telephoned the Council and spoke with a planning enforcement officer who told her he would contact her neighbour but she does not think it happened. No enforcement action then ensued for another nine months until she contacted the Council again.
- There was no consequence to her neighbour breaching planning controls.
- When her neighbour submitted a planning application to regularise the status of the outbuilding, she objected to the application on the basis that it lacked drainage and so rainwater would cascade off the structure and pool in her garden. She sent photographs and video evidence to the planning officer. The planning officer granted planning permission for the outbuilding despite knowing this would give permission for damage to occur to someone else’s property.
- The planning officer lied in the delegated report when she said she had not observed any pooling of water in the area around the outbuilding following a period of heavy rain.
- Council staff failed to provide a coherent service.
- The Council failed to respond to her complaint within its prescribed time limits. She had to call the Council before its stage two response to ask why she had not received an acknowledgement. The Council did not answer her complaint and ignored large chunks of it. She asked for a telephone call so she could expand on the information provided but the Council failed to call her.
- The Council’s reply was patronising and it failed to use capital letters for her name which is rude and unprofessional.
- Despite agreeing its service had failed in parts the Council failed to uphold any part of her complaint.
- The Council left her having to seek legal redress.
The Ombudsman’s role and powers
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will 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
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I considered details of the complaint and information provided by Ms X and the Council. I discussed matters with Ms X by telephone. I sent a draft decision statement to Ms X and the Council and considered their comments on it.
What I found
- Ms X contacted the Council in September 2019 about a outbuilding being built by her neighbour close to the shared boundary. The Council established that Ms X’s neighbour is a leaseholder and so contacted his landlord in an effort to resolve the matter informally. It acknowledged Ms X’s contact and informed her of its intended action.
- The neighbour’s landlord wrote to the Council a few days later afterwards. It said the neighbour had not responded to its emails but it would write again to him.
- No further action was taken by the Council until Ms X contacted it in May 2020. The Council then served a planning contravention notice on the landlord as well as occupier of the property.
- This led Ms X’s neighbour to submit a planning application which sought to regularise the status of the outbuilding.
- Ms X objected to the application. Her objections were set out in the planning officer’s delegated report. The planning officer then assessed the application in light of the objections.
- The planning officer assessed the siting, scale and massing of the shed. The officer was satisfied the shed was not excessively large or bulky and so was acceptable in terms of its siting, scale and massing.
- The officer considered the design and appearance of the structure. The officer noted an objection from Ms X about the appearance of the outbuilding as bare brickwork was visible on its side and rear elevations. The officer asked the applicant to place timber cladding around the entire structure.
- The officer also noted Ms X’s objection regarding windows on the side elevation. The officer imposed a condition requiring removal of the side windows. The officer noted Ms X’s comments on the accuracy of drawings submitted with the application and so asked the application for updated 2D elevations. The officer visited the site and was satisfied the height of the outbuilding was 2.4 metres from the ground level within the site. The officer said sheds and small rear extensions were common in the area. She concluded the development was in keeping with the character of the area and would not have a detrimental impact on visual amenity.
- In terms of residential amenity, the officer noted Ms X’s concerns about drainage. The officer said she visited the site after several days of heavy rainfall. She noted the ground surrounding the structure was dry. The officer said there is no specific requirement for a shed to include guttering or a soakaway and the structure sits within a lower area of the applicant’s garden surrounded by porous soil and gravel. The officer said the site is not located in a flood zone.
- The officer noted Ms X’s reference to outlook and explained neighbours do not have a right to a view under planning law and the outbuilding was higher than the garden fence by around 0.4 metres. The officer noted Ms X questioned the use of the outbuilding. However, the officer pointed out the intended use of the outbuilding was not material as long as the use remained ancillary to use of the main dwelling.
- The Council granted planning permission.
- Following the grant of planning permission, Ms X made formal complaints to the Council. Her present complaint to the Ombudsman was expanded to include her dissatisfaction with the service she received from the Council as well as its responses to her complaint.
- Our role is not to provide answers to each and every criticism a complainant may have about a council. Instead it is to consider allegations about what the authority has done wrong and whether the alleged fault has caused a significant injustice to the complainant.
- In terms of the Council’s planning enforcement investigation, there is a significant period between September 2019 and May 2020 when nothing was done. The Council was prompted to proceed with the investigation only because Ms X contacted it again in May 2020.
- As to Ms X’s dissatisfaction with the outcome of the planning application and claim the planning officer lied about pooling of water around the structure, I do not find fault by the Council.
- In deciding planning applications councils have to take account of material planning considerations including objections they receive. I am satisfied the planning officer’s report shows the planning officer took account of Ms X’s objections and provides reasoned justification for the decision on the application.
- I note Ms X’s view that the planning officer lied about pooling of water in Ms X’s garden. However, the report is clear in stating the officer did not observe any pooling of water on the ground surrounding the structure. That is not the same as saying there was no pooling of water in Ms X’s garden. In any case, the officer explained there is no specific requirement for a shed to include guttering or a soakaway and so the Council could not refuse planning permission due to a lack of drainage.
- As to the remainder of Ms X’s complaint concerning her contact with the Council and dissatisfaction with the way she was treated, I have not pursued these matters. I accept Ms X is vexed about the service she received from the Council. But I do not find this now warrants investigation of those matters. The Ombudsman does not investigate every complaint made to him. As I said earlier, our role is not to provide answers to each and every criticism a complainant has about a council.
- Ms X says this part of her complaint warrants investigation in the public interest. I do not find there is a public interest imperative to investigate this part of her complaint. There was an unreasonable delay by the Council in its planning enforcement investigation but no other fault in the substantive matters of the complaint. This is to be remedied by an apology. I do not find there is a residual or unremedied injustice which should now be pursued by the Ombudsman in the public interest.
- There was unreasonable delay by the Council which led Ms X to pursue matters further with it. The Council should now formally apologise to Ms X for the delay.
- There was fault by the Council which caused Ms X an injustice. The Council should apologise to Ms X for the unreasonable delay in dealing with the planning enforcement complaint.
Investigator's decision on behalf of the Ombudsman