Summary: Mrs W complains the Council entered her home and ordered for work on her property to stop without having the legal authority to do so. Mrs W says the Council officer was rude and discriminatory and their actions have caused significant distress. There is some delay in the Council’s handling of Mrs W’s complaint, but we cannot reach a view on the underlying matters. There are conflicting accounts of the visit and there is no independent evidence which shows the officer entered forcefully or without invitation.

The complaint

1. The complainant, Mrs W, complains about the Council’s actions in respect of replacement windows in her property, which is located in a Conservation Area. In particular, Mrs W says a Council officer:
• entered her home without the necessary legal authority;
• instructed her contractors to cease work without the necessary legal authority;
• acted in a way which was unprofessional, rude and discriminatory; and
• failed to properly deal with her formal complaints at stages one and two of the Council’s corporate complaints procedure.
2. Mrs W says the Council’s actions have caused distress and significantly impacted on her health and wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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

6. During my investigation I discussed the complaint with Mrs W by email and gave her the opportunity to discuss matters with me by telephone. I considered any information she provided.
7. I made enquiries of the Council and considered its response.
8. I consulted the relevant planning law and guidance, cited where necessary in this statement.
9. I issued a draft decision statement and invited comments from Mrs W and the Council. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Development and Permitted Development

10. Section 55 of the Town and Country Planning Act (‘the Act’) defines development. It confirms that works affecting only the interior of the building, or not materially affecting the external appearance of the building, do not constitute development.
11. Furthermore, in some cases minor development can be completed without planning permission. This is known as ‘permitted development’. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the main types of permitted development.
12. Although certain minor development can take place without consent, these rights are more restricted in conservation areas. Councils can remove permitted development rights either by means of a condition on a planning permission or by an Article 4 direction.

Breaches of planning control and enforcement action

13. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control is defined in Section 171A of 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.
14. Sections 196A, 196B and 196C of the Act enable authorised named council officers to enter land without permission, if essential, for the purposes of effective planning control. These visits allow the Council to:
• ascertain whether there is, or has been, any breach of planning control.
• determine whether any of the Council’s enforcement powers should be exercised.
• determine how any such power should be exercised; and
• ascertain whether there has been compliance with any requirement arising from earlier enforcement action.
15. On entering land, the authorised person should produce evidence of their authorisation and state the purpose of their entry. The officer may be accompanied by others, if necessary. Any person who ‘willfully obstructs’ an authorised person can be fined up to £1000.

What happened

16. In January 2020 the Council received a report of a potential breach of planning control involving the unauthorised installation of new windows in a building within a conservation area. An officer, who I will call Mrs Y, visited the building to investigate the reported breach.
17. Upon arrival at the property, Mrs Y found contractors installing new windows. Mrs Y says she spoke with a contractor to enquire about the whereabouts of the property owner. She says the contractor invited her to enter the property and she met the owner, Mrs W.
18. The building firm have since disputed Mrs Y’s version of events in a letter to Mrs W’s husband: “I can confirm that none of our installers did or indeed would have invited a Gloucester City Council conservation officer into your property on the day in question. The lady did not introduce herself and instructed our workforce to stop work immediately and not to remove any timber from site”.
19. Mrs W reports that one of the window fitters knocked on her sitting room door and said, “a lady wants to see you”. Mrs W says the officer did not introduce herself and did not explain the purpose of the visit. She says the officer, Mrs Y, told her to stop all works immediately, but Mrs W pointed out the building was not listed and so the works were not unauthorised.
20. Mrs Y took some internal photographs of the windows and asked Mrs W for her contact details so that she could send the necessary paperwork for her to apply for planning permission. Mrs Y also advised the contractors to cease working.
21. Shortly after Mrs Y’s visit, Mrs W’s husband returned home and instructed the contractors to continue with their work. He also emailed Mrs Y, “You advised my wife that planning permission was required for this work, as [building name removed] is in a conservation area.  We were not aware that planning permission is required, as the building is not listed.  However, we now realise from your discussion with my wife that planning permission is required as we are carrying out work to a flat in a conservation area.  I apologise for not submitting a planning application.  This was not a deliberate act, but an oversight on my part, as I believed that as the building is not listed, no planning permission is required”.
22. Some days later, Mr and Mrs W instructed an agent to oversee planning matters on their behalf. The agent wrote to the Council and challenged Mrs Y’s view that planning permission was required. The agent also pointed out that only ‘authorised named officers’ may enter land specifically for planning enforcement purposes. Mrs Y is not an authorised named officer.
23. Meanwhile, Mrs W submitted a formal complaint to the Council. She expressed the distress and upset caused by Mrs Y’s visit. Mrs W also described how, in her view, Mrs Y was rude, discriminatory, and culturally insensitive.
24. The Council did not uphold the complaint. It accepted that Mrs Y was not an authorised officer but maintained that she was invited into the property and was not asked to leave. In which case, authorised entry was not required. Furthermore, the Council said it had spoken with Mrs Y, who has worked for the Council for many years, and she was shocked and upset to hear the allegations made against her regarding bullying and discriminatory behaviour.
25. Dissatisfied with the Council’s response, Mrs W approached the Ombudsman for an impartial review.

Was there fault in the Council’s actions causing injustice to Mrs W?

26. If there is a conflict of evidence when considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
27. The Ombudsman has not investigated any concerns relating to the Council’s enforcement investigation, or the merits of the decisions made. It is an ongoing investigation and Mrs W will have the right of appeal against any enforcement notices issued, and it will be reasonable for her to exercise this right so that her grounds of defence can be properly considered. Instead, we have focused on the officer’s visit which was the focus of Mrs W’s complaint to the Ombudsman.
28. We cannot say with certainty what happened on the day of Mrs Y’s visit to Mrs W’s home. There are conflicting accounts; Mrs Y says the builders invited her into the property, but the firm dispute this. Irrespective of whether the builders invited Mrs Y into the corridor of the property, Mrs W had the right to challenge Mrs Y. The account written by Mrs W on 18 January does not suggest that she did so:

“I was sitting in the sitting room with the door closed, partly to give me privacy, and partly to avoid dust entering the sitting room. One of the window fitters knocked on the door, and said a lady wants to see you. I saw a lady standing in the corridor, and she said you have to stop working you don’t have planning permission. This was [Mrs Y], but it was not until later that I knew who she was”.

29. Furthermore, the email sent by Mr W later that evening did not express any concerns about Mrs Y’s attitude or the allegation that she entered the property without permission. Mrs W has since explained that she only confided in her husband about her feelings some days after the visit, and it was at this point she told him about Mrs Y’s behaviour. Mrs W therefore says that her husband did not have the full facts when he emailed Mrs Y.
30. While I have no reason to doubt Mrs W’s explanation, I can only reach a decision on the balance of probabilities and using the available contemporaneous evidence. There are no impartial witnesses to verify either account. Although the building firm have provided their account of events, they are not an independent third-party because they are contractors paid for by Mrs W and are party to the matters complained about.
31. I have also considered the argument put forward by Mrs W’s agent about Mrs Y’s legal authority to enter a property for the purposes of planning enforcement. The Council has acknowledged that Mrs Y is not an ‘authorised named officer’ as per the requirements of the Act. However, this case cannot be decided on this point alone because the question of authority only becomes relevant in the event Mrs Y entered Mrs W’s property without permission. In which case, the Council would be acting with fault. In this case, the Council maintains its view that its officer was invited into the property and Mrs W did not refuse entry or ask the officer to leave.
32. Due to the lack of independent evidence, I am unable to reach a conclusion on the circumstances leading up to Mrs Y’s entry into Mrs W’s property.

Complaint handling

33. Mrs W complains the Council’s response to her complaint was inadequate, and it failed to re-investigate the new evidence she put forward at stage two of the complaints process. In her complaint to the Ombudsman, Mrs W also refers to the length of time taken by the Council to investigate the complaint. Mrs W has since said she understands the reasons for the delay and her concerns relate more to the content, rather than the timeliness, of the Council’s reply.
34. The Council’s ‘How we handle your Complaints’ process says that, “if you are not satisfied with the response received [at stage one] you can ask for a more senior manager or director to look at it. We will acknowledge your appeal verbally or in writing within one working day advising which manager/director will be reviewing the complaint. The manager will respond within 10 working days but will advise you if more time is required and give you an estimated response date”.
35. The Council acknowledged Mrs W’s second stage complaint on the day of her submission. It provided the name of the Director responsible for responding.
36. Mrs W did not receive a response within 10 working days. However, the Council did contact her on three occasions to explain the reasons for its delay and to provide anticipated timescales. When it eventually responded, the Council apologised to Mrs W and explained that its delay was in part due to the pressures of the COVID-19 pandemic and the Director’s responsibilities for leading the ‘community-wide resilience response’.
37. I have considered the contents of the response, and while I recognise Mrs W disagrees with it, I find no evidence of fault. The policy says the Council will “review” the complaint at the second stage; it does not say the matter will be re-investigated. The Council provided an itemised response to the four heads of complaint submitted, and I do not find any fault with the content of the response.
38. However, in my view, there is delay in the handling of Mrs W’s complaint, but the Council kept Mrs W updated, offered an apology and explained the reasons for its delay. In the circumstances I consider the apology already offered is an appropriate remedy for any injustice Mrs W experienced from the delay.

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Final decision

39. We have completed our investigation with a finding of no fault in the substantive matter. There was fault due to delay in the Council’s response to Mrs W’s second stage complaint, but the Council has already apologised which is an appropriate remedy for any injustice caused.

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Investigator's decision on behalf of the Ombudsman