Summary: Mrs Z complained about the actions of an enforcement officer when he visited her property in respect of a breach of planning control. We have found fault with the Council’s actions. The Council has agreed to apologise to Mrs Z, make a symbolic payment of £500 and improve its procedures for the future.

The complaint

1. Mrs Z complained that the London Borough of Barnet’s (the Council’s) Enforcement Officer during a visit to properties owned by Mrs Z:
• threatened to serve an Enforcement Notice immediately without any proper explanation of the reasons why or her options to deal with the situation, such as a Certificate of Lawful Use and Development;
• threatened her with prosecution if she did not comply with his instructions;
• said she had to serve section 21 notices on her tenants immediately without proper explanation;
• visited the ground floor flat without good reason or permission and engaged that tenant in an unrelated and unwarranted conversation about moving to a different property; and
• made Mrs Z feel scared and intimidated when she was recovering from treatment for a serious illness.
2. These events caused great distress and worry for Mrs Z at an already difficult time.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 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. Mrs Z 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

Change of use of a building

6. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
7. Dwellinghouses are covered by Class C3 which is split into a number of categories, including C3(a) for single households. C4 is for houses in multiple occupation (HMOs): Small shared houses occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom.

Certificate of lawfulness

8. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
9. This may happen where the development was unlawful, but the time limit for enforcement actions has now passed. In respect of most use of land cases, this is usually ten years from the date of the breach.

Enforcement

10. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
12. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
13. 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 September 2023, paragraph 59)

Planning Enforcement Options

14. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.

15. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

The Council’s Enforcement policy (from April 2023)

16. Under the heading ‘Establishing a Breach of Control’, the policy first explains the immunity periods for enforcement action (either four or ten years depending on the breach) and says the officer may need to conduct a detailed investigation into the history of the site if the age of the development is not immediately apparent.
17. The third point under this heading says that the Council may consider it expedient to consider inviting the owner of the land to submit an application for a Certificate of Lawfulness for an Existing Use or Development.
18. Under the heading ‘Enforcement Action’ the Council says in all instances it will first attempt to resolve breaches of planning control informally through negotiation with owners and/or occupiers of the land. It goes on to say that ‘where informal negotiations fail, a retrospective planning application is refused or where the situation demands urgent attention, the Council will consider the expediency of taking formal action.’

What happened

19. Mrs Z owns a residential property. The Council granted planning permission in 2011 to convert the property into two flats. There was no planning permission for the change of use of the property from a single household use to a house in multiple occupation (C3 to C4). Mrs Z let out the flats; the larger one (Flat X) to four tenants who shared the property, the smaller one to a single household (Flat V).
20. In 2020 Mrs Z applied for and received a licence for an HMO which was valid for five years.
21. In April 2023 the Council was carrying out routine checks with information from the Valuation Office. It noted that the property had been split into two flats and the larger one had an HMO licence reference. On 19 April 2023, an enforcement officer (Officer Y) sent Mrs Z four letters in respect of Flat X only:
• a Planning Contravention Notice (PCN) saying that they had identified a possible breach of planning control with a change of use to an HMO. The Notice asked Mrs Z nine questions about the use of the property and any relevant planning permissions. It requested a response within 21 days.
• A covering letter for the PCN saying development may have taken place without planning permission and information to establish the situation was required.
• A letter saying a breach of control had taken place and inviting a retrospective planning application. It said it action was not taken within 28 days the Council may start formal enforcement action.
• A letter saying he needed to visit the property to investigate a possible breach of planning control. It asked for contact within seven days.
22. Mrs Z spoke to Officer Y on 2 May 2023. The notes of this call say it lasted 1 hour and 37 minutes and that he explained the reasons for all three letters being sent , what her options were and why a notice could be served, appeal process etc.
23. On 9 May 2023 Mrs Z replied to the questions. She said there was one household living in Flat X on one tenancy agreement and she had been renting out the property since September 2011 on this basis. But she also said she had obtained an HMO licence in 2020, the present layout had started then and the property had been continuously occupied since then.
24. The Council in response to my enquiries says that it took from this response that initially the flat was occupied by a single household but after the HMO licence was granted (in 2020) it changed its use to an HMO. It said Officer Y was right to conclude that the evidence provided was sufficiently contradictory and ambiguous, so no finding of lawfulness was possible.

Visit on 15 May 2023

Officer Y’s account

25. Officer Y visited the property on 15 May 2023. The notes of the visit say that notices and letters were sent to the owner and tenants of both flats. The documents I have seen were only sent in respect of Flat X. Officer Y said he was shown round by the tenant of Flat V and it was clearly a single household. He said Mrs Z had not informed them of the visit and did not wish to accompany Officer Y on the visit. Officer Y said the flat was cramped and gave the tenant details of a developer he knew who had a property they were looking to let to a single family. The notes also say that he told Mrs Z of this conversation, and she agreed it was a mutually beneficial solution.
26. The notes say that Officer Y answered all Mrs Z’s questions concerning the notice, the retrospective planning application, appeals, compliance periods and prosecution.

Mrs Z’s account

27. Mrs Z says she met Officer Y at the property, and he insisted that he had the paperwork to inspect Flat V as well. Mrs Z disagreed and said she had not let that tenant know of a visit. Mrs Z said Officer Y insisted he did have the right to access the whole property. Mrs Z said she felt threatened so suggested they knock the door of Flat V and see if the tenant was there. They were and they let Officer Y come in to inspect the flat. Mrs Z said she waited outside to calm down as she was feeling very intimidated. She said she could overhear the conversation and was shocked to hear Officer Y offer the tenant a different property.

Follow up emails

28. She said he continued the inspection of Flat X and confirmed she did need planning permission for the HMO. She said that when she explained the flat had been let continuously since 2011 (so more than 10 years) he dismissed this. He then said she would have to prove it, and the HMO licensing team would be harder on her than he had been. He planned to issue an enforcement notice immediately. She said he also told her she had to apply for planning permission immediately and serve her a section 21 notice so she could evict them if the planning application was unsuccessful. He said that submission of a planning application would not stop any enforcement action. Mrs Z also said that if Mrs Z did not apply for planning permission and continued to use the flat as an HMO she could be prosecuted, her assets could be seized and she could go to prison.
29. Mrs Z said she was so worried by his approach that she asked her friends if they would look after her children if she went to prison. She had told Officer Y that she was receiving treatment for a serious illness, and she was finding the situation completely overwhelming.

Follow-up communication

30. Mrs Z emailed Officer Y the next day to query his advice that she had to issue section 21 notice immediately. She said she could not serve a section 21 notice until the last four months of the tenancy. She asked for his advice on the next steps
31. Officer Y replied on 17 May 2023. He said he only raised the issue of serving a section 21 notice because she had said during their telephone call that she was not going to apply for planning permission, and so her only option would be to cease the use of the flat as an HMO. He said he did not give advice and once again said she could apply for retrospective planning permission for a change of use, but the Council could not delay enforcement action on this basis. He clarified that he only mentioned prosecution if Mrs Z did not comply with the enforcement notice. He once again said he would be looking to serve an enforcement notice and she should discuss the situation with her husband not him. He gave her details of the pre-application planning team for advice on the planning application process.
32. The case notes show that Mrs Z spoke to Officer Y on 16 May 2023, saying she would serve a section 21 notice (to end the tenancy) on the tenants of Flat X. Officer Y said that Mrs Z changed her mind multiple times as to whether she might apply for planning permission, delay the serving of the section 21 notice or rent the flat to a single family. He said he concluded the conversation by confirming he would serve an enforcement notice, and she could address the situation any way she chose.

Solicitor intervention

33. The following day Mrs Z instructed a solicitor who contacted Officer Y to say Flat X had been let out continuously as a four bedroom flat to young professionals since 2011. They would explore the situation with Mrs Z and submit the necessary application, if necessary, within the next few weeks. They indicated the change of use had been in place for more than 10 years so was immune from enforcement action.
34. The solicitor submitted a bundle of evidence on 12 June 2023. Officer Y closed the enforcement case on 21 August 2023 as the information provided confirmed the property had been let continuously since September 2011 and as such was immune from enforcement action. In the meantime, Mrs Z applied for a certificate of lawfulness which was granted in September 2023.

Formal complaint

35. Mrs Z submitted a formal complaint in May 2024, once her medical treatment was over. She said Officer Y’s behaviour had been threatening, disproportionate and unprofessional and took no account of her health problems or the fact she was a lone woman. He had not followed the government guidance to try to resolve situations informally or consider whether it was expedient to take enforcement action or act proportionately. She also complained about his visit to Flat V and the conversation with the tenant.
36. The Council replied saying it could not uphold her complaint as Officer Y had acted appropriately: he had good reason to investigate the situation, he did so appropriately, his advice to cease the breach or make an application was correct and he closed the case once information from the solicitor was provided.
37. In respect of the visit to Flat 2, the Council said that Officer Y was invited in by the tenant to also inspect that property. It acknowledged that Mrs Z’s version differed and Officer Y’s notes did not give a reason for the inspection. However, on balance it concluded that as Officer Y had been invited in, his actions were acceptable.
38. The Council also did not consider it was appropriate to require Officer Y to carry out visits with another person as no other complaints had been made about his conduct from the numerous visits he carried out.
39. It did uphold her complaint about the failure to respond to her solicitor’s query as to why Officer Y had trespassed into Flat V. It said it had responded now and apologised for the delay in doing so. Mrs Z escalated her complaint to stage two. The Council responded in July 2024 upholding its response at stage one. Mrs Z complained to us.

Analysis

Enforcement action

40. I understand that the Council had identified a possible breach of planning control and needed to investigate it, and I accept that Mrs Z’s answers to the questions in the contravention notice were confusing. However, I do not accept the obvious and only conclusion from the answers was that Flat X had only been let as an HMO since 2020. It seems equally possible that Mrs Z was saying the property had been let as a shared property since 2011 and this merited investigation too.
41. But there is no evidence from the Council that this issue was considered at all: there is no mention in the case notes or in the Council’s complaint responses that this important point was considered. Given that the ten year limit for enforcement action is listed as the first consideration in the Council’s enforcement policy, I consider it was fault not to explore this possibility first, particularly given that Mrs Z said she raised this issue during the visit and the answers to her question indicated the time limit could be applicable.
42. Officer Y could have explored this during the one hour and 37 minute telephone call on 2 May 2023, but it appears he did not do so, as the notes are very brief and unspecific. He could also have requested evidence from Mrs Z before, during or after the visit but did not do so. This was fault.
43. The Council’s enforcement policy says that the Council may consider it expedient to submit an application for a certificate of lawfulness. But again there is no evidence this was considered or offered even though in the end such an application resolved the situation. Officer Y clearly had time to go into detail about serving a section 21 notice, the possibility of prosecution in the event of non-compliance with a yet-to-be-issued enforcement notice and the need to submit a retrospective planning application to regularise the change of use. I consider these discussions should have included the possibility of a certificate of lawfulness.
44. Neither was the action taken by the Council in accordance with its policy to attempt to resolve the breach informally through negotiation. There was no negotiation or attempt to establish the facts of the situation: instead Officer Y confirmed he was going to issue an enforcement notice immediately without further consideration of the expediency of doing so and regardless of any action Mrs Z chose to take. At the point of the visit no negotiations had taken place, no planning application had been submitted, let alone refused and I do not think it can be said the situation required urgent attention.
45. I consider the Council should have set out all the options to Mrs Z in writing, giving her a further time limit to comply with one of them. But Officer Y recorded in the case notes and the emails afterwards that he would issue an enforcement notice immediately. This was disproportionate and not in accordance with the approach recommended by government guidance and set out in the Council’s own enforcement policy.

Manner of the visit

46. I accept Mrs Z was very upset by the visit and her interaction with Officer Y. I was not present at the visit and the accounts of the visits differ significantly, so I am unable to categorically conclude what happened. However, Mrs Z has been consistent in the distress she was caused both at the time and a year later, which was exacerbated by the serious medical treatment she was experiencing.
47. Officer Y’s notes support her view that he did not cover all the options, set them out in writing or give her time to consider them. Instead, he insisted on issuing an enforcement notice immediately, Given the situation, this was disproportionate and not in accordance with the Council’s policy or government guidance. The fact he raised the issue of prosecution and eviction of tenants clearly raised Mrs Z’s anxiety about her predicament and perhaps was not necessary at that point, given that other more pertinent topics such as the certificate of lawfulness were not discussed.

Visit to Flat V

48. Officer Y had not included Flat V in the notice or preceding letters so the visit to Flat V had not been notified or pre-arranged. Officer Y’s case notes are inaccurate in this respect. I also note neither Officer Y’s notes nor Mrs Z’s account support the Council’s view that he was invited in by the tenant of Flat V.
49. Given that there was no suggestion of a breach in this flat, Officer’s Y’s notes contain a disproportionate amount of information about the visit to Flat V. I also consider the offer of an alternative flat to be inappropriate at that time and in those circumstances. This was fault which added to Mrs Z’s confusion and distress.

Injustice

50. I accept that the matter was resolved by Mrs Z instructing a solicitor who submitted evidence the following month to support Mrs Z’s claim that Flat X had been continuously let since 2011. I further accept that no enforcement notice was actually served. However I consider this outcome could have been reached without such a heavy-handed and disproportionate approach by the Council, which failed to follow its own enforcement policy or government guidance.
51. I cannot definitely conclude Mrs Z would not have instructed a solicitor given that there was a breach of planning control in her property arrangements, and she would still have had to apply for a certificate of lawfulness to regularise the situation. However, I have concluded she was caused undue distress and confusion at an already difficult time.

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Agreed action

52. In recognition of the injustice caused to Mrs Z I recommended the Council, within one month of the date of my final decision:
53. apologise to Mrs Z and make a symbolic payment of £500 to her and
• reminds all front-line enforcement staff of the importance of following the Council’s enforcement policy when carrying out visits, particularly in respect of the time limits for taking action and the expediency of taking formal action; and
• considers after a visit, sending a follow-up letter setting out the conclusions of that visit and all options available to regularise the situation with an appropriate time-limit for action.
54. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

55. I consider this is a proportionate way of putting right the injustice caused to Mrs Z and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman