The Ombudsman's final decision:
Summary: The Council gave incorrect pre-application planning advice and failed to take appropriate action to progress a retrospective planning application to regularise the associated development. That was fault leading to injustice.
- The complainants, whom I will call Mr and Mrs B, complain the Council wrongly gave them pre-application planning advice that proposed work at their property would be permitted development and did not need express planning permission. The Council then threatened enforcement action and proposed a retrospective application for remedial works, directing an agent to progress this.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
How I considered this complaint
- I considered all the information provided by Mr and Mrs B about their complaint. I made written enquiries of the Council and took account of the information it provided in response.
- I provided Mr and Mrs B and the Council with drafts of my decision and took account of all comments received in response.
What I found
- In 2011 the Council granted planning permission for the development of homes where Mr and Mrs B now live. The permission had a condition attached to it about retaining a landscaping strip behind the rear boundaries of the properties. In July 2013 the Council’s planning enforcement officer wrote to the residents of the street to advise the fencing to the rear gardens delineated the allowed garden boundary of the properties, and the land behind should be kept as landscaped hedgerow and trees. Planning permission would therefore be needed to extend fencing into the landscaped area, and it would be unlikely to be granted as the agreed landscaping offered protection of privacy.
- When the properties were first built, some post was misdirected to a similar address in the area. As a result Mr and Mrs B did not receive the Council’s letter in 2013.
- In August 2015 Mr and Mrs B applied to the Council for pre-application planning advice. They wished to remove existing fencing at the property and replace it with a new fence in a different location further from the house. The fence locations were identified on a plan.
- The pre-application advice the Council provided was that so long as the new fence was less than 2m in height and erected within the residential curtilage of the property, no planning permission would be needed. I will return to this advice later in this statement.
- Based on this advice, Mr and Mrs B undertook the works they had planned.
- In September 2015 the Council received a complaint the development had extended the garden of the property by moving the fencing line into the landscape corridor. The Council considers that the purpose of the retention of the landscape corridor was to preserve the semi-rural character and appearance of the area, in addition to acting as a screen between Mr and Mrs White’s property and neighbouring properties. The Council’s planning enforcement officer visited Mr and Mrs B’s property and took photographs, confirming the fencing had been located in the landscape corridor.
- At this visit the planning enforcement officer was not as open and transparent as he should have been about his role and the purpose of his visit. That was fault.
- Having considered the matter the Council decided there had been a breach of planning control. Erecting the fence in this location had led to a change of use of the landscape corridor from private open space to ancillary residential land. Such a change of use needs planning permission. The pre-application advice the Council had given Mr and Mrs B was therefore wrong. That was fault.
- In October 2015 a planning enforcement officer wrote to Mr and Mrs B setting out the view there had been a change of use needing consent. The officer said a planning application with a suitable landscaping scheme (to include planting to act as a screen between Mr and Mrs B’s property and the neighbouring properties) would have a chance of success. The officer explained the landscaping scheme would be necessary to bring the application for change of use broadly in line with the Council’s planning policy relating to open areas within existing urban areas.
- The officer said Mr and Mrs B could either:
- put in a retrospective planning application for the change of use;
- remove the unauthorised development (fencing); or
- do nothing and risk formal enforcement action.
- Mr and Mrs B replied to the Council. They did not feel the Council’s enforcement approach was appropriate since they had sought and paid for pre-application advice from the Council and had acted on that advice in good faith.
- The Council treated Mr and Mrs B’s response as a complaint.
The Council’s response to the issues raised
- The Council accepted there had been fault in the failure to identify at the pre-application stage that an extension of residential curtilage would occur and so a change of use permission would be needed. It also accepted its enforcement officer had not been as open as he should have been about the purpose of his visit. The Council apologised for these faults.
- On enforcement procedures, the Council explained that a decision to take planning enforcement action is determined on planning merits and a test of public interest. It said that enforcement action is not restricted to formal enforcement notices but also includes negotiating solutions and inviting retrospective planning applications to regularise development. In this case the Council’s view was that a retrospective planning application would be appropriate. It said it would waive the application fee and pay for remedial works to ensure the development met with any retrospective approval. If a retrospective application was not approved, the Council said its principal planning enforcement officer would contact Mr and Mrs B to discuss a suitable remedy. Except for the behaviour of the enforcement officer referred to at paragraph 11 above, the Council’s action in respect of enforcement was not affected by fault.
- The Council also said a learning point would be raised with the Development Management team meeting to highlight the need for officers to check for the possibility of enclosure of amenity land when boundary treatments are altered. In addition the Development Management service would review its protocol for authorisation of junior officer’s decisions.
The retrospective application
- At the end of January 2016 Mr and Mrs B contacted the Council to confirm it would be in order for a planning agent to prepare a retrospective planning application for the development they had carried out in line with the pre-application advice. They asked to see a copy of the application prior to submission. On 15 March the Council invited Mr and Mrs B to suggest dates for a meeting to go through the details, but due to family commitments Mr and Mrs B could not arrange this and so they asked the Council to send them the proposed application to consider, as they had originally requested.
- In May the Council was liaising with a planning agent about preparation of the application to regularise the works. But despite Mr and Mrs B chasing progress with the Council, by mid-July the application had not been progressed. The Council says it had chased the agent twice by telephone but there is nothing in its records to verify this, which is fault. The Council then appointed a new agent as the first agent had failed to progress matters, and it advised Mr and Mrs B accordingly. The failure to ensure the application was progressed by the first agent was fault.
- The Council told Mr and Mrs B that it was important the landscaping scheme to be presented with the application was acceptable to them as well as meeting Council requirements and therefore it would be helpful if they could meet with the agent to discuss the case and review the proposals. The Council confirmed it would meet the cost of the application and the landscaping.
- In September 2016 the Council advised Mr and Mrs B the agent wanted to visit the site and take photographs. In mid-October Mr and Mrs B replied to the Council. They said that they had previously been advised the Council had enough information in the drawings and plans previously put in, and they were unhappy that a landscaping scheme would be presented as part of the application, which is not what they had agreed to. The Council believes the retrospective application cannot be prepared and progressed until a visit has been made and Mr and Mrs B have been spoken to about it. This is because no drawings and plans have been produced to date by either the first agent or the second agent.
- Mr and Mrs B clearly wanted to ensure that development at their home complied with any necessary permissions, which is why they sought pre-application advice. It is therefore reasonable to assume that had they been told planning consent would be needed for what they proposed, they would have applied for it. The Council wrongly advised that planning permission was not required, and quite appropriately part of the proposal to put this right is a retrospective application at the Council’s expense.
- The Council’s view is that in order for a retrospective application to comply with policy and have a chance of success, it needs to be accompanied by a landscaping scheme. The application the Council is prepared to fund must therefore include a landscaping scheme. It would not be appropriate for the Council to use public funds to pay for an application it considered contrary to policy and likely to be unsuccessful.
- The Council has been clear that if Mr and Mrs B take no action to regularise the development, enforcement action will follow.
Injustice to Mr and Mrs B
- The Council has advised those who complained about the development that Mrs and Mrs B had sought pre-application advice and had wrongly been told express permission was not needed. Nonetheless Mr and Mrs B feel that the local community wrongly believes they have acted with a disregard for necessary planning permissions, and they feel their reputation has been damaged as a result.
- Delays by the Council in progressing this matter to a satisfactory conclusion have caused Mr and Mrs B distress and uncertainty.
- The Council has already taken some steps towards remedy. It has apologised for its errors and undertaken to identify procedural improvements. It has agreed to waive the cost of a retrospective application with a landscaping scheme and to cover the costs of works needed to ensure compliance with any consent subsequently issued, or to address the matter of remedy with Mr and Mrs B if permission is refused.
- As well as the above, in recognition of the injustice caused to Mr and Mrs B and time and trouble taken in pursuing the matter, I recommended the Council now takes the following action:
- Confirm with Mr and Mrs B that they wish the Council to progress the retrospective application for the development, which will include a landscaping scheme, for which their co-operation with the agent in the preparation of a survey will be required, and after that to progress any application to a decision without delay. (For the avoidance of doubt, the Council will write to Mr and Mrs B seeking the necessary confirmation and allowing 14 days for response. If Mr and Mrs B provide that confirmation, both parties should then use their best endeavours to ensure the planning application can be submitted within one month from that confirmation);
- Pay them £300 in recognition of distress and time and trouble;
- Write to neighbouring residents (to be identified by Mr and Mrs B) to confirm that Mr and Mrs B had been acting in good faith on pre-application advice it had provided in error, and the steps now being taken to regularize the development.
- The Council has agreed to these recommendations.
- The Council should take steps to provide the remedy agreed within six weeks of 3 January 2017 when its offices re-open following the Christmas break.
- The action recommended above will provide a suitable remedy for this complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman