Summary: There was no fault by the Council in a complaint that alleged fault with the Council’s investigation of an alleged breach of planning control involving a garage at a neighbouring property.

The complaint

1. Mrs X alleges fault with the Council’s investigation of an alleged breach of planning control involving a garage at a neighbouring property.
2. Mrs X says:
• A garage in a neighbouring property was built in the wrong place and contrary to the planning permission granted in 2006.
• The Council ignored relevant law, policy and guidance.
• Decisions were made by officers that should have been made by councillors and the decisions were influenced by factors that should not have been taken into account and based on inaccurate information.
• Officers made decisions while ignoring key facts and their own measurements.
• She and other residents wrote to the Council asking questions and raising objections, but these points remain unanswered.
• Officers concluded there was a breach of planning control after a site visit in May 2018 and asked the developer to submit a retrospective planning application. However, officers then changed their mind after objections from the developer’s solicitor and without reference to residents.
• Officers refused to meet with Ms X and others until August 2018.
• Officers told them at that meeting that it was not proportionate to take enforcement action because the developer would incur demolition costs. But this would not have happened had the Council acted in an open and timely manner.
• The Council did not take into account the cost to them and the effects of the building in its present position being significant, detrimental and overbearing.
• The planning manager told councillors at a planning committee meeting in November 2018 that the neighbours want the garage demolished but they never said this. This was misleading and a lie. They offered a compromise involving a reduction in the roof height, but this information was not passed to councillors.
• They asked about screening but there was no expectation or condition explored or made that the developer should provide screening.
• Under human rights legislation they have a right not to be hemmed in by the garage.
• Planning guidance ensures the Council must take account and reduce adverse impacts on neighbours but there is no evidence of this.
• Past and current decisions must be taken into account when making planning decisions, yet the councillors were not made aware of the consultation history as no mention was made of any objections in the final report. But the Council’s own records show there is a long history of objections in 2004 and 2006.
• It was outside the bounds of delegated responsibility for just one officer to take a decision due to the significant and massive amendments made to the planning application in 2006.
• When the planning enforcement officer prepared the report for their senior manager to sign off no mention was made of the massive changes to the garage.
• There is no evidence the Nolan Principles were adhered to when the Council granted planning permission in 2006.
• Phrases such as marginal, technical, general vicinity were used by officers to describe their justifications for their ever-changing position statements but there is a complete lack of policies and guidance from the Council to guide the public but also its own officers.
• Officers quoted measurements in a survey which was not independent and contained factual inaccuracies including how the garage lines up with their properties.
• Their challenge to the accuracy of the survey was not brought to the attention of councillors.
• They were limited to a three-minute presentation before the planning committee; were not allowed to raise issues in writing before the meeting; and were given only one week to prepare for the meeting.
• Emotive and inaccurate language was used by the senior officer to describe their views.
• The Council’s officers acted in a biased fashion and hid behind phrases like ‘professional judgement’.

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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 reviewed the complaint and correspondence sent to the Ombudsman by Mrs X and the Council. I discussed matters with Mrs X by telephone. I sent a draft decision statement to Mrs X and the Council and considered the comments of both parties in reply.

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What I found

6. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
7. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
8. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
9. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
10. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action 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”.

11. In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
• There is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• Development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• In their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.
12. The provisions of the European Convention on Human Rights such as Article 1 of the first Protocol, Article 8 and Article 14 are relevant when considering enforcement action. This is because there is a clear public interest in enforcement planning law and regulation in a proportionate way. In deciding whether enforcement action is taken, local planning authorities should, where relevant, have regard to the potential impact on the health, housing needs and welfare of those affected by the proposed action, and those who are affected by a breach of planning control.
13. The Council has a local enforcement plan as stipulated in government guidance.

Background to the complaint

14. The Council granted planning permission for the conversion of a bungalow into a two-storey house as well as extensions to it and the construction of a detached garage. The applicant/developer did not implement aspects of the planning permission involving the extensions but laid hardstanding for the garage. The garage was not built until 2018.
15. In 2010, the Council granted planning permission for the construction of three terraced properties which lay to the south of the property which is the subject of this complaint. Mrs X and two neighbours subsequently bought these properties. At the time they bought these properties, the garage had not been constructed although the hardstanding was in place.
16. When the developer of the subject property started construction of the garage in 2018, Mrs X and others complained to the Council that there was a breach of planning control because the garage was incorrectly sited.
17. In May 2018, enforcement officers initially decided the garage was being built in a different place from the position shown on the approved plans. They asked the developer to submit a retrospective planning application to regularise the development. However, officers met with the developer following the request. The developer provided a survey which suggested the garage was roughly in the approved location. Officers changed their mind and withdrew the request for submission of a retrospective planning application.
18. Mrs X and her neighbours were unhappy with the decision and continued to pursue matters with the Council. This led to a meeting with officers in August 2018. This was followed by a site visit in September. The Council informed residents that the case would be referred to the planning committee for a decision in October. The planning committee meeting took place in November.
19. The report to the planning committee stated its purpose was to discuss whether it was possible or appropriate to take enforcement action to remove or amend the garage building.
20. Officers’ advice to the committee was that it was not appropriate to take enforcement action because the garage essentially complied with the approved plans in 2006.
21. The committee report stated the matter concerned detailed complaints over the past 8-9 months about the incremental construction of the garage. The report said the Mrs X and others believed the outlook from their gardens and from bedroom and lounge rear windows was compromised by the garage.
22. The report said the impact was particularly acute from Mrs X’s home. The report conveyed the observation of one of the enforcement officers that the elevated height of the garage had an overbearing effect on the outlook at the rear of Mrs X’s home as well as from inside the lounge and bedrooms.
23. The report included officers’ attempts to judge the location of the garage. The report explained how the officers judged the garage was broadly in accordance with the location plan give or take a deviation of approximately 0.7 metres in the south eastern corner of the site. The report stated officers had a best possible measurement of the plans from a dotted line representation of the footprint of the residence to the parking area as being 30 metres. This contrasts with the view of residents that the garage should be sited between 32 and 33 metres from the southern wall of the bungalow.
24. The report said this was reflected in the survey drawing produced by the owner’s surveyor. The report said residents questioned the accuracy of the drawing, but they had not produced a clear rebuttal survey.
25. The report said officers had examined aerial photographs which appeared to show the garage was constructed on hardstanding which itself had been constructed and located as shown on the approved plans. Officers explained the bungalow had not been altered since the time planning permission was granted in 2006 and the distance from the wall of the bungalow to the side of the hardstanding scaled as 30 metres on the aerial photograph. This reinforced the on-site measurement done by officers.
26. The report said officers observed a deviation from the plans involving the height of the eaves of the garage. It was approximately 0.3 metres higher than shown in the approved plans. The report expressed officers’ view that the visual difference between the approved and the actual height was too small to amount to a material breach of the planning permission.
27. The report stated the main problem in this case came about because the homes of Mrs X and the others were constructed in 2012 but the Council could not have foreseen their existence and the garage’s impact on them when planning permission was granted in 2006. It pointed out that the decision on whether to grant permission would likely have been different if the properties existed in 2006 or if the developer submitted a new planning application in the present circumstances.
28. The report said any action to demolish and reconstruct the garage to address any alleged inconsistencies with the 2006 permission would be disproportionate as any resultant improvement to the neighbouring residents’ outlook or daylight would be marginal at best.
29. The report addressed residents’ claim the planning permission had not been implemented in time. Mrs X and others referred to an aerial photograph from 2009 which they say showed a garage had not been constructed in its present location.
30. Officers said very little work was required to ensure implementation of a planning permission. It could, for instance, amount to the digging of a trench. They said the Council had no evidence to conclusively assert the development had not commenced within three years.

Analysis

A garage in a neighbouring property was built in the wrong place and contrary to the planning permission granted in 2006

31. It is important to say at this point that the Ombudsman is not an appeal body. This means the Ombudsman does not have the power to substitute his judgement for that of a council’s officers unlike the courts. So, we cannot question whether a council’s decision is right or wrong because the complainant disagrees with it. We consider whether there was fault in the way the decision was reached.
32. In this case, I am satisfied the Council’s officers investigated the allegation of a breach of planning control in accordance with government guidance on planning enforcement as well as the Council’s own planning enforcement plan. Officers correctly attempted to establish whether the garage was located in a place other than shown in the approved plans. They did not find a breach of planning control and so did not consider enforcement action was appropriate. I do not find fault by the Council here.

The Council ignored relevant law, policy and guidance

33. I do not find the Council ignored relevant law, policy or guidance. This ground of complaint is repeated in the other grounds of complaint and my reasons for concluding the Council did not ignore law, policy or guidance can be seen in the following paragraphs.

Decisions were made by officers that should have been made by councillors and the decisions were influenced by factors that should not have been taken into account and based on inaccurate information

34. The Council has a constitution and a scheme of delegation which sets out matters which can be dealt with by operational officers rather than elected members. The Council is the decision-making body for all matters other than those matters delegated to its strategy group, committees and officers. The planning committee carries out a number of regulatory functions including dealing with planning matters which are not delegated. The Head of Service carries out planning enforcement investigations and makes decisions on enforcement matters except those which are to be referred to the planning committee under the scheme of delegation. For instance, the planning committee can deal with a matter delegated to an officer where the officer chooses not to exercise such delegated power.
35. This particular enforcement matter was a delegated one. However, the development control manager decided to refer the matter to the planning committee for a decision. That was not fault.
36. As to whether officers were influenced by factors that should not have been taken into account and based on inaccurate information, I do not share Mrs X’s view. Mrs X refers here to the fact officers changed their mind after meeting with the developer and considering the developer’s survey which she maintains was inaccurate.
37. A planning enforcement officer’s view can be challenged by the person who carries out development. It is then for the officer to consider whether his or her own view is correct in light of any new information provided by the developer. I note officers did not make a judgement that there was no breach of planning control when they met with the developer. Rather, they accepted there was sufficient information from the developer to conclude they were premature to conclude a breach of planning control had occurred. I note they visited the site again in the following months and took measurements again which they used to assess the accuracy of the developer’s own survey. I am satisfied the Council properly considered the developer’s survey.

Officers made decisions while ignoring key facts and their own measurements

38. This point echoes the preceding one on the matter of the accuracy of the survey provided by the developer. I do not find the Council ignored its own measurements.
39. Officers clearly took measurements before writing to the developer in May 2018 to say they had established a breach of planning control. But I do not consider it was appropriate for the Council to have close itself off to any contrary evidence provided by the developer. The Council rightly took time to consider the developer’s information and other evidence whether from Mrs X and others. It assessed aerial photographs and again took measurements. I find its action was reasonable and warranted.

Mrs X and other residents wrote to the Council asking questions and raising objections, but these points remain unanswered

40. The Ombudsman expects council officers to respond to enquiries from the public wherever possible and to the best of their abilities. I have seen evidence officers met with Mrs X and her neighbours at their homes in March and September 2018 and at the Council’s officers in August 2018. There was also extensive correspondence in between these meetings and site visits.
41. I cannot conclude the Council answered all Mrs X’s questions and it may be some queries are still unanswered. The Ombudsman is not a supervisory body for local authorities and so we cannot prescribe the content of officers’ response to enquiries from the public. But given the responses I have seen to Mrs X’s queries including the complaint responses, I am satisfied the Council made reasonable efforts to answer the questions put to it.

Officers concluded there was a breach of planning control after a site visit in May 2018 and asked the developer to submit a retrospective planning application. However, officers then changed their mind after objections from the developer’s solicitor and without reference to residents

42. I have previously explained why officers were entitled to revise their finding on the matter of a breach of planning control. I acknowledge Mrs X and her neighbours, as the complainants in this case, expected officers to contact them to discuss the matter or at least explain why they were inclined to change their view. As a matter of courtesy, I consider officers should have done so.
43. But there is no statutory requirement or recommendation within government guidance that enforcement officers refer to the complainants before coming to a view on the enforcement matter. I cannot therefore conclude there was fault by the council because officers changed their mind without reference to Mrs X and her neighbours.

Officers refused to meet with Ms X and others until August 2018

44. Between May and August 2018, Mrs X and her neighbours asked officers for meetings to discuss their change of position. Officers agreed to meet with them in August. This was not fault. It was for officers to decide whether a meeting was necessary in the interests of the enforcement investigation.

Officers told them at that meeting that it was not proportionate to take enforcement action because the developer would incur demolition costs. But this would not have happened had the Council acted in an open and timely manner

45. Government guidance is clear proportionality is at the heart of any decision to take enforcement action. I cannot now establish exactly what officers said in seeking to explain proportionality. But it is evident officers were trying to explain their view that it was not proportionate to take enforcement action involving demolition of the garage.
46. Whether officers acted in a timely manner is subjective. The Council’s officers visited the site in March and reached an initial view in May. Then officers reversed themselves and decided to investigate the matter further. By the time of the August meeting, officers were inclined to the view there was no breach of planning control but had not made the decision. In the meantime, the developer continued building.
47. I do not consider there was unreasonable delay by the Council with its investigation. Planning enforcement complaints are given priority if they involve certain categories such as damage to listed buildings or protected trees. All other enforcement complaints can take further time to resolve depending on the circumstances of the case.

They asked about screening but there was no expectation or condition explored or made that the developer should provide screening

48. The Council did not have the power to ask the developer to provide vegetative screening or include a condition on the development. It had to establish whether there was a breach of planning control and, if so, decide whether it was expedient to take enforcement action. This does not extend to negotiating action that would make a development more acceptable to neighbours.

Under human rights legislation they have a right not to be hemmed in by the garage & Planning guidance ensures the Council must take account and reduce adverse impacts on neighbours but there is no evidence of this

49. Government guidance is clear a local planning authority should have regard to impact of a development on neighbouring amenity when considering whether to take enforcement action. It is important to explain this requirement applies to a decision on whether to take enforcement action. Whereas in this case, the Council did not establish a breach of planning control. I do not expect the Council to have considered the impact on Mrs X’s amenities when it did not find there was a breach of planning control.

Past and current decisions must be taken into account when making planning decisions, yet the councillors were not made aware of the consultation history as no mention was made of any objections in the final report. But the Council’s own records show there is a long history of objections in 2004 and 2006

50. This is incorrect. The Council did not have to take into account the planning history of the site when it determined a planning enforcement complaint. The history of objections was not relevant. A planning enforcement officer determines whether there is a breach of planning control. This is usually done by assessing the facts of the matter.
51. This is not to say the history of a site is always irrelevant. But there would have to be particular circumstances which make the site history relevant.

It was outside the bounds of delegated responsibility for just one officer to take a decision due to the significant and massive amendments made to the planning application in 2006 & When the planning enforcement officer prepared the report for their senior manager to sign off no mention was made of the massive changes to the garage

52. I do not share Mrs X’s view here. The scheme of delegation makes clear the Head of Planning has delegated power over enforcement matters and this power is further delegated to operational officers. The amendments made to the 2006 planning application were not relevant to the 2018 enforcement investigation.

There is no evidence the Nolan Principles were adhered to when the Council granted planning permission in 2006

53. A local planning authority would not usually consider the Nolan Principles of Public Life when determining a planning application. That said, the Code of Conduct for members would apply and the Council’s monitoring officer is able to investigate an allegation of a breach of the Code of Conduct. In this way, councils ensure its members act in accordance with the Nolan Principles.

Phrases such as marginal, technical, general vicinity were used by officers to describe their justifications for their ever-changing position statements but there is a complete lack of policies and guidance from the Council to guide the public but also its own officers

54. I cannot conclude there is fault by the Council because officers were unclear in trying to explain their view on the garage. Whether their explanations were unclear can only be a subjective judgement for the recipient of the information. The law is clear planning enforcement is discretionary and not mandatory. This means there will usually be situations where council officers will have to explain how they use the Council’s discretion.
55. The Council has a local enforcement plan which sets out its approach to planning enforcement.

Officers quoted measurements in a survey which was not independent and contained factual inaccuracies including how the garage lines up with their properties

56. The survey was provided by the developer. I have seen nothing to conclude the Council regarded the survey as independent or indicated it was independent to the planning committee.
57. The report included Mrs X’s view on the factual inaccuracy of the survey. The report also explained why officers concurred with the survey. I do not find fault by the Council here.

Their challenge to the accuracy of the survey was not brought to the attention of councillors

58. There is nothing in statute or government guidance that prescribes the content of a report to a planning committee. So, I cannot find fault because the report was not detailed in setting out the concerns of Mrs X about the survey.
59. However, I note the report referred to the concerns of residents. It was then for any member of the planning committee to seek further information on these concerns if they wanted to.

They were limited to a three-minute presentation before the planning committee; were not allowed to raise issues in writing before the meeting; and were given only one week to prepare for the meeting

60. The Council’s constitution stipulates members of the public can address members for a maximum of three minutes at planning committee meetings. Where there are multiple objections from different properties, one objector is usually picked to address the committee rather than all objectors. I do not find fault because Mrs X was given three minutes to address the committee.
61. The usual practice is for information provided by third parties to be summarised by officers in a committee report and the original documents made available to committee members. I have seen nothing to lead me to conclude Mrs X and her neighbours were prevented from stating their objections and providing any supporting documents.
62. I do not find fault because Mrs X and her neighbours were given one week to prepare for the meeting. I note the Council wrote to Mrs X and her neighbours in September 2018 to let them know the committee meeting would be in October.
63. There is nothing in statute or government guidance that prescribes a minimum amount of time for a local planning authority to inform third parties of a committee meeting.

Emotive and inaccurate language was used by the senior officer to describe their views & The Council’s officers acted in a biased fashion and hid behind phrases like ‘professional judgement’

64. The planning manager responded to questions from the committee as he was required to do. In doing so, the manager used words which Mrs X found to be emotive and inaccurate.
65. I do not find fault by the Council here. Given the extent to which Mrs X was involved with this matter, I appreciate the manager’s remarks came across as emotive and inaccurate to her. But the officer was entitled to provide his opinion on the matter.
66. Officers’ views are subjective. From Mrs X’s perspective, the opinion amounted to bias. But on the evidence, I do not find officers were biased.

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Final decision

67. 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