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. Mr Y alleges fault with the Council’s investigation of an alleged breach of planning control involving a garage at a neighbouring property. Mr X says:
• The Council acted in a biased and unprofessional manner in conducting its investigation.
• The Council did not comply with statutory obligations with respect to the Freedom of Information Act.
• The Council failed to comply with the timescales in its complaints procedure.
• Information relating to planning permission for the garage was not available within the Council’s planning portal.
• Mr Y and other residents asked for information on a meeting between the Council and the developer before construction of the garage commenced but the Council has never provided this information.
• Enforcement 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 Mr Y and others until August 2018.
• Mr Y and others provided a substantial amount of information at that meeting but the Council did not provide any response to the information.
• The report to the planning committee was biased towards the developer.
• The stage 2 complaint response did not address the complaint about information left out of the committee report.
• Only one resident was allowed to address the committee even though three properties were affected.
• The planning officer referred to a line of trees at the planning committee meeting and this misled the councillors.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
4. 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)
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. I reviewed the complaint and background information provided by Mr Y and the Council. I discussed matters with Mr Y by telephone. I sent a draft decision statement to Mr Y and the Council and considered the comments of both parties on it.

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What I found

7. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
8. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
9. 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.
10. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
11. 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”.

12. 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.
13. 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.
14. The Council has a local enforcement plan as stipulated in government guidance.

Background to the complaint

15. 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.
16. 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. Mr Y 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.
17. When the developer of the subject property started construction of the garage in 2018, Mr Y and others complained to the Council that there was a breach of planning control because the garage was incorrectly sited.
18. 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.
19. Mr Y and his 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.
20. 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.
21. Officers’ advice to the committee was that it was not appropriate to take enforcement action because the garage essentially comprised with the approved plans in 2006.
22. 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 Mr Y and others believed the outlook from their gardens and from bedroom and lounge rear windows was compromised by the garage.
23. The report said the impact was particularly acute from the middle home of the three terraced houses. 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 the middle property as well as from inside the lounge and bedrooms.
24. 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.
25. 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.
26. 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.
27. 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.
28. The report stated the main problem in this case came about because the homes of Mr Y 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.
29. 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.
30. The report addressed residents’ claim the planning permission had not been implemented in time. Mr Y and others referred to an aerial photograph from 2009 which they say showed a garage had not been constructed in its present location.
31. 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

The Council acted in a biased and unprofessional manner in conducting its investigation

32. I do not find the Council acted in a biased and unprofessional manner. The basis for the allegation of bias and unprofessionalism is set out in the following grounds of complaint and my reasons for concluding there was no fault by the Council will be seen in those paragraphs.

The Council did not comply with statutory obligations with respect to the Freedom of Information Act & Mr Y and other residents asked for information on a meeting between the Council and the developer before construction of the garage commenced but the Council has never provided this information

33. Mr Y says the Council provided only part of the information he and others asked for; repeated requests had to be made; and the Council did not keep to its statutory obligations.
34. These matters cannot be now be investigated by the Ombudsman because concerns about information requests are to be raised with the Information Commissioner.

The Council failed to comply with the timescales in its complaints procedure

35. The Council did not respond to the stage two complaint Mr Y made within its published timescales. I note the Executive Director who compiled the response apologised to Mr Y for the delay.
36. The Council already apologised to Mr Y and I consider the apology was the appropriate remedy for the failing. Given the remedy, I do not consider this particular matter is significant to warrant a finding of fault or further investigation by the Ombudsman.

Information relating to planning permission for the garage was not available within the Council’s planning portal

37. Planning permission for the garage was granted in 2006 and the details of the planning application were unavailable on the Council’s website.
38. The statutory requirement is for the local planning authority to hold planning application documents at its offices and make them available to the public for inspection. Providing details of planning applications online is still at the authority’s discretion. I consider the Council should endeavour to include information on planning applications on its website but the fact this particular application was not available on the website does not amount to fault.

Enforcement 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

39. 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 which they used to assess the accuracy of the developer’s own survey.
40. I acknowledge Mr Y and his 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.
41. 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 Mr Y and his neighbours.

Officers refused to meet with Mr Y and others until August 2018

42. Mr Y says residents had to repeatedly ask officers for a meeting, but the enforcement officer chose to meet with the developer. He says this shows the unprofessional and biased approach taken by the Council. Mr Y says the Council finally relented and agreed to meet residents in August 2018.
43. The fact officers did not agree to a meeting with residents until August 2018 was not fault. It was for officers to decide whether a meeting was necessary in the interests of the enforcement investigation.

Mr Y and others provided a substantial amount of information at that meeting but the Council did not provide any response to the information

44. There is a difficulty with assessing whether there was fault by the Council on this point. A finding of fault depends largely on the purpose of the meeting. This is in line with my remark in the preceding paragraph that it was for officers to decide whether a meeting was necessary in the interests of the enforcement investigation.
45. But the evidence suggests officers agreed to the meeting as a courtesy given the requests residents made rather than because the investigation necessitated a meeting. The evidence suggests there was a discussion surrounding measurements taken by all parties and photographs provided by residents. I cannot conclude then that the Council was to provide a response to the information provided by Mr Y and others.
46. It is not part of the Council’s enforcement practice for enforcement officers to meet with complainants in order to decide on a breach of planning control. Officers chose to do so in this instance. I cannot now conclude the meeting or its aftermath was tainted by fault.

The report to the planning committee was biased towards the developer

47. Mr X says here the committee report was biased because it did not include details of residents’ own views on the accuracy of measurements or the photographs they provided at the meeting with the Council in August 2018.
48. I do not find fault by the Council. There is no statutory requirement that all the representations made by third parties are set out in a committee report. The usual practice is for planning officers to summarise the views of third parties and then make all information available to members of the planning committee.
49. A committee report must also set out officers’ recommendation to the planning committee and so it will inevitably appear biased depending on the reader’s perspective.

The stage 2 complaint response did not address the complaint about information left out of the committee report

50. It would have been helpful had the stage 2 response addressed Mr Y’s complaint that the information they provided at the August meeting was left out of the committee report.
51. But I do not consider this point is significant enough to warrant a finding of fault by the Council. As I explained in the preceding paragraph, there is no statutory requirement to include all the information presented by third parties in a committee report.

Only one resident was allowed to address the committee even though three properties were affected

52. 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 Mr Y’s group were restricted to only one speaker.

The planning officer referred to a line of trees at the planning committee meeting and this misled the councillors

53. The Council’s complaint response to Mr Y says it was unclear whether objectors misinterpreted the planning consequence of a condition relating to the ownership of a group of conifer trees. This was in the course of discussion of the matter during the committee meeting.
54. I appreciate Mr Y’s own view is that officers’ comments were inaccurate. He therefore concludes the committee was misled. But the Council presented its own contrary view which I must also consider. I cannot now conclude committee members were misled by explanations given by officers. It was for members to ask questions during the discussion or debate phase of the meeting. If their queries were satisfied then they could proceed to a vote but, if unsatisfied, they had the option of deferring the matter.
55. In any case, I do not find the matter of a line of trees affected the central issue of whether there was a breach of planning control involving the location of the garage.

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Final decision

56. 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