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.

The complaint

1. Mr C alleges fault with the Council’s investigation of an alleged breach of planning control involving a garage at a neighbouring property. Mr C says the planning process adopted by the Council was undemocratic and flawed with the result that his property as well as two others have been significantly affected by the incorrect siting of the garage. Mr C says:
• The architect of the owner of the subject property gave the Council assurances in 2004 that the garage would be moved further away from the boundary line; reduced in height; and it would not be visible from a main street. But the size of the garage was doubled when the planning application was submitted in 2006.
• The owner of the property failed to declare an interest as he was a councillor on the local parish council.
• The balance of probabilities is that the development did not commence before the time limit for implementation expired.
• The Council claims a visit was made to the site but has no records which demonstrates a dilatory approach to record keeping.
• An aerial photograph from 2014 shows an area of hardstanding adjacent to the boundary fence but not in the position shown in the planning permission.
• 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.
• Mr C and others presented information including plans and photographs to enforcement officers at a meeting in August 2018, but the information was not referred to in a report to the planning committee and was not presented in any guise to the committee.
• The committee report erroneously stated no rebuttal evidence was presented by residents, but this was patently false. The Chief Planning Officer also orally referred to the lack of rebuttal evidence before the planning committee.
• Mr C and others made freedom of information requests for information, but the Council only provided part of the information.
• They received the planning officers’ report and recommendation only a week before the planning committee meeting. They were advised they could not comment in writing on the recommendation nor submit anything to councillors.
• The conduct of the chief planning officer at the meeting was arguably inappropriate and unprofessional at best. He made comments on the ownership of trees on the boundary which were inaccurate and misleading.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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.
5. 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)
6. 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

7. I reviewed the complaint and background information provided by Mr C and the Council. I discussed matters with Mr C by telephone. I sent a draft decision statement to Mr C and the Council and considered the comments of both parties on it.

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What I found

8. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
9. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
10. 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.
11. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
12. 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”.

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

Background to the complaint

16. 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 in 2006. 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.
17. 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 C 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.
18. When the developer of the subject property started construction of the garage in 2018, Mr C and others complained to the Council that there was a breach of planning control because the garage was incorrectly sited.
19. 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.
20. Mr C 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.
21. 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.
22. Officers’ advice to the committee was that it was not appropriate to take enforcement action because the garage essentially complied with the plans approved in 2006.
23. 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 that Mr C and others believed the outlook from their gardens and from bedroom and lounge rear windows was compromised by the garage.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. The report stated the main problem in this case came about because the homes of Mr C 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.
30. 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.
31. The report addressed residents’ claim the planning permission had not been implemented in time. Mr C and others referred to an aerial photograph from 2009 which they say showed a garage had not been constructed in its present location.
32. 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 architect of the owner of the subject property gave the Council assurances in 2004 that the garage would be moved further away from the boundary line; reduced in height; and it would not be visible from a main street. But the size of the garage was doubled when the planning application was submitted in 2006

33. This complaint is not late as Mr C only became aware of the matter in 2018. However, the Council determined the planning application in 2006. Given the length of time that has passed since the decision, I do not consider an investigation by this service into the way the application was determined is warranted. The statutory time limit exists to ensure fairness to complainants as well as councils. I do not consider an investigation now into the 2006 decision would be just or fair to the Council.

The owner of the property failed to declare an interest as he was a councillor on the local parish council

34. Whether the owner of the property breached the Council’s Code of Conduct for Members is a matter for the Council to determine. But it is unlikely the Council will now investigate a complaint about this matter given the allegation occurred in 2006.

The balance of probabilities is that the development did not commence before the time limit for implementation expired

35. The Council says its officers explained during the August 2018 meeting with Mr C and others that a planning permission can be implemented in simple ways such as the digging of a trench. So, although Mr C provided a photograph from 2009 that suggests the garage or hardstanding had not been built, officers said this was not conclusive. This point was then addressed in the committee report.
36. While Mr C’s view is that the development did not commence before the time limit for implementation passed, I do not find fault by the Council on this point. I am satisfied officers considered the point and provided reasoned justification for their judgement.

The Council claims a visit was made to the site but has no records which demonstrates a dilatory approach to record keeping

37. The Council’s complaint responses refer to several site visits as well as meetings with Mr C and others at their homes. It may not have provided evidence of the site visits to Mr C but I am satisfied, on the balance of probabilities, officers did visit the site given the visits they made to the homes of residents.

An aerial photograph from 2014 shows an area of hardstanding adjacent to the boundary fence but not in the position shown in the planning permission

38. 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.
39. 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.

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

40. 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.
41. I acknowledge Mr C 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.
42. 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 before officers changed their mind without reference to Mr C and his neighbours.

Mr C and others presented information including plans and photographs to enforcement officers at a meeting in August 2018 but the information was not referred to in a report to the planning committee and was not presented in any guise to the committee

43. There is nothing in statute or government guidance that prescribes the content of a report to a planning committee. 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. So, I cannot find fault because the report was not detailed in setting out the concerns of Mr C and others.
44. However, I note the report referred to the concerns of residents. For instance, it addressed the issue of the time limit for implementation of the planning permission and clearly referred to the aerial photograph Mr C and others suggested was proof the planning permission was not implemented on time. It was then for any member of the planning committee to seek further information on these concerns if they wanted to.

The committee report erroneously stated no rebuttal evidence was presented by residents but this was patently false. The Chief Planning Officer also orally referred to the lack of rebuttal evidence before the planning committee

45. The committee report stated residents had not provided any clear rebuttal survey rather than stated no rebuttal evidence had been provided by Mr C and others. I do not find the report was false.
46. That the Chief Planning Officer repeated this view orally before the committee is not fault.

Mr C and others made freedom of information requests for information but the Council only provided part of the information

47. This matter cannot be now be investigated by the Ombudsman because concerns about information requests are to be raised with the Information Commissioner.

They received the planning officers’ report and recommendation only a week before the planning committee meeting. They were advised they could not comment in writing on the recommendation nor submit anything to councillors

48. A committee report is usually finalised a few days ahead of the committee meeting and so I cannot conclude there was fault by the Council because it was sent to Mr C and others a week before the meeting. Furthermore, there is no statutory stipulation on the minimum amount of time for councils to provide third parties with the committee report ahead of a committee meeting.
49. As to the advice that they could not comment in writing on the recommendation or submit anything to councillors, it is the usual practice of local planning authorities to convey representations made by third parties to councillors when determining a planning application. But this practice does not apply to a discretionary reference to a planning committee involving a planning enforcement matter. This is the likely reason why officers told Mr C and others they could not submit comments on the report.
50. It would have been better had the Council explained the process involving referrals to the planning committee in planning enforcement cases. But I do not find this minor failing is significant to warrant a finding of fault.

The conduct of the Chief Planning Officer at the meeting was arguably inappropriate and unprofessional at best. He made comments on the ownership of trees on the boundary which were inaccurate and misleading

51. The Chief Planning Officer responded to questions from the committee as he was required to do. In doing so, the manager used words which Mr C found inappropriate and inaccurate.
52. The Council’s complaint response to Mr C 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.
53. I appreciate Mr C’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.
54. 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

55. I closed this complaint because there was no fault by the Council in the matters raised here.

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Investigator's decision on behalf of the Ombudsman