Summary: Mr X complains that the Council has not taken enforcement action about a breach of planning permission. He says neighbours have erected a gate which blocks the lane with parked cars and therefore blocks his mother’s access. He also complains about the way the Council handled his complaint. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complains on behalf of himself and his mother, Mrs M. Mr X complains that the Council will not take enforcement action about a breach of planning permission. He says neighbours have erected a gate and block the single-lane track with parked vehicles, meaning Mrs M cannot access her driveway.
2. Mr X also complains about the way the Council handled his complaint. He says the Council did not comply with its complaints procedure, it refused to address some points of his complaint, and caused delays and inconvenience.

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What I have investigated

3. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so. In this case, planning permission was granted in July 2016 for the construction of a new house on land close to Mrs M’s home. The gate across the lane that Mrs M lives on was erected in December 2016 and locked in August 2017. Mr X complained to the Ombudsman in July 2019.
4. Mr X says he did not find out until much later that there was a possible breach of planning permission. He then complained immediately to the Council. There has been no subsequent delay in bringing this complaint to the Ombudsman.
5. Taking all factors into account, I do not consider it was reasonable for Mr X to have known about a possible breach of planning permission before that, so I am satisfied that there are good reasons for us to exercise our discretion and investigate this complaint.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

10. Mrs M has given written consent for Mr X to represent this complaint on her behalf.
11. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about the complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
12. I considered the relevant legislation, statutory guidance and policies, set out below. I have seen the planning documents available online on the Council’s planning portal.

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What I found

What should have happened

Planning enforcement

13. When planning permission is granted, the construction or development should comply with that planning permission. If it does not, councils may consider taking enforcement action.
14. Government guidance explains how councils should use their enforcement powers. It says enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development.

The Council’s complaints procedure

15. The Council has a three-stage complaints procedure. The first stage aims for an informal frontline resolution within three working days.
16. At the second stage, the Council will formally investigate the complaint and respond to the complainant within 15 working days.
17. The final stage is an internal review, which investigates and responds to the complainant within 20 working days.

What happened

18. Mrs M lives on a narrow lane. In July 2016, the Council granted planning permission for the construction of a new house on land close to Mrs M’s home. In December 2016, Mrs M’s neighbours erected a gate across the lane and locked it in August 2017.
19. In February 2019, Mr X emailed the Council about a possible breach of planning permission about parking at the development site and access for neighbours. In March, Mr X sent a follow-up email to the same email address. Later in March, Mr X called the Council. He then forwarded the Council his two previous emails.
20. The Council replied the same day. It acknowledged Mr X’s enquiry and said it had been passed to the planning enforcement team to investigate. It said it would contact him with the outcome of the enquiry or if it needed more information.
21. Two weeks later, Mr X emailed the Council asking for a response. The Council replied the same day saying the matter was still being investigated. There was a subsequent email exchange between Mr X and the Council. The Council initially referred to Mr X’s enquiry as a complaint, but then acknowledged that Mr X had not made a formal complaint. It told him how to do this if he wanted.
22. Mr X then complained to the Council. The Council replied the same day, saying it had logged it as a formal complaint.
23. 12 working days later, the Council sent Mr X its stage two complaint response. It said the development had not been constructed in accordance with the approved plans. It said there was provision for parking vehicles. It said it did not intend to take formal enforcement action because it was not warranted.
24. Mr X asked for a review of his complaint. He said the Council had not responded to parts of his complaint about refusing to tell him when he could expect a response to his enquiry in February, the contradiction as to whether his enquiry was or was not a complaint, and that it did not tell him when he could expect a response to his complaint. Mr X also said that one of the Council’s emails did not make sense.
25. The Council sent its final response to Mr X’s complaint 21 working days later. It said it had reviewed the previous correspondence and complaint response, and had nothing more to add. It signposted Mr X to the Ombudsman.

Analysis

Enforcement action

26. Mr X complains that the Council will not take enforcement action about a breach of planning permission.
27. The Council says it investigated and found there was a breach of planning permission because an area shown on the approved plans for landscaping had been used for parking. It says it decided the breach was minimal because the differences between the approved plans and what was built did not interfere with or cause harm to any neighbouring or other residents, or to the amenity of the area.
28. The Council says for this reason it decided it was not necessary to pursue formal enforcement action.
29. As I have explained in paragraph 14, the guidance says enforcement action should only be taken if it would be a proportionate response. The Council decided it was not proportionate to take enforcement action in this case. This is a decision the Council is entitled to make.
30. The guidance says councils should consider what harm is caused to the public by the unlawful development. This was part of the Council’s consideration of whether or not to take enforcement action. Therefore, I find the decision was made in line with the guidance.
31. For these reasons, I do not find fault with the Council for deciding not to take enforcement action about the breach of planning permission.
32. As Mr X had formally complained while the enforcement team were investigating the possible breach of planning permission, I do not find fault with the Council for sending the outcome of its investigation as part of the complaint response.

Gate

33. Mr X complains that neighbours have erected a gate which blocks the single-lane track with parked vehicles, meaning Mrs M cannot access her driveway.
34. The gate was not part of the planning permission addressed above. The gate was erected outside the boundary of the development site. The Council says the gate did not need planning permission to be erected.
35. Because the gate did not form part of the grant of planning permission, or the site planning permission was granted for, there is therefore no breach of planning permission. For this reason, I do not find fault with the Council.
36. Furthermore, Mr X has previously complained to the Ombudsman about the gate. He complained that the County Council would not remove the gate. In 2019, the Ombudsman did not uphold this complaint on the grounds that the County Council had no power to remove the obstruction.

Complaint handling

37. Mr X complains about the way the Council handled his complaint. He says the Council did not comply with its complaints procedure, it refused to address some points of his complaint, and caused delays.
38. Regarding the Council’s compliance with its complaints procedure, I find that the Council’s stage two response was sent within the timeframe set out in its procedure. The Council’s final stage response was sent after 21 working days, which is one working day longer than the timeframe set out in the procedure.
39. I do not find that one working day is significant enough to constitute fault. Therefore, I do not find that there were delays in the Council’s handling of Mr X’s complaint.
40. I do not find fault with the Council for not trying to resolve Mr X’s complaint informally at stage one of the complaints procedure. Given the nature of his complaint, I find it was entirely appropriate for the Council to go straight to stage two.
41. Mr X complains that the Council refused to address some parts of his complaint.
42. In his request for a review of the Council’s complaint response, Mr X said he wanted to complain about its refusal to tell him when he could expect a response to the enquiry he made in February.
43. The first two emails Mr X sent the Council in February/March were sent to an email address that appears to have been incorrect. Once he called the Council and sent his email chain to the correct address, the Council replied the same day, acknowledging receipt of his enquiry and telling him what would happen next.
44. I do not find the Council at fault for not responding to Mr X’s first two emails. I cannot say where Mr X got this email address. However, it seems clear that it was not the correct address. Also, I find that the Council acted promptly once it received Mr X’s enquiry through the proper channels.
45. Mr X complained that there was a contradiction as to whether his enquiry was or was not a complaint. The Council told Mr X in an email that there had been ‘crossed wires’ about whether his communication had been an enquiry or a complaint. The Council clarified that Mr X had made an enquiry, not a formal complaint, and told him how to make a formal complaint if he wanted to do so.
46. I do not find the Council’s misunderstanding to be significant enough to constitute fault. It appears it was simply a mistake which was cleared up on the same day.
47. Mr X complained that one of the Council’s emails did not make sense. I have seen the two-line email and I do not agree that it does not make sense. While it may not have been perfectly clear, I do not find this is significant enough to constitute fault.
48. Mr X complained that the Council did not tell him when he could expect a response to his complaint. I do not find this is significant enough to constitute fault. The Council dealt with his complaint in line with its procedure.
49. While it may have been best practice for the Council to have addressed these points in its final response, I find that these points are not major or significant. I therefore do not find that failing to address these points specifically in the final response is significant enough to constitute fault.
50. Mr X complains that the Council did not respond to his request for the final review stage. I find that it does not have to. There is nothing in the complaints procedure that says the Council will acknowledge such requests.
51. I find that the Council responded to Mr X’s request for a review by sending its review. This is not fault.
52. Mr X complains that the Council forced him to wait the maximum 20 working days for the final response before telling him it would not respond further.
53. The Council is entitled to send its response at any point within the timeframe set out in its procedure. I find the Council reviewed Mr X’s complaint in line with its procedure (the one working day outside the timeframe has been addressed above). For this reason, I do not find the Council at fault.

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Final decision

54. I have completed my investigation. I do not uphold Mr X’s complaint because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman