Summary: The Council was not at fault in the way in which it investigated Ms Y’s reports of a breach of planning controls in relation to her neighbours’ outbuilding. Nor was it significantly at fault in the way in which it responded to her complaints about its decision that there was no breach.

The complaint

1. The complainant, whom I shall refer to as Ms Y, complained about the way in which the Council:
1. investigated a breach of planning controls she had reported. This concerned the property next door to the one in which she had her flat; and
2. responded to her complaints about the way in which it had dealt with matters.

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What I have investigated

2. Ms Y consistently contacted the Council about her concerns from early 2018. So, in accordance with my paragraph 3 below, I have exercised the Ombudsman’s discretion to consider matters from that date.

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The Ombudsman’s role and powers

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. 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)
5. 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 have considered the information provided by both Ms Y and the Council.
8. I have written to Ms Y and the Council with my draft decision and considered their comments.

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What I found

Legal and policy background

Planning use classes

9. The Town and Country Use Classes Order 1987 (as amended) puts uses of land and building into various categories known as “use classes”. A change of use which falls within the same use class would not normally need planning permission.
10. Use class C3 relates to dwelling houses. It covers groups of people living together as a single household.

The Council’s unreasonable complainants policy

11. The Council’s policy says that a complainant is behaving unreasonably where they meet one or more of a number of criteria, including the following:
• persistence in pursuing a complaint where the Council’s complaints process has been fully and correctly implemented and exhausted;
• persistent refusal to accept the outcome of the complaints process, repeatedly arguing the point, and/or denying that an adequate response has been given;
• making repetitive complaints and allegations which disregard the responses the Council has provided in previous correspondence.
12. Where officers find that a complainant’s behaviour is unreasonable according to the policy, they might decide to tell the complainant that the Council will not reply to or acknowledge any further contact from them about that complaint.
13. The complaints team should write to the complainant to warn them that the Council has determined their behaviour is unreasonable. Where the unreasonable behaviour persists, chief officers should make a final decision to designate the complainant unreasonable under the policy and to implement the proposed restriction. The complaints team should inform the complainant in writing.

Background

14. In 2016 the Council approved an application for the erection of a replacement outbuilding in the rear yard of the property next to Ms Y’s home. This was to provide ancillary accommodation to the ground floor flat. A condition attached to the Decision Notice said: “the outbuilding hereby approved shall only be used as ancillary study accommodation to the ground floor flat and shall not be used as an independent Class C3 residential dwelling or Class B1 business unit.”
15. The reason for the condition was: “to ensure that the future use and occupation of the unit does not adversely affect the adjoining premises in the immediate area by reason of noise, on street parking pressure etc…”

The enforcement investigation

16. In 2018 an enforcement officer wrote to the site owner about Ms Y’s allegation that the outbuilding was being used as separate address. Shortly afterwards the tenant of the ground floor flat invited the enforcement officer to view the outbuilding. The tenant said that only his family occupied the flat.
17. Following a site visit the enforcement officer recommended closure of the enforcement case, as there was no contravention of the planning permission. Photographs taken by the officer showed the outbuilding was being used as a bedroom with an en suite bathroom and associated storage.
18. Shortly afterwards the Head of Development Management wrote to Ms Y to let her know the decision to close the enforcement case. Ms Y twice wrote to the Head of Development Management about this. But, although the officer responded to Ms Y’s first letter, it remained her view that the Council should not take enforcement action.

Ms Y’s complaints

19. Early in May 2018 Ms Y telephoned the Head of Development Management. But she felt the officer did not take her seriously. Shortly afterwards she wrote to the Director of Regeneration and Planning about her concerns and the Council’s response to these. She:
• quoted the wording of the condition in question and said the use of the outbuilding was outside the scope of what had been approved. It was providing separate accommodation for a woman, small child and/or a man; and
• said the use of the structure was causing noise nuisance and lack of privacy because of the large number of people coming and going. The recent Bank Holiday had been spoiled by noise, loud music and fumes.

Complaint response from Director of Regeneration & Planning

20. The Director responded at the end of May. He said:
• he could confirm there was no breach of planning controls. The condition had been seeking to ensure the outbuilding was used for residential purposes in connection with the existing ground floor flat, rather than as an independent flat or alternative business unit;
• indeed, the structure could only be accessed via the existing flat. So, it would be difficult for it to operate independently;
• both the study and living space would be C3 residential accommodation forming part of the ground floor flat. So, no material change of use had occurred;
• the enforcement team had kept the case open in case the manner of use changed. But the Council could not take enforcement action it could not defend at appeal; and
• the noise pollution team might be able to help her, as they dealt with complaints about noisy neighbours.

Ms Y’s further complaints

21. At the beginning of June Ms Y wrote to the Director again persisting with her complaint. She said it was stressful and time consuming to have to complain to the noise pollution team each time there was a disturbance. As she received no reply, she emailed the Director three weeks later. When she still received no reply she wrote the Executive Director Supporting Communities in mid-July.
22. The Executive Director responded early in August. She said:
• she agreed with the planning service that they had no powers to intervene. Although the outbuilding had been shown as an ancillary office on the plans, there was nothing to prevent it being used for another purpose so long as it remained ancillary to the flat; but
• the Council did investigate noise complaints, and where there was a statutory nuisance it could take action through environmental health legislation. She had asked the Noise Pollution Team to liaise with Ms Y.
23. Ms Y responded to the Executive Director repeating her concerns at length. The Executive Director provided further explanation of why planning enforcement action was not possible. The noise pollution team needed to deal with noise disturbance through the behaviour of particular residents as a separate issue. If Ms Y still wished to pursue matters, she would need to direct her complaint to the central complaints team. Ms Y responded asking for contact details for the Executive Director’s manager.
24. Ms Y emailed the Chief Executive in mid-November repeating her concerns and complaining about the lack of response from the Executive Director. She said she was not making a formal complaint. But the Chief Executive’s office referred her email to the complaints team. A complaints officer wrote to Ms Y acknowledging her complaint and explaining how this would be dealt with.
25. Ms Y responded expressing her concern that officers had registered her private email to the Chief Executive as a complaint without her consent. There followed an exchange of emails in which:
• the officer said Ms Y’s email had been forwarded from the Chief Executive’s email account. The complaints team investigated complaints on his behalf, and with his delegated authority.
• Ms Y repeated her concerns, and the officer responded saying she was doing his investigation a disservice by assuming the outcome before he had even begun. He did not want to become tied up in terminology. He would investigate her concerns and respond accordingly; and
• Ms Y asked for confirmation that the Chief Executive had seen her email. But the officer responded repeating what he had already said.

The Council’s further complaint responses

December 2018

26. The complaints officer sent a complaint response to Ms Y in mid-December. In this the officer:
• set out his understanding of Ms Y’s complaints;
• reviewed the planning documents, including Ms Y’s objection to the planning application. In this she had said the proposed outbuilding would be larger than the existing one with French windows overlooking the rear of neighbouring buildings. It was likely this would lead to much more noise;
• said Ms Y’s concerns had remained outside the Council’s complaints procedure until November 2018, when the Chief Executive’s office had referred the matter to the complaints team;
• said he considered it was appropriate to treat the matter as a formal complaint, and to escalate this to the review stage of the complaints procedure;
• explained how the Chief Executive had not been able to consider the complaint personally;
• noted that in relation to Ms Y’s substantive complaint the point at issue appeared to be the inclusion of the word “study” in the condition attached to the planning permission; but
• said the space in question was clearly ancillary to the ground floor flat. Enforcement officers had since taken the view that it was unreasonable to specify that the structure could only be used as a study. Enforcement action to restrict its use in this way would not be defensible at appeal;
• said he understood Ms Y’s dissatisfaction that officers’ subsequent opinion was more flexible then that set out in the original planning decision. But senior officer had considered matters properly and arrived at their current view fairly.
27. Ms Y responded that she had not asked for her concerns to be treated as a formal complaint. She was concerned this had been done without her consent. Also, the complaints officer had ignored a number of important points she had made. For example, the planning application had not included a bathroom installed the new outbuilding. She now intended to make a formal complaint including the way in which officers had treated her private email to the Chief Executive.
28. At the end of the month the complaints officer responded that he was satisfied the Council had suitably considered and responded to Ms Y’s complaint. There followed a further exchange of emails in which Ms Y attempted to make a formal complaint, and the officer reiterated that the best way forward was for her to approach the Ombudsman.

January - March 2019

29. A different complaints officer responded to further letters from Ms Y. This officer repeated what the first complaints officer had said in his complaint response in mid-December 2018. When Ms Y continued to pursue the matter, the officer advised her she could approach the Ombudsman. But the Council would not respond to further correspondence from her.
30. At the beginning of March 2019 Ms Y again asked the complaints officer if he was blocking her complaint. The officer noted that Ms Y was now calling from an anonymous number.
31. Early in March a letter from the Service Manager for Business Support told Ms Y her complaint had exhausted the Council’s complaints procedure and officers had addressed all her concerns. The Service Manager asked Ms Y to stop writing to the Council about the matter. If she continued to do so, officers might take action to restrict contact with her.
32. Ms Y complained about the tone of this letter, and the Service Manager apologised for this. He said he had asked someone to write to her on his behalf during his absence from the office, and they had misunderstood his instructions. He asked Ms Y to provide her official written complaint so he could review matters. Ms Y did this.
33. Late in March the Service Manager emailed Ms Y saying he had now reviewed all the complaints correspondence. But he could find nothing the Council had not already addressed. All officers who had dealt with Ms Y had followed the Council’s policies and procedures and tried to be helpful. But she had seen this as being obstructive. The Service Manager asked her not to contact the Council about the matter again. He suggested she contact the Housing Ombudsman if she remained dissatisfied.
34. During the following four months Ms Y continued to write to the Service Manager disagreeing with what he said. When she received no reply, Ms Y escalated her complaint to more senior officers. But she received no reply to her letters.

Was there fault and if so, was there injustice requiring a remedy?

The enforcement investigation

35. Arguably the planning condition approved in 2016 should have been more flexibly worded. The fact that it had referred to the outbuilding as a study led to Ms Y having raised expectations about what the Council could do to restrict its use. But the way in which the Council determined the planning application did not form part of Ms Y’s complaint. Also, the application was approved too long ago for me to consider the matter now.
36. However, I share the Councils understanding of the enforcement position. All the condition could achieve was to ensure that the use of the structure was ancillary to that of the main dwelling. I am satisfied that enforcement officers established this was the case.
37. But even if I had considered there was fault by the Council, I do not think I could have concluded there was a resulting injustice to Ms Y. I say this because I am unsure that restricting the use of the outbuilding to that of a study would have achieved what Ms Y wanted; ie a reduction in noise and loss of privacy. There were still approved patio doors giving access to the rear courtyard. It was reasonable for the occupiers of the property to make use of these.

The Council’s handling of Ms Y’s complaints

38. Given the inevitable constraints on officer time, the Council was generous in considering Ms Y’s concerns and representations outside the formal complaints process. Two chief officers dealt with matters informally and tried to reconcile Ms Y to the Council’s position and offer her an alternative way forward. They could not continue to do this indefinitely.
39. In my view, therefore, the Chief Executive was correct in referring Ms Y’s email to the complaints team in November 2018. It was their designated role to deal with such matters. At this point, complaints officers could justifiably have decided that Ms Y’s complaint had received sufficient consideration and told her she had exhausted the complaints process
40. But both complaints and business support officers did subsequently investigate and review Ms Ys concerns. Overall her complaint received more consideration than the Council could afford to give to most complaints it received.
41. I do have one minor criticism of the Council. Officers told Ms Y on several occasions that they would no longer respond to her attempts to contact them. But I have not seen evidence that they told her they were taking this measure in accordance with the Council’s unreasonable complaints procedure. Even so, I do not consider Ms Y suffered significant injustice through this omission. On balance I am persuaded that she did meet some of the criteria set out in the policy.

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Decision

42. For the reasons I have explained above, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman