Summary: Mr X complained the Council failed to protect him from his neighbour’s development. There was no evidence to show it is likely there was fault in the way planning enforcement decisions were made or the outcome would have been different. However, there was some fault because the Council had no record to show what adjustments were necessary in dealing with Mr X’s disability. The Council has agreed to remedy the fault we found.

The complaint

1. Mr X complained about the Council’s failure to protect his privacy from development on his neighbour’s land.
2. Mr X said that the Council:
• failed to take enforcement action when his neighbour constructed a roof terrace in 2015;
• allowed the neighbour to build a wall on top of the garage in 2019 without planning permission and failed to take action to remove it; and
• did not make reasonable adjustments in the way it dealt with him, after he told the Council he was dyslexic.
3. Mr X would like the Council to compensate him for the impact the development will have on the value of his home.

Back to top

The Ombudsman’s role and powers

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)­
6. We may decide not to start or continue with an investigation or part of an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

7. 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)

Back to top

How I considered this complaint

8. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including planning decisions, enforcement records and photographs.
9. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
14. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant (CLU).
15. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

Disability rights

16. Councils are legally obliged to make sure the way they work does not put disabled people at a disadvantage. This means they need to:
• check whether service users have disabilities that might affect how the Council should deal with them;
• be prepared to agree reasonable adjustments in how they work to allow individuals access to services; and
• keep a record of what adjustments are necessary and update the record if needs change.

Background

Planning matters

17. In 2015, Mr X complained to the Council after his neighbour began work to replace his garage.
18. Mr X said he took photos of the roof, which showed it was built strong enough to stand on. Photos also showed the neighbour had built steps to the garage roof.
19. Mr X said he sent the photos to the Council and during a telephone conversation, an officer confirmed the photos had been received. Mr X said he continued to speak to the Council by telephone and later by email, but no action was taken.
20. The Council has a record of Mr X’s 2015 complaint, which shows a planning enforcement officer responded to a call from Mr X about a new garage. The enforcement officer drove past the site and saw the garage but did not go onto the land. The record shows the enforcement officer decided the development was probably permitted development and like the garage it had replaced and others in the same street.
21. In 2019 Mr X complained again about the terrace after the neighbour built a wall on the garage roof without planning permission.
22. A Council enforcement officer visited the site and based on the information available, decided it was likely enforcement action could not be taken. This was because the evidence suggested the roof has been used as a terrace for more than four years.
23. The neighbour submitted a CLU application, along with photos showing the terrace in use from 2015 onwards. The Council approved the CLU application for the terrace, but not for the wall that was built in 2019. The Council said the wall might require planning permission and enforcement action could be taken. The Council said it would now consider what, if any, enforcement action was necessary.
24. Mr X said he would want to comment on any application for the wall, because though it reduces light, his privacy is severely affected by the use of the terrace, which overlooks his garden and rear rooms in his home.
25. Mr X said that in 2015 he told the Council he had dyslexia and though he could read and write, he preferred more direct forms of contact.
26. The Council said it knew about Mr X’s disability and because of this had tried to deal with him more directly. It said that, after his first visit, it decided not to update him in writing because it understood from its conversations with Mr X that he would prefer it not to do so. The Council said that later, after Mr X began using email, it did use emails to communicate with him. However, the Council has no records to show:
• Mr X has a disability that might cause communication difficulties; or
• that it asked Mr X how it should communicate with him.
27. The Council said it did these things but accepts it has no records to prove it or procedures in place to ensure it complies with its obligations.
28. Mr X said he did not ask the Council not to write to him in 2015, but he did prefer direct contact.
29. Mr X said in 2015 he tried handing a USB flash drive containing photos in at the Council’s offices. Mr X said the Council would not accept the flash drive, because it might have contained a computer virus.
30. Mr X then handed an envelope into the Council with over 40 photos in it. Mr X said that later, in 2017, another officer acknowledged receiving and viewing the photos during a telephone conversation.
31. Mr X said the photos of how his neighbour was using the site which should have made it obvious he was planning to use the garage roof as a terrace. He believes the Council might have acted sooner to control the roof terrace, if only it had looked at the photographs. Mr X said that, because of loss of privacy, he has not been able to use his garden since 2015.
32. The Council did tell Mr X about the CLU application and he is aware of the outcome, but he feels frustrated with what has happened and believes he has not been listened to.

My findings

The Council’s planning enforcement decision

33. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
34. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred, or the complainant could have known about them.
35. We have discretion to go back beyond this limit but would need a good reason to do so. Amongst other things, we need to be confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision.
36. There is limited evidence available to me now about what happened in 2015, and I am wary of placing too much weight on recollections of events so long ago.
37. I have seen the Council’s enforcement records from that time, but they merely refer to an allegation from Mr X about a new garage with no mention of a roof terrace. Even if I could prove Mr X gave photos to the Council in 2015, I cannot say it is more likely than not that it would have acted differently. Photos of the neighbour on the roof, or of a roof built strong enough to support a terrace would not necessarily show a change of use had occurred, but only that a change of use to a terrace was possible. As I understand it, the Council cannot prosecute an individual for their intentions.
38. Mr X contacted the Council again in 2019 after the wall was built on top of the garage. The Council visited the site and made a judgement that a terrace was likely to be beyond its 4-year enforcement time limit. Later, the neighbour submitted the CLU application and eventually the Council approved the terrace, but not the wall. On the evidence that is available, I cannot say it is likely there was fault in the way the Council made its enforcement decisions, or that the outcome should have been different.

Reasonable adjustments for disabilities

39. Mr X also complained about how the Council dealt with him as a dyslexic person. Councils are obliged to take account of disabilities, and to consider whether they should do anything to ensure reasonable access to services. They should also keep records to show they have met their obligations.
40. From what Mr X and the Council have told me, I am satisfied the Council knew about Mr X’s dyslexia and took account of it when dealing with him. However, it did not keep a record of what adjustments were agreed or decided necessary. This is fault.
41. Mr X told me he has felt frustrated with how the Council has dealt with him and that he has found it stressful and difficult.
42. The Council has agreed to remedy this part of the complaint.

Agreed action

43. There was fault in the way the Council dealt with Mr X’s disability and the communication difficulties it caused. To remedy this fault the Council will:
1. apologise to Mr X in writing and offer to repeat the apology, verbally;
2. pay £150 to Mr X for his time and trouble in bringing his complaint to the Ombudsman.
44. This part of the remedy will be carried out within four weeks from the date of our final decision.
45. The Council will also ensure:
1. it has effective policies in place so that it meets its obligations to disabled service users and to keep adequate records to show it has done so;
2. its officers are aware of the Council’s obligations and act in accordance with them.

46. This part of the remedy will be carried out within 12 weeks from the date of our final decision.
47. The Council will keep Mr X updated about its progress on enforcement action relating to the wall on top of the neighbour’s garage.

Back to top

Final decision

48. There was fault because the Council failed to keep proper records. I have completed my investigation because the Council accepted my findings and recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman