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London Borough of Enfield (20 008 708)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: Mr B and Mrs B complained the Council delayed investigating their concerns about works to their neighbour’s garden, unnecessarily considered a retrospective planning application for these works, and delayed responding to their complaints. Mr and Mrs B said this caused them stress and anxiety, put them to time and trouble, and led to them incurring unnecessary costs. We found fault with the Council for failing to have a published planning enforcement policy and giving incorrect planning advice. The Council agreed to apologise, reimburse the cost of professional reports, and make a financial payment to acknowledge the impact of its faults.

The complaint

  1. The complainants, who I shall refer to as Mr B and Mrs B, complained the Council:
    • delayed investigating their concerns about works to their neighbours garden;
    • unnecessarily considered a second retrospective planning application for these works;
    • did not take enforcement action against their neighbour;
    • provided poor customer service;
    • delayed responding to subject access and freedom of information requests;
    • did not update their MP or Councillor about the case and its decision whether to take enforcement action; and
    • delayed responding to their complaints about these matters.
  2. Mr and Mrs B said this caused them stress and anxiety, put them to time and trouble and led to them incurring unnecessary costs. They also say they were not able to enjoy their garden and the value of their property was affected.

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What I have investigated

  1. I investigated Mr B and Mrs B’s complaint the Council delayed investigating their concerns about works to his neighbour’s garden, unnecessarily considered a retrospective planning application for these works, and delayed responding to his complaints about these matters.
  2. I did not investigate the following:
    • The Council’s decision not to take enforcement action. This is being considered through the Judicial Review process.
    • The practice of individual officers as these are personnel issues and outside our jurisdiction. The Council confirmed it will investigate the practice of individual officers using its disciplinary procedures one the Judicial Review is concluded.
    • The Council’s response to their subject access and freedom of information requests because these are being investigated by the Information Commissioner's Office.

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The Ombudsman’s role and powers

  1. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court but cannot investigate if the person has already made an application to the court. (Local Government Act 1974, section 26(6)(c), as amended)
  3. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, 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. 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

  1. I considered:
    • Mr B and Mrs B’s complaint and the information they provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mr B and Mrs B and the Council commented on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

  1. The law says councils, that are local planning authorities, should approve planning applications which are in accordance with policies in their local development plan unless other material planning considerations indicate otherwise. (Planning and Compulsory Purchase Act 2004)
  2. Councils must provide reasons for its planning decisions. These can be in the planning officer’s report or in the decision notice or in a combination of both. Reasons may be brief, but they “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.” (South Bucks District Council and Another v Porter (No 2) 2004)
  3. The Council had a draft planning enforcement policy. This was not available to view on the Council’s website. The Council said the draft policy could be provided on request.

Council’s corporate complaint procedure

  1. The Council has a two-stage complaint procedure.
  2. Initial review: The Council aims to acknowledge the matter within three working days. Matters should be resolved locally by the service area as soon as possible and within 10 working days of the acknowledgement. For complex cases, this may be extended for up to a further 10 working days.
  3. Final review: The Council aims to acknowledge the matter within five working days. The complaint is investigated and responded to by a senior manager. The response will be provided as soon as possible and within 30 working days of the acknowledgement.
  4. If the Council cannot meet these time frames, it will contact the complainant to let them know of the delay and advise when it will respond by.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. In March 2019, Mr B and Mrs B emailed the Council about works to a raise a patio at the rear of neighbour’s property, Mr C. Mr and Mrs B said they contacted the Council by phone in January and February to report their concerns, the Council does not have a record of this.
  3. An enforcement officer visited the site in March 2019 and inspected the works.
  4. In April 2019, the Council emailed Mr B and Mrs B and confirmed their neighbour should have applied for planning permission before starting the works. The Council said their neighbour needed to make a retrospective planning application.
  5. Mr C applied for retrospective planning permission in June 2019. Mr B and Mrs B objected to the planning application through their solicitor and submitted a report by a Chartered Surveyor. Mr B and Mrs B also raised concerns with the Council that the planning application contained false information. The Council said the delegated officer would consider their comments.
  6. The delegated officer wrote a report on the planning application. The officer said the boundary fence was too high and the patio reconfiguration would result in a perceived loss of privacy for Mr and Mrs B. The officer recommended the Council refuse planning permission.
  7. The Council refused planning permission in August 2019. It gave the following reasons for refusal:
    • The proposed fencing, because of its excessive height, would result in a visually dominant and discordant form of development that would be contrary to the established local character and detrimental to the visual amenities of neighbouring occupiers.
    • The raised patio area, by reason of its design, siting, scale and excessive height above natural ground level would give rise to an increased perception of overlooking and loss of privacy to the rear private amenity space of Mr and Mrs B.
  8. The Council met with Mr C in October 2019 and gave him pre-application advice. It advised Mr C to appeal the decision to refuse planning permission or to make a new application without the fencing. The Council said it had no concerns about the raised patio or position of the steps. Mr C made a second planning application.
  9. Mr B and Mrs B emailed the Council because they were unhappy it had accepted a second “almost identical application” from Mr C. The Council said Mr C was entitled to appeal against its refusal of planning permission or to make another application. The Council explained Mr C’s second planning application was materially different from his first. Mr B and Mrs B complained about the officer that had given Mr C pre-application advice and accused him of bias towards Mr C. The Council recorded this as a formal complaint in October 2020.
  10. The Council met with Mr and Mrs B on site in December 2019 and inspected their neighbours works.
  11. Mr B and Mrs B objected to the planning application through their solicitor and submitted a further report by the Chartered Surveyor.
  12. The Council accepted the delegated officer’s recommendation. It refused planning permission because the design, siting, scale and excessive height of the staircase and raised patio area, would result in Mr B and Mrs B’s garden being overlooked. It decided this in December 2019.
  13. Mr and Mrs B and their Councillor chased the Council for a response to their complaint.
  14. The Council responded to Mr B and Mrs B’s complaint at stage 1, initial review, in May 2020. Of relevance to this investigation:
    • It said the errors in Mr C’s applications did not have any bearing on the Council’s decision because it was not material to the assessment process. The Council rejected both these applications.
    • It explained Mr C was entitled to make a second planning application and his application was materially different from the first. It accepted the pre-application advice it gave Mr C after it rejected his first planning application was incorrect. It recognised this may have contributed to Mr C submitting a second application that only addressed one of the two reasons it rejected his first application. It said it would consider paying Mr B and Mrs B compensation and asked them to provide details of the costs they incurred.
    • It accepted there were delays responding to Mr and Mrs B’s concerns and communicating with them. It upheld this part of their complaint and apologised.
  15. In July 2020, the Council confirmed it would pay for the second report Mr and Mrs B commissioned and the cost of their second solicitor’s letter. The Council asked Mr and Mrs B for their bank details.
  16. In July 2020, Mr B and Mrs B asked the Council to consider their complaint at stage 2, final review, of its complaint procedure. They sent the Council the reasons for their request at the beginning of August 2020, these included:
    • The Council delayed responding to their stage 1 complaint.
    • Poor internal and external communication.
  17. The Council met with Mr and Mrs B virtually in August 2020 to discuss their complaint and concerns with the works to their neighbour’s property. The Council told them it recognised it had been a difficult time.
  18. In September 2020, Mr and Mrs B added to their complaint. These matters related to enforcement and are outside the scope of this investigation.
  19. The Council responded at stage 2 of its complaint procedure in September 2020. Of relevance to this investigation, the Council:
    • Apologised for its delay in its stage 1 response and explained this was because of workload pressures.
    • Reiterated its stage 1 offer to reimburse the cost of the second report and solicitor letter Mr and Mrs B paid for to support their objection to Mr C’s second planning application.
    • Said it had found no reason to pay Mr and Mrs B compensation.
  20. The Council said it would make service improvements. Of relevance to this investigation, the Council said it would:
    • Emphasise to the team the importance of timely response times on complaints.
  21. Mr B and Mrs B were dissatisfied with the Council’s response and brought their complaint to the Ombudsman in November 2020.

Analysis

  1. The Council does not have a planning enforcement policy that is available to the public on its website. When it investigated Mr and Mrs B’s concerns, it was working to a draft enforcement policy. This was fault. As a result, when Mr and Mrs B reported their concerns about the works to Mr C’s property, they were uncertain about what they could expect from the Council or if the Council was adhering to its policy. This uncertainty caused Mr and Mrs B frustration.
  2. Mr and Mrs B said they reported their concerns to the Council before March 2019. Neither Mr and Mrs B nor the Council have provided evidence of this. Therefore, I cannot make a finding about whether the Council should have started its investigation into the works to Mr C’s garden earlier.
  3. The Council accepted the guidance it gave to Mr C after it rejected his first planning application was wrong and this may have led him to make a second application that did not address both reasons for his first being refused. The Council advised Mr C to address the issue with the fencing but did not give him advice about the raised patio area, this was fault. Mr C submitted a second planning application that only addressed one of the two reasons for the Council’s original refusal. Mr C’s second planning application led Mr and Mrs B to commission a further professional report and a letter from their solicitor to support their objection. If Mr C had not made a second application or had addressed the two original reasons for refusal, then Mr and Mrs B would not have needed to pay for these. The Council offered to reimburse Mr and Mrs B these costs in its stage 1 complaint response. This was a suitable remedy for the injustice caused to Mr and Mrs B by this fault.
  4. The Council delayed responding to Mr and Mrs B’s stage 1 response. Mr and Mrs B made their complaint in December 2019, and it took the Council five months to respond, a delay of four months. The Council also delayed responding to Mr and Mrs B’s stage 2 complaint. Mr and Mrs B asked the Council to escalate their complaint in July 2020 and gave their reasons for this at the beginning of August 2020. The Council responded in September 2020, a delay of almost a month. In total there was a delay of almost five months in the Council’s complaint investigation, this was fault. The Council’s delay caused Mr and Mrs B frustration and put them to time and trouble chasing the Council for a response.

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Agreed action

  1. Within two months of the final decision, the Council will:
    • Apologise to Mr and Mrs B for the faults found in this investigation.
    • Reaffirm its offer to reimburse Mr and Mrs B for the reports they commissioned to support their objection to Mr C’s second planning application.
    • Pay Mr and Mrs B £300 to recognise the injustice caused by the Council’s failure to have a published enforcement policy and the delay in its complaint investigation.
    • Issue relevant staff with guidance about the corporate complaint procedure and emphasise the importance of meeting the timescales in the procedure.
    • Finalise its enforcement policy and make it publicly available on its website.
  2. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Mr and Mrs B’s complaint. Mr and Mrs B were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Parts of the complaint that I did not investigate

  1. I did not investigate the Council’s decision not to take enforcement action as this is being considered by Judicial Review; the practice of individual officers as these are personnel issues and outside our jurisdiction; or, the Council’s response to Mr B and Mrs B’s subject access and freedom of information requests because these are being investigated by the Information Commissioner's Office.

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Investigator's decision on behalf of the Ombudsman

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