Summary: Mr and Mrs X complained about the Council’s handling and decision on their complaints about breaches of planning control, resulting in their loss of amenity, loss of property value and distress. We find no fault in the Council’s decision making but we find fault in its communications. We recommend it provides Mr and Mrs X with an apology, payment for time and trouble, further written response and consider amending its process to improve its communications in future.

The complaint

1. Mr and Mrs X complain the Council failed to properly investigate their complaints of breaches of planning control on a neighbouring site. This has resulted in loss of amenity and loss of property value. Further, the high fence around their garden causes significant distress to their daughter, Ms Y. They believe the Council has not shown due regard to their human rights in allowing the developer to maintain this.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether an organisation’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)
4. 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)
5. If we are satisfied with an organisation’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

6. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
7. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Human rights

8. The Ombudsman’s remit does not extend to deciding whether a council has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a council has had due regard to an individual’s human rights in their treatment of them or in decisions made by the body.

Protocol 1, Article 1: Protection of property

9. The Human Rights Act says every person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Planning control

10. Where building works meet the statutory definition of “development” as set out in section 55 of the Town and Country Planning Act 1990, planning permission is necessary. A failure to get permission for such a development means it is in breach of planning control and a council may take enforcement action.
11. Permitted development is where the law allows certain works without planning permission.
12. Part 4 of The Town and Country Planning (General Permitted Development) (England) Order as amended allows for temporary buildings and uses to be carried out for short periods of time. This includes “the provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land.”

Council’s planning enforcement policy

13. Planning enforcement is a process to investigate cases where development without planning permission is taking place.
14. Upon registration of the complaint the Council will appoint a dedicated case officer and undertake an initial investigation.
15. If it opens an enforcement case it aims to resolve this within eight weeks.
16. In all cases the Council will produce a report which explains the reasons for the proposed course of action.

Council’s complaint policy

17. The Council has a two stage process, each with a maximum response timeframe of six weeks.
18. If the complaint is complex and the service area is unable to complete a full response by the six week deadline they will contact the customer to discuss the reasons for the delay and to confirm the new response date.

Principles of good administrative practice

19. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This shows we expected similar standards from councils, even during crisis working. Our expectations of councils include:
• Explaining and responding to any delays proactively
• Dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances
• Stating the criteria for decision making and giving reasons for decisions
• Explaining clearly the rationale for decisions and recording them
• Operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld.

What happened

20. The below is a summary of key information relevant to my decision. It does not include every communication between the parties or every detail. And I cannot share any third party data for confidentiality reasons.
21. In late January 2020 Mr X complained to the Council that a neighbouring developer was in breach of planning control as there were large mounds of soil and large containers on the site. He later provided photos in support.
22. In early February the Council sent a letter to the developer seeking contact.
23. Mr X asked the Council if it would carry out a site visit and it told him it would consider if one was necessary.
24. In March the Council chased the developer.
25. In April the Council sent the developer its decision there was a technical breach, based on the information it held at the time.
26. In late May Mr X complained of a further breach regarding fencing. He said it was over 2m high, surrounded his garden, was overbearing, affected his human right to peaceful enjoyment of his garden and was not necessary for the building works which had not yet started.
27. Between mid May and early June the developer gave the Council information about the purpose of the soil, containers and fencing. They also provided photos in support.
28. The Council sent Mr X its decision report on 11 June 2020. It decided there was no breach of planning control. In summary it said:
• No site visit was possible due to the COVID-19 national lockdown. Therefore, it decided in response to photographic evidence provided by Mr X and the developer.
• There was evidence the soil piles arose due to excavations during the build and the developer would remove these on completion if not needed. This did not need planning permission.
• Evidence showed the containers were used for temporary storage and as a restroom during the build. The developer would remove these on completion. As these were not fixed they did not need planning permission.
• The evidence showed a 2.4m high fence to keep the site safe and secure during construction. The developer did not need planning permission for such temporary structures in line with Part 4 of The Town and Country Planning (General Permitted Development) (England) Order.
29. On 17 November 2020 Mr X complained to the Council, disputing its decision. He said:
• He had provided photos to show the soil piles were not related to the build;
• He had provided photos to show items stored were not related to build, and so queried why the Council accepted the developer’s evidence over his;
• No other properties had fencing and there was no sign of works starting soon;
• He asked why the Council did not visit the site.
30. In January 2021 Mr X chased the Council for a response.
31. In March Mr X contacted the Ombudsman and we explained the Council should fully consider his complaint first. On 8 April we told the Council to investigate the complaint.
32. On 28 May the Council replied to Mr X’s complaint, relying on the officer report sent to him in June 2020.
33. On 14 June Mr X further complained:
• The Council had repeated its previous decision but they appealed this in November 2020;
• He enclosed photos to show the topsoil was not present after excavation as the developer suggested;
• He enclosed photos to show the developer kept commercial items unrelated to the build in storage containers.
• The fencing was higher than 2.4m and was excessive. He felt the developer should remove it until building works actually started.
• He was unhappy the Council did not visit the site.
34. The Council issued a further response on 19 August. It apologised for the delay, due to staff absence and internal discussion. It acknowledged it did not respond to Mr X’s letter of November 2020 and this was not addressed in its May response. It would now address this.
35. The Council planned to meet with each party on the site.
36. On 14 October the Council met with Mr X on site.
37. The Council has provided correspondence that shows it was seeking to arrange a date to meet the developer on site from October to December.
38. In November Mr X raised concerns about a damaged septic tank on site.
39. In late December the Council visited the developer on site. It has provided the Ombudsman with photos taken during the visit. These include photos of the site and inside the containers.
40. In January 2022 the Council sent Mr X a further response. It said:
• It met with parties, visited the site and inspected materials on site and in the containers.
• It found the containers were acceptable temporary structures associated with a development site.
• The fencing was permitted development.
• The developer would remove the soil when ground conditions allowed.
41. The Council also commented on the septic tank. And it closed the enforcement case.
42. Mr X remained unhappy. He told the Council:
• He wanted further information regarding the material in the containers and an explanation as to how this countered his own evidence that this was unrelated to the build;
• He wanted to know how the Council decided the developer did not import the soil, why this was not a breach and why there was no deadline for removal;
• He queried:
1. Why the Council referred to the septic tank as this was not part of his complaint;
2. Whether the development would attract an affordable housing levy;
3. The maximum time for completion of the development;
4. When further fencing may go up and why it had to be in place now, before the build started;
5. Why the Council had not acted as to the site being untidy.
43. The Council told Mr X it had provided its decision outcome and would not respond in detail to the points made. It considered the matter closed unless a new breach was identified.
44. Mr X then contacted the Ombudsman.
45. In response to enquiries the Council said it did not have a specific policy about site visits. Officers took a risk based approach and would undertake one if they were unsure they had sufficient information to make a fully informed assessment. The Council did not adopt a formal policy during the COVID-19 pandemic, but after the lifting of the first lockdown, it was agreed to only do outdoor visits, where necessary to minimise risks.
46. As to why the Council did not respond to Mr X’s final points it said no additional evidence came to light to suggest its decision was incorrect. It therefore felt the need to bring an end to correspondence on the case and introduce a closing position. It saw no benefit in continued correspondence, accepting that Mr X was likely to pursue matters through the Ombudsman.
47. In comments on a draft decision the Council said:
• It accepted there were issues with communication up to August 2021.
• Between August 2021 and January 22, while communication was generally prompted by the complainant, their queries were always responded to in a timely manner and there are at least seven examples of this. Given officers caseloads of 50-60 current cases it is not realistic to expect regular updates to the complainants for each case, though clearly any communication should be responded to. The Council is not sure there was injustice caused during this period or that this should be covered by an apology.
• It accepted it should have addressed the further questions (9th Jan) raised by the complainant.
• Notwithstanding the above the Council’s planning enforcement team have decided to review its processes to provide regular prompts to officers reminding them to consider whether an update is required to a complainant. The provision of an update will still be at the officer’s discretion.
48. In comments on a draft decision Mr X said, in summary:
• The Council did not give equal weight to evidence provided by the parties.
• The Council decided taking into account the topsoil would be removed, but this has still not happened. And the Council has since failed to monitor the site.
• The Council decided taking into account that the developer would erect fencing to protect the whole site during construction. But no further fencing has been put up and no construction is taking place.
• He did not agree the structures were temporary. And the Council had not justified its decision which impacted his daughter’s human rights.
• The Council should have visited the site before its June 2020 decision.
• The Council failed to consider any other options which both protected the rights of the developer and those of his daughter.
• His disabled daughter is wheelchair bound and has no independent mobility. He cannot sell the property following the Council’s decision and she therefore potentially faces years of further distress, a factor which they believe has not been given due consideration either by the Council or in the draft decision. She has been deprived of her rights to enjoy her possessions despite the Council providing no evidence of a greater public interest being served by their decision.

Findings

49. Mr and Mrs X contacted the Ombudsman in March 2021, within 12 months of the Council’s June 2020 decision. Any delay by the Council from January 2020 was ongoing at time of this contact. I therefore consider there is good reason to exercise discretion to consider matters from January 2020.

Enforcement decision

50. On review of the Council’s June 2020 decision, I am satisfied it took into account the information and evidence available and decided in line with the law, giving Mr X clear reasons for its decision. The Council’s published enforcement policy does not require a site visit and it explained why it did not undertake one. I find no fault in the Council’s decision making process.
51. In January 2022 the Council gave a further decision following a review of the case and having undertaken site visits. The Council maintained the storage containers did not require planning permission, the fencing was permitted development and noted the soil would be removed. While the Council did not confirm it found no breach regarding the soil it is clear it upheld its previous decision that this did not require planning permission. The Council considered all relevant information and decided in line with the law, giving reasons for its decision. I find no fault in the Council’s decision making process. While Mr and Mrs X dispute the Council’s decision and question its views on the evidence, I cannot say the Council’s judgement is right or wrong. I can only say whether it followed a proper decision making process; the evidence shows it did.
52. In response to Mr X’s comments on a draft decision, it is up to the Council how much weight it attaches to evidence. I cannot question the Council’s judgement. We expect the Council to decide based on the information available to it at the time. If that information is later shown to be incorrect that does not affect whether the Council properly decided at the time. Rather, it is open to the Council to review any decision upon new information or evidence.
53. The Council applied primary legislation in deciding the soil, containers and fencing were temporary structures that were not developments and did not require planning permission. It is not within my remit to say any primary legislation is contrary to Human Rights law. I cannot say the Council failed to have due regard to Human Rights when it acted properly in applying the law. Any dispute as to whether the Council interpreted and applied the law correctly would be a matter for the courts.
54. The Council decided the soil did not require planning permission and it therefore had no powers to act as Mr X proposed. Any further dispute about the Council’s powers to act would be a matter for the courts.

Communication

55. On review of the Council’s actions I find no undue delay between January and June 2020 however there is a lack of evidence it kept Mr X updated on its key actions and decisions. This is fault. Mr and Mrs X suffered uncertainty as a result. This is injustice.
56. Mr X disputed the Council’s decision in November 2020 yet the Council overlooked this and then issued a reply in May 2021 that did not address this. It finally addressed the matter in August 2021. This delay is fault. Mr and Mrs X faced uncertainty and were put to avoidable time and trouble chasing the Council for a response and escalating to the Ombudsman. This is injustice.
57. On review of the Council’s further actions I find no undue delay from August 2021 to January 2022. However, there is a lack of evidence it kept Mr X updated. This is fault. Mr and Mrs X again suffered uncertainty and spent time chasing the Council. This is injustice.
58. As to its final response, while I accept the Council had reasons not to go over the same ground or to give further detail regarding its decision, we would expect the Council to respond to new queries or give a reason why it cannot or will not. The Council did neither. This is fault. Mr and Mrs X have suffered uncertainty as a result.

New matters

59. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. In comments on a draft decision Mr X complains the Council has not monitored the site. However, I will not comment upon or investigate this because it is a new complaint and premature.

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Agreed action

60. To remedy the injustice set out above, I recommend the Council carry out the following actions:
61. Within one month:
• Provide Mr and Mrs X with an apology for the shortfall in its communications;
• Provide Mr and Mrs X with a response to the queries raised by letter 9 January 2022 and summarised at paragraph 42 points 1 to 5, or provide an explanation as to why it cannot or will not address these;
• Pay Mr and Mrs X a total of £200 for time, trouble and uncertainty; and
62. Within three months:
• Consider amending its enforcement process to include updating complainants on its progress, where it is unable to issue a report within 8 weeks. Inform the Ombudsman of the outcome of its consideration, reasons and any timescale for change.
63. The Council has accepted my recommendations.

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Final decision

64. I find no fault in the Council’s decision making on the enforcement complaint but I find fault in its communications. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman