Summary: Mr X complained the Council should not have given a neighbour planning permission to build on land in his ownership. We find fault in the Council’s failure to adequately scrutinise the land ownership certificate provided by the neighbour as part of their planning application. We find this caused injustice to Mr X as the neighbour used the planning permission to justify resuming building work on Mr X’s land (and that of another neighbour affected) causing distress. The Council accepts these findings. At the end of this statement, we set out the action it has agreed remedy this injustice and that associated with some poor complaint handling.

The complaint

1. I have called the complainant ‘Mr X’. He is supported in his complaint by ‘Mr Y’. They own land built on by ‘Ms Z’. They complain the Council should not have given Ms Z planning permission to build on their land in January 2020.
2. Mr X has previously gone to Court and won orders declaring Ms Z has built on his land and entitling him to remove structures built there. But he says because the Council gave Ms Z planning permission she undertook further building work. He and Mr Y will now incur more time, trouble and expense in returning to Court to seek a further order for removal of building work. They say this is necessary as the existing Court orders do not allow them to remove the further building work undertaken by Ms Z after she received planning permission.

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The Ombudsman’s role and powers

3. 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)
4. 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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. Before issuing this decision statement I considered:

• Mr X’s written complaint to the Ombudsman and any supporting information he provided including that gathered in a telephone call;
• correspondence between Mr X and the Council pre-dating this investigation about matters at the crux of this complaint;
• further information and comments made by the Council in reply to my enquiries;
• relevant law and guidance as set out below.

8. I also gave Mr X and the Council a draft version of this decision to comment on. I took account of any comments they made before completing my investigation and issuing this statement.

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What I found

Relevant Law and Policy

9. Section 65 of the 1990 Town & Country Planning Act requires that a council “shall not entertain” a planning application that does not meet the certification requirements set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015. It also says that anyone who knowingly or recklessly issues a false or misleading certificate is guilty of an offence.
10. The Council publishes its own information booklet which explains the certificates an applicant must present with a planning application. An applicant can use Certificate A if they are “the only owner of all the land involved in the application”. An applicant should present Certificate B if they do not own all the land involved in the application and know the identity of the other landowners.
11. The Council points out that presenting an incorrect or misleading certificate may lead to a fine if convicted. And the Courts can quash a planning permission granted following submission of an incorrect certificate.
12. Case law has established a Court may not always quash planning permission following submission of an incorrect certificate. This is where the Court has found no prejudice to other landowners.

Background

13. Mr X is co-owner of a garage in the Council’s area. Mr X has made this complaint with the consent of those co-owners.
14. Mr Y owns a property to the east of the garage and his garden borders the garage on that side.
15. To the north of the land owned by Mr X and Mr Y is a house owned by Ms Z. I understand a relative of Ms Z lives in that house. That relative has carried out the building work referred to in this decision statement. The relative has also had involvement in civil court cases, a planning enforcement investigation and a planning application referred to below. However, for ease of reading I will refer only to Ms Z in the singular in this decision statement.
16. Ms Z has made various changes to her house over time. What is central to this complaint is a garage built to the south of the plot; i.e. where it borders the land owned by Mr X and Mr Y. I understand the garage was first under construction from around 2016. Mr X and Mr Y contested Ms Z’s garage encroached on land in their ownership. They went to the High Court and in April 2018 obtained a Court Order which confirmed this. The Court judgement established the boundaries of Ms Z’s house. It found that at its southern and western boundaries, the garage trespassed on land in the ownership of Mr X or Mr Y.
17. The High Court ordered that Ms Z should therefore remove three steel stanchions outside the boundary of her house which formed part of the frame of the garage. It said Mr X could return to Court and seek an order permitting him to remove the stanchions and recover the costs of this if Ms Z failed to comply. The Court also said it would link a copy of its Order to the Land Registry record alongside an expert report which identified the boundaries of Ms Z’s property.
18. Ms Z appealed the Court judgement. In February 2019 she received leave to appeal only that part of the judgement which found one stanchion erected outside the property boundary. Ms Z lost that appeal in November 2019.
19. Ms Z partially removed two of the three stanchions and left the third one standing complete. Consequently, Mr X returned to Court seeking an order for their removal. The Court granted this in January 2020.
20. One day after the Court granted this order the Council approved the planning application at the crux of this complaint.

The Planning Application

21. In May 2018 the Council opened a planning enforcement investigation to consider various potential planning breaches committed by Ms Z. This included the garage under construction to the south of the plot. Photographs on the Council’s planning file show at that time Ms Z had built a frame for the garage and the stanchions which formed part of the Court action were in place.
22. The Council found the size of the garage then under construction exceeded that allowed under ‘permitted development’ rights (i.e. where the applicant needed no planning permission). So, the Council gave Ms Z various choices to regularise development on the land. This included submitting a retrospective planning application for the garage.
23. Ms Z submitted such an application twelve months later in May 2019. With her application Ms Z presented ‘Certificate A’ – saying she owned all the land covered by development.
24. Both Mr X and Mr Y learnt of Ms Z’s planning application and objected. They made the Council aware of the dispute over land ownership and the 2018 Court judgement.
25. In June 2019, the Council contacted Ms Z’s planning agent querying if she had presented the correct certificate. The Council suggested Ms Z should present ‘Certificate B’ instead. The agent replied saying Ms Z had completed the correct Certificate A and would not be building outside the boundary of her land. I note the Agent sent the Council a copy of the Land Registry entry and various attached documents. They included information that Ms Z was appealing the High Court decision of April 2018. I note that at no point in the application did Ms Z present a plan showing the footprint of the garage in relation to the property boundaries or surrounding land. The only plan showing location was a ‘red-line’ plan showing the outline of the whole curtilage of Ms Z’s house at 1:1250 scale.
26. It is not clear the Council gave any further consideration to the certification issue before January 2020 when it determined the application. A planning officer’s report accompanying the decision noted Mr X and Mr Y’s objections, based on their ownership of some of the land on which Ms Z had built the garage. But it said this was a ‘civil issue’ and as such not a relevant planning consideration. The report said that a planning permission would not define the property boundaries.
27. The report discussed the perceived planning merits of the application and found no reason to refuse it.
28. In comments on the complaint the Council has added that it considers: “boundary disputes are a civil matter and outside the jurisdiction of the Planning Authorities. However, if we receive reports that someone believes that the ownership certificate submitted with the application is incorrect, officers will discuss the matter with the applicant. This is what happened in this instance and the Case Officer contacted the applicant and requested that Certificate B be signed as it appeared that they may not own all of the land. The applicant agent responded adamant that this was not the case”.
29. The Council describes the certification process as being to “ensure that all those who have a potential interest in the land are aware that a planning application has been submitted and so that any potential interested parties are able to make a representation on the planning merits of the case”. It suggests therefore Mr X suffered no prejudice from Ms Z not serving Certificate B, as he knew of the planning application.

Events further to planning permission

30. Three days after the Council approved planning permission Mr X got back in touch with it saying Ms Z had recommenced building the garage and was committing a further trespass on his land.
31. Separately Mr X also contacted Ms Z directly asking her to stop the trespass. The reply Mr X received from Ms Z said “we are building lawfully and within [the] granted planning permission”.
32. In its replies to Mr X the Council said it could not have delayed any longer deciding Ms Z’s application, having delayed to consider the issue over land ownership. It also referred to encouraging Ms Z to present a Certificate B but that she had chosen not to. The Council said it had clarified with Ms Z that approving planning permission would not impact on any civil dispute over ownership.
33. Mr X exchanged further emails with planning officers over the next few weeks and corresponded in April 2020 via his MP, but I do not note any significant change in the Council’s position.
34. Then, in November 2020 Mr X made a complaint via the Council’s corporate complaint procedure. His complaint said the Council should not have approved Ms Z’s planning application given the High Court judgements. Mr X said Ms Z had used the planning permission as a reason to resume construction of the garage. Mr X said he would need to begin separate proceedings in the Court to remove the garage structure where it trespassed on his land. This was because the Court order allowed him to remove the stanchions but not any other part of the structure.
35. The Council acknowledged the complaint and said it would reply before the end of December. But it failed to do so and nor did it respond to three emails Mr X sent chasing a reply in January and February 2021. So, in March 2021 Mr X asked to escalate his complaint to Stage 2 of the procedure because of this delay.
36. The Council replied to the complaint in May 2021. It apologised for the delay which it said was because of the impact of the COVID-19 pandemic on normal working practices and due to the Council having made staffing cuts because of budgetary constraints. I note here the Council restricted spending in November 2020 under a notice served under Section 114 of the Local Government Act 1988. These notices are served when a council anticipates a budget overspend. The Section 114 notice remained in force until March 2021.
37. The Council said it had reviewed previous communications with Mr X and did not consider it could add to the response given to his MP previously. The Council said in that, the Court orders gained by Mr X and Mr Y were “immaterial” to its consideration of the planning application. It said the planning permission given to Ms Z would not prevent Mr X taking further civil action against her.
38. In comments in reply to our enquiries the Council has said that its handling of Mr X’s complaint is not typical. That in the past 18 months it has replied to around 80% of corporate complaints within 20 working days, although this figure drops to around 50% for complaints about the planning service. The Council has again highlighted the pressures caused by the pandemic and budgetary constraints.
39. The Council says it is taking a series of steps to improve its complaint handling. These include:

• undertaking a review of the members enquiry process;
• recruiting staff into its planning service;
• having more team managers respond to complaints;
• implementing a new complaints management system;
• improving communication with residents over delays in complaint handling;
• using service improvement meetings between the complaints team and the planning team.

Findings

40. I note Mr X has framed his complaint with reference to the Council granting planning permission to Mr Z. He considers the officer’s report which recommended approval flawed because it did not address the question of whether Ms Z’s garage trespassed on land outside her ownership. While the Council has defended the consideration of its planning officer, saying that civil disputes about land ownership are not a material planning consideration.
41. On this latter point I consider the Council is correct. Land ownership is not a relevant planning consideration. In other words it is not something that counts in favour or against a planning application. But this does not mean the question of land ownership has no relevance to the planning process. Because the law is clear that applicants must produce certification to show whether they are building on land they own or which is in third party ownership. The Council must pay attention to which certificate the applicant provides as it must not “entertain” an application with incorrect certification. There is no discretion in that. The law uses the word ‘shall’, meaning it is mandatory on the Council to reject such an application.
42. I accept that in practice the Council will rely first on the word of the applicant that they have produced the correct certificate. I also accept the Council is not responsible for resolving boundary disputes where neighbouring landowners disagree. But where someone challenges a certificate the Council must have some process not only for raising that with the applicant but bringing its own judgement to bear on the matter. Because there will also be cases where the land ownership position is obvious.
43. I cannot see the Council scrutinised Ms Z’s service of Certificate A through any such process here. It has provided no explanation or audit trail for what happened in the seven months between Ms Z’s agent maintaining she had provided the correct certificate and the Council issuing its decision. An examination of the Council’s enforcement log suggests the Council only issued a decision in January when its enforcement officer queried at that time with the planning officer why they had not taken a decision on the application.
44. So, I find the lack of scrutiny of Ms Z’s submission of Certificate A is a fault.
45. Had the Council undertaken such scrutiny then there were two key points for it to consider. First, Ms Z’s application was part-retrospective. Photographs taken by the Council in May 2019, when it registered the application, show the frame of the garage in position. The photographs show the stanchions on Mr X and Mr Y’s land.
46. Second, the Council knew of the April 2018 High Court judgement. And it knew of the resulting documents placed on the Land Registry records. It could consult the surveyor’s report which clearly established the stanchions fell outside land in Ms Z’s ownership. While I note Ms Z had appealed that judgement, by May 2019 the Council had refused a large part of that appeal. And when the Council determined the application in January 2020, it had dismissed the whole appeal. I consider this is information the Council could have easily obtained in its consideration of the certification issue.
47. This was not therefore a case where the Council received a Certificate A and it was asked (in effect) to adjudicate on a land dispute. Ms Z may have disagreed with the findings of the High Court, but there was no or little substantive dispute. Because the facts about land ownership in this case were clear and in the public domain. In May 2019 and all points after that, it was clear at least some of the garage structure was on land outside Ms Z’s ownership.
48. It would appear the Council would have felt more comfortable had Ms Z presented a Certificate B. But it should have gone further. It would not have taken much to point out to Ms Z or her agent the structure under construction was already on land outside the property boundary. It could have sought some further clarity about whether Ms Z intended moving the stanchions. Or asked her for a scaled plan showing the footprint of the garage in relation to that owned by Mr X.
49. Without such further evidence, I cannot see how the Council could decide the Certificate A was appropriate. In which case it was also fault for the Council to proceed to determine the application. Because as I have noted above where the Council receives the wrong certificate it has no discretion. It should not entertain the application.
50. A further fault then followed in the handling of Mr X’s complaint. I recognise the Council faced the pressures it described during the six months Mr X waited for a reply. But the delay in this case was still unacceptable and compounded by the failure to keep in touch with him.
51. What then is the injustice caused to Mr X? I take the point made by the Council that certification serves as a form of notice to landowners affected by planning applications. Mr X and Mr Y were fully aware of the planning application here. Arguably therefore the Council’s fault in accepting the Certificate A made no difference to the outcome of the application. It would have made the same decision on the merits of the planning application had Ms Z produced a Certificate B as that consideration would be neutral of the land ownership issue.
52. But I consider this would be to overlook what happened in this case. Regardless of what the Council said to Ms Z or what it wrote in the planning officer’s report, she clearly believed the planning permission entitled her to resume building of the garage. That is clear from her email to Mr X. I consider this finding also reinforced by the timing of Ms Z’s resumption of building work. While Ms Z did not comply with the April 2018 Court Order she evidently delayed resuming work on the garage at its closest point to Mr X’s land until January 2020. This was in the immediate days after the Council gave planning permission.
53. On balance therefore I consider Ms Z would not have embarked on this action, not at that time, were it not for the Council granting planning permission on an application it should not have entertained on the evidence in front of it. While the responsibility for the distress this causes Mr X must primarily rest with the actions of Ms Z, the Council has contributed something to that through its faults. Because Mr X must now expend further time and trouble in resuming civil action against Ms Z with some inherent distress and uncertainty in that process. That is an injustice.
54. A second injustice is the time and trouble Mr X experienced pursuing his complaint.

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Agreed action

55. The Council has accepted these findings. To remedy the injustice caused to Mr X by its actions it has agreed to take the following action within 20 working days of a decision on this complaint:
1. it will apologise to Mr X accepting the findings of this investigation;
2. it will pay Mr X £750 in recognition of his distress, time and trouble.
56. The Council has also agreed that within 20 working days of a decision on this complaint it will give Mr Y an apology and pay him £500 in recognition of his distress. I recommended this noting the Ombudsman’s powers described in paragraph 5.
57. The Council has also agreed to try and learn lessons from this complaint. Within two months of a decision it will issue clear guidance for its staff on the approach it expects them to take when a certificate accompanying a planning application is challenged. This must involve a degree of scrutiny and decision making by the Council and include keeping an audit trail of the same. The Council should also ensure that it is has a process that considers the case for enforcement where it is presented with evidence which might lead it to think the certificate accompanying an application is knowingly false or misleading.
58. The actions agreed take account of the Ombudsman’s published guidance on remedies. I recognise the financial remedy proposed may not cover any costs incurred by Mr X or Mr Y in taking further civil action. But the action agreed takes account of the considerations set out in paragraphs 52 and 53, and of the Courts’ powers to award costs in any action taken. The award is lower for Mr Y as Mr X pursued this complaint and therefore incurred the time and trouble associated with the handling of that.
59. I did not think it appropriate to recommend any reconsideration of the planning permission given to Ms Z. This is after taking account of the precedent of Court decisions which have usually allowed planning permissions to stand notwithstanding where a Certificate A has been presented in error; so long as the neighbouring landowner was aware of the planning application.
60. I did not recommend any procedural remedy in respect of the Council’s complaint procedures in view of the welcome steps it is already taking in that regard.

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Final decision

61. For reasons set out above to uphold the complaint finding fault by the Council causing injustice to Mr X and Mr Y. The Council accepts this finding and has agreed action to remedy their injustice. Consequently, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman