Summary: Mr B complained the Council delayed investigating his concern his neighbour was using his garden as a builder’s yard and did not take enforcement action. He also complained the Council delayed responding to his complaints and its investigation was not impartial. This caused him frustration. The Council was at fault for delays investigating Mr B’s planning concern and responding to his complaint. The Council will apologise to Mr B and make a financial payment to remedy the injustice caused by the delays.

The complaint

1. Mr B complained the Council delayed investigating his concern his neighbour was using his garden as a builder’s yard and did not take enforcement action. He also complained the Council delayed responding to his complaints and its investigation was not impartial. This caused him frustration.

Back to top

What I have investigated

2. Mr B first raised a query about the use of his neighbour’s garden with the Council in August 2018. However, he did not report a concern until September 2019. Therefore, my investigation will consider the period between September 2019 and July 2021, when the Council send Mr D its final complaint response.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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. 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)

Back to top

How I considered this complaint

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

Back to top

What I found

Legislation and Guidance

8. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
9. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
10. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
11. Enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. (Ministry of Housing, Communities & Local Government, 2019, National Planning Policy Framework) Councils may decide to take informal action, formal action, or no action at all.

Council complaint procedure

12. The Council has a two-stage corporate complaint procedure.
13. Stage one - investigation and resolution
• The Customer Feedback, Information and Improvement Team will contact the complainant to acknowledge their complaint within three working days.
• It will agree a timescale for investigating the complaint. This can be between 10 to 65 working days depending on how complex the complaint is.
• It will complete a complaint resolution plan and send a copy to the complainant.
• The Council will provide the complainant with a written response to their complaint.
14. Stage two - complaint review
• The Customer Feedback, Information and Improvement Team will work with the complainant to understand why they feel their complaint has not been resolved and identify any gaps in the investigation. A review is not another investigation but will look at providing an answer to the complaints that remain unanswered.
• It can take between 10 and 30 working days to complete a review, depending on how complex the complaint is. However, the Council will always let the complainant know how long it expects the review to take.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. In September 2019, Mr B told the Council’s Planning, Policy and Building Control department his neighbour had rented out his property and the garden was being used as a builder’s yard. Mr B sent the Council photographs to evidence his concerns. He asked the Council whether this was within planning regulations. Mr B chased the Council for a response in October and November 2019.
17. In January 2020, the Council sent Mr B monitoring forms to record activities in this neighbour’s garden. Mr B told the Council he would not fill these in as he felt they were unnecessary.
18. The Council spoke to the neighbour who explained what the building materials were for. It reviewed the photographs Mr B supplied and decided these were consistent with the neighbour’s explanation. The Council decided there was no evidence of the property being used for business use and therefore there was no breach of planning control.
19. The Council wrote to Mr B in January 2020 and said it was not expedient to take enforcement action against his neighbour. It closed the case.
20. In February 2020, Mr B asked the Council for details of its decision making. He did not receive a response and made a formal complaint in April 2020.
21. The Council sent Mr B a copy of its complaint resolution plan in November 2020. It recorded the complaint as, “The Council have failed to handle a report of a breach of planning in a timely, adequate or reasonable manor in line with its own core values”. It noted the outcome he wanted was answers to his query about his neighbour’s use of the property’s garden. The Council tasked Mr D, an independent officer, to investigate.
22. The Planning, Policy and Building Control department replied to Mr B in December 2020 at stage one of the complaint procedure. It gave Mr B the findings of Mr D’s investigation. It said Mr D found no fault with the department’s decision it was not expedient to serve an enforcement notice. The Council acknowledged its lack of response between September 2019 and January 2020. It explained this was because it needed to gather and review the evidence before it could decide whether to take enforcement action.
23. In January 2021, Mr B told the Council he was unhappy with its response. The Council told him it would consider his complaint at stage two of its complaint procedure. In February 2021, Mr B provided the Council with a list of the matters he wanted it to consider. These included:
• The Council’s complaint response time.
• The Council’s interpretation of his complaint. He advised he did not report a planning breach but asked the Council to provide details of the regulations that allowed his neighbour to use the garden of the property as a builder’s yard.
• The Council had not confirmed whether his neighbour needed planning permission to use the garden of the property as a builder’s yard.
• The complaint investigation was not impartial.
24. The Council sent Mr B a completed complaint resolution plan in February 2021 and explained the next steps in the complaint investigation. The plan noted Mr B wanted “would like it to be acknowledged that the complaint was inappropriately responded to by a person who could not possibly remain impartial.” The Council told Mr B it had not included all the points he had raised in the complaint resolution plan explaining:
• He referred to the word ‘breach’ in his original complaint.
• The Council had confirmed it would not take further action in relation to his report of a breach of planning.
25. The Council apologised for the time it took to consider his complaint. It noted the time he had to wait was excessive and unacceptable.
26. Mr B responded to the Council in March 2021. He asked for information about the Ombudsman. The Council provided this and said it would not progress his complaint to stage two because he was taking his complaint to the Ombudsman.
27. Mr B brought his complaint to us. We told him and the Council, he needed to exhaust the Council’s complaint procedure before we would consider the complaint.
28. In May 2021, the Council asked Mr B to confirm he wanted it to consider his complaint at stage two. Mr B confirmed he did, but he was not happy with the wording of the complaint resolution plan. The Council sent an updated complaint resolution plan. Mr B said he was still not happy with the wording. He provided wording for the complaint, “‘… [Mr D], Group Leader – Development Manager was selected by yourselves to be an impartial person to respond to my complaint lodged against Mr [E]... Mr [D] delivered his findings via letter dated... This letter was signed by [Mr E],…the very man my complaint addressed. This to my mind implies that Mr [D] works under the influence of Mr [E], which to my mind does not imply impartiality.’ The Council updated the complaint resolution plan.
29. An Executive Director responded in July 2021. It advised the first complaint investigation was carried out in line with its complaint procedure and Mr B’s concerns were addressed in a fair and impartial manner.

Council’s response

30. In response to my enquiries the Council acknowledged it took over three months to respond to Mr B’s complaint. The Council apologise for this delay and any distress it caused Mr B and his family.
31. The Council advised it has improved its complaints systems to ensure delays do not reoccur.

Analysis

32. Mr B raised concerns about the use of his neighbour’s property’s garden in September 2019. The Council did not take action to investigate the matter until January 2020. This delay was fault. It caused Mr B frustration and put him to time and trouble chasing the Council.
33. The Council considered the information provided by Mr B and his neighbour and decided there was no breach of planning and therefore it was not expedient to take enforcement action. The Council took account of all the relevant information and its decision was based on the professional judgement of its officers. This was a decision the Council was entitled to make. I found no fault in how it was made and therefore cannot question the merits of the decision.
34. The Council’s corporate complaint policy does not stipulate who should investigate complaints. Therefore, it is up to the Council who it asks to investigate. At stage one and stage two of the complaint procedure, the staff member who investigated had not previously been involved in the case.
35. The Council followed its complaint procedure but did not meet its timescales. The timescale to respond to a complaint at stage one was between 10 and 65 working days and the Council took over nine months. The timescale to respond at stage two was between 10 and 30 working days and the Council took over five months. These delays caused Mr B further frustration.

Back to top

Agreed action

36. Within one month of the final decision, the Council will:
• Apologise to Mr B.
• Pay Mr B £200 to recognise the frustration and time and trouble caused by the Council’s faults.
• Remind the Planning, Policy and Building Control department of the importance of keeping complainants up to date with the progress of its investigations.
• Remind the Customer Feedback, Information and Improvement Team about the corporate complaint procedures timescales and the importance of meeting these.
37. The Council should provide the Ombudsman with evidence it has completed these actions

Back to top

Final decision

38. I have completed my investigation and uphold Mr B’s complaint. Mr B was caused an injustice by the actions of the Council. The Council will take action to remedy that injustice.

Back to top

Parts of the complaint that I did not investigate

39. I considered Mr B’s complaint from September 2019 to July 2021. I did not consider matters before Mr B first reported a concern about planning regulations in September 2019.

Back to top

Investigator's decision on behalf of the Ombudsman