Summary: Mr X complained about the Council’s handling of a planning enforcement investigation. There was fault found in delay and failure to keep proper records. The Council agreed to our recommendations to remedy the injustice caused by the fault and to avoid recurrence.

The complaint

1. Mr X complained about the Council’s handling of a planning enforcement investigation. Mr X said that originally the Council said the initial investigation was superficial and dismissive, and led to a finding that there had been no breach of control. Later, the Council did agree there were breaches of control, but is delaying taking formal enforcement action.
2. Mr X said the development in his neighbour’s garden causes loss of privacy in his garden. Mr X is concerned that the neighbour will sell and move from their home before any enforcement decision is made.

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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. 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

5. I read the complaint and discussed it with Mr X and a planning manager. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning powers and guidance

7. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
8. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
9. However, government guidance makes it clear that, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
10. If the development is already substantially completed, the developer may submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful. If an application is not received within a reasonable time, the Council must decide what action if any is necessary.

What happened

11. Mr X complained about works his neighbour had carried out in their garden. The works included raising ground levels and a raised patio area in one corner of the garden.
12. The Council provided a chronology of events, which I summarise as follows.
• May 2021 – Mr X complains to the planning enforcement alleging breach of control;
• June 2021 – site visit by planning enforcement officer, confirmation of measurements of development, including extension, correspondence with MrX, internal case review;
• July 2021 – internal emails between enforcement officers and managers, further site visit arranged, site visit carried out, complaint received from Mr X and dealt with at stage 1 of the Council complaint procedure, email to developer by planning case officer;
• August 2021 – stage 1 response sent to Mr X, stage 2 complaint received, email exchange between developer and planning case officer, application received and validated;
• September 2021 – stage 2 response sent to Mr X, stage 3 complaint received;
• November 2021 – email and phone call exchange between planning case officer and developer, stage 3 response sent to Mr X, further site visit to view proposal from Mr X’s home, discussion with developer regarding certificate of ownership issue;
• January 2022 – initial complaint to Ombudsman;
• February 2022 - email correspondence with Ombudsman, legal advice sought;
• March 2022 – developer advised to withdraw application due to issue with ownership certificate, developer advised to submit new application, Ombudsman decision to close case to allow processing of new application;
• November 2022 – advice to developer to emphasise need to withdraw application, discussion with architect, complaint to Ombudsman from Mr X;
• December 2022 – application withdrawn, revised application submitted, invalid due to ownership certificate issue.
13. The Council said its view remains that the matter would best be considered through the planning application process. If the developer submits a valid application, the Council will start the consultation process and allow neighbours, including Mr X, to put their views forward on how they are affected by the development before a planning application decision is made.
14. The Council said that one of the considerations affecting its judgement on serving an enforcement notice are long delays for planning appeal applications. If it was to serve an enforcement notice and the developer appealed, this could lead to further delays. A planning manager said that:
• the Council decided there was a breach of control relating to the raised patio area, but not the raised/levelled garden;
• the Council decided not to take enforcement action in relation to the raised/levelled garden because a nearby hedge afforded some privacy and, in its view, there was little impact caused to neighbouring amenity;
• although Mr X’s home adjoined the site, he was not significantly affected by the raised patio area. The raised patio was near the boundary with another neighbour.
15. I asked the planning manager for details of what had happened between March and November 2022. The planning manager said the planning case officer had no records of activity, but recalled regular contact with the developer and their agents during this time.

My findings

16. The Council considered Mr X’s allegations about breaches of planning control and decided to enforce one but not another. Before it made its decision, it was aware of his allegations, the circumstances on site and its powers. This is the process we expect. It was entitled to use its discretion and make its judgements on the allegations.
17. However, following its decision that there was a breach of control, there was significant delay. The information provided by the Council shows gaps where there are no records to show what has happened. One of the gaps is in December 2022, a period that is disrupted by a holiday period. There are no records to explain a larger gap of about six months between March and November. We expect planning application and enforcement action to proceed without undue delay and for any activity to be recorded on the planning file. The delay and failure to keep proper records is fault.
18. The fault is likely to cause frustration, uncertainty and disappointment to Mr X. I recommended a remedy to remedy the injustice caused by the fault I have found, which the Council has agreed.
19. The Council said that it may need more time to carry out the remedy it agreed. The reasons are twofold. First, if it receives a planning application, it will need to follow the decision-making process. Secondly, elections are due in May, and it will take time to reform its committees and elect cabinet members for its functions. Because of this, I agreed to add a month to the deadline I originally suggested. In any event, we can always consider requests for extensions if the need arises.

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Agreed action

20. To remedy the injustice caused to Mr X, the Council has agreed to apologise to him for the frustration, uncertainty and disappointment caused by the delay and inadequate record keeping. This should happen within two weeks from the date of our final decision.
21. To avoid recurrence of the fault and avoid potential injustice to others in future, the Council agreed to:
1. continue its enforcement process and decide what action, if any, is necessary without further undue delay. The Council will provide updates on its progress to the management board and the cabinet member for planning;
2. review its work activity and record keeping processes to avoid drift, delay and gaps in records;
3. report the outcome of the review to the Ombudsman and the Council’s management board and the cabinet member for planning.
22. The Council should provide us with evidence it has complied with the above actions within four months from the date of our final decision.

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Final decision

23. I found evidence of fault that caused an injustice. I completed my investigation because the Council agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman