The Ombudsman's final decision
Summary: Mr X complains that the Council failed to take enforcement action against his neighbour when their development was not permitted development. The Council is at fault as it delayed in investigating Mr X’s complaint of an increased roof height and delayed in making a decision as to whether it is expedient to take enforcement action. The delay caused avoidable uncertainty and frustration to Mr X which the Council should apologise for.
The complaint
Mr X complains that: The Council wrongly determined an application for prior approval in 2014 for works to a neighbouring property to be in accordance with class MB of the General Permitted Development Order.
The Council has failed to take enforcement action against his neighbour when finding the development at the Apple Barn was not in accordance with class MB of the General Permitted Development Order.
What I have investigated I have investigated complaint b). I explain at the end of this statement why I have not investigated complaint a).
The Ombudsman’s role and powers
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) 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) 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) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I have: Considered the complaint and the information provided by Mr X; Discussed the issues with Mr X; Made enquiries of the Council and considered the information provided; Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance.
In 2014 the Government made changes to the Town and Country Planning (General Permitted Development) Order 1995 (GDPO). This allowed the change of use of existing agricultural buildings into a maximum of three houses without planning permission. To apply an application must put in a prior notification application and a council has 56 days to respond to the application to say whether prior approval is needed. If a council does not determine the application within 56 days then the application is approved by default.
Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59) The Council’s Local Enforcement Plan provides cases will be categorised in order of priority which may change depending on the findings of a site visit and initial review. Priority one cases include complaints about the unauthorised stationing of caravans, unauthorised works to listed buildings and protected trees. Priority two cases including breaches to planning conditions, changes of use to land or buildings and all other potential breaches. The plan states the Council will carry out a site visit within one working day of receiving a report of a priority one breach and a site visit within 10 working days of a priority two breach.
What happened
Background
Mr X lives in a listed building within a small group of former agricultural buildings. Some years ago Mr X’s neighbour submitted a prior notification application to change the use of one of the buildings into two dwellings. Mr X made a complaint to the Ombudsman about how the Council had dealt with the prior notification. We found fault as the Council did not determine the prior notification application within 56 days so the application was approved by default. I refer to this application by way of background and the Council’s consideration of it does not form part of my investigation.
This complaint In 2020 Mr X raised a number of complaints about his neighbour’s works to the convert the building. These included the siting of a caravan, agricultural land being used as a garden and that the works had not commenced before the approval expired. The Council considered some works required including the siting of the caravan required planning permission but it was not expedient to take enforcement action.
In February 2021 Mr X reported that the roof height of the development had been increased so was not permitted development in accordance with class Q of the General Permitted Development Order. Mr X also raised the works had not been completed within three years of the prior approval date as required by class Q which he considered to be applicable. The Council acknowledged Mr X’s report and said it would respond within 11 working days.
Mr X chased a response. Officer A, enforcement officer, replied and advised a site visit was not required at this stage and she be writing to the owner. She also explained that cases were being prioritised according to the public harm and seriousness of the breach due to pressures on the team caused by staff shortages, increased workload and COVID-19 measures. She advised the alleged breach reported by Mr X was not high priority.
Mr X sent a further email as he was unhappy that the Council did not consider the alleged breach to be priority one. Officer A replied and explained why she considered the alleged breach to be low priority.
In early May 2021 officer A sent an email to Mr X advising she had been unable to write to the owner of the development as yet due to the Enforcement Team’s workload. Mr X raised concerns the Council was not complying with the timescales set out in its local enforcement plan.
In May 2021 the Council carried out a site visit and has said it considered the development was not detrimentally harmful visually or to neighbouring amenity.
Officer A wrote to Mr X in mid May 2021 with the outcome of her investigation. She advised the prior notification order application was submitted under class MB of the GPDO and the prior approval date was December 2014 as the approval was granted by default. This meant the relevant condition in place was that the development should be begun within three years rather than completed within three years. The previous enforcement investigation showed the development should be started within three years of the prior approval date. Office A said she was closing the file. However, she did not address Mr X’s complaint about the roof height.
Mr X sent several emails to the Council raising a number of issues. These included his disagreement with officer A’s decision that class MB applied to the development, the Council’s consideration of the prior notification application and that the windows in the new development were not permitted development. Mr X also complained the Council had not investigated his complaint about the roof height. The Council considered Mr X’s complaint at stage one of its complaints procedure. The Councill said it had investigated Mr X’s complaint about the external dimensions of the building extending beyond the existing building and concluded there was no breach. It invited Mr X to submit further information.
In June 2021, the Council reopened the investigation following further information from Mr X about the height of the building. The Council has said it also sought legal advice and carried out a site visit.
Mr X escalated his complaint to stage two of the complaints procedure and raised a number of issues. The Council advised its enforcement investigation into the external dimensions of the building had been reopened. The Council also said it considered the stage one response was thorough and it could not add anything more at stage two. The Council advised Mr X he could now make a complaint to the Ombudsman.
The Council considered the increased roof height resulted in the whole height of the building not being permitted development. In August 2021 it invited the developer to submit a planning application for the development as built. The Council has said it followed up with the developer in late September 2021 and the developer then confirmed they were unable to submit a planning application. In May 2022 the Council made a decision that it was not expedient to take enforcement action. In response to my enquiries, the Council has acknowledged there was some delay in processing its report on whether it was expedient to take enforcement action. It has also acknowledged there was a delay of nine days in notifying Mr X of its decision not to take enforcement action.
Analysis Judicial review application.
During the course of my investigation Mr X made an application to the court for judicial review of the Council’s decision not to take enforcement action. Mr X’s claim includes his complaint that the Council wrongly decided the extent of the glazing in the development to be reasonably necessary to convert the building to residential use. I therefore do not have discretion to investigate this aspect of Mr X’s complaint. However, Mr X’s complaint of delay in the enforcement investigation is separable from the Council’s decision not to take enforcement action so I have continued to consider this matter.
Enforcement investigation Mr X raised his concerns about the roof height of the development in February 2021. The Council only made a decision on whether to take enforcement action in May 2022. On balance, I consider there is evidence of delay in the investigation.
The Council considered the potential breach to be low priority so a priority two case. In accordance with its local enforcement plan, the Council should have carried out a site visit within 10 working days of the report. The Council has said it did not consider a site visit to be necessary but carried out a site visit in May 2021. It has not satisfactorily explained its change of position. I acknowledge the COVID-19 pandemic will have impacted on the Council’s ability to meet the initial investigation timescales set out in the enforcement plan. But I remain of the view there was a delay of two months in carrying out a site visit which is significant and, on balance, amounts to fault.
The Council has acknowledged there was some delay in processing the report on whether it was expedient to take enforcement action. This meant insufficient action was taken between November 2021 and March 2022 which delayed its decision. This is fault. It has also acknowledged that it delayed by nine days in notifying Mr X that it would not take enforcement action and has offered to apologise for this delay.
The local enforcement plan does not specify a timescale for the conclusion of an investigation. I also acknowledge the Council disagrees there were delays in the enforcement investigation. But we expect local authorities to carry out enforcement investigations and make enforcement decisions expeditiously. I therefore consider the delays in the investigation and in making a decision on whether to take enforcement action is fault.
Complaint Mr X is unhappy the Council did not reply fully to the issues he raised in his stage two complaint. The Council considered Mr X’s complaint and decided it could not add anything to its stage one response. This is a decision the Council is entitled to make and does not amount to fault.
Injustice to Mr X The delay in investigating Mr X’s complaint about the increased roof height and in making a decision on whether it was expedient to take enforcement action will have caused frustration and uncertainty to him. The Council’s failure to notify Mr X of the outcome of its initial investigation into the roof height in May 2021 will also have caused frustration to him.
The Council has offered to apologise to Mr X for the delay in notifying him of the enforcement decision which is a proportionate remedy. But it should also apologise to him for the frustration and uncertainty caused by the delays in the enforcement investigation.
Agreed action
That the Council sends a written apology to Mr X for the frustration caused by its delay in notifying him of its decision not to take enforcement action. The Council should take this action within one month of my final decision
Final decision
The Council is at fault as it delayed in investigating Mr X’s complaint of an increased roof height and delayed in making a decision as to whether it is expedient and proportionate to take enforcement action. The delay caused avoidable uncertainty and frustration to Mr X which the Council should apologise for.
Parts of the complaint that I did not investigate Mr X has complained about the Council’s consideration of the prior notification application in 2014 and considers the development was not permitted development. Mr X has raised different issues to those he raised when he made his previous complaint to us. He was also not aware until 2021 that the Council considered the application was decided by default in December 2014 so class MB of the GPDO applied. I have carefully considered if I should investigate this complaint and taken account of Mr X’s reasons for why I should. But I do not consider I should investigate this aspect of Mr X’s complaint.
I cannot reconsider a complaint we have previously decided. Any consideration of the new issues raised by Mr X about how the Council decided the application will inevitably stray into matters we have previously investigated. Furthermore, I could not reliably investigate the Council’s consideration of the application and reach sound conclusions several years after the event.
Investigator's decision on behalf of the Ombudsman