The Ombudsman's final decision
Summary: Mrs X and Ms X complained the Council failed to take enforcement action against development on their neighbour’s land that affects their privacy. We ended our investigation because there was no fault in the way the Council made its planning enforcement decision.
The complaint
Mrs X and Ms X complained the Council failed to control development on their neighbour’s land, which affected their privacy.
Mrs X and Ms X said: the Council was wrong to decide the structure built on the land was a caravan, so it was not development it could control; that a window in the structure overlooks their garden, affecting their privacy; and the Council handled their complaint badly, particularly when it suspended all external communications for two weeks to deal with a backlog in cases.
The Ombudsman’s role and powers
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) 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) We provide a free service but must use public money carefully. We may not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any alleged fault has not caused a significant injustice to the person who complained, or any injustice claimed is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and discussed it with Mrs X and Ms X. I read the Council’s responses to the complaint.
I gave the complainants and the Council an opportunity to comment on a draft of this decision.
What I found
Planning law and guidance 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.
Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within legal limits.
It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
This may happen where: the Council has already granted planning permission for the development or land use; a use, development or proposal is deemed lawful because it complies with regulations and so needs no permission from the Council; or the development or use was unlawful, but the time limit for enforcement action by the Council has now passed.
What happened A builder began constructing a single storey building at the end of their garden. The complainants’ home backs onto the site.
The Council considered whether there was a breach of planning controls. The neighbour submitted an application for a certificate of lawfulness, claiming that the structure was a caravan, and so it could be lawfully sited on the land and used for a purpose ancillary to the use of the main house.
The complainants sent photos, which the Council considered. A Council planning enforcement officer visited the site, took further photos and sought advice from the Council’s solicitor.
The solicitor considered the evidence and gave written advice on whether the Council could take enforcement action. The solicitor’s advice set out the legal tests on whether the structure was a caravan, which are: the construction test; the mobility test; and the size test.
The solicitor advised enforcement officers that the structure passed all three tests and so qualified as a caravan. This meant there was no development that could be controlled by the Council.
The Council issued a certificate of lawfulness to the neighbour confirming this.
The complainants are unhappy with the decision. They do not agree the structure passed the construction test, as they believe the photos they took show it was built in one piece and separated later.
The Council said the photos the complainants sent were considered but were thought to be inconclusive.
Mrs X and Ms X also complained about the Council’s response to their complaints. The Council explained that it had decided to shut its service for two weeks to deal with the backlog in cases due to the COVID-19 lockdown. The Council acknowledged this would have caused inconvenience and delay for some residents, but thought the temporary shutdown was necessary to reduce further delays.
My findings
We are not a planning appeal body and the absence of fault in the decision-making process, we cannot comment on the judgements made by officers and members. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. They should consider the evidence, and if they decide there is a breach of control, they 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. Councils should keep adequate records of their decisions, including the details and background documents they relied on to make them.
In this case, the Council considered the allegations, considered the law and advice from its solicitor, considered the evidence gathered, including that which was submitted by the complainants. It made its decision that it had no power to enforce and kept a record of its decision. This is the process we expect and so I find no fault.
In relation to the complaint handling issue, I should not investigate this further. The Council is entitled to vary its policies and working practices providing it has reason to do so. The Council has explained why it temporarily closed its planning enforcement service and explained its reasons to the complainants. Further investigation by me is unlikely to result in a finding of fault, a remedy for the complainants or some other meaningful outcome.
Final decision
I ended my investigation because there was no fault in the way the Council made its decision.
Investigator's decision on behalf of the Ombudsman