Summary: Mr and Mrs Y complain about the Council’s failure to pursue timely enforcement action against the unauthorised stationing of two mobile homes near their property. In our view, the presence of the mobile homes does not significantly impact on Mr and Mrs Y’s residential amenity. However, there is some evidence of fault in how the Council corresponded with Mr and Mrs Y about the matter. This caused injustice which the Council will remedy with the actions listed at the end of this statement.

The complaint

1. Mr and Mrs Y complain about the Council’s delays and lack of communication regarding breaches of planning control on land adjacent to their property.
2. Mr and Mrs Y say they have experienced injustice because the breaches of planning control and the Council’s subsequent inaction have significantly affected their residential amenity.

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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. We can decide whether to start or discontinue an investigation into a complaint or any part of a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I contacted Mr and Mrs Y by email and considered the information they submitted, including their complaint to the Council and to the LGSCO.
8. I referred to the relevant planning law and guidance, referenced where necessary in this statement.
9. I made enquiries of the Council and considered its response. I also issued draft decision statements and considered the comments received before writing a final decision statement.
10. I considered the LGSCO’s discretion to investigate matters which Mr and Mrs Y have been aware of for more than 12 months. As the claimed injustice in this case is ongoing, and there is evidence of delay by the Council, I have exercised discretion to consider matters from April 2018 when the Council first received retrospective planning applications for the breaches complained about.

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What I found

What should happen

Planning Enforcement

11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Breaches of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• the 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.
12. In deciding whether it is expedient to begin enforcement action, the authority will take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.
13. Section 171B of the Act sets out the time limits within which councils can take enforcement action. Development becomes immune from enforcement if no action is taken:
• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse.
• within ten years, for any other breach of planning control.
14. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application which must be considered in the normal way.
15. Alternatively, the authority may issue an enforcement notice if it appears there has been a breach of planning control and it is expedient to take formal action. The notice should specify the alleged breach, and what steps are required to be taken to remedy the breach. There is a right of appeal to the Planning Inspector against an enforcement notice.

Lawful Development Certificates

16. Not all existing or proposed development or use of land needs planning permission. For example:
• It is permitted development of a type or size that is already deemed acceptable in regulations;
• It already has planning permission;
• It did need permission but is immune from enforcement action because it continued beyond statutory time limits.
17. It is possible to apply to the planning authority for a certificate which will provide a formal record of the planning status of the development or use. The term ‘certificate of lawful use or development’ is used to describe both certificates of lawfulness of existing use or development (CLUEDs) and certificates of lawfulness or proposed use or development (CLOPUDs).
18. The authority must acknowledge receipt of an application as soon as reasonably practicable. There is an eight week period for determination, unless extended by agreement. Notices of refusal must explain the local planning authority’s reasons and advise the applicant of the right to appeal to the Planning Inspectorate. The onus of proof is on the applicant and the evidential test is the balance of probability.

Background summary of key events

19. Mr and Mrs Y own a property next door to agricultural land which has been subject to development since the 1970s. I will refer to this as ‘the site’. Mr and Mrs Y moved from their house in November 2018 but remain the owners.
20. I will not detail the whole planning chronology in this statement however I will note some of the key developments for context.
21. The site contains one barn previously used for agricultural purposes. Planning records show the Council granted temporary permission for the stationing of one residential caravan by the barn for varying periods between 1977 and 1993.
22. In 2005 the Council granted conditional planning permission for the conversion of the barn into residential accommodation. Around this time the owner and their family lived on the site in one caravan and one mobile home. A condition imposed by the Council said that any caravans or mobile homes must be permanently removed from the site upon occupation of the converted barn.
23. The owner sold the converted barn in February 2018. It is now occupied by a family who have no connection to the previous owners. However, the previous owner retained a parcel of land between the barn and Mr and Mrs Y’s property. This parcel of land now accommodates two mobile homes.
24. After receiving complaints about possible breaches of planning control, the Council made an unannounced visit to the site in March 2018. The Council found evidence of planning control breaches, which included tarmacked tracks leading to hardstanding areas with two mobile homes. The Council also found further unauthorised structures including large sheds, a stable building and dog kennels.
25. The Council met with an agent acting on behalf of the owner of the mobile homes. The Council invited the agent to submit retrospective planning applications to regularise the unauthorised development. The Council subsequently received two applications in April 2018 seeking a Lawful Development Certificate (LDC) for the stationing of a mobile home and a material change of use of land. The Council refused the application eleven months later in March 2019 and in June confirmed its intention to enforce the removal of all unauthorised caravans, outbuildings and hard standing. The Council issued enforcement notices in September 2019.
26. The applicant appealed against the notices to the Planning Inspectorate (PINS). In May 2021 PINS allowed the appeal and granted a LDC for the permanent stationing of one mobile home. This is because PINS was satisfied, on the balance of probabilities, that the applicant successfully demonstrated the mobile home was continuously stationed for more than ten years before the enforcement notice in September 2019. It is therefore immune from enforcement action and is entitled to remain in its current location.
27. However, PINS did not agree that the second mobile home benefited from the same immunity. At appeal, the Inspector assessed the planning merits against the needs of the family and decided: “There is a clear family need now and in the near future. I consider that if it remained there for a temporary period of three years it would provide accommodation for long enough, after that a single mobile home would be large enough to accommodate [mother’s name], her partner or spouse and any of those children still of school age”.
28. Mr and Mrs Y complained to the Council, and then the LGSCO, because they consider the Council did not communicate well and delayed in considering the applications. They claim significant injustice arising from loss of residential amenity and a consequential loss of property value.

Was there fault in the Council’s actions causing injustice to Mr and Mrs Y?

Enforcement action

29. The Council’s records show it was aware of the mobile homes from at least March 2018 when officers undertook an unannounced site visit and invited a retrospective planning application. The first mobile home became immune from enforcement action in April 2019 and is now entitled to remain permanently in place following the LDC issued by PINS. The second mobile home can remain for a temporary period of three years. Mr and Mrs Y complain the mobile homes would not have benefited from enforcement immunity if the Council had maintained planning control and acted without delay.
30. There was a period of one year and three months between the Council receiving the planning application and deciding to serve an enforcement notice. I asked the Council to provide evidence to explain why it had taken so long to serve the notice but was not persuaded by its response. I consider it likely that further investigation would result in a finding of fault caused by excessive delay. However, to justify further investigation, I would need evidence that any potential fault caused significant injustice to the complainants. For the reasons set out below, I found no evidence of significant injustice and so do not intend to investigate this part of the complaint further.
31. I have taken into account the separation distance between Mr and Mrs Y’s house and the mobile homes. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
32. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
33. When considering the impact of the mobile homes on Mr and Mrs Y, I have reviewed satellite images of the area alongside information they have provided. Online mapping shows the side elevation of Mr and Mrs Y’s house is approximately 30 metres from the mobile homes. The window most affected in terms of outlook appears to serve a landing area. There is an angle of offset which further reduces the impact. There are also some established trees and vegetation along the boundary, although I do note Mr and Mrs Y’s comments about the recent removal of some of these.
34. I have reviewed the Council’s reasons for refusing the application. These were not related to loss of residential amenity; instead, the Council was concerned about the impact on the open countryside in a green-belt area. This was echoed by PINS.
35. Taking all these factors into consideration, I am not persuaded that Mr and Mrs Y have suffered a significant loss of residential amenity. Although large, the mobile homes are single storey and do not create any additional overlooking or significantly impact on Mr and Mrs Y’s privacy. The views from Mr and Mrs Y’s property are likely to be somewhat affected by the presence of the mobile homes, but a lost view is not a material planning consideration and so I have not considered this.
36. In terms of intensification of the site, I note the converted barn, which has the benefit of planning permission, is considerable in size and can accommodate a large family. Furthermore, Mr and Mrs Y live close to a busy motorway and will already experience noise and disturbance from this. I am not persuaded the permanent addition of one mobile home and the temporary addition of another will significantly add to the existing noise or disturbance.

Loss of documents

37. In January 2020 the Council asked Mr and Mrs Y to provide an affidavit to prove the truthfulness of their claims about the site. Mr and Mrs Y asked whether the Council would help with the associated costs, but the Council declined.
38. Mr and Mrs Y submitted a signed affidavit by recorded delivery on 27 January 2020. I have seen the proof of postage which verifies this. However, the Council now questions whether it ever received the statement.
39. Having reviewed correspondence supplied by Mr and Mrs Y, it is clear the planning officer in post at the time had sight of the affidavit as they referred to it in their draft report. There is no doubt the Council received it. When the replacement officer took up post, they emailed Mr and Mrs Y on 3 April 2020 to request a further copy, “I have a copy of an extract of this within the officer’s report that [name] started to draft however I do not have a copy of the full document. As such I would be grateful if you could please forward a copy onto me to add to the enforcement file”. Mr and Mrs Y emailed a copy to the Council on 4 April 2020.
40. In my view, and based on the information seen, I find the Council received the affidavit in January, but its location was unknown in April 2020. I consider this caused Mr and Mrs Y some frustration, time and trouble.

Communication

41. In July 2019 the Council emailed Mr and Mrs Y to explain that it was going through the legal process of issuing enforcement notices. Mr and Mrs Y expressed the impact of the site on their ability to sell their house and asked to be kept updated of any developments in the enforcement case. As Mr and Mrs Y no longer live in the house, they did not have the benefit of seeing any site notices.
42. In the meantime, the site owner submitted a further application in August 2019 which Mr and Mrs Y responded to in November 2019. The Council refused the application in December. Mr and Mrs Y complain the Council failed to notify them of the application, despite providing their new postal address in October 2019.
43. In response to this point the Council says that Mr and Mrs Y only asked the Council to ‘note’ their new address and that most correspondence went via email through their planning consultant. However, Mr and Mrs Y only instructed a consultant in March 2021. Furthermore, the Council’s complaint response includes an apology for failing to keep Mr and Mrs Y appropriately informed.
44. Mr and Mrs Y also complain the Council’s online planning portal did not contain the documents for one of the applications submitted in 2019. Mr and Mrs Y notified the Council, and it reinstated the documents.
45. On the balance of probabilities, and based on the information I have seen, I find the Council failed to notify Mr and Mrs Y of the August 2019 application. Mr and Mrs Y took the necessary steps to provide their new correspondence address in April which the Council had significant time to record before August. However, in my view, this did not cause significant injustice because Mr and Mrs Y were notified of the application by a local councillor and submitted their objections which the Council considered before deciding the application. In any event, the Council refused this application, which was the outcome Mr and Mrs Y hoped for.
46. I also find the temporary absence of online planning documents did not cause a significant injustice for Mr and Mrs Y because they still had time to prepare their responses. The Council and PINS considered the views of Mr and Mrs Y throughout the decision-making process. Furthermore, the Council remedied the error as soon as it became aware.
47. Mr and Mrs Y also complain about the Council’s failure to notify them of the appeals. Based on the information seen, I am satisfied that Mr and Mrs Y received notification of the third PINS appeal in 2021. However, there is no such evidence for the two appeals submitted in late 2020 or the PINS appeal decision in July 2021. The Council is expected to notify interested parties and its failure to do so in this case is fault.
48. I have read the PINS appeal decision, which covers all three appeals as linked cases. Mr and Mrs Y’s evidence, submitted in response to the third appeal, is considered for all three cases and referenced throughout. Therefore, I do not find that Mr and Mrs Y experienced any significant injustice as they were aware of the appeal hearing and able to participate as interested parties.

Complaint handling

49. Mr and Mrs Y complained to the Council on 14 March 2019 and received a response on 27 March. Unhappy with the outcome, on 15 April Mr and Mrs Y requested a review of their complaint at the second stage of the Council’s complaints procedure.
50. The Council did not respond to Mr and Mrs Y’s request for a review. Mr and Mrs Y wrote again on 8 May 2019, which the Council responded to on 29 May. This is not in accordance with the Council’s complaints policy which says it will respond to a request for a stage two complaint review within ten working days.
51. The Council’s failure to respond to Mr and Mrs Y’s complaint in accordance with the complaints policy caused Mr and Mrs Y avoidable frustration and time and trouble.

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Agreed action

52. Within four weeks of my final decision, the Council has agreed to:
• Apologise and pay £200 to Mr and Mrs Y. This is to recognise the avoidable frustration caused by the Council’s failure to correspond with Mr and Mrs Y, or their representative, about all three planning appeals and the failure to respond to their request for a stage two complaint review; and
• Write to Mr and Mrs Y setting out the status of any ongoing enforcement action. The Council should provide written updates to Mr and Mrs Y every six weeks thereafter until matters are concluded.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions set out above are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman