Summary: We found no fault on Miss T’s complaint of the Council failing to properly investigate and decide whether her report of a breach of planning consent needed formal enforcement action. It failed to make reasonable adjustments when alerted to her visual impairment. The agreed action remedies the injustice this fault caused.

The complaint

1. Miss T complains when she reported her neighbour’s extension breaching planning consent, the Council failed to:
1. properly investigate and decide whether it needed to take enforcement action; and
2. make reasonable changes to the way it communicated with her despite being told it needed to do so because of her disabilities.
2. As a result, she was put to a great deal of time and trouble pursuing this, lost confidence in the planning team, was caused distress, and felt discriminated against when requests for help were ignored.

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The Ombudsman’s role and powers

3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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What I have and have not investigated

6. We cannot find whether the Council breached the Equality Act 2010 because that is for the courts to decide. Members of the public can apply to the County Court for damages if they believe they suffered unlawful discrimination.
7. What we can do is decide whether the Council was at fault for failing to take account of its duties under it.

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Council’s Enforcement Plan for Planning

8. The Council will not always take action where there is a breach of planning control. Government advice requires it to consider the appropriateness of doing so and the harm caused by the breach. Action should not be taken solely to regularise a matter that is acceptable and would gain planning consent.
9. Planning enforcement can only be considered where the building work or material change of use being done requires planning consent. The National Planning Policy Framework states effective enforcement is important as a way of maintaining public confidence in the planning system. Enforcement action is discretionary, and councils should act proportionately in responding to reports of breaches of planning control. Enforcement investigates possible breaches and aims to deal with them in a positive way through negotiation or direct action.
10. In most cases, it will give the owner a chance to apply for retrospective planning consent unless there is serious harm.
11. Written requests are acknowledged within three working days of receipt and the name is given of the enforcement officer allocated. The officer checks Council records, inspects the site, and interviews witnesses to establish if there is a breach of planning control. An update is sent once these initial checks are done with advice about how the case is likely to progress.
12. It will carry out case reviews of all live cases at 7 weeks and 13 weeks and continue to do so every 13 weeks until it is concluded.
13. Where a person considers there is unreasonable delay, or an error in the way the investigation is being done, the enforcement service will investigate. It will review the situation and, within 10 days of contact, advise what action will be taken.

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Equality Act 2010

14. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
15. The Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in it. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
16. The protected characteristics referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

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Council’s Accessibility Statement for its website

17. This states it wants as many people as possible to be able to use its website which means people should be able to: change colours, contrast levels, and fonts; zoom in up to 300% without text spilling off screen; navigate most of the website using speech recognition software.
18. It accepts parts of the website are not fully accessible, such as PDFs and other documents. It has been removing PDF documents. It is also replacing complex policies and documents from the planning part of the site.

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How I considered this complaint

19. I considered all the information Miss T provided, including the notes I made of our telephone conversations, and the Council’s response to my enquiries. I sent a copy of my draft decision to Miss T and the Council. I considered their responses.

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What I found

Complaint a): Enforcement action

20. Miss T’s neighbour applied for planning consent for an extension to the rear of his property. One side wall of the extension would run close and parallel to her boundary. She made representations to the Council who went on to grant consent. As works progressed, she realised the height of the extension was wrong. The neighbour removed trees near her boundary which should have been kept.
21. When she reported the neighbour for breaching planning consent, officers visited the site. She is unhappy with these visits and information the Council sent her:

• Site visit 1: This was done in December 2022. While there were no notes of this visit, I have seen photographs taken during it. After the visit, the enforcement officer sent her a letter explaining the rear extension was 150mm higher than approved which was needed to allow drainage to comply with building regulations. The letter also told her the neighbour was advised to send an application to regularise the development as built. Miss T did not believe the height was only 150 mm higher than allowed. Nor did she believe this was necessary for building regulations and the Council later confirmed the officer was told this by the neighbour.

The Council later told her the height was measured by the builder and neighbour holding either end of a measuring tape which the enforcement officer witnessed.

The Council accepted it wrongly advised the neighbour in January 2023 to send a Non-Material Amendment application. These applications are for changes the Council considers minor which do not significantly change planning consent. This error was due to confusion by enforcement officers about the correct application needed. The Council then correctly told the neighbour he needed to send a new planning application instead as the height breached planning consent.

The Council also told Miss T it was negotiating with the neighbour for replacement planting for the removed trees. This was only an informal agreement.

• Site visit 2: Two officers visited the site in January 2023. There were no notes of this visit although I have seen photographs taken during it. The builders held the measuring tape which was witnessed by officers who agreed the measurement as accurate. The measurement was 250 mm higher than allowed. The Council confirmed this breached planning consent.

The Council explained the measurement was taken this way for health and safety reasons. Taking the measurement involved climbing a ladder and standing on a flat roof while works were ongoing.

22. Doubtful of the accuracy of this figure, Miss T again contacted the Council about it. In May, the Council told her measurements on the revised drawings appeared to show the height of the extension as 800 mm higher than shown on approved plans. The email warned the officer took these measurements from its website and the measuring tool was very sensitive and gave slightly different readings each time.
23. The Council said the difference in height of the extension built with that shown on the approved plans was 256 mm which it rounded down to 250 mm. It confirmed there was a discrepancy between the measurement taken during site visit 2 and the height shown on the drawings for the new planning application. This is 44 mm, which it considers minor. It is unclear where the 800 mm figure came from.
24. Miss T felt the Council dismissed her concerns throughout. She is unhappy at one point the Council said, ‘Due to matters of perspective’ it would be cautious of comparing her photographs to a two-dimensional drawing. She began to wonder if her visual impairment was the problem, not the actual height of the extension.
25. She is also unhappy she had to chase the Council for updates after site visits when she was told these would be sent to her within 10 working days.
26. The Council told her it would give updates when there was significant progress on a case. It would expect to send a response within a reasonable timeframe if it gave new details.
27. Miss T is unhappy some trees shown on the original planning consent were lost during building works. The replacement trees planted died earlier this year. One of the planning consent conditions required those trees shown on plans as remaining, to be safeguarded by protective fencing during construction works. Details of a landscaping scheme also had to be submitted and approved.
28. The Council decided as planning consent was not implemented, because the height breached that shown on approved drawings, it could not take enforcement action on this condition. While the trees were not formally protected, the Council negotiated with the neighbour who agreed to replacement planting in consultation with its Landscape Officer. The neighbour provided the Council with photographic evidence of the replacement trees.
29. The Council explained these negotiations led only to an informal agreement. This meant it could not formally enforce it. It confirmed it has no further powers to protect these trees from future removal.
30. The neighbour sent a retrospective planning application showing the new extension height which the Council approved.

My findings

31. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there has been a breach of planning control.
32. 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.
33. 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)
34. I found the following on this complaint:
1. Enforcement officers visited the site but did not take the actual measurements themselves on either visit. I am not satisfied this is fault. Each visit needs considering on the individual circumstances at that time. It was done this way because of health and safety concerns for the officers. On both occasions, the Council explained officers observed the builders taking the measurements which they agreed at the time.
2. The measurements from the two site visits differ by 100mm. I am unable to say why there is this difference but note the measurements were done several weeks apart when ongoing works would have created some changes to the site and ground/floor levels. Regardless of why there is a discrepancy, during site visit 1 the Council identified the extension was higher than it should be and needed a planning application to regularise the position. The Council was entitled to decide to informally deal with the breach, by inviting the neighbour to send a planning application, rather than take formal enforcement action at this stage.
3. While the Council accepted the neighbour was wrongly advised about sending a Non-Material Amendment application, it remedied this error by inviting the neighbour to send a new planning application. The neighbour went on to do so and the Council considered it.
4. It would have been good practice for the officers to have made notes of the visits which recorded the measurements or taken photographs showing the tape measure readings. Photographs of the measurement might have helped identify why there was a difference in readings during both visits.
5. The Council accepted the reference in the letter to the 150 mm increase in height was needed for building regulations was what the neighbour had said. I consider including this statement in the letter was fault. This is because the Council accepted this was information passed on by the neighbour to the officer. The Council must exercise care and carefully check what it states in its letters to members of the public who make such reports. This is because the public has a reasonable expectation statements they contain are accurate.
6. While this statement was misleading, I am not satisfied it caused Miss T a significant injustice. This is because despite what it said, the letter went on to explain it advised the neighbour to send an application to regularise the development as built.
7. While there were a few instances of delay in responding to some of Miss T’s emails, on balance, I am not satisfied they amount to fault. This is because there was a large amount of correspondence sent to the Council raising queries and asking for information. In addition, the Council’s enforcement plan states a person reporting a breach will receive an update once initial checks have been done and will give advice about how the case is likely to progress. I am satisfied the planning team, overall, responded relatively promptly to most of her emails.
8. The Council decided the neighbour had not implemented the planning consent granted. Planning permission is implemented when a material operation a council authorises, is carried out. This would include any works including construction or digging foundations, for example. Although the neighbour carried out construction works, the Council decided he had not implemented the planning consent granted. The issue of implementation arose in Atwill v New Forest NPA [2023] EWHC 625 (Admin). The court decided while demolition took place in time on that case, what was eventually built was so different to what was allowed by the consent, the demolition could not be said to be related to it. This meant the development was not implemented.
9. In Miss T’s case, the Council decided the neighbour had not implemented the planning consent. To have reached this view, it must have decided what was built was ‘so different’ to what was permitted the works could not be related to the permission. This was a decision the Council was entitled to take and means it was not fault for it to conclude it could take no enforcement action on the conditions about the trees, for example. I found no fault on this complaint.
10. The evidence shows the Council started informal negotiations with the neighbour about replacement trees which resulted in some replanting. Unfortunately, according to Miss T, these too died. I am satisfied the Council attempted to, and indeed did, reach an agreement with the neighbour about replanting. The neighbour complied with the agreement and did the replanting. Unfortunately, the trees died. The Council is not in a position where it can enforce the informal agreement reached if the neighbour refuses to do further replanting.

Complaint b): Reasonable changes for disabilities

35. Miss T complains that despite several requests for information in large print, this was largely ignored. She was also unhappy the Council sent her emails containing yellow and red print which she could not read.
36. The Council confirmed:

• its duty to make reasonable adjustments in services is anticipatory and it considered in advance what it needed to do to make services accessible to all disabled customers;
• it became aware of her disability on 1 February 2023. I note the evidence shows Miss T alerted it to them on 18 January;
• its website for planning applications is an accessible system and officers told her how to adjust it. It allowed her to zoom up to 300% as well as listen to the content of the website through a screen reader;
• in late March, she asked for enlarged versions of information and plans;
• it accepted she could not use the online option on its website to measure the plans. Officers sent zoomed in screenshots of plans and gave her the actual measurements along with those for the current application;
• it confirmed an officer sent her the measurements from the approved drawings and those sent with the latest application;
• while it did not send enlarged printed documents to Miss T, it made reasonable adjustments; and
• it is not standard practice to record sensitive personal information about third parties or applicants. The planning system is land and property led and the enforcement case was registered against the neighbour’s property. Information about her disabilities was in her emails. This was kept on the enforcement file so was available for officers to read.

37. These are the key pieces of communication between Miss T and the Council:

• 18 January 2023: In her email, Miss T told the Council she had already told an officer she was registered disabled with a visual impairment and mobility issues. She explained it was, ‘incredibly difficult for me to review plans, assess differentials and take pictures etc’.
• 20 January: The Council replied telling her an officer would do another site visit. There was no acknowledgement of her disabilities and nor were these explored with her.
• 1 February: Miss T contacted the Council after further correspondence. She asked for clarification about the height and explained it made assessing plans thought to be accurate, ‘very difficult for a lay person and virtually impossible for someone with a visual impairment or disabilities’.
• 10 February: In another email, Miss T referred to her visual and mobility issues. In its email sent the same day, the Council responded to her queries but again did not acknowledge her disabilities or explore them with her.
• 23 February: When she complained, she said she felt she was given no consideration for reasonable arrangements as a disabled person.
• 10 March: She asked for the actual height of the extension because of her visual impairment. A few days later an officer told her all communication would now be through the complaints team. She emailed the complaints team for the height and again mentioned her visual impairment.
• 14 March: Miss T told the complaints’ team and the planning team she needed the heights of the rear extension as, ‘due to my disability (visual impairment), I am not able to view it on the planning portal’.
• 16 March: She again wrote to officers and the complaints team about wanting the requested measurements and referred to her disabilities.
• 27 March: When she received the complaint response, she again mentioned she could not see documents online because of her disabilities. She asked why her request for height measurements was not acted on.
• 28 March: She again told the Council she was unable to zoom in online and take measurements of the plans herself. This was after receiving a complaint response which said the usual process was to communicate with the reporter of the breach when there was an update or progression on the case. It was not usual practice to share measurements of site visits. All approved documents were on its website which was as accessible as possible and had a function for zooming in to take measurements. The Council sent her the measurements the same day.
• 28 April: Miss T again wrote to the Council after receiving information about an amendment but could not see the plans properly. She again referred to her impairment and noted no action was taken to enable her to view it. Four days later, the Council told her the amendments were nothing to do with the height of the extension but were to window and door design.
• 2 May: She asked the Council for A3 copy plans. The Council sent its response with a copy of the plan marking the height in red. She replied that she could not see it and again asked for it on A3 plan. She again referred to her disabilities and could not view it on a computer when an officer asked if she could do so. The officer apologised and said he was trying to understand how best to help her needs.
• 10 May: The officer posted her the plans, and the following day sent her an email about the 800 mm difference in height.

My findings

38. I found fault for the following reasons:
1. Miss T told the Council about her disabilities, which included both visual and physical issues, in January 2023. There is no evidence showing officers asked her whether the Council needed to make any adjustments to the way it communicated with her to take account of any extra needs she might have because of her disabilities. I am satisfied the failure to clarify, explore, and record this amounted to fault. I am also satisfied this caused her an injustice as she lost the opportunity for the Council to consider her needs and what it could do to meet them. It might have also cut down on some correspondence from Miss T about measurements.
2. Miss T sent several emails between January and March about the difficulties she had trying to access documents on its website. She asked for copies with large print, for example, and measurements she could read. Despite having first mentioned her difficulties in January about viewing plans, it was not until March the Council sent her an email with the measurements. This was after she had formally complained.
3. I am satisfied the Council was slow to respond to her requests and failed to explore with her what the problem was with its online site even with the zoom function. The Council lost several more opportunities to explore the problems Miss T faced. It lost the opportunity of trying to see what it could do to help ensure she could access information she needed.
4. Although Miss T complained about the Council sending her emails containing red and yellow, the evidence does not show she alerted the Council to this problem before. I do note this might have been information the Council could have obtained had it explored her needs when she first alerted it to her disabilities back in January.
5. Miss T also experienced the same problems with access to online plans when told about amendments made by the neighbour in April. Again, this could have been avoided had the Council explored her needs at the start and acted on them.
6. In addition, although the Council said information about Miss T was on the file in the form of emails because enforcement is property led, it did not prove an effective way of ensuring any officer looking at the file was alerted. This is clear as she was asked in May, by a different officer, about whether she could view plans on her computer. It was fault not to have an easily accessible system in place which allowed officers unfamiliar with the case to easily become aware of any reasonable adjustments needed for some members of the public.
7. The identified fault caused Miss T an injustice. This caused her distress. She suffered frustration, stress, anxiety, and lost the opportunity of having information sent to her in a form she could see sooner, for example.

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Agreed action

39. I considered our guidance on remedies.
40. The Council agreed to take the following action within 4 weeks of the final decision on this complaint, unless otherwise stated:
1. Send Miss T a written apology for failing to: clarify, explore, and record what reasonable adjustments she might need, especially when initially alerted; promptly send her information requested when alerted to her difficulties with accessing plans online; have reasonable adjustments in place for when she was told about amendments to the plans; have a system in place which allowed details about her disabilities and reasonable adjustments needed to be readily available to any member of staff who had to contact her.
2. Within 8 weeks, review its planning systems to ensure they can record information about a member of the public’s disabilities and reasonable adjustments needed who reports a breach of planning consent or is entitled to receive notification of a planning application.
3. Review the training of officers in the planning team to ensure they are alert to the need to clarify, explore, and record disabilities and reasonable adjustments when dealing with someone reporting a breach of consent or wanting to make representations.
4. Remind officers of the need to send information promptly when requested because of a reasonable adjustment need.
5. Pay £250 to Miss T for the injustice the identified fault caused.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I found the following on Miss T’s complaint against the Council:
1. Complaint a): no fault; and
2. Complaint b): fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman