Summary: Mr X complained about the Council’s actions in relation to alleged planning control breaches at a development near to his home and about poor communication. We found fault because the Council did not act in a timely manner when beginning its investigation into the breaches and its communication was poor overall. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Mr X and issue reminders to relevant officers.

The complaint

1. Mr X complains the Council has not acted swiftly to enforce two planning control breaches concerning a nearby property development, since he reported issues in July 2023. He also complains of poor communication from the Council and that it has not properly responded to his complaints.
2. Mr X says the planning control breaches affect his privacy and the enjoyment of his home causing him distress and frustration.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Planning control breaches

8. A breach of planning control is defined under Section 171A of the Town and Country Planning Act 1990 (as amended) 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.

Enforcement

9. 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.
10. 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.
11. 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.
12. 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 September 2023, paragraph 59)

The Council’s enforcement plan

13. The Council has a planning enforcement plan which details what it can and cannot do in relation to planning breaches.
14. The plan reflects that the response time to complaints may vary from time to time. It states that this is due to the fluctuating workload of the department but that it will try to provide a high standard of service delivery.
15. It states that the deadline for a first site inspection will be within 10 working days of being advised of the issue.
16. The policy also publishes service standards which state:
• all enquiries will be acknowledged within a maximum of five working days;
• the acknowledgement will give a reference number and set out when the enquirer can expect to hear from the team again;
• the enquirer will be informed of key milestones in the investigation;
• the enquirer will be informed of the outcome of the investigation; and if no action is to be taken, this will be explained.

What happened

17. I have set out below a summary of the key events. This is not meant to show everything that happened.
18. At the beginning of July 2023, Mr X made a complaint to the Council about alleged planning breaches relating to building works adjacent to his home. Mr X complained about the positioning of a new fence and missing trees, both of which he said were not in accordance with the approved plans.
19. In mid-July 2023, the Council wrote to Mr X to explain the issues would be investigated by a planning enforcement officer (Officer A). The Council advised that any breaches of planning control often took ‘a considerable amount of time to resolve’. It said it would contact Mr X as soon as possible about whether it intended to take any action or not.
20. Towards the end of August 2023, and after Mr X had telephoned the enforcement team to chase progress, Officer A visited the site. He did not look at the fence from Mr X’s location. Officer A considered there was no planning breach but would carry out a further visit and leave the case open. Officer A telephoned Mr X to advise but could not get hold of him.
21. At the end of August 2023, Mr X again chased the enforcement team for an update. The enforcement team replied and copied Officer A in to the email so that he could respond to Mr X and that Mr X had his contact details.
22. Towards the end of September 2023, Mr X chased both Officer A and the enforcement team for an update as he had still not heard from the Council about what was happening. He asked why his requests to be updated were being ignored.
23. At the beginning of October 2023, Officer A and a senior manager visited Mr X’s home. The officers were able to see the new fence from his garden. This showed it had been built close to, but inside, the boundary of the neighbouring land rather than replace the older fence which was sited along the boundary. Mr X said the old fence was not fit for purpose as it was incomplete and damaged.
24. Following the visit, Officer A reviewed the plans for landscaping and realised there was a breach. The review showed that trees which were on the plans and would give Mr X’s garden more privacy had not been planted.
25. Towards the end of November 2023, Mr X emailed the Council to make a formal complaint. He said that since the October visit he had again not been updated and wanted to know what action had been taken.

2024

26. Mr X brought his complaint to the Ombudsman at the beginning of January 2024.
27. The Ombudsman then made initial enquiries with the Council. In response to these, it said enforcement issues remained largely outside of its complaints process as any breaches could take a long time to resolve. The Council said it had asked the enforcement team for an update to be sent to us.
28. A week after the Council’s email to us and in mid-January 2024, Officer A made various enquiries to try and get contact details for the site developer responsible for the fence and planting. Officer A then updated the Ombudsman on what had happened so far.
29. In mid-February 2024, the Council advised the Ombudsman that it had now been contacted by the site developer and asked which trees the Council wanted it to plant.
30. At the end of February 2024, the Council emailed the site developer to advise of the breach regarding the trees and requested the trees be planted.
31. In March 2024, the Council completed checks with another agency to establish who had an interest in the land. In April 2024, it completed a further site visit.
32. At the end of May 2024, the Council updated Mr X. On the same day, the Council again emailed the site developer regarding the tree planting.
33. Late in July 2024, Mr X confirmed the missing trees had still not been planted.

Analysis

Context

34. The Ombudsman is not an appeal body. We do not make planning decisions. Rather, we consider whether there was any fault in how the Council acted when considering any relevant legislation, guidance or local policy in relation to the matters concerned.
35. If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.

Fencing

36. Mr X complained the new fencing had not been built along the boundary line to replace the old fencing which created the boundary between his garden and the adjacent development. He said the new fence had been built inside the boundary of the adjacent site and the old, dilapidated fence remained.
37. It is for the Council to consider whether or not it takes enforcement action regarding this. In response to my enquiries, it said it did not consider the location of the new fencing to be a breach of planning control. It also advised that it was not for the local planning authority to determine the exact location of a boundary and that it considered the fence provided was done so in line with planned boundary treatments. The Council said that planning consent did not comment on or place a requirement on the removal of the previous boundary treatment (the fence). On this basis, the Council does not intend to take any further action.
38. In the circumstances of this complaint, I am satisfied the Council has considered the relevant facts in deciding whether or not it should enforce the location of the new fencing. Whilst Mr X may disagree with the Council’s decision on the matter, a difference of opinion is not evidence of fault. On this basis, I find no fault in relation to the Council’s decision not to enforce the fence location.
39. However, there is no evidence that the Council has at any time communicated its stance regarding the fence to Mr X. Mr X confirmed that at the time of my draft decision, he was unaware of what the Council intended to do about the fence. Given that it was one of his specific complaints and was referred to in the notes of the August site visit, I am satisfied this lack of communication regarding the fence is fault. The Council should have advised Mr X that it did not intend to pursue the issue further. This would have caused Mr X avoidable frustration and distress. I have made a recommendation below to remedy this injustice.

Trees

40. Notes from Officer A’s site visit in August 2023 do not mention trees despite this being part of Mr X’s complaints to the Council in July. Officer A had inspected part of the site but not the area adjacent to Mr X’s property and where plans showed there should be trees planted.
41. When the Council visited the site for a second time at the beginning of October 2024, it agreed there was a breach as two trees should have been planted in the garden of the neighbouring site closest to Mr X’s home.
42. Following this, the Council then took no further action until mid-January 2024. This was after Mr X had complained to the Ombudsman and we had made initial enquiries to the Council.
43. In response to my enquiries sent after this, the Council explained it had a very high number of enforcement cases, that work had been undertaken to ensure officers could pursue matters in a timelier way and that officers are carrying a caseload double to what is normally expected. The Council said that officers had to robustly prioritise cases on a weekly basis.
44. Whilst I acknowledge this, it took the Council 36 rather than 10 working days to complete the initial site visit. This is not in line with its own plan and is nearly four times longer than its stated response time for an initial visit. Also, it does not explain the lack of action after the second site visit where despite identifying the breach regarding the trees, it took no further action for nearly three and a half months. I am satisfied, that in the circumstances of this complaint, this delay and lack of action is fault. It meant the case was not appropriately progressed and would have caused avoidable distress and frustration for Mr X. I have made a recommendation below to remedy this injustice.
45. After it made enquiries in January 2024, the Council was proactive throughout the month and into February 2024 to try and establish who was responsible for planting the trees. This resulted in the Council advising the site developer of the exact breach at the end of February 2024. Further action took place on the case in both March and April 2024.
46. At the end of May 2024 and two days before it was due to respond to my enquiries, the Council again emailed the developer to chase a response to its email sent late in February.
47. I acknowledge Mr X’s frustration that the trees have still not been planted. However, any planning enforcement action is discretionary. This means it is for the Council to decide how it thinks it can best move the matter forward and take action (if any) that it considers proportionate to the breach in question.
48. The Council has confirmed it views the matter as a breach and is taking action to resolve it. I am satisfied that since January 2024, the Council has taken steps to move the case forward and there is no fault on the Council’s part in seeking to resolve the matter informally.

Communication

49. Mr X complains of poor communication throughout the process. In response to my enquiries, the Council pointed out that its initial letter to Mr X in July 2023 advised him that such complaints often take a long time to resolve and that he would be notified as soon as possible as to whether any action would be taken.
50. Whilst I acknowledge Mr X was advised of this, I am satisfied the Council’s communication should and could have been better. It did not adhere to the standards set out in its own planning enforcement plan. It did not acknowledge his enquiry within five working days, or advise when he could expect to hear from it again. I consider that telling Mr X he would be ‘notified as soon as possible as to whether any action could be taken’ and advising him when he could expect to hear from it are not the same thing.
51. Mr X was unaware of the 10-day target to visit the site. He was unaware the first site visit had taken place as the officer made no further contact after the visit other than two failed attempts to speak to Mr X on the telephone on the afternoon of the visit. I do not consider the Council advised Mr X of key milestones or provided a high standard of service delivery as outlined in its plan.
52. In response to my enquiries, the Council said it had updated Mr X in September 2023 and May 2024. However, it did not advise him of what action it intended to take following the October 2023 site visit, nor did anyone contact him after he registered a formal complaint in November 2023. The Council did not update him about the actions it was taking after he complained to the Ombudsman and the Council then began to make enquiries into the case. It did not advise him throughout late 2023 or early 2024 that it was seeking to resolve the situation informally, or advise him it had managed to contact the site developer and send subsequent chase emails to it.
53. I acknowledge the Council will not update Mr X on every action it takes. However, I am satisfied, that in the circumstances of this complaint, the Council has not communicated with Mr X in a clear and timely manner about the issues he reported to it and the actions taken to deal with them. This is fault. It will have caused Mr X avoidable distress and frustration. I have made a recommendation below to remedy this injustice.

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Agreed action

54. Within two weeks of the date of my final decision, the Council has agreed to provide Mr X with an update on progress.
55. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr X for the lack of communication regarding its decision on the fencing, its delayed initial site visit, the avoidable delay in taking action after identifying a breach, and for its poor communication overall;
• pay Mr X £200 to recognise the avoidable distress and frustration caused by the identified faults;
• remind relevant officers and managers of the need to progress cases without avoidable delay; and
• remind relevant officers and managers of the content of the Council’s own planning enforcement policy and how it should communicate with and update those who have reported issues to it.
56. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
57. Payments made are in line with the Ombudsman’s guidance on remedies.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman