Complaint 7

1 June 2004

1. On 13th September 2000, Mr Webb's agent, the John Derbyshire Design Partnership made an application for planning permission for the erection of a timber building to form a garden store within the curtilage of his own property, The Barns, in Walk Lane, Irby upon Humber.

1.1 Planning permission for the garden store was granted on 2nd November 2000 (Appendix 1) -Application Number (DC/780/00/WOL).

1.2 The garden store was constructed and completed in the summer of 1991.

1.3 On 29 August 20011 Mr Webb received a letter from "R" (Director of Environmental Services), signed by "S" (Senior Enforcement Officer) (Appendix 2). He claimed that the Application Number (DC/780/00/WOL) did not conform to the approved plans and required Mr Webb to submit amended plans for deliberation within 7 days of his letter. Several other issues were also raised within the same letter.

1.4 Mr Webb's agent replied to "R"'s letter on the issues he had raised (Appendix 3).

1.5 Government Circular 11/95 states that the Secretary of State takes the view, in addition to satisfying the court's criteria for validity that planning permission conditions should not be imposed unless they are both necessary and effective and do not place unjustifiable burdens on the applicants. As a matter of policy, conditions should only be imposed where they satisfy tests of;

necessary;
relevant to planning;
relevant to the development to be permitted;
enforceable;
precise; and

reasonable in all other aspects.

1.6 The following points have been taken from Policy Guidance 18 - Enforcing Planning Control. Powers to enforce planning control are given to the LPA by the Planning and Compensation Act 1991. Such powers provided by the 1991 Act are:

the power to serve a "planning contravention notice" where it appears that there may have been a breach of planning control and the LPA require information about activities on the land, or the nature of the recipient's interest in the land (Section 171C of the Town and Country Planning Act 1990);
the power to serve a "breach of condition notice" where there is failure to comply with any condition or limitation imposed on a grant of planning permission (Section 187 A of the 1990 Act);
the ability to seek an injunction, in the High Court, or County Court, to restrain any actual or expected breach of planning control (Section 1878 of the 1990 Act);
the power to serve a stop notice to prohibit the use of land as the site for a caravan occupied as a person's only or main residence, and to make a stop notice immediately effective where special reasons justify it (amended Sections 183 and 184 of the 1990 Act); and
powers of entry on to land for the LPA's authorised officer to obtain information required for enforcement purposes (Sections 196A, 1968 and 196C of the 1990 Act).

1.7 Public acceptance of the development control process is quickly undermined if unauthorised development, which is unacceptable on planning merits, is allowed to proceed without any apparent attempt by the LPA to intervene before serious harm to amenity results from it. Authorities will therefore need to assess, in each case, which power (or mix of powers) is best suited to dealing with any particular expected, or actual, breach of control, to achieve a satisfactory, lasting and cost effective remedy. Rapid initiation of enforcement action is usually vital to prevent a breach of planning control from becoming well established and more difficult to remedy.

1.8 LPA's have a general discretion to take enforcement action, when they regard it as expedient. They should be guided by the following considerations:

Parliament has given LPA's the primary responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative area (the private citizen cannot initiate planning enforcement action);
the Commissioner for Local Administration (the local ombudsman) has held, in a number of investigated cases, that there is "maladministration" if the authority fails to take effective enforcement action, which was plainly necessary and has occasionally recommended a compensatory payment to the complainant for the consequent injustice;
in considering any enforcement action, the decisive issue for the LPA should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest;
enforcement action should always be commensurate with the breach of planning control to which it relates (for example, it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to amenity in the locality of the site); and
where the LPA's initial attempt to persuade the owner or occupier of the site voluntarily to remedy the harmful effects of unauthorised development fails, negotiations should not be allowed to hamper or delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop (LPA's should bear in mind the statutory time limits for taking enforcement action).

1.9 "R" claimed that the plans submitted with the application did not indicate a brick foundation. He did not show as to the reason why such a claim would be cause harm to the locality of the site. It should be noted here, that the LPA would have carried out a site visit, as a requirement of the planning permission, to established ground levels of where the garden store was to be located. The erection of the garden store, if constructed on that angle of degree of the land, existing at that time, would have rendered the building on a skew of approximately 30 degrees to the horizontal. Obviously in such a situation, a brick foundation would have to be constructed in order to compensate in the differing ground levels. The LPA gave no indication as to their requirements of any request for further information on ground levels of the application site.

1.10 In response to "R"'s claims, Mr Webb's agent pointed out that the original drawings did indicate a thick line approximately 150mm above the ground level denoting a damp course. Therefore a brick foundation had been indicated, contrary to "R"'s claims. There is no condition within the garden store planning permission requiring Mr Webb to construct the permitted development in complete accordance with the approved plans and specifications, which again is contrary to "R"'s claims of breach of planning control. Such a lack of precise conditions would render any enforcement action vague and therefore unenforceable. At the time of this complaint, Mr Webb was not aware that the garden store was not in breach of planning control. This is maladministration. Mr Webb employed the services of his agent, to submit amended plans that were not necessary, which of a consequence had caused Mr Webb injustice.

1.11 With regard to the issue of elevations, the original approved plans provided for the double doors and single door to the front elevation. It is conceded that the front double doors and single door had been constructed to the side elevations instead, although the elevations do not indicate to which point they lay, in relation to the orientation of the application site. However, the design and physical appearance would not be intrusive in any elevation of the garden store due to the design and appearance of the building, i.e., doors that matched the fabric of the building when in a closed position. Again, "R" did not indicate as to the reason why such a claim would cause harm to the locality of the site. Once more, there is no condition within the garden store planning permission requiring Mr Webb to construct the permitted development in complete accordance with the approved plans and specifications, which again is contrary to "R"'s claims of breach of planning control. Such a lack of precise conditions would render any enforcement action vague and therefore unenforceable. Again, at the time of these complaints, Mr Webb was not aware that the garden store was not in breach of planning control. This is also maladministration. Mr Webb again employed the services of his agent, to submit amended plans that were not necessary, which of a consequence has once again, caused Mr Webb injustice.

1.12 "R" also claimed that Mr Webb was constructing a 2-metre high fence to the southwest boundary of the adjoining property. He also claimed that such a fence was into open countryside and he would be unable to support a planning application for such a fence, as it did not form an enclosure of Mr Webb's land.

1.13 The land to the rear of the adjacent plot belongs to Mr Webb, which consists of his gardens and paddock that is planted with trees and shrubs. (Appendix 4) quite clearly shows the extent of Mr Webb's land to which "R" refers at that time. It should be noted that the southwest boundary of Mr Webb's land would be into open countryside. Therefore any fence erected at the southwest boundary of the adjacent plot would on Mr Webb's land, overlooking his gardens and paddock that would ultimately form an enclosure to the curtilage of his property.

1.14 Part 2, Class A of the GDPO 1995 states that gates, fences, walls or means of enclosure is permitted development not requiring express planning permission unless development is not permitted by Class A if:

the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed one metre above ground level;
the height of any other gate, fence, wall or means of enclosure erected or constructed would exceed two metres above ground level;
the height of any gate, fence, wall or other means of enclosure maintained, improved or altered would, as a result of the development, exceed its former height or the height referred to in sub-paragraph (a) or (b) as the height appropriate to it if erected or constructed, whichever is the greater; or
it would involve development within the curtilage of, or to agate, fence, wall or other means of enclosure surrounding, a listed building.

1.15 It is quite evident that Mr Webb was able to erect a fence of no more than 2 metres in height, in that position. Again, "R" is incorrect, therefore unjustified, as Mr Webb was entitled to construct a fence with permitted development as described in the latter section.

1.16 As pointed out above, if Mr Webb wishes to construct another fence on his land then he is entitled to do so. "R" is not duly authorised to dictate to Mr Webb on what he can or cannot do on his own land whilst Mr Webb is within his rights to construct that fence. As he quite rightly pointed out, the removal of the Lincolnshire post and rail fencing to those boundaries was indeed Mr Webb's fence. The owner of the adjoining property had not erected any fence at this time, so his comments of Mr Webb's 2-metre fence to be "unnecessary" are also unjustified and irrelevant. Interestingly, Mr Webb's agent pointed out to "R" that Mr Webb did not require consent to construct the fence, for the reasons mentioned above, in his letter dated 4th September 2001. "R" did not contend the agent's comments in anyway. This is also maladministration. Mr Webb having again employed the services of his agent, to counter "R"'s flawed comments, caused Mr Webb injustice.

1.17 "R" also stated in his letter that he asked Mr Webb to provide him with amended drawings depicting the design changes with 7 days of the date of his letter. Quite clearly, the Council's document 'The Planning Enforcement System (Appendix 5) states:

"Persons responsible are always asked if they will remedy the breach, they will be written to and given 21 days to respond. The officer will then have to carry out a further inspection to ensure that the responsible parties have remedied the breach. A final letter will then be sent, giving 7 days to comply. At the end of this period North East Lincolnshire Council will have to decide whether or not to take formal enforcement action. This timetable maybe varied in urgent or serious cases."

1.18 Therefore, it is evident that Mr Webb was not afforded the time of 21 days to respond as indicated in the Council's document. Instead, "R" forced Mr Webb to submit amended plans that were unnecessary as discussed in earlier sections, as at that time Mr Webb was not aware that "R"'s claims of breaches were not breaches at all, within 7 days of dictating his letter. Mr Webb did not receive his letter until Friday 31st August 2001, leaving him until Tuesday 4th September 2001 to submit his amended plans. This caused Mr Webb undue stress and anxiety, as his agent was not available during that weekend. It was not until the Monday of that week that Mr Webb made contact with his agent. His agent then suspended his current work to draw and complete the amended plans and reply to "R"'s letter, hence their letter dated 4th September 2001, and accordingly charged Mr Webb for such service. This is an abuse of power, maladministration and injustice.

1.19 Mr Webb is fully aware that "S" and a second Officer from the Council, who he believed was a Planning Officer made a site visit in this matter in August 2001. At that time, "S" was in the full knowledge that Hilltop House, its garage and driveway had been moved contrary to its planning permission since March 2001. This is evident in the site plans (Complaint Number 1 (site plan RD.11.58.03A)) as indicated by "C" (Building Inspector), that "S" would have used to make a survey of the two adjoining properties, hence "R"'s comments on the boundary fences. This is a clearly a breach of planning control and one of which she chose to not enforce, despite the fact that Hilltop House and the garden store been only a few feet apart.

1.20 Also, around this particular time of "S"'s visit, two male officers from the Council attended Mr Webb's home and claimed to be from the Council and stated that Mr Webb had constructed a pond without planning permission. They subsequently investigated Mr Webb's land and left having discovered there was no pond been constructed.

1.21 It is quite plain to see that by joining these two matters together, Mr Webb is the subject of victimization and harassment and the subject of a two-tier system within the planning system of the LPA.

1.22 In a complaint by Mr Webb to the LPA on 13th November 2001 (documents can be found in Complaint Number 1) about a breach of planning control in Walk Lane, Irby upon Humber, Mr Webb did not receive a response from the LPA until 8th January 2002 contrary to the Council's 'Development Control Charter', As per the Council's document 'The Planning Enforcement System', the offender was given 21 days to submit amended plans. The offender in this case did not submit amended plans until 13th February 2002 which were received by the LPA on 14th February 2002, some 38 days later. There is nothing to suggest that any communication between the LPA and the offender existed during this period. Therefore, according to the Council's document 'The Planning Enforcement System', the 21 days had lapsed along with the further 7 days to secure compliance of the LPA's request, which should have resulted in an enforcement matter. Obviously this was not the case, as the offender was allowed to submit his amended plans at his discretion, contrary to Council policies. It has been made explicitly clear by the LPA that Mr Webb is been dealt with by a two-tier system. This is also an abuse of power and maladministration.

1.23 It is evident that "R", "G" (Head of Development and Environmental Protection) and "S" in these particular matters, have not afforded Mr Webb the fairness and consistency in the treatment as an individual and were unjustified in their action against Mr Webb. They have not assisted in the effective operation of the Council and inappropriately used Council resources in what can only be described as a personal vendetta against Mr Webb. They were also negligent in carrying out duties in accordance with relevant policies r and procedures and displayed personal conducts of unacceptable standards. This alone constitutes Gross Misconduct in the fact that they have negligently and willfully failed to comply with policies and legal requirements of the Council, as per the Council's Constitution and legislation contained in The Town and Country Planning Act 1990, the Planning Compensation Act 1991 and Article 6 and 8 of the Human Rights Act 1998.

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Investigating Officer's Findings and Conclusion

Complaint section	Findings	Action/Outcome
Sections 1.9 and 1.10 "R" and "S" clearly failed to recognize the existence of a brick foundation indicated on the submitted plans. They also failed to take into account the elevation of the land at the time of his case officers site visit, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.	“I do not consider that the issue of whether or not there should be a brick plinth has any great importance as one would expect this type of building to be erected either with a timber floor on some sort of base slabs, bricks, sleepers etc, or to have a concrete base which may or may not have a decorative edge. The most important issue in my opinion is that the site was not flat and therefore measures should have been shown on the drawing originally submitted to deal with the gradient. The Case Officer should ideally have picked this up at the time of the site inspection and requested an amended plan or have placed a condition, requiring those details to be submitted prior to commencement, on the decision. Some concern must be identified, though, in the that Case Officer did not notice that the information provided by the agent did not properly show the situation on site.”	No action.
Section 1.11 "R" and "S" failed to indicate as to how the repositioning of the doors will harm the locality, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.	“although of concern to the complainant (the building) did not pose any serious ongoing environmental concern. The extent of action in these cases is discretionary, as is all Enforcement Action, and in some cases it may be prudent to simply send a letter advising of the need to rectify the situation, but not to follow through with any further action if this does not achieve the desired result. This course of action could be followed by the matter being written off, using some formally agreed process, if not resolved, so that the complainant can be notified of the final outcome.”	No action.
Sections 1.12, 1.13, 1.14, 1.15 and 1.16 "R" and "S" abused their positions by threatening enforcement action contrary to the Council's Development Control Charter, Part 2, Class A of the General Permitted Development Order 1995 and Part 5 of the Council's Constitution.	“In my experience the General Development Order does not differentiate in terms of the purpose of a wall or fence and it is quite common for people to erect fencing to divide off parcels of land within the same ownership or use under this clause of the Order. Case law has indicated, see �Encyclopedia of Planning Law and Practice�, that in order to satisfy the requirements of this class the fence must have some function of enclosure. Clearly, in this case Mr Webb could argue correctly that in order to separate his land from the adjoining plot, that such a fence would form an enclosure.”	No action.
Sections 1.17, 1.18, 1.19, 1.20, 1.21, 1.22 "R" and "S" abused their positions by demanding plan amendments within 7 days, contrary to the Council's document �The Planning Enforcement System� and Part 5 of the Council's Constitution.	“In my opinion this was not a matter which would have warranted any special measures or a shorter period for compliance� It does seem unfair in this case that Mr Webb was only given seven days in which to respond to a request to submit revised details. Mr Webb should have been given 21 days. It does seem unreasonable, however, that Mr Webb was given a lesser time than was considered normal by the Council to resolve the problem. A complainant could argue that the Council was not carrying out its agreed processes when it did not follow up on a complaint immediately after the 21 days period expires� The Council�s service standards would not be met, however unless the matter were chased up immediately. Mr Webb is correct in that the Local Planning Authority did not appear to take this matter up immediately, however, the amended plans were submitted some 17 days after the deadline.”	No action.
Investigating Officer's Conclusion	“Mr Webb�s complaint that he was given less time to deal with this problem than the Council�s normal timescales is upheld. Mr Webb�s contention that he was treated differently is correct in the first respect�”	No action.

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Local Government Ombudsman's Findings and Conclusion

Complaint section	Findings	Action/Outcome
Sections 1.9 and 1.10 "R" and "S" clearly failed to recognize the existence of a brick foundation indicated on the submitted plans. They also failed to take into account the elevation of the land at the time of his case officers site visit, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.	Refused to investigate.
Section 1.11 "R" and "S" failed to indicate as to how the repositioning of the doors will harm the locality, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.	Refused to investigate.
Sections 1.12, 1.13, 1.14, 1.15 and 1.16 "R" and "S" abused their positions by threatening enforcement action contrary to the Council's Development Control Charter, Part 2, Class A of the General Permitted Development Order 1995 and Part 5 of the Council's Constitution.	Refused to investigate.
Sections 1.17, 1.18, 1.19, 1.20, 1.21, 1.22 "R" and "S" abused their positions by demanding plan amendments within 7 days, contrary to the Council's document �The Planning Enforcement System� and Part 5 of the Council's Constitution.	Refused to investigate.
Local Government Ombudsman's Conclusion	“For the reasons given in your second complaint I do not consider that discretion should be exercised to pursue this complaint.”	No action.

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