Summary: Ms X complained about the Council’s failure to protect her amenity from unlawful development on her neighbour’s land. We ended our investigation because planning enforcement action is ongoing.

The complaint

1. Ms X complained about the Council’s failure to take enforcement action against her former neighbours, who constructed a dormer window in their roof. Ms X said that the Council:
• ignored permitted development (PD) regulations;
• wrongly issued a certificate of lawfulness for the development (CLU);
• denied her access to information from its enforcement files;
• gave false assurances, carried out biased inspections, misled her about officer assessments, wrote inadequate Enforcement Notices; and
• delayed unreasonably, allowing the dormer to be rebuilt after it was removed and allowing the enforcement ‘clock’ to be run down until the neighbour has immunity from action.
2. Ms X said that as a result of the Council’s failures, she:
• lost enjoyment from her home and eventually sold it and moved, because she was overlooked by the dormer; and
• spent large sums on professional advice.
3. Ms X would like the Council to reimburse her costs, pay for the time and trouble she has spent working on the case, and to compensate her for the distress caused by what has happened.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We provide a free service, but must use public money carefully. We do 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 fault has not caused injustice to the person who complained, 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))

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How I considered this complaint

6. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, case officer’s and enforcement officer’s reports, planning inspectorate decisions and a planning enforcement chronology.
7. I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’ (PD).
12. Some PD proposals require an application so the council can decide whether it can or should control certain parts of the development, such as design and material issues or access to the highway. These applications are known as ‘prior notification’ applications.
13. 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 lawfulness (CLU) to the applicant.
14. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is PD and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.
15. 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.
16. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• Where there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• Where there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• For any other breach, no enforcement action may be taken after 10 years from the date of the breach.
17. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the council may seek an order to restrain an actual or expected breach of planning control.
18. However, 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.

Background

19. Several years ago, Ms X’s neighbour applied for a CLU to certify a dormer window would be PD. An officer visited the site, decided the dormer would not be on the principal elevation and decided it would be PD. Ms X believes this decision was irrational and inconsistent with government guidance. Ms X said that the CLU was incorrectly drafted, referring to the wrong classification of development, and so making it invalid from the start.
20. The dormer was built, and Ms X and other residents complained about it. At first, the Council said the dormer was PD, so no action was taken, but it changed its mind because it found out that the ridge of the roof had been made higher and the eaves of the original roof had not been maintained or reinstated. The Council served an Enforcement Notice, which the developer appealed to the planning inspectorate.
21. The inspector quashed the appeal because the Enforcement Notice omitted to mention the dormer extension in the alleged breach of planning control.
22. The development was completed and following a further survey, the Council concluded that, amongst other things, there had been an increase in height of the ridge. It served another Enforcement Notice and the developer appealed again. The developer’s appeal to the planning inspector was not upheld. Ms X took part in the appeal and her appeal for costs against the other parties was refused.
23. The dormer was removed and shortly afterwards, works began to rebuild a new dormer. Council enforcement officers visited the site and advised the developer to submit a new CLU application, but this did not happen. The Council sought counsel’s opinion on the options suggested by the developers and their agent.
24. There were further visits before planning enforcement officers submitted a report to the Council’s planning committee. The Council decided to seek more advice from counsel.
25. The Council served a Planning Contravention Notice to request, amongst other things, drawings. After the drawings were received, the Council sought further advice from counsel. There were then further meetings, site visits and correspondence between the parties. In one of the letters, the Council confirmed that it would be possible to construct a permitted development dormer extension on the site, provided it met the conditions set out in the regulations.
26. Recently, the Council served another Enforcement Notice, which takes effect in the coming months. Once it has taken effect, there is a 3-month period by which the requirements of the notice should be complied with. The Enforcement Notice opens a right of appeal to the planning inspector.
27. Ms X said that because of the Council’s failure to control the development on the site, she had to pay for professional advice. Ms X also said that she has had to move home to avoid the severe impact on her privacy caused by the dormer.
28. Ms X also complained about the Council’s failures and delays in providing her with information relating to this case.

My findings

29. We are not a planning appeal body. 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.
30. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
31. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
32. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
33. I should end my investigation and my reasons are as follows. The planning enforcement process is ongoing, and we cannot know its outcome. It is possible there will be an appeal to the planning inspectorate or a challenge in the high court. These other bodies may well decide there is no breach of planning control, or that there is no significant harm caused to nearby residents by the development, or that the development is acceptable and should be granted permission. To investigate any alleged fault, we would need evidence that it caused a significant injustice, and we would not be able to determine this until the planning process had run its course.
34. My comments on other issues raised by this complaint, are as follows:
• Ms X complained about delay. I have considered a detailed summary of events provided by the Council and I shared a copy of this with Ms X. It is clear that this matter has been going on for several years and we know that mistakes were made in relation to the wording of an Enforcement Notice. However, in general terms there is no evidence of significant, unreasonable delay. The Council can account for its actions and decisions throughout its investigation. This is a complicated matter, requiring the Council to serve several notices and seek expert legal advice on three occasions. I find no evidence of fault in delay so far.
• Ms X believes the Council has deliberately delayed, to allow the enforcement time ‘clock’ to run down. I have seen no evidence to support this allegation, and in any event, the Council has recently stopped the ‘clock’ by issuing a new Enforcement Notice.
• Ms X believes the Council’s original decision to approve the CLU application was incorrect. She believes the dormer could not be considered PD, as it is at the side, not rear of the neighbour’s house. There is government guidance to help councils decide these matters, including what would normally indicate a ‘principal’ elevation, but we are not an appeal body for planning judgements. The Council has accepted that it would be possible to build a dormer extension under PD regulations, and providing it considers development details, along with guidance and regulations before it makes its decision, this is a matter for its discretion.
• Ms X said the CLU was incorrectly drafted, so invalid from the outset. I have not investigated this point further, as we know that eventually the Council decided the dormer was not built in accordance with PD limits.
• We do not normally recommend compensation for professional fees, especially when there is an element of choice involved. The government has devised a limited process for claiming costs, but this is restricted to what happens during the planning appeals process. We would not normally attempt to fill gaps left by Parliament, where it has specifically decided to limit rights for recovering costs.
• We do not generally recommend financial remedies for house moving costs and inconvenience. This is partly because there can be many reasons why people choose to move home. Our remedies for fault in the planning decision making process usually focus on measures to protect amenities, such as planting or screening.
• Part of Ms X’s complaint relates to delays and failures in accessing information on the Council’s files. There is another body, the Information Commissioner’s Office, that is better suited to deal with these issues.

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Final decision

35. I ended my investigation as the Council’s enforcement action is ongoing and it is unlikely to result in a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman