Summary: Mrs X complained about how the Council approved a planning application near her home and how it dealt with her reports the planning permission had been breached. There was fault in how the Council first accepted assurances of the developer without evidence. However, the Council later made a site visit and reviewed its decision. There was no fault in how the Council made this second decision. The Council has apologised for the initial fault and delays in responding to Mrs X’s complaint, which was a suitable remedy. The Council also agreed to remind its planning officers about the importance of basing decisions on evidence.

The complaint

1. Mrs X complained about how the Council approved a planning application near her home in 2019 and how it dealt with her reports the planning permission had been breached in 2020. She said the Council failed to check the plans were correct, properly consider the impact on neighbourhood and her amenity and properly investigate her reports of a breach of planning control.
2. As a result, she said the building is overbearing, looks out of place and has views into her home, including her daughter’s bedroom. She wanted the Council to require the height of the building to be reduced or a condition to be attached that all windows which look into her property to be obscure glazed and non-opening.

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What I have investigated

3. I have investigated how the Council responded to Mrs X’s reports of an alleged breach of the planning conditions.
4. The final decision of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. If we are satisfied with a council’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)
10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

11. I considered the information Mrs X provided, including photographs of the building and discussed the complaint with her.
12. I considered the Council’s comments on the complaint and the supporting information it provided.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

14. Planning permission is needed to develop land (including its material change of use). Permission may be granted subject to conditions on the development and use of land.
15. Councils can take enforcement action if they find planning rules, including the conditions attached to planning permission, have been breached. Councils usually rely on suitably qualified officers (usually a planning, enforcement or compliance officer) to investigate reports. This can include gathering evidence, making site visits or asking parties involved for information.
16. Once the evidence-gathering process is complete, the officer(s) will assess the evidence and use their professional judgement to decide whether there is a breach of planning rules and what action to take.
17. 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.

What happened

18. The Council granted planning permission to build a house near Mrs X’s home in late 2019. The planning permission included a condition that the house was built according to the approved plans. All windows above first floor level which faced Mrs X’s home also needed to use obscure glass and be non-opening below a certain height.
19. While the house was being built, Mrs X and her husband became concerned the house was larger and taller than the planning permission allowed. They reported the possible breach of planning conditions to the Council in late 2020.
20. The Council assessed Mrs X’s report, decided to investigate it, and assigned the case to a compliance officer.
21. The Council said that because of the COVID-19 lockdown, it did not make site visits in early 2021 unless the matter was urgent. Instead of visiting the site, the compliance officer asked the property developer to send measurements of the building.
22. Based on the measurements provided by the developer, the compliance officer decided the size of building was within those on the approved plans, and there was no breach of the planning permission.
23. Mrs X complained to the Council the measurements it had based its decision on were not accurate and provided photographs which she said showed the building was higher than the developer reported.
24. In its first response to Mrs X’s complaint, the Council upheld its original decision there was no breach. However, it also said that because lockdown restrictions had been eased, it would make a site visit and take its own measurements.
25. After visiting the site and taking their own measurements the compliance officer decided the house was lower than the maximum height allowed and there was no breach of the planning conditions.
26. In its final response to Mrs X’s complaint, the Council accepted it should not have decided based solely on the measurements provided by the developer and should not have sent its first complaint response before making a site visit. It apologised for this and for the delay in sending the final response to her complaint.

My findings

27. It is not our role to decide if there has been a breach of planning control; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly.
28. When the Council first investigated Mrs X’s report about the height of the property, it relied on measurements provided by the developer. The Council records show it accepted these measurements without any further evidence, such as photographs of the measurements being taken.
29. Although the Council was not carrying out non-urgent visits at the time due to COVID-19, I am not satisfied accepting the assurances of the developer at face value, without further evidence, was appropriate. Given the dispute about the measurements and the possible impacts on Mrs X, the Council should have sought further evidence of the height of the building before making its decision. The failure to do this was fault.
30. However, during the complaints process the Council made a site visit, took its own measurements of the building and reviewed the decision. The evidence shows the Council took both these measurements, the photographs provided by Mrs X and the approved plans into account when deciding whether there was a breach of the planning permission.
31. I am satisfied there was no fault in how the Council made the second decision there was no breach of the planning permission. I appreciate Mrs X does not agree with the Council’s decision. However, I cannot question the professional judgement of Council officers where a decision was made without fault.
32. Enforcement action for breaches of planning control is discretionary and even where there are breaches of planning control, councils may decide not to take action. I have considered the photographs Miss X provided of the completed building and its relationship to her property, including:
• the height by which Miss X claims the building floor level has been raised;
• that the window which Miss X says faces her property is a non-habitable room; and
• the height by which Miss X claims a first-floor roof exceeds that shown in the plans.
33. Based on this evidence, I am satisfied it is unlikely the Council would have taken enforcement action if it had found a breach of planning control. Therefore, even if there had been any fault in how the Council decided whether there had been a breach, this would likely not have caused Miss X an injustice.
34. The Council has apologised for how it made the first decision, it’s flawed stage one complaint response and the delays in sending its final decision about Mrs X’s complaint. I am satisfied that apology was a suitable remedy for any injustice these delays caused to Mrs X.
35. The overlooking Mrs X complained about relates to a ground floor window. Overlooking was considered during the original planning application process. For the reasons given at the end of this statement, I cannot consider how the planning permission decision was made.

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Agreed action

36. Within three months of my final decision, the Council should remind its planning officers that they should:
• make decisions based on impartial evidence, whenever possible; and
• critically evaluate assurances given by developers and consider asking for or gathering supporting evidence where a developer has an interest in the outcome of a decision.

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Final decision

37. I have completed my investigation. There was fault in how the Council first accepted the assurances of the developer without evidence. However, the Council made a site visit and reviewed its decision. There was no fault in how the Council made this second decision. The Council has apologised for the initial fault and delays in responding to Mrs X’s complaint, which was a suitable remedy. The Council also agreed to remind its planning officers about the importance of basing decisions on evidence.

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Parts of the complaint that I did not investigate

38. I have not investigated how the Council decided the original planning application. Mrs X was aware of the application in 2019 before the Council approved it. This was more than 12 months before Mrs X’s complaint to the Ombudsman in July 2021, so her complaint about this is late. We can only consider late complaints if there are good reasons. Although Mrs X says she was not fully aware of the impact of the plans until building started, she was aware of the application and had the opportunity to comment on it in 2019. I am not satisfied there are good reasons to consider a complaint about this now.

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Investigator's decision on behalf of the Ombudsman