Summary: There was no fault by the Council in its handling of the complainant’s reports of breaches of planning control at a neighbouring property.

The complaint

1. I refer to the complainant here as Mr X. Mr X complains about the way the Council dealt with his concerns about an extension at a neighbouring property.
2. Mr X says:
• His neighbour submitted a planning application in late 2019. At roughly the same time, he told the case planning officer that the extension was already being built and it encroached on to his property. He offered her a surveyor’s report which showed the extent of the encroachment. The planning officer visited the application site and was assured by the property owner that the existing building would be demolished. Mr X says the officer failed to ask for amended drawings. The officer also failed to mention the encroachment in her planning report or include a condition in the planning permission to the effect that what had been built was not already in accordance with the submitted plans.
• The Council’s response to his complaint did not address or explain the complaint he submitted.
• He complained to the planning enforcement department in May 2020 but received a reply that the two storey extension incorporated the existing walls whereas the wall was built one month beforehand and in his garden. The Council refused to accept the findings of the surveyor that he commissioned.
• He chased the planning enforcement team on numerous occasions and they do not seem to be doing anything.

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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. 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)

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How I considered this complaint

5. I examined the complaint and background information provided by Mr X. I also examined details on the planning enforcement file provided by the Council. I sent a draft decision statement to Mr X and the Council. I considered the comments of both parties on it.

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What I found

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
7. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) 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.
8. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to act.
9. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This makes clear enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Findings

Concerns about the handling of the planning application

10. Public planning law and private law are separate. Planning law is concerned with the use of the land. Boundary issues are private law matters between the parties involved. It is not usually the case that local planning authorities use planning application to address boundary disputes between the applicant and other parties.
11. In terms of Mr X’s dissatisfaction with the planning officer, I do not find there was fault with the officer’s actions. I note the planning officer’s report referred to the boundary issue. The planning officer explained the extension would be constructed within the curtilage of the applicant dwelling and any issues regarding the boundary was a private matter to be resolved between the owners of the properties involved. Whether the development would not be built in accordance with the plans and the extent to which any encroachment causes harm that should be remedied in the public interest were questions to be resolved through the planning enforcement process and not through the planning application.
12. The officer was not statutorily required to ask the applicant for amended drawings or include a condition stating the development was not in accordance with the approved drawings to that point.
13. As to Mr X’s dissatisfaction with the Council’s response to his complaint, I do not find the Council’s complaint response failed to address his complaint. The Council expressed its view on the matter which clearly differs from Mr X’s view. I do not consider detailed examination of what the Council said or meant in the complaint response is now warranted.

Concerns about planning enforcement

14. Mr X says he contacted the planning enforcement team in May 2020. I have not seen the details of his initial contact or the Council’s response to it as the Council did not provide these details in the papers it sent to the Ombudsman. But Mr X says he says he received a reply in July 2020 from the planning enforcement team that suggested the extension incorporated the walls of the existing single storey.
15. Mr X contacted the planning enforcement team in August 2020. From this point, I have seen the records of the Council’s contact with both Mr X and the neighbouring property owner.
16. I will not set out the history here for the sake of brevity as well as confidentiality. From that point to the present, two points are noteworthy:
• The Council told Mr X that it could not give him a timescale as its officers were busy and had to prioritise older cases.
• The Council contacted the neighbouring property owner on several occasions and was assured by him that he would submit a retrospective planning application to regularise the unauthorised aspects of the extension. Despite these assurances, the owner did not submit a planning application.
• The Council served an enforcement notice in November 2021.
17. The question I have to address is whether the time taken by the Council in dealing with the planning enforcement matter was unreasonable.
18. The time taken by the Council is not unusual. The process of resolving a breach in planning regulations can take a long time. There is no set timescale in law or in government guidance for resolving breaches of planning control. Government guidance does suggest that local planning authorities act proportionately in dealing with planning enforcement breaches and so this explains why the Council gave leeway to Mr X’s neighbour for submission of a retrospective planning application.
19. A breach of planning control does not automatically mean a local planning authority will ask a developer to remove or stop whatever they have done. Rather, planning enforcement is a discretionary power that should only be used to put right any harm caused by the failure to comply with planning control.
20. The Council identified a breach of planning control. It gave Mr X’s neighbour time to submit a retrospective planning application. I find the Council acted proportionately in allowing time before it served an enforcement notice.

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Final decision

21. I closed this complaint because I did not find fault by the Council in the matters raised here by Mr X.

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Investigator's decision on behalf of the Ombudsman