Summary: Mrs B complained the Council approved a planning application without sufficiently protecting her neighbouring amenity and did not take enough action to address the developers breaches of planning control. We found some fault in how the Council considered the planning application. However, we cannot say whether the outcome would have been different, and it has since arranged for mitigations. There was no fault in the enforcement process, it therefore reached decisions it was entitled to make.

The complaint

1. Mrs B complained about how the Council dealt with a planning application and enforcement action for two single storey houses next to her homes. She said it:
• wrongly approved the planning application in 2020 without sufficiently protecting her residential amenity through conditions; and
• failed to take enough action to address the developer’s breaches of planning control.
2. Mrs B said, as a result, she has experienced distress and had an impact on her amenity though a loss of privacy.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in how the organisation made its decision, 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. As part of my investigation, I have:
• considered Mrs B’s complaint and the Council’s responses;
• discussed the complaint with Mrs B and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and guidance to the complaint.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning law and guidance

Planning applications and conditions

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. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. 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’.
13. Councils may use planning conditions to remove permitted development rights, if they consider it necessary for planning purposes.

Planning enforcement

14. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 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.
15. Councils can take enforcement action if they find there has been a breach of planning control. However, enforcement is discretionary and formal action should only be taken 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. 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 July 2021, paragraph 59)
17. Councils have a range of statutory powers available to them to seek information and remedy matters. But, 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.
18. Government guidance is clear that the person reporting the alleged breaches of planning control should be kept informed of the enforcement investigation and its conclusions. The Council’s enforcement plan states that updates will be given when there has been significant progress on the case.

What happened

19. In 2020 the Council considered a planning application for a development of two single storey houses next to Mrs B’s home. The plans showed the houses were bungalows with roof windows and a large gable window which would be 2.4 metres above the floor. Plans for the driveway and boundary treatments were attached to the application.
20. Mrs B and other neighbours objected to the development as they believed it would be overlooking, overbearing and an overdevelopment of the site. They were also concerned about the boundary treatments to protect residential amenity.
21. The Council approved the planning application. The officer report shows it:
• considered local and national planning policies and the objections and comments it received;
• considered the impact the development would have on neighbouring amenity but found it would not result in undue overlooking as it was single storey developments. Nor would it have an overlooking or overbearing effect as existing and proposed planting and fences would obscure the view;
• had regard to a previous planning approval on the site for two houses, which removed permitted development rights for windows installed above the eaves of the properties. It decided it was not necessary to carry this condition forward to this application as the plans showed it would not be overlooking.
22. The approved planning permission contained conditions requiring the retention of the existing trees and hedges and the proposed boundary treatments that should be put in place and retained for a minimum of five years.
23. In 2021, the works had commenced, and the developer chopped and uprooted a hedge on the boundary towards Mrs B’s home.
24. The Council opened a planning enforcement investigation and inspected the site. It found the developer had breached planning control as the hedge should be retained at 5 metres. The developer subsequently replanted the same species hedge at 2.6 metres, which the Council found would grow and was therefore acceptable to remedy the breach.
25. By Autumn 2022 the developer had installed an internal floor creating a loft space in one of the houses. Mrs B said this meant the roof and gable windows were overlooking neighbouring properties.

Mrs B’s complaint

26. In Autumn 2022 Mrs B complained to the Council about the impact the development had on her home. She said:
• the developer had removed the hedge, but the planting which had taken place following the Council’s enforcement was not high or dense enough to address the loss of privacy. She said this related to the gable windows, but also the ground floor windows and patio doors due to the difference in ground levels between the properties;
• the properties were supposed to be single storey, but the house furthest away had since installed an internal floor which created a loft space. She said the large gable window and roof windows could overlook into neighbouring properties, while this was not overlooking her property there was nothing preventing the new house next to them from doing the same;
• some fences, hedging and trees had not been put in place as set out in the approved plans; and
• the driveway for the houses had only been partially tarmacked and the rest was gravel, which was noisy and not as set out in the approved plans.
27. In response to Mrs B’s complaint and the developer’s applications for discharge of conditions, the Council opened an enforcement case. It found:
• the internal floor the developer had installed in one of the houses was completed under permitted development rights and did not require planning permission. The Council therefore had no powers to take enforcement action against this. However, it negotiated with the developer to put obscure glazing in place to safeguard neighbouring privacy;
• the driveway had not been completed as set out in the plans as part of it was gravel. However, following consultations with the Highways Authority it found the driveways were satisfactory and likely to have been approved. It was therefore not expedient to take enforcement action;
• it inspected the site and found a hedgerow and planting was insufficient to protect neighbouring amenity and told the developer further planting was necessary to provide adequate screening compared with what had previously been removed. The developer agreed; and
• another hedgerow on the approved plans were required to be 5 metres in height to ensure neighbour privacy. However, it considered a height of 3 metres would sufficiently do so and discharged the condition.
28. The developer sold the house with an internal floor and the new owners removed the obscure glazing the developer had installed. When the Council became aware, it discussed the matter with the new owners and obscure film was installed again.
29. In response to Mrs B’s complaint the Council accepted its officers had incorrectly assessed overlooking and the impact on neighbouring amenity. It acknowledged it could have controlled the roof and gable windows by requiring obscure glazing when determining the planning application in 2020. However, as the officers involved were no longer working with the Council, it could not be certain a different conclusion would have been made. It said it had reminded officers of the importance of ensuring potential impact of amenity was properly assessed. It also explained:
• the installation of internal floors was allowed under permitted development rights, which meant it had no powers to take any action. However, obscure glazing had been installed following its negotiation with the developer and new owners;
• it had considered concerns around boundary treatments and planting through enforcement. It had required replacement for the planting which had been removed, and later required additional planting when it was not satisfied with the screening was sufficient. It discharged the relevant conditions when it was satisfied this was adequate;
• it had considered concerns about the driveway but found the mix of tarmac and gravel was adequate and it was not expedient to take enforcement action.
30. Mrs B asked the Council to escalate her complaint. She said the Council should put in place a restrictive covenant on the development to require obscure glazing on the windows and for the height of the boundary planting.
31. In its final response to Mrs B, the Council did not change its view. It explained it had considered her concerns about the development. This had led to some action and negotiation with the developer, and it was satisfied the development was acceptable compared to what had been approved. It also said it could not put in place a restrictive covenant as it had no powers to do so. Nor could it require the retention of planting for more than five years in line with standard planning conditions.
32. Mrs B asked the Ombudsman to consider her complaint.

Analysis and findings

33. Mrs B’s complaint relates to the Council’s approval of the planning application in 2020, which is more than 12 months before they brought it to our attention. Their complaint is therefore late. However, I have found it appropriate to consider this part of the complaint as their concerns first became apparent later during the development and following actions by the developer.

The Council’s planning decision

34. The Council told Mrs B it agreed and apologised its officers had misinterpreted the plans and failed to properly consider the impact of the neighbouring amenity if a loft space was added in the houses. However, the Council was not satisfied the planning application would have been refused or further conditions would have been included to protect neighbouring privacy.
35. I agree with the Council’s view. It is clear the officers involved in the planning decision considered the houses were single storey. They had little or no regard to the potential of a loft space being inserted and the impact this could have had on overlooking through the roof and gable windows.
36. I found the Council at fault for how it considered parts of the 2020 planning application. However, I cannot say whether the application would have been refused, or restrictions would have been put in place, had the fault not occurred. In reaching my view I am conscious:
• the Council’s role was to consider the application it received, which was for two single storey houses. It properly considered the impact the development would have on neighbouring amenity as set out in the plans. It was entitled to reach its view it was acceptable in planning terms;
• planning law does not require the Council to consider internal works a developer or new owners may make under permitted development rights after the development has been completed. However, given the circumstances in this case, where the roof and gable windows could potentially cause an overlooking impact on neighbouring properties if an internal floor was installed, it should have had regard to this in the officer’s report;
• it is not possible to say whether in the officers’ views at the time, the development would have been approved without further restrictions;
• the Council has since taken as much action as it can through negotiation with the developer and new owners for obscure glazing and boundary planting to be put in place; and
• Mrs B feels the condition which requires boundary treatments and planting to be in place is insufficient as it only lasts for five years. However, the length of the condition is standard practice in planning determinations.
37. I acknowledge Mrs B still finds the development impacts on their amenity and wants the Council to put further restrictions in place on the new owners of the houses. However, the Council has no powers to do so retrospectively after a planning approval has been granted.
38. I have not made any service improvement for the fault identified. This is because, following its investigation into the case, it has taken steps to ensure its planning officers properly considers potential impacts on neighbour amenity.

Enforcement handling

39. It is agreed the developer chopped and uprooted boundary treatments during the development. The evidence shows the Council acted on the reports it received and opened an enforcement case.
40. The Council inspected the development and decided it was proportionate to take action as the breach had an impact on neighbouring amenity. It told the developer he was in breach of the relevant planning conditions. It required the developer to replace the planting which had been removed by a similar species, although this was of a lower height until it had grown further.
41. During the Council’s consideration of the discharge of the planning conditions, it again inspected and found further planting was required to ensure sufficient screening was in place to protect neighbouring amenity.
42. I have seen no fault in the process the Council followed to reach its enforcement decisions. Nor, its decision to discharge the relevant planning conditions when it was satisfied the boundary treatments and planting was sufficient. This was therefore decisions it was entitled to make.
43. I acknowledged the planting and screening is not as high as required under the planning conditions until the hedge and trees has grown further. However, given the circumstances, I am satisfied this was as much as the Council could reasonably do.
44. It is also agreed the driveways were not fully tarmacked as set out in the approved plans. However, the Council inspected, consulted with the Highways Authority and found the part tarmac and gavel driveways were satisfactory and likely to have been approved. It was therefore not expedient to take enforcement action. I have seen no fault in the process the Council followed to reach this view, it was therefore also a decision it was entitled to make.

Complaints handling

45. It took the Council six months to provide its stage one complaint response to Mrs B’s complaint. This was much longer than what would normally be expected as set out in its Complaints Policy.
46. However, I have not found it at fault. This is because Mrs B’s complaint related to new planning control concerns which the Council had to investigate before it could provide a response. It also had to discuss the matters with the developer, new owners and Highways.
47. There were no delays in the Council’s handling of its final complaint response to Mrs B.

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Final decision

48. I have completed my investigation with a finding there was some fault in the Council’s handling of the planning approval in 2020. However, I cannot say whether the outcome would have been different, and the Council has taken as much action as it can to mitigate any impact on neighbouring amenity.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman