Summary: Mr X complained the Council has not taken planning enforcement action to control a development near his home that does not have planning permission. He said the Council delayed its investigation until four years elapsed since the build, then said the work was immune from enforcement. Mr X said his home is overlooked because of the Council inaction and this impacted his mental health. There was fault because the Council lost control of unlawful development at this site, delayed considering Mr X’s concerns and its communication was poor. This frustrated and distressed Mr X. The Council has agreed to apologise, make a financial payment, complete a review of its enforcement service and share this decision with the relevant scrutiny committee.

The complaint

1. Mr X complained the Council has not taken planning enforcement action to control a development near his home that does not have planning permission. He said the Council delayed its investigation until four years elapsed since the build, then said the work was immune from enforcement. Mr X said his home is overlooked because of the Council inaction and this impacted his mental health.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. I have investigated Mr X’s complaint from 2020. Mr X complained to the Council and the Ombudsman throughout the time this matter refers to. The Ombudsman investigated two complaints relating to this matter previously, the Council confirmed it was still investigating the matter. The Council then closed its enforcement investigation confirming it cannot act, as the work was completed over four years before.

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How I considered this complaint

6. I read Mr X’s complaint and spoke to him about it on the phone.
7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. I interviewed Council officers to inform my decision.
9. Mr X 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

Background information

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation. An applicant can appeal a planning permission decision to the Planning Inspectorate (on behalf of the Secretary of State for Communities and Local Government).
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 lawful use to the applicant.
14. This may happen where:

• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ 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. Councils can take enforcement action if they find planning rules have been breached. However, councils are not obliged to take enforcement action just because there has been a breach of planning control.
16. 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.
17. 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 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 September 2023, paragraph 60)
19. Planning enforcement action is subject to statutory time limits. At the time breaches of planning control were considered on this site, the following regulations on time limits applied. Council planning authorities may not take enforcement action in the following circumstances:

• 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;
• 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.

20. 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 decided 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.

21. The Town and Country Planning (General Permitted Development) (England) Order 2015 (the regulations) state that:
• any window forming a side elevation must be obscure glazed and non-opening;
• the volume of an extension to a dwelling other than a terrace house should not exceed 50 cubic metres; and
• the height of a raised platform should not exceed 0.3 metres.

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. The owner of a house on Mr X’s road built a dormer loft conversion and installed a raised platform on top of a rear extension, creating a terrace. The Council noted the work was substantially completed in early 2020.
24. Mr X complained to the Council in July 2020. He provided photo evidence of the work, including opening side windows. The Council visited Mr X in August 2020. The Council wrote to the owner of the property, Y, confirming it did not have planning permission for the loft conversion or the terrace. Y said he was told the loft conversion was permitted development and building control required the terrace as a fire escape. Mr X and Y noted civil disagreements between them.
25. The Council visited Y in September 2020. The Council told Y the dormer, windows and terrace required planning permission. Y applied for retrospective planning permission in late 2020. The Council refused retrospective planning permission.
26. Y applied for retrospective planning permission again in early 2021. The Council refused the application three months later. Y appealed to the Planning Inspectorate. The planning inspectorate dismissed the appeal at the end of 2021.
27. Y submitted an application for a certificate of lawfulness after the planning inspectorate’s decision. Mr X also approached the Ombudsman. Y withdrew the application when the Council confirmed it would likely refuse the application as permitted development rights no longer existed because the changes were part of an unauthorised development. The Council passed the investigation to its enforcement team to consider.
28. The Council’s enforcement team visited Y’s property in April 2022. The Council recorded Y claimed works carried out to ensure the dormer constituted permitted development. It confirmed the terrace no longer joined the dormer, the windows on the side were obscure and fixed shut and it appeared the cubic content did not exceed the 50 cubic metre size limit in the permitted development regulations.
29. The Council officers met in April 2022 to discuss this case. A senior manager raised concerns about the terrace and the dormer. The Council determined the terrace would be acceptable if it had suitable screening. The senior manager told the enforcement officer to visit the site and measure the dormer to check it complied with size limits in the permitted development regulations.
30. The Council told the Ombudsman it was investigating the enforcement concern. The Ombudsman ended its investigation as the Council was investigating in May 2022.
31. Mr X continued to chase the Council.
32. Mr X complained in February 2023. He complained the Council failed to control the development and about poor communications. The Council response in March 2023 said it was considering enforcement. The Council also accepted communication was poor because of failures to respond and delays in responding to Mr X.
33. The Council closed the enforcement case in April 2023. The Council reported it appeared remedial works remedied the breaches that made the dormer unacceptable for permitted development. Mr X asked the Council to explain why it would not take enforcement action. In May 2023, the Council stated the dormer was permitted development if it met the size requirements. The Council confirmed it measured the height of the terrace from the highest point on the property. As the ground sloped, it was within 0.3 metres, so would be permitted development.
34. Mr X complained in June 2023. He complained about the dormer and its windows. Mr X approached the Ombudsman again. The Council reopened the enforcement investigation in July 2023. The Council told Mr X it would only investigate the windows. It asked him to keep a diary, and evidence, the times Y opened the windows. Mr X asked the Council to consider the dormer.
35. In September 2023 the Ombudsman asked the Council to explain its actions regarding the dormer and the windows. The Council stated there was no definition in legislation what “non-opening” was. It said the window was locked, so it was fixed shut and Y should ensure compliance. The Council also noted it appeared the dormer did not exceed the 50 cubic metres limit. The Council confirmed it had an open enforcement investigation for this matter.
36. The Ombudsman ended its investigation in November 2023 because the Council had an ongoing enforcement investigation.
37. Mr X continued to chase the Council.
38. Mr X complained to the Council in March 2024. Mr X questioned the dormer and the windows as they faced his property and were opening. The Council response two weeks later said it would take a considerable amount of time to consider the enforcement matter. The Council said it would update Mr X when it had completed its investigation.
39. Mr X continued to chase the Council.
40. The Council allocated the case to a different enforcement officer in September 2024. The Council wrote to Mr X in October 2024 and confirmed it could not take enforcement action. The Council explained:
• the dormer and terrace were unlawful because it had not granted permission and they were not permitted development; but
• it could now not take enforcement action because the work was completed over four years ago.
41. In other words, the Council had lost planning control of unlawful development on the site because it had failed to act when it had the opportunity to do so.
42. Mr X was unhappy with the Council’s response and asked the Ombudsman to investigate again. If possible, Mr X would like the Council to take enforcement action and pay him a financial remedy because it failed to act and the impact this had on his amenity.
43. In response to my enquiries the Council stated there was a breach of planning control at this site. It accepted it had been wrong when it had concluded the dormer and the raised decking were within permitted development rights. The Council also confirmed that it had not visited the site to measure the volume of the dormer but had measured from scaled drawings.
44. During interviews with officers, the Council admitted mistakes in this investigation. The Council accepted:
• it was not acceptable, in these circumstances, to measure the volume of the dormer from drawings and not visit the site to measure accurately, as the senior manager had directed;
• it was not reasonable to conclude a lockable window was non-opening;
• it was wrong to advise the windows would be acceptable if Y agreed not to open them;
• it was not reasonable to ask Mr X to collect evidence, which included photographs of Y opening the windows and keep a diary log sheets, given the strained relations between the neighbours; and
• it should have measured ground level from land next to the terrace, not the highest level in the garden.
45. The Council explained it had a lack of staff at times during this matter. It has since provided evidence that it has produced new policies and procedures, as well as recruiting officers to improve its service.

My findings

46. We are not a planning appeal body. This means we do not consider a judgement or decision to decide if it was wrong. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision-making process. Where we find it, we decide whether it caused a significant injustice to the individual complainant. If we consider the Council followed its processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the Council made.
47. The Council has accepted its communication was poor because of long periods of delay and complete failures responding to Mr X. These delays and failures to act are fault, and they caused unnecessary frustration and uncertainty to Mr X.
48. Y did not have planning permission to complete the work. Following unsuccessful planning permission applications and appeals to the Planning Inspectorate, responsibility for enforcing planning control of the site passed to the Council. The Council’s failure to act is fault.
49. Y claimed that changes made to the development meant it now qualified as permitted development. The Council now accepts it should have properly investigated the dormer, the terrace and the windows and considered them against limits in the regulations. The Council did not do this and so:
• it now does not know how big the dormer is and it could not make an informed judgement in relation to permitted development limits;
• it did not measure land levels in the correct place, and so it lost the opportunity to establish evidence of a breach of planning control;
• it wrongly concluded there was no breach of control relating to windows, that should have been fixed shut.
50. The Council’s failure to properly investigate these matters is fault.
51. The Council did not act when it had the opportunity to act, and because of its delay, it lost control of unlawful development at this site when enforcement time limits passed. This is fault.
52. I find this fault to be particularly disappointing, as in an earlier decision on a complaint from Mr X, we ended our investigation because the Council told us its enforcement case was ongoing. When councils tell us matters of complaint are part of open cases, we expect them to act without further undue delay, but that did not happen here.
53. I accept this is a complex case. The topography of the land, where some of the gardens and terraces in the area are a similar height or higher than the houses, there is a high level of mutual overlooking. Because of this, I cannot say that Y’s developments caused a significant injustice to Mr X that we should remedy. However, but for the faults I have found, the Council would have investigated these matters properly and come to a conclusion on whether or how to act within statutory time limits. I consider that the Council’s failure to do this caused Mr X unnecessary frustration, uncertainty and disappointment.
54. However, I accept that since the events I refer to above, the Council has taken action following other Ombudsman investigations which recommended service improvements. The Council has recruited staff, created new ways of considering enforcement cases and created new policies and guidance. I have taken account of these changes before making the following recommendations.

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Recommended action

55. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for losing control of unlawful development at this site, the delays and poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £500 to recognise the distress and frustration the fault caused Mr X.
• Share a copy of this decision with staff in the relevant departments to consider the lessons that can be learned from this case.
56. The Council has agreed to take the following actions within three months of my final decision:
• Complete a review of the service and this complaint to identify the issues which led to the faults. The review should also consider if there are any training needs or if policies require reviews to ensure a uniform approach to enforcement. Action should be taken to address all issues identified without delay.
• Refer this decision and the review to the Cabinet Member for planning and the scrutiny committee to ensure democratic oversight of the issues identified and any planned actions to address these.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman