Cornwall Council (16 018 536)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 28 Jul 2017

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision not to take enforcement action against his neighbour. The Council had investigated the complaint but decided that the breach of planning controls did not cause enough harm to justify formal action. There was no fault in the way the Council made its decision.

The complaint

  1. Mr X complains the Council failed to take enforcement action against his neighbour, who inserted a window without planning permission.
  2. In particular, Mr X complains the Council failed to take proper account of his amenity.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read Mr X’s complaint and discussed it with his representative. I read the Council’s response to the complaint and documents from its files, including its enforcement report. I have looked at photos provided by Mr X and the Council.
  2. I have given Mr X and the Council and opportunity to comment on my draft decision.

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What I found

  1. Planning enforcement powers are discretionary. Government guidance says that councils should only take formal action if it is in the public interest and would be a proportionate response to the breach.
  2. Planning enforcement action is subject to time limits. For developments or change of use to a single dwelling, the limit is 4 years from completion, and for any other breach of planning control, including breaches of conditions and other changes of use, the limit is 10 years.

What happened

  1. Mr X’s neighbour had planning permission to convert an agricultural building to a dwelling. The plans showed that a window in the barn would be bricked up. The planning permission included a condition which said the development could only be built in accordance with plans.
  2. Sometime after the barn was converted and occupied, Mr X complained about the window. He said it affected his privacy and, as it was an opening window, noise from the dwelling disturbed him. Mr X said the development was not built in accordance with plans, as the window was inserted.
  3. A Planning Enforcement Officer (EO) visited the site and wrote a report. The EO said that it was arguable that there had been no breach of planning control. This was because the window had already existed when the building was a barn, so was not a ‘new’ opening. In the Officer’s judgement, as the rest of the development accorded with plans, it could be argued that the development was merely not completed. However, as the enforcement time limit might have been approaching, the Council took legal advice and continued its investigation by assessing the impact the window had on its surroundings.
  4. The EO said the window provided light to a kitchen, but because of the design of the window and layout of the kitchen, the view out of the room was not down onto Mr X’s garden, but over it.
  5. The EO said that as regards noise and smells, ‘the kitchen has been present for 3 years and 10 months and a complaint was only [just] made to the Enforcement Team ... therefore if there had been harm to amenity then I would assume this matter would have been raised before this time. In addition the window would be shut for large periods of time due to weather etc and when open noise and smells would be minimal from a residential property...’
  6. The Council decided not to continue enforcement action because there was not enough harm caused to the public by the window.

My findings

  1. The Ombudsman is not a Planning appeal body. Our role is to review the process by which Planning decisions are made and if we find fault, determine whether it caused a significant injustice.
  2. The process we would expect a council to follow when considering a planning enforcement allegation is as follow;
    • consider and investigate the complaint;
    • consider enforcement powers and material considerations, such as planning history, circumstances on site, powers of other regulators and harm caused by a breach;
    • if a breach of control is found, to decide whether action is proportionate and in the public interest;
    • to make and issue a decision without undue delay.
  3. The Council has considered Mr X’s complaints against its powers. It has visited the site and taken photos. It found a breach of planning control, but used its discretion to decide no action was justified because the window did not cause significant harm to the public.
  4. The Council has followed the process we would expect and in these circumstances it was entitled to reach the decision it has.

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Final decision

  1. I have completed my investigation as I found no evidence of fault in the way the Council made its enforcement decision.

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Investigator's decision on behalf of the Ombudsman

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