Summary: The Council was at fault in how it dealt with unauthorised development that reduced Mr X’s privacy. The Council agreed to apologise to Mr X and pay him £150 in recognition of the distress caused by its avoidable delay. The Council also agreed to review its enforcement decision and write to update Mr X on its findings.

The complaint

1. Mr X says the Council originally said development near his home did not have planning permission and breached planning control. But, the Council later allowed the development and would not take enforcement action to remove it. Mr X says the development significantly reduces his privacy and directly overlooks his home and garden. Mr X wants the Council to explain how and why it changed its view of the development when the law has not changed.

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The Ombudsman’s role and powers

2. 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)
3. 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 have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments on the complaint;
• shared the Council’s comments with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

6. Most development needs planning permission from the local council. But, Parliament has given a blanket planning permission, referred to as ‘permitted development’ for many minor works. Subject to the specific nature of the works, councils have no control over these matters. Most permitted development is subject to detailed rules and limits. Work must meet all the relevant rules and limits to be permitted development.
7. Normally, a first-floor window in the side wall of a house is permitted development provided it has obscure glazing and any opening is at least 1.7 metres above floor level.
8. If development takes place without the necessary planning permission from the council, there will be a breach of planning control. It is also a breach of planning control if permitted development takes place that does not meet all the relevant rules and limits.
9. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. The Government’s National Planning Policy Framework (NPPF) 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...” (NPPF paragraph 58)

The law says a council must be satisfied it is ‘expedient’ to issue a formal notice for the removal of unauthorised development.

10. The Council has published several documents setting out its approach to enforcement, including how it will handle breaches of planning control. The Council’s ’s planning enforcement ‘Service Aims’ include acting ‘proportionately’ to consider each case to decide if a breach “is sufficiently harmful to require action to be taken in the public interest.” And, the Council says it will consider what would make development acceptable on planning grounds. Normally, the Council will try to resolve breaches through negotiation. The Service Aims also set out the Council’s time targets for handling enforcement cases including updating those reporting alleged breaches every six weeks.
11. The Council’s ‘planning enforcement policies and procedures’ statement includes specific planning enforcement policies. Policy 4 says the Council will not normally take formal enforcement action against development that varies slightly from permitted development rules and causes no harm to amenities.
12. The Council’s ‘guide to planning enforcement’ says people reporting an alleged breach of planning control will receive information about planning enforcement. The guide also says the Council ranks all enforcement reports according to the severity of the harm to the environment caused by the alleged breach. The Council says it first ranks a case based on the information given by the person reporting the breach. This ranking may change after an officer visit to view the alleged breach of planning control.
13. Building regulations (‘the building rules’), which are separate to planning laws, control how buildings are constructed. For example, the building rules cover fire safety, insulation, energy conservation and access to buildings. Councils have powers to take enforcement action if building work does not comply with the building rules.

What happened

14. A first-floor window was installed in the side wall of a property near Mr X’s home. The window had clear glazing and was fully opening. Mr X reported the window to the Council as a breach of planning control. The Council gave Mr X’s case a ‘medium’ priority (see paragraph 12 of this statement). About two weeks later, after an officer visited the site to view the window from outside the property, the Council gave Mr X’s case a ‘low’ priority (see paragraph 12). The Council’s notes say officers have not yet been inside the property to decide if the window overlooks nearby homes. The Council then wrote to Mr X saying there would be a delay before it decided if the window needed planning permission as it had to recruit a planning enforcement officer.
15. The Council arranged for a temporary planning enforcement officer to handle some of its enforcement investigations (‘Officer T’). Nearly three months after Mr X had reported the window, Officer T contacted Mr X and said it needed planning permission.
16. Officer T discussed the case with a senior planning officer. The Council’s file notes say the senior officer advised obscuring the window glass would resolve Mr X’s loss of privacy and it would not then be expedient to take enforcement action. The notes also say the window could not be non-opening because, under building rules, it was an escape route from the property. Officer T’s temporary post with the Council ended.
17. About three weeks after hearing from Officer T, Mr X phoned the Council for an update. A Council planning enforcement officer (‘Officer E’) returned Mr X’s call. Officer E told Mr X the Council would ask his neighbours to make the window glazing obscure. Mr X said, opening the window would reduce his privacy despite any obscure glazing. Officer E said, with obscure glazing, the window would not need planning permission and, the Council could do nothing about it being an opening window. Officer E also said Mr X’s neighbours had said they did not open the window and Mr X had admitted he had not seen the window open. (Mr X disputes this.)
18. A few days later, the Council’s file notes show Officer E checked the permitted development rules. The file note says the Council needs to check the window complies with the rule about openings being 1.7 metres above floor level (see paragraph 7).
19. The Council wrote to Mr X’s neighbours and asked them to obscure the window glass within 28 days to resolve the breach of planning control. (This was about three months after the Council’s first site visit (see paragraph 14).) The Council also wrote to Mr X saying there was a breach of planning control as the window needed planning permission. The Council told Mr X it had asked his neighbours to obscure the window glazing within 28 days, which would resolve the breach.
20. A week later, Mr X phoned the Council. The Council’s file notes say Mr X again said opening the window affected his privacy. In response, the Council again told Mr X the window, with obscure glazing, did not need planning permission. The Council also told Mr X the window had to open to provide a means of escape under the building rules. The file notes record Officer E as telling Mr X his neighbours would not stare out of the window at him.
21. Meanwhile, Mr X’s neighbours applied obscure film to the clear glazed window. A Council officer visited the site, taking photographs, and confirmed obscure film was in place. The Council’s file notes record the measured distance from the floor to the “bottom of the window opening” as 1.76 metres.
22. The next day, the Council closed its enforcement file. The Council’s file notes of the decision say, “now that the glazing is obscured the window complies with [the relevant permitted development rules]. Breach is resolved and no further action.” The Council wrote to Mr X and told him of its enforcement decision.
23. Meanwhile, Mr X had complained to the Council. Mr X said obscuring the glazing only partly addressed the breach of planning control. The open window would badly affect his privacy and compliance with building rules was not a good enough reason for not taking further planning enforcement action.
24. The Council responded to the complaint saying the only reason the window had needed planning permission was its lack of obscure glazing. Now with the obscure glazing, the window was permitted development, which resolved the breach of planning control. The Council also said it could not control the size of the window and the permitted development rules allowed it to be an opening window. The Council said an opening window was necessary to comply with the building rules. Remaining dissatisfied, Mr X came to the Ombudsman.

The Council’s response to the Ombudsman

25. The Council admitted the 1.76 metres distance recorded in its file notes ‘seemed very high’ and ‘might be an error’. The Council also pointed to its senior planning officer saying formal action would not be ‘expedient’, if the window had obscure glazing, before the Council knew its height above floor level (see paragraph 16). The Council confirmed its view remained that it was not ‘expedient’ to take enforcement action against the window even if it was less than 1.7 metres from floor level.
26. The Council recognised there could be a conflict between planning and building control rules about opening first floor side windows. The Council said where such a conflict arose it weighed up the harm/implications of taking planning enforcement action. For example, if complying with planning rules meant such a window should be non-opening but this resulted in no means of escape from fire or flood, the Council viewed an escape access as more important. (The Council says Mr X lives in a flood risk area.)
27. The Council accepted its file notes could have been clearer but said building rule compliance was not the basis of its decision not to take formal enforcement action. The Council said the window, with obscure glazing, complied with planning policy as it did not unacceptably harm nearby homes or cause any harmful degree of overlooking or loss of privacy. And, while the obscured glazing addressed the window’s unacceptable planning harm, it being an opening window also addressed the occupier’s safety.
28. The Council recognised its delay in investigating Mr X’s enforcement case meant the clear glazed window remained in place longer than it ought to have done. The Council offered an apology to Mr X for the loss privacy or overlooking he experienced because of its delay.

Consideration

29. I recognise the Council had staff vacancies but it did delay investigating Mr X’s enforcement case for nearly three months. And during these three months the Council did not keep in touch with Mr X. The Council also did not contact Ms X’s neighbours after the first site visit to let them know the window breached planning control. I find fault here as the Council did not comply with its published procedures and guidance for handling enforcement cases (see paragraphs 10 to 12).
30. There is no dispute the window, as originally installed, needed planning permission. The Council did not change its position on this point during its enforcement investigation. Mr X’s expectation was the Council would secure the removal of the window because it did not have planning permission. However, planning enforcement is discretionary and councils do not have to take formal action to secure the removal of unauthorised development. And, in Mr X’s case, I have seen no clear or substantive evidence to show the Council decided it would remove the window.
31. Rather, the evidence shows the Council considered what steps it could take to address the planning harm caused by the unauthorised window. This approach was correct and proportionate and in line with the NPPF and the Council’s guidance and policies (see paragraphs 9 to 12 of this statement). I have therefore considered how the Council assessed planning harm and reached its enforcement decision on the window.
32. The Council now accepts the window is unlikely to be 1.76 metres above floor level. I agree and find the evidence supports the window, which the photographs show as being fully opening, as being significantly closer to floor level. So, the window would not be permitted development despite the obscure film on the glass. However, the Council says the height of the window above floor level is not relevant because it decided enforcement action was not expedient before it measured from floor to window (see paragraphs 16 and 25).
33. And yet, a theme throughout the Council’s file notes is the window, with obscure glazing, is permitted development. If the window to floor level height was not relevant to the enforcement decision, it is unclear why Officer E checked permitted development rules and asked for that measurement (see paragraph 18). It is also unclear why the Council’s correspondence with Mr X repeatedly referred to the window (with obscure glazing) being permitted development. The Council’s file notes also record the enforcement decision as based on compliance with the permitted development rules (see paragraph 22).
34. The Council’s file notes do not show Officer T had visited the site. And, the Council had not yet taken its photographs of the window, when Officer T discussed the case with a senior planning officer (see paragraph 16). I have therefore seen no evidence to suggest the Council had by then been inside the property to assess any overlooking of Mr X’s and/or his neighbours’ homes (see paragraph 14). The evidence base for the senior officer’s view that obscure glazing would address any planning harm to Mr X arising from the breach of planning control is therefore unclear.
35. The Council also says the obscure glazing now addresses the planning harm caused by the window. Mr X says the window glazing does not deal with his loss of privacy as the entire window opens. The Council points to the current occupiers saying they will not open the window and that Mr X has not seen the window open. Even if the current occupier does not open the window a future occupier may. And, that Mr X has not seen the window open does not mean it has not been open allowing views directly towards his home. I therefore place no substantive weight on these comments. My concern is the Council has recognised the window has an unacceptable planning impact on Mr X’s home without obscure glazing. As that window, in its entirety may be opened, unacceptable planning harm will arise when that takes place. I therefore find the Council’s position unsustainable.
36. I have considered what the Council says about window providing a means of escape needed under the building rules. I recognise the importance of escape routes from homes. And yet, when making changes to a home, the primary responsibility for ensuring such changes will comply with all relevant laws and rules rests with the homeowner. It is best to resolve any conflict between planning and building control rules before changes take place.
37. The Council says compliance with the building rules was ‘a consideration’ but it did not rely on the need for the window to provide an escape route in making its planning enforcement decision. However, the Council now also says in cases of conflict, it views provision of an escape access as more important than complying with planning rules, particularly in flood risk areas (see paragraph 26). I have already found a lack of an evidence base for the Council’s view about planning harm (see paragraph 34). Taking this finding with the Council’s ‘consideration’ of the building rules, I find the Council did not properly consider the planning impact of the opening window on Mr X’s and other nearby homes.
38. Overall, on the evidence I have seen, I find fault in the Council’s decision making on Mr X’s enforcement case (see paragraph 2).

Agreed action

39. Mr X lived with the clear glazed window for about three months longer than he reasonably ought to have done because of the Council’s avoidable delay in investigating his case. Mr X may also continue to live with an unacceptable loss of privacy because the Council has not properly considered the planning impact the of the opening window on his home. To address the injustice to Mr X arising from the Council fault I have identified, the Council agreed, within 28 days of this final decision, to:

• write to Mr X to apologise for its avoidable delay in dealing with his enforcement case;
• pay Mr X £150 in recognition of the avoidable distress caused by the clear glazed window providing direct views into his home for three months; and
• visit Mr X to view the impact of the window on his home.

40. The Council also agreed that, after visiting Mr X’s home under the third bullet point of paragraph 39, it would review its enforcement decision. And, subject to the result of that review, the Council agreed to write to Mr X and either:

• explain its evidence based reasons for finding the opening window does not cause unacceptable planning harm to his home and why it will not therefore take further enforcement action; or
• make proposals for addressing any identified unacceptable planning harm arising from the continuing existence of the opening window. And, the Council will put any such proposals in place within a calendar month of their acceptance by Mr X.

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Final decision

41. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 39 and 40.

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Investigator's decision on behalf of the Ombudsman