Summary: Mr and Mrs B complain the Council has failed to take enforcement action against several breaches of planning control committed by their next-door neighbour. They also complain it took too long to deal with their correspondence about this matter, if it did at all, and the Council’s Planning Enforcement Team should not have been involved in the investigation of their formal complaint. The Ombudsman has found the Council was at fault for not maintaining detailed records of its investigation and for failing to deal with all of Mr and Mrs B’s concerns in a timely manner. It was also at fault for the way it handled their complaint about these matters. The main injustice caused by these faults has already been rectified, however we recommend the Council apologises to Mr and Mrs B to acknowledge the impact of its faults. We also recommend the learning points from this complaint are discussed at a Planning Enforcement Team meeting to prevent these faults from reoccurring. The Council has agreed to carry out these recommendations.

The complaint

1. The complainants, who I shall refer to as Mr and Mrs B, complain the Council has failed to take enforcement action against several breaches of planning control committed by their next-door neighbour. They also complain it took too long to deal with their correspondence about this matter, if it did at all, and the Council’s Planning Enforcement Team should not have been involved in the investigation of their formal complaint.

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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)

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How I considered this complaint

4. I have:
• Read Mr and Mrs B’s complaint and the documents they submitted in support of it.
• Considered the Council’s comments about the complaint and the supporting documents it provided.
• Provided both parties with an opportunity to comment on the draft decision, then issued a second draft decision in response to the comments that were made.

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What I found

5. 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.
6. Local authorities can take enforcement action if they find there has been a breach of planning control. However, they should not take enforcement action just because there has been a breach of planning control. The National Planning Policy Framework says:

‘’Effective enforcement is important to maintain 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.”

What happened

7. In mid-October 2017, Mr and Mrs B’s next-door neighbour submitted a full planning application to the Council. He lived in a semi-detached house and sought permission to demolish his side garage and build the following: a two-storey side extension; a single-storey rear extension; and a new raised terrace area at the rear of the property.
8. At the beginning of December 2017, the Council approved the planning application. One of the conditions it attached to the permission stated the windows facing Mr and Mrs B’s property must be obscure-glazed and fixed permanently shut. Another condition stated that no window, other than those approved in the plans, should be installed in the elevation facing the couple’s property. Both these conditions were attached to protect the privacy and amenity of Mr and Mrs B.
9. In mid-March 2018, Mr B emailed the Council to complain about several breaches of planning control in the work being carried out on his neighbour’s property. He said:
• Space was being made for the installation of a window in the roof elevation facing his property, despite this not being permitted.
• Three windows were being installed at the rear of the building on the second floor when there should only have been two, before adding he was concerned about the positioning of these windows.
• Four windows were being installed on the first floor at the rear of the building when there should only have been three.
• He was concerned about the placement of the boundary line and asked for details about the erection of a retaining wall.
10. In conclusion, he asked the Council to visit the site and investigate the matter. He also asked it to confirm receipt of his complaint.
11. The Council subsequently opened an enforcement investigation and an officer visited the site in mid-March 2018. The officer spoke with the site manager and looked through the plans being used to construct the development, noting there were differences. The site manager asked him if the architect who drew the plans could contact the officer to discuss the matter. The officer agreed and left his business card.
12. Approximately two weeks later, the officer visited the site again as he had not received any contact from the architect or the site manager. During his visit, he took some pictures of the site and documented some potential breaches. Following this, he states he sent a letter requesting access to carry out an official site visit.
13. The following day, the architect called the officer to complain about his insistence that a retrospective planning application should be submitted in response to the change in plans. The officer noted the architect initially contested this, but then acquiesced and agreed to submit a retrospective application “within the next week”.
14. In mid-May 2018, the officer tried to call the architect as he noted a retrospective planning application had not been submitted. He was unable to establish contact so he called the site manager instead, who stated he was under the impression the work could continue and a retrospective planning application was not needed.
15. A few days later, the officer conducted a third site visit after he had been unable to establish contact with the architect. He spoke to the site manager and said he was considering whether to issue an enforcement notice. He was then able to speak with the architect who assured him he would send him the plans he had requested in a few days. Following the visit, the officer noted he would compare the plans against the pictures he had taken during his site visits before deciding what action to take next.
16. The officer subsequently wrote a report recommending the Council issue the owners and occupiers of the property an enforcement notice. He noted the majority of the side and rear elevations had been built according to the planning permission, but the installation of the side extension roof window was not in accordance with the approved plans. He concluded this was detrimental to Mr and Mrs B’s privacy and recommended the enforcement notice demand its removal.
17. Toward the end of June 2018, Mr B emailed the Council and referred to the complaint he made in March. He noted building work was continuing and asked it to confirm whether this was legal and in accordance with the approved plans. He also provided his phone number and asked that someone call him to explain the situation.
18. A few days later, the officer emailed Mr B and highlighted that cases involving breaches of planning control took a long time to resolve. He apologised if this was not mentioned in the initial acknowledgement letter he sent Mr B and offered to resend this. He added Mr B would be contacted when there was a conclusive outcome to the Council’s investigation and noted it was looking to take more robust action in response to the concerns he had raised.
19. At the beginning of July 2018, the Council issued Mr and Mrs B’s neighbour an enforcement notice requiring the removal of the side extension roof window.
20. In mid-August 2018, Mr B emailed the builders who were carrying out the work on his neighbour’s extension and noted cracks were appearing at the rear of his property. He attributed this to the erection of his neighbour’s rear terrace and asked the builders to stop all work and assess the problem.
21. At the same time, Mr B emailed the Council about the matter. He enquired whether it could ask the builders to stop the work and listed the breaches of planning control he had observed to date. In addition to the breaches he had already reported, he said:
• The steps on the pathway were not built according to the plans.
• The side extension roof window had been installed and contained clear glass.
• One window had been built at the front of the house when the plans stated there would be four.
• The raised height of the patio or terrace might be more than 0.7 metres from ground level.
22. Two days later, Mr B emailed the architect and referred to the cracks at the rear of his property. He noted the architect’s firm had carried out an inspection of his property prior to the work beginning, in case any damage was caused which needed to be addressed. Consequently, he asked the architect to view the cracks and noted he had informed the builders and his neighbour. He also asked him to rectify some damage to his property that was caused by scaffolding earlier in the year.
23. In mid-September 2018, Mr B emailed the Council and stated he was experiencing heave at the rear of his property as well as cracks, noting the builders, surveyors and his neighbour had not responded to his correspondence about the matter. He also stated the work being undertaken was not in accordance with the approved plans, particularly the patio, which he asserted had caused the damage to his property. Consequently, he asked the Council to visit his property to assess the damage and take steps to stop the work being undertaken by his neighbour.
24. Two days later, the officer received a phone call from Mr B, who complained about the changes his neighbour had made to the rear windows on his property. The officer explained the Council had asked his neighbour to submit a retrospective planning application to seek permission for these changes. He also explained the damage caused to Mr B’s property was a civil matter and advised him to contact the Citizen’s Advice Bureau.
25. The following day, Mr B emailed the Council and reiterated, in detail, his concerns about all the breaches he had observed. He disagreed the damage to his property constituted a civil matter and again requested a visit from an officer.
26. After exchanging further correspondence with Mr B, the officer emailed him at the end of the month. He said the Council had invited his neighbour to submit a retrospective planning application in relation to the changes made to the rear windows, indicating it was not expedient to take formal enforcement action to rectify this. Conversely, he said the windows at the front of the property complied with the approved plans and directed Mr B to the Council’s online planning portal if he wanted to refer to these plans. He also highlighted the Council had already served an enforcement notice in respect of the side extension roof window.
27. In addition, he confirmed the steps at the side of the property and the height of the patio were both in compliance with the plans. He did note the side footpath had been extended past the rear of the property but noted this work could be undertaken by his neighbour under permitted development. He also reiterated the damage caused to Mr B’s property was a civil matter between him and his neighbour.
28. At the beginning of October 2018, Mr B emailed the officer and stated his response contained many errors. Consequently, he asked that a complaint be raised and that his case be investigated by the “Chief Planning Officer”. He also complained the Council had “allowed” the pathway to be extended under permitted development, implying the heave and damage caused to his property resulted from the felling of a tree to make way for this pathway.
29. A couple of days later, Mr B emailed the Planning Enforcement Manager and asked him to investigate his case. He said he had reported the breaches at an early stage but the officer did not visit his property or enforce them. He also asked that all retrospective planning applications linked to the case be halted. At the same time, Mr B emailed a local councillor about his case.
30. The following day, the Enforcement Manager responded to Mr B. He stated some of the changes that Mr B’s neighbour had made could be done without planning permission, whereas others could not. He said the breach relating to the side extension roof window could not be tolerated and noted the Council had issued an enforcement notice to Mr B’s neighbour in response. He added the latter had subsequently appealed the notice therefore the Council would notify him of the outcome of the appeal.
31. Five days later, Mr B emailed the Enforcement Manager and said he was not content with his response. He said it did not address all the points he had raised and asked for details about how his complaint would be investigated.
32. The Enforcement Manager responded the same day and asserted the actions the Council were taking were appropriate. He accepted the arrangement of the windows differed from those in the plans but said that after consideration, the Council decided it would not be in the public interest to take formal enforcement action. He stated it had reached this decision because the impact of the changes on the character and appearance of the building was minimal, and there was “no unacceptable overlooking” resulting from these changes.
33. Two days later, Mr B emailed the Council’s Complaint Manager after the pair had spoken on the phone. He outlined the background to his complaint and asked that it be investigated.
34. The following day, the Complaint Manager emailed Mr B to acknowledge receipt of his complaint. He added he had forwarded it to the Planning Service for a response.
35. Toward the end of October 2018, Mr B emailed the Enforcement Manager and referred to a call they had earlier that day. He noted the Manager had stated he would call back but did not do so. He then questioned the action the Manager was taking in response to his concerns. He highlighted that clear glass had been placed in the side extension first floor window rather than obscure glass, and a tree had been felled during the works despite his neighbour stating this would not happen when he submitted his planning application.
36. The Enforcement Manager emailed Mr B the following day. He said he became involved in some urgent work the previous day and was unable to call back. He explained the criteria for taking enforcement action and said he had called to check he had correctly understood the nature of Mr B’s concerns, including the extent of the harm the breaches were causing him. He stated he understood how the side extension roof window was causing overlooking, but could not see how the one below it on the first floor did the same. Consequently, he said Mr B could give him a call to clarify this and his wider concerns.
37. After Mr B responded to the Enforcement Manager, he was sent an email the next day by the officer who initially dealt with the case. The officer listed what he thought were Mr B’s outstanding concerns and said the Council would reconsider these then report its findings to him. He also confirmed the Council could not consider the concerns Mr B had raised about the tree and the damage to his property.
38. Two days later, Mr B emailed the Service Director for Planning and Building Control and asked him to investigate his complaint. The Service Director responded at the beginning of November 2018 and said Mr B’s complaint was at stage two of the Council’s corporate complaints procedure and he would receive a response to it by mid-December 2018.
39. In mid-December 2018, the Service Director responded to Mr B’s complaint at stage two and did not uphold it, reasoning the Council had investigated his concerns and issued an enforcement notice after considering what action to take. He mentioned the appeal Mr B’s neighbour had submitted against this notice and said the Council would keep him up-to-date on its progress as the matter was ongoing.
40. At the beginning of January 2019, Mr and Mrs B complained to the Ombudsman. In addition, Mr B continued to correspond with the Council about his concerns.
41. Toward the end of March 2019, the officer visited Mr B’s neighbour to reinspect the site. He found the side extension roof window had been rendered permanently shut and the glazing had been obscured.
42. In their complaint to the Ombudsman, Mr and Mrs B feel the Council has not listened to them, that their views do not matter, and it has let them down. They add the unauthorised work that has been undertaken by their neighbour infringes upon their privacy, therefore they want the Council to enforce all the breaches they have reported.

Analysis

43. I note this complaint covers two distinct periods. The first started when Mr B reported several breaches of planning control in March 2018 and ends at the beginning of July 2018 when the Council issued an enforcement notice. The second began when Mr B reported further concerns to the Council in August 2018 and is still ongoing.
44. Regarding the first period, I am pleased to see the Council opened an enforcement investigation after Mr B reported his concerns. It subsequently visited the site on more than one occasion and decided to issue an enforcement notice in respect of the side extension roof window when compliance was not forthcoming. Considering this and the evidence I have seen, it is clear it was taking Mr B’s concerns seriously.
45. I did consider whether the Council kept Mr B properly updated about its investigation and on the balance of probabilities, I have decided it did. It notes it sent him a letter in March to acknowledge receipt of his concerns and state it would contact him again once it had concluded its investigation. It has not provided me with a copy of this letter, but I do note it emailed Mr B at the end of June providing an update and offering to resend the letter. I see Mr B did not request a copy so I am content that it was sent and the Council kept Mr B updated as per this letter. However, I note its website does state it will “keep complainants informed at key stages of the [investigation] process”. If it does not routinely do this, it should remove this information from its website.
46. Conversely, I have found the Council was at fault for failing to maintain complete records detailing its investigation or the reasons behind the actions it took. For example, it notes it sent Mr B’s neighbour letters during its investigation but I have not been provided with copies of this correspondence. I see it did make extensive case notes but these do not provide sufficient detail about the reasoning behind the actions it took. Similarly, the report compiled by the officer focussed on the breach the Council decided to enforce, namely the addition of the side extension roof window and not the other concerns that Mr B had raised. Considering the evidence, I am content that it addressed all of his concerns during this period, but it should have documented its reasoning to provide transparency and ensure confidence in the enforcement process.
47. During the second period, Mr B raised further concerns as construction progressed. At this point, the Council started to engage with him and eventually addressed most of the concerns that he raised. However, it failed to note his comments about the side extension first floor window being clear-glazed when it should be obscured. He initially raised this specific concern when he contacted the Council in August 2018, although he referred to both the first floor window and the loft window interchangeably as being on the second floor. Therefore, I can understand why it did not identify this issue at the time. Nevertheless, he raised the matter again in October 2018 in a more explicit manner yet the Council failed to act.
48. As a result, I have also found the Council was at fault for failing to deal with all of Mr B’s concerns in a timely manner. It should have carried out another site visit in October 2018 to investigate these concerns, given they were new and construction had progressed since the last visit was carried out in May 2018. However, it appears the Council assumed everything had been dealt with during the first period and Mr B was merely repeating his concerns.
49. Furthermore, I have found the Council was at fault for the way it handled Mr B’s complaint. He submitted his first formal complaint at the beginning of October 2018 but the Planning Enforcement Team’s response did not tell him how he could escalate his concerns if he was unhappy with the outcome. It did the same thing again even after the Complaint Manager became involved. The complaint was only dealt with properly when the Service Director investigated Mr B’s concerns then referred him to the Ombudsman if he wanted to escalate the matter further.
50. However, I do not agree with Mr B’s assertion that the Planning Enforcement Team should not have been involved in the investigation of the complaint. This is because there is nothing in the Council’s policies which state this should not happen and the Ombudsman is not prescriptive, in these circumstances, about which team or body should investigate. Instead, we expect to see complaints being dealt with properly and complainants being told how to escalate their concerns at each stage of a council’s complaints procedure. As I have already noted, this did not happen in this case.
51. Turning now to the actions the Council took in response to the concerns raised by Mr B. Regarding the crack and heave issue, it was correct to assert this is a civil matter which it cannot resolve. Mr B’s neighbour carried out the work and is both responsible and liable for it, not the Council. Its role is confined to investigating reports of planning breaches and deciding what action to take if a breach occurs.
52. Regarding the extended length of the side footpath, the Council was also right to assert this can be completed using permitted development rights. I see Mr B stated the Council allowed the footpath to be built under this scheme, but it is important to note no permission is required under permitted development. Therefore, Mr B’s neighbour was able to undertake this work without making the Council aware of the matter. In relation to the felling of the tree, I note the neighbour’s property is not in a conservation area and as far as I am aware, no Tree Protection Order (TPO) was in effect. Moreover, no conditions were attached to the planning permission which prohibited the removal of any trees. Accordingly, I cannot find the Council was at fault for not taking enforcement action in respect of this matter.
53. In relation to the siting of the windows, I see the Council felt those at the front and rear of the building did not result in any unacceptable overlooking of Mr B’s property. Regarding the latter, it did insist on a retrospective planning application being submitted but felt that formal enforcement action was not in the public interest. I understand Mr B disagrees with this decision but it is important to note the Council retains discretion when deciding whether to take enforcement action. In this instance, it visited the property and assessed the siting of the windows before making its decision. As a result, I cannot find the Council was at fault as it properly considered the impact of the breaches on Mr B’s privacy before deciding on its response.
54. Concerning the side windows, I have already noted the Council failed to deal with Mr B’s concern about the side extension first floor window being clear-glazed. Nevertheless, I note the glazing in this window has since been obscured and it has been rendered shut. I also note the same was done to the side extension roof window and an enforcement notice was issued in response to this breach, which Mr B’s neighbour has appealed to the Planning Inspectorate. I understand the ground floor door and window are clear-glazed but the Council has considered this matter and notes there is no impact on Mr B’s privacy, as these openings face a brick wall and are significantly lower than Mr B’s side elevation.
55. Regarding the other concerns raised by Mr B, specifically in relation to the boundary, drain, steps and patio, I understand the Council has decided these accord with the approved plans. I also note it visited the site again in March 2019 after it started to review Mr B’s outstanding concerns whilst considering his complaint. Therefore, as far as I am concerned these matters are closed as the Council has considered them before deciding no action was required.

Injustice

56. In summary, I have found the Council was at fault for failing to:
• Maintain complete records detailing its investigation or the reasons behind the actions it took.
• Deal with all of Mr B’s concerns in a timely manner.
• Handle Mr B’s complaint in the correct manner.
57. The main injustice arising from the Council’s failures was the lack of privacy that Mr and Mrs B experienced when it failed to address the issue relating to the side extension first floor window. It is not clear when the building first became inhabited or when the glazing in the window was obscured and rendered shut. Mr and Mrs B state the building was occupied in June 2018 but the Council disagrees. Nevertheless, it is evident there was a period when Mr and Mrs B were overlooked. Mr B was also caused a certain amount of time and trouble when the Council did not properly deal with the concerns that he raised, meaning he was compelled to pursue the complaint when the matter could have been resolved sooner.
58. Given the side extension first floor window has now been obscured, the injustice that Mr and Mrs B were caused has now, to a large extent, been rectified. However, it is important the Council acknowledges its faults and apologises to the couple for failing to deal with their concerns in a timely manner. Consequently, I have made a recommendation in the section which follows to this effect. I have also made a service improvement recommendation to prevent the faults I have identified from reoccurring.

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Agreed action

59. Within one month of this final decision, the Council will write to Mr and Mrs B and apologise for the faults identified in this statement. In its letter, it will accept responsibility for these faults and acknowledge the impact they had on the couple.
60. Within three months of this final decision, the Council will ensure the learning points which have arisen from this complaint are discussed at a Planning Enforcement Team meeting. This meeting will cover the following topics:
• The importance of keeping accurate records when conducting an investigation and ensuring reports address all the points and potential breaches raised by a complainant. Similarly, these reports should outline the reasons why the Council may or may not decide to take enforcement action.
• The need to scrutinise further complaints made by a complainant to check whether they have raised any new concerns or potential breaches.
• The need to write to complainants once an investigation is complete to notify them of the outcome, ensuring all points and potential breaches are addressed.
• The importance of following the Council’s complaint procedure and telling complainants how they can escalate their concerns if they are not content with the outcome.

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Final decision

61. The Council was at fault for not maintaining detailed records of its investigation and for failing to deal with all of Mr B’s concerns in a timely manner. It was also at fault for the way it handled this complaint.

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Investigator's decision on behalf of the Ombudsman