Summary: Mr and Mrs X say the Council failed to take enforcement action on some of their concerns over breaches of planning control at a neighbouring property and falsely claimed enforcement action had been completed in other cases where it took action. There was fault by the Council because of unreasonable delay in taking action. The Council proposed action to resolve the outstanding enforcement matter. It also agreed to a time and trouble payment to Mr and Mrs X.

The complaint

1. Mr and Mrs X say the Council failed to take enforcement action on some of their concerns over breaches of planning control at a neighbouring property and falsely claimed enforcement action had been completed in other cases where it acted.

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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 reviewed the complaint and background information provided by Mrs X. I discussed matters by telephone with Mrs X. I made enquiries of the Council and considered the information it provided. I sent a draft decision statement to Mr and Mrs X and the Council. I considered the comments of both parties on it.

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What I found

Planning enforcement law and guidance

5. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
6. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
7. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
8. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
9. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

10. In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
• There is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• Development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• In their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.

Background

11. Mr and Mrs X complained to the Council in September 2017 about an unauthorised outbuilding, single storey rear extension as well as the extension of a shared boundary wall. They said the developments were bigger, wider, longer and higher than the approved plans.
12. The Council’s planning enforcement team visited the property which was the subject of the complaint in November 2017. A lawful development certificate had been issued for an outbuilding with a maximum height of 2.5 metres. The enforcement team found the outbuilding was 3 metres high; 5.5 metres deep and 5.5 metres wide. The outbuilding had a lean-to polycarbonate sheeting extension which adjoined Mr and Mrs X’s property and was approximately at the same height of an outbuilding within Mr and Mrs X’s property.
13. Prior approval had been given for a 6 metre rear extension with a maximum height of 3.45 metres and eaves height of 2.6 metres. The team found there was a single storey wrap around extension which was 5.1 metres deep with a height of 2.5 metres where it faced the garden. There was an infill section on the opposite side of the boundary from Mr and Mrs X’s home. The team found an existing extension had been extended to 5.1 metres in depth and then infilled with a side extension towards the boundary on the opposite side from Mr and Mrs X’s home.
14. After the visit, the enforcement team wrote to the owner of the subject property with a request that the single storey infill extension be removed. This was to differentiate between the two extensions and ensure they are both lawful in planning terms. In response, the owner told the Council he would submit a planning application to regularise the developments.
15. The owner submitted a planning application in January 2018.
16. Mr and Mrs X continued their complaints about developments at the neighbouring property in January 2018. They said the roof of the rear extension overhangs and runs over the boundary wall. They said the roof of the outbuilding was wider than it should be and was made of a different material to the roof of the rear extension. They said the property owner had increased the height of the rear boundary wall. They also complained about gates installed at the front of the neighbouring property.
17. The Council sent replies in February 2018. It explained the matter of the overhang of the roof of the rear extension was not a planning enforcement matter but a civil matter between Mr and Mrs X and their neighbour.
18. In terms of the roof of the outbuilding, the Council described the development as a ‘canopy extension’. It implicitly accepted the canopy was unauthorised because it said the harm caused by the canopy was minor and did not cause any harm to neighbouring properties. It said there was no explicit requirement for the materials used to build the roof of an outbuilding to match the material used on the existing outbuilding or main dwelling.
19. In terms of the alleged additional height of the rear boundary wall, the Council asked Mr and Mrs X to provide photographs so it could assess matters.
20. Mr and Mrs X provided the photographs and made additional comments on the matters. The Council explained the outbuilding had been built using permitted development rights and was approved through a lawful development certificate. It did not therefore require planning permission. The Council said the issue of the small canopy over the rear access could be liable for enforcement action. It was satisfied the materials used to build the outbuilding were similar to those used in the exterior of the existing house and so complied with the lawful development certificate.
21. The Council said it would consider the status of the rear and single storey extensions through the planning application already submitted. It pointed out the property owner would be asked to remove the remainder of the extension built along the opposite boundary without planning permission.
22. The Council explained the gates required planning permission and so its enforcement team would contact the property owner.
23. Mr and Mrs X were dissatisfied with the response and so contacted officers again. In March 2018, the Council explained that it did not dispute roofing material overhangs on to their boundary. But it said encroaching or trespassing, if it is a relatively small amount, will not normally justify enforcement action. It provided advice to Mr and Mrs X on the Party Wall Act 1996.
24. Enforcement officers met Mr and Mrs X at their home in April 2018. They found the side boundary wall was over 2 metres in height. Officers iterated the encroachment of the roof was a civil matter. They discussed the side and rear extensions as well as the matters of the front gate and the use of the outbuilding by their neighbour. The Council said the front gate was lawful because it was set back by 2 metres from the boundary with the highway. Officers also iterated the outbuilding canopy extension did not create harm to neighbouring properties through loss of daylight/sunlight and did not amount to overdevelopment of the site in terms of mass and density.
25. An enforcement officer visited the neighbouring property in May 2018. He asked the property owner to reduce the height of the side boundary wall to below 2 metres. The officer found the outbuilding was being used as a home entertainment room and so was lawful.
26. The Council granted planning permission for an infill extension in June 2018 but the permission did not include the corner of the extension joining the side extension to the rear extension.
27. The property owner sent a photograph to the Council which suggested the side boundary wall had been reduced so as to be 2 metres high or less. The enforcement officer wrote to Mr and Mrs X to say the side boundary wall had been reduced by a course of bricks to be less than 2 metres high.
28. The officer said enforcement matters relating to the side boundary wall; the outbuilding and rear extension would be closed. However, the matter of the rear and side extension being infilled was yet to be determined.
29. Mr and Mrs X remained adamant the Council had not taken the correct actions and so contacted officers again in July 2018. The Council replied in August 2018. The reply did not add substantially to the previous replies.
30. Mr and Mrs X wrote again to the Council in August. The letter repeated their previous points. The new matter was their belief the enforcement officer was wrong to say the side boundary wall had been reduced to less than 2 metres in height. They said only half of the wall had been reduced.
31. The officer replied in September 2018. The officer said the boundary wall was less than 2 metres high and so was now lawful. The officer said planning permission had been granted for retention of the part storey side infill extension. The remaining infill side extension had been demolished and replaced with a stand-alone canopy outbuilding. The officer was satisfied the matter had been resolved.
32. Mr and Mrs X wrote again to the Council at the end of September 2018. This was a formal complaint.
33. The Council responded in November 2018. Its response iterated previous explanations given to Mr and Mrs X but provided more background in terms of the law and government guidance.
34. Mr and Mrs X remained dissatisfied and asked the Council to consider their complaint at the second stage of its complaints procedure.
35. The Council responded in January 2019. It did not add anything substantial to its stage one response. But it offered a meeting with its officers to clear up any outstanding issues.
36. Mr and Mrs X met with officers in February 2019. The Council measured the height of the wall on the side boundary and found it was 2.14 metres in height. Officers sent an email to the property owner with a request to remove a course of breeze blocks. The Council says the owner provided evidence of the removal of breeze blocks which means the wall does not now exceed 1.93 metres in height.
37. The Council says following on from correspondence with Mr and Mrs X, it considers the infill development had not been reduced in depth to comply with the planning permission and so it contacted the property owner with a request to remove more of the infill. It says the property owner has not responded to date. If the property owner does not act, then the Council says it will consider service of an enforcement notice by the end of 2019.

Analysis

The enforcement decisions made by the Council

38. I will not examine each matter separately in this statement. The issues are known to the Council and complainants and are summarised above. On the whole, I am satisfied the Council’s investigation of the alleged breaches of planning control was sound and in accordance with planning law and government guidance.
39. The Council accepts there may need to be further action taken to ensure the property owner removes the infill to ensure it complies with the planning permission granted for the development. It would have been better had the Council chased the matter with the property owner at an earlier stage. I find there has been unreasonable delay to this point. However, I do not consider the delay has caused Mr and Mrs X significant injustice. The infill is on the opposite side of the boundary to theirs and does not affect their amenity.
40. I note the Council initially considered the side boundary wall had been reduced below 2 metres and so closed the enforcement investigation because it had been resolved. It took further contact from Mr and Mrs X before it ensured the property owner reduced the wall to below 2 metres in height. It would have been better had the Council ensured the matter had been truly resolved before it closed the investigation the first time round.
41. I find there was unreasonable delay between September 2018 and June 2018 when the matter of the height of the side boundary wall was finally resolved. Given the final action was prompted by the intervention of Mr and Mrs X, I consider a time and trouble payment of £100 is warranted to reflect the unnecessary time and trouble they were put to in pursuit of matters. The Council agreed to make the payment.

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Final decision

42. Subject to further comments by Mr and Mrs X and the Council, I intend to close this complaint provided the Council accepts the recommended remedy.

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Investigator's decision on behalf of the Ombudsman