Summary: Mrs C complains about the Council’s consideration of a retrospective planning application for replacement windows and its response to her subsequent reports of planning breaches. Mrs C says she has spent unnecessary time and trouble and suffers from unacceptable overlooking and loss of privacy. The Ombudsman has found no evidence of fault.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the Council’s consideration of a retrospective planning application made in December 2018 for replacement windows and its response to her reports of planning breaches since then. Mrs C says because of the Council’s fault she has spent unnecessary time and trouble and suffers from unacceptable overlooking and loss of privacy.
2. Mrs C also complains the Council failed to properly respond and take effective action in response to her reports of breaches of planning control at a neighbouring property from 2016 onwards. Mrs C says she reported issues during the building works about blocked access, excessive noise, working outside permitted times and whether the development was built in accordance with the approved plans. Mrs C has also raised concerns about a high hedge and replacement windows during this period.

Back to top

What I have investigated

3. Mrs C complains about the Council’s consideration of a retrospective planning application made in December 2018 for replacement windows and its response to her reports of planning breaches since then.
4. Mrs C says because of the Council’s fault she has spent unnecessary time and trouble and suffers from unacceptable overlooking and loss of privacy.
5. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

Back to top

The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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)
9. 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)

Back to top

How I considered this complaint

10. I read the papers provided by Mrs C and discussed the complaint with her I have considered some information from the Council and provided a copy of this to Mrs C after removing third party details. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

Back to top

What I found

Background and legislation

11. Local Planning Authorities (LPAs) may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
12. Section171A of the Town and Country Planning Act 1990 (the Act) provides that a breach of planning control is:

• 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.

13. LPAs may serve an Enforcement Notice under section 172 of the Act where the breach involves carrying out development without permission if it is expedient to do so. It is for the LPA to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
14. LPAs may serve a Breach of Condition Notice under section 187A of the Act where there is a breach of a planning condition. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
15. In deciding whether it is expedient to initiate enforcement action, the LPA will consider different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.
16. The LPA may invite a retrospective application to regularise development which has already been undertaken. Such an application must be considered in the normal way.

Key events

Council’s consideration of retrospective planning application

17. The Council received a retrospective planning application to regularise unauthorised development for the replacement of existing windows in December 2018.
18. Mrs C provided a detailed representation to the Council setting out her objections to the application. Mrs C noted there were three windows which caused overlooking and a loss of privacy to her property and suggested they were of a poor design and quality.
19. The Council has provided a copy of the report sheet which confirms the date of the case officer’s site visit in January 2019 and a copy of the photographs taken during the visit. The photographs show the application site, the windows and their relationship to the neighbouring property. Although I am satisfied a site was made which considered the relevant issues, I would remind the Council that the Ombudsman considers it good practice to keep notes when a site visit is made.
20. The case officer’s report for the application refers directly to the impact of the proposals on Mrs C’s property. The case officer noted two of the replacement windows provided no overlooking or loss of privacy as they would have restricted opening and obscure glazing and the third window did not give rise to similar issues as it faced the roof of the neighbouring property. The officer also considered the design and materials would not detract from the character of the existing property or surrounding area. The officer recommended approval of the application subject to conditions.
21. The Council granted permission subject to conditions in January 2019. The conditions included that two of the windows should be permanently obscure glazed and restricted to opening no more than 3.5 centimetres.
22. I have seen no evidence of fault in the way the Council considered the above retrospective planning application. I am satisfied the Council properly considered the material considerations including the issues raised in Mrs C’s representation in reaching its decision.

Council’s response to enforcement reports from December 2018 onwards

23. Mrs C contacted the Council in March 2019 about the opening of the windows. The Council acknowledged Mrs C’s report and contacted her neighbour. The Council has provided a copy of its correspondence with Mrs C and her neighbour about this issue. The neighbour apologised for the windows being opened and gave their reasons but confirmed they would ensure the restrictors remained in place in future. The Council advised the neighbour of the potential consequences if the restrictors were removed including the issuing of a Breach of Condition notice. The Council decided no further action was necessary and closed the case towards the end of March and advised Mrs C accordingly.
24. Mrs C contacted the Council in July 2020 about the windows being open again. The Council acknowledged Mrs C’s report and contacted her neighbour. This matter was ongoing at the time of the Council’s response to the Ombudsman in July.
25. I am satisfied the Council has provided good evidence it responded to Mrs C’s reports in a timely way and took appropriate action. I have seen no other evidence of fault here.
26. As the more recent matter is ongoing it would remain open to Mrs C to make a formal complaint to the Council if she were unhappy with the outcome of its investigation.

Back to top

Final decision

27. I have completed my investigation as I have found no evidence of fault.

Back to top

Parts of the complaint that I did not investigate

28. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. I have not investigated the part of Mrs C’s complaint that the Council failed to properly respond and take effective action in response to her reports of breaches of planning control at a neighbouring property from 2016 onwards.
29. This is because that part of the complaint is caught by the restriction set out at paragraph 8 above and I do not consider there is a good reason to accept a late complaint. Mrs C was aware of the issues affecting her and raising these with the Council from 2016 onwards. Mrs C did not complain to the Ombudsman until December 2019. Mrs C was also advised of this restriction in a previous complaint to the Ombudsman in 2017.

Back to top

Investigator's decision on behalf of the Ombudsman