Summary: There was fault in how the Council considered Mr X’s report of a breach of planning control and it missed an opportunity to take action to address this. The Council has agreed to apologise to Mr X, pay him £100 to acknowledge the uncertainty caused, and act to improve its service.

The complaint

1. Mr X complains the Council failed to investigate in a timely manner when he reported that his neighbour’s extension was not being built in line with approved plans. When the Council investigated, the building work was complete and the Council decided it was not expedient to take enforcement action.
2. Mr X says the resulting building causes loss of light to his property.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr X about the complaint and considered the information he provided.
7. I made enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background

9. Mr X contacted the Council in February 2018 to report that his neighbour’s extension was not being built in line with the approved plans. In particular, he said the first floor of the extension was not set back from the existing structure.
10. Mr X says he expected the Council to act on his report and investigate the matter. The Council says when Mr X contacted Planning Enforcement “there was some uncertainty as to whether there was a breach.” It says it asked Mr X to check the plans and “requested that he contact again if there was a problem.”
11. Mr X did not make further contact with the Council about this matter. However, the Council says it completed a site visit in June 2018, in response to a quarterly review of open cases.
12. The Council noted the extension was not set back in line with approved plans. The Council says that since the extension was by then complete, it assessed whether it was expedient to take enforcement action. It decided it was not expedient to take any action because it did not believe the difference between what had been approved and what had been built had a significant impact on
    Mr X’s property.
13. In October 2019, Mr X reported a very similar breach of planning control at another development on his street. The Council conducted a site visit and found the first floor was not set back as set out in the plans. The extension was still under construction. It liaised with the developer, who amended the extension in line with the approved plans.
14. Following the second report and the differences in outcome, Mr X complained to the Council.

My Findings

15. When Mr X reported a suspected breach of planning control in February 2018, the Council’s records show he told it the extension had not been set back. The Council asked Mr X to review the plans and get back in touch. This is fault.
16. Mr X’s report was sufficiently detailed about the suspected breach. The Council should not have relied on Mr X to check the plans. It was for the Council to review the plans, conduct any necessary site visit, decide if there was a breach, and whether to take enforcement action.
17. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance 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.” (National Planning Policy Framework July 2018, paragraph 58)

18. In deciding whether to take enforcement action, Councils should consider the impact on other residents of the breach. In its response to our enquiries, the Council said it decided the breach was not “sufficiently harmful to the amenity of existing residents to justify taking such action.”
19. The Ombudsman cannot question a decision taken without fault. The Council considered the relevant information before it decided not to take enforcement action. There is no fault in how the Council decided not to take enforcement action. However, it would have been good practice for the Council to have provided details of how it reached its decision that the breach was not “sufficiently harmful”. The Council may wish to consider our guidance on recording planning decisions which is available on our website: (https://www.lgo.org.uk/assets/attach/4422/GUIDANCE-PLANNING-FINAL.pdf)
20. There was delay in the Council investigating Mr X’s reports about his neighbour’s extension. This is fault. It is likely that the Council would have been able to negotiate a change in the build if it had investigated in February rather than June as the extension was not complete when Mr X first reported the issue.
21. Although every case is different, and must be considered on its own merits, Mr X’s report of a breach of planning control in October 2019 at another property was remarkably similar. It therefore provides a useful indicator of how the outcome would have differed if the Council had responded to Mr X’s report in a timely manner. Mr X must now live with the uncertainty of not knowing how the outcome might have differed were it not for the Council’s unnecessary delay of four months.
22. Mr X says the extension causes loss of light to his property. If the Council had taken action, the outcome would not have been that no extension was built, but that it would have been set back by around a foot. I do not consider this difference would significantly alter the light to Mr X’s property and so the fault by the Council did not cause him a significant injustice with regards to his amenity.

Agreed action

23. To remedy the injustice to Mr X arising from the fault I have identified, the Council has agreed to:
• Apologise to Mr X in writing.
• Pay Mr X £100 to recognise the uncertainty caused as a result of its delays in investigating his concerns about his neighbour’s property.
24. The Council should do this within four weeks of my final decision.
25. The Council has agreed to take the following action to improve its service:

Remind relevant officers:

• that the responsibility lies with the Council to identify specific breaches of planning;
• of the importance of responding to reported breaches in a timely manner; and
• to keep proper records for decisions even if the decision is that no action should be taken.
1. The Council should provide evidence to the Ombudsman it has taken this action within eight weeks of my final decision.

Back to top

Final decision

27. I have completed my investigation. The Council’s delay was fault. The recommended action is a suitable remedy for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman