Summary: The complainants complained the Council failed to exercise its planning enforcement powers as promised before an unauthorised building gained immunity from enforcement action. The Council said it followed government guidance by waiting until it had considered planning applications before issuing an enforcement notice. However, it recognised some fault and offered a payment of £250. We found the Council at fault and recommended an increased remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, say the Council failed to properly consider using its planning enforcement powers to remove an unauthorised conservatory erected by their neighbour. The Council issued an Enforcement Notice but did so too late and so the unauthorised conservatory gained immunity to enforcement action.
2. Mr and Mrs X say this led to the neighbour’s extension remaining attached to Mr and Mrs X’s party wall resulting in rainwater cascading onto their property causing damage and inconvenience. Mr and Mrs X say the conservatory makes it difficult for Mr and Mrs X to sell their home.
3. The Council recognised fault and offered a payment of £250 but Mr and Mrs X say this does not reflect the impact on them over the last five years. They want the Council to reverse the decision and to use its enforcement powers to have the extension removed.

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The Ombudsman’s role and powers

4. 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)
5. If 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

6. In considering this complaint I have:
• Spoken with Mrs X and read through the information present with her complaint;
• Put enquiries to the Council and examined its responses;
• Shared with Mr and Mrs X and the Council a draft decision and reflected on the comments received before making this final decision.

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What I found

The Law, practice, and guidance

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
8. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) 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.
9. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to issue a notice. Enforcement powers are discretionary and government guidance says councils should consider trying informal methods to resolve unauthorised development and use its powers only where it is expedient and proportional to do so.
10. Section 171B of the Act sets out the time limits within which councils may take enforcement action. Development becomes immune from enforcement if no action is taken:
• Within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land.
11. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
12. Under the Act anyone served with an enforcement notice may use in their defence evidence they have done everything they could be expected to do to secure compliance with the notice.

What happened

13. Mr and Mrs X complained to the Council in August 2014 that their neighbour, Mrs Y had built an unauthorised extension. They said the rainwater from the roof cascaded onto their patio causing damp in their home and any guttering to prevent that would overhang their property. Mr and Mrs X say the extension replaced a previous extension that did not rest on the full extent of the dividing wall. Mr and Mrs X asked the Council to use its enforcement powers to have the extension removed. The Council says Mr and Mrs X told the Council Mrs Y had carried out the work in a day or overnight. The Council says this led officers to believe the extension was substantially completed in August 2014 and not before.
14. In September 2014, the Council visited the site, took photographs, and considered the measurements for it given by Mrs Y. The Council wrote to Mrs Y explaining the extension needed planning permission. Mrs Y presented an application to the Council in February 2015. In the application Mrs Y described the works as having begun on 27 January 2014. The Council has not shown any evidence it asked Mrs Y for more information on the progress of the works in the months between January and August 2014. So, Mrs Y did not help verify when the works had been substantially completed.
15. At the Council’s planning committee in June 2015 the Council heard from Mr X. He explained the previous conservatory had rested on the neighbour’s half of the party wall dividing the two properties. Mr X explained the roof of the new extension overhangs the dividing wall. This meant any fascia board and guttering would encroach on Mr and Mrs X’s property. Without it, rainwater runoff fell on Mr and Mrs X’s patio causing damp in their utility room. Mr X said they objected to the unsightly building and any overhanging rainwater guttering.
16. The Committee resolved to delegate authority to the Council’s planning officers to grant planning permission if Mrs Y within three months:
• Presented amended plans showing a parapet design gutter approved by the Council’s Building Control officers. Plus, Mrs Y to present plans showing to the planning officer’s satisfaction an improved treatment for the side elevation facing Mr and Mrs X.

The Committee added it would only grant planning permission if Mr and Mrs X did not object.

17. A year passed with Mrs Y not meeting any of the conditions. The Council considered Mrs Y’s application again in August 2016. The planning officer’s report noted the plans did not have the parapet gutter design. However, the planning officer recommended Committee grant planning permission. The Committee refused planning permission.
18. A note accompanying the planning decision said the Council would take enforcement action if Mrs Y did not act to remove or adapt the extension within six months.
19. Mrs Y presented a new planning application in October 2016. The Council refused planning permission in January 2017. In February 2017 Mrs Y appealed to the Planning Inspectorate. In May 2017, the Planning Inspectorate granted the appeal, thus granting planning permission for erecting a conservatory.
20. The Planning Inspectorate clearly stated it had not granted retrospective planning permission for the extension Mrs Y had already partially erected. The Planning Inspectorate had given permission for a new different development. Therefore, Mrs Y’s original extension remained unauthorised and open to enforcement action. The Planning Inspectorate considered the arrangements in the application for removing surface water, the issue of greatest concern to Mr and Mrs X, as acceptable. In commenting on my draft decision, the Council says the material difference between the two extensions is the guttering and where the roof would rest. Reflecting on the issue the Council says the conservatory as built met 98% of the Planning Inspector’s planning permission (Mr and Mrs X disagree). Therefore, the Council says it may not have successfully defended an appeal against an enforcement notice. The Council says had Mrs Y introduced the guttering and rendered elevation as approved then the conservatory would comply fully with the Planning Inspectorate’s approved scheme. Mrs Y had three years in which to start the approved scheme. Therefore, Mrs Y could start the approved scheme any time between May 2017 and May 2020. The Council says that is a material consideration when considering whether to serve an Enforcement Notice. The Council says Mrs Y could only complete the approved scheme with Mr and Mrs X’s co-operation. If they withheld it (for example by refusing access) that may prove a successful defence against an Enforcement Notice because Mrs Y could argue she had done all she reasonably could to comply.
21. In August 2017, the Council emailed Mrs Y confirming the extension remained unauthorised. The Council gave Mrs Y a year, that is until May 2018 to complete the Planning Inspectorate’s decision or it would start enforcement proceedings. The Council sent a reminder in September 2017. The Council met with Mr and Mrs X and explained what they meant by ‘substantially completed’. The Council says it does not have a record of this meeting and so accepts Mr and Mrs X’s record of the meeting. Mr and Mrs X say the Council’s officer told them ‘substantially completed’ meant when the roof went on to a building. The Council says Mr and Mrs X could have told the Council at this meeting that in fact the building had been in progress since January 2014.
22. Officers visited the site in October 2017 to check on progress. In January 2018 Mrs Y told the Council she could not build the conservatory without some scaffolding on Mr and Mrs X’s land. The Council’s case officer spoke with Mr and Mrs X who agreed to a small scaffolding tower on their land but only if the builder had suitable liability insurance. The Council’s case officer agreed to liaise between Mrs Y and her builder and Mr and Mrs X.
23. In February and April 2018, the Council reminded Mrs Y of the deadline of one year to start the development approved under the planning permission.
24. In April 2018, the Council says its officer spoke with Mrs X. The officer explained any refusal to allow the scaffolding on their property may give Mrs Y a defence against an enforcement notice. The Council says it explained if Mrs Y could show she had done everything she could be expected to do to comply with a notice, then it could not enforce it.
25. On 31 July 2018, the Council issued an enforcement notice because Mrs Y had not carried out the planning permission and the extension remained unauthorised.
26. Mrs Y appealed. The Planning Inspectorate gave notice of the appeal in January 2019.The Council received Mrs Y’s statement of her case in July 2019. In that statement Mrs Y challenged the validity of the enforcement notice. Mrs Y claimed that she began the unauthorised building in January 2014 and substantially completed it by March 2014. Mrs Y said therefore the enforcement notice issued in July 2018 fell outside the four-year time limit for taking enforcement action. Mrs Y provided a photograph taken on 4 March 2014 showing the development as substantially completed. Mrs Y now claimed the construction was immune from enforcement action.
27. In August 2019, the Council received advice from legal counsel on Mrs Y’s claim. The Council considered that advice and in September 2019 the Council withdrew the Enforcement Notice. The Council says that until Mrs Y’s evidence given on appeal in July 2019 it had worked on the information given by Mr and Mrs X. Plus Mrs Y’s claim, she had completed work in December 2014. The Council says on that information it reasonably decided the works had not become immune when it issued its Enforcement Notice.
28. Mr and Mrs X complained to the Council that it had failed to properly decide when the unauthorised development began leading it to raise their hopes of enforcement action only to have them dashed. Mr and Mrs X say the Council delayed taking enforcement action to allow Mrs Y to present a planning application and appeal without properly ensuring they did not run out of time. Mr and Mrs X say the Council did not robustly challenge or investigate Mrs Y’s claim the extension had been substantially complete in March 2014. In comments made in our investigation the Council says the only people who might have evidence to refute Mrs Y’s claims are Mr and Mrs X. The Council says they have not provided any evidence that shows the Council wrongly accepted Mrs Y’s claims.
29. In responding to Mr and Mrs X’s complaint in October 2019 the Council says it accepted it should have fully researched the start and substantially completed date before issuing the Enforcement Notice. The Council says in reaching its view on the four-year period it gave too much weight to an email of 23 August 2014 from Mrs X that the extension had been built in one day. The Council accepted it should have fully investigated the start date and established the substantially complete date.
30. The Council explained it had allowed time for compliance with the planning permission granted on appeal in May 2017 to encourage compliance. The Council said this reflected the view that enforcement powers are powers of last resort.
31. In December 2019, the Council offered Mr and Mrs X an apology and a payment of £250 in recognition of the distress and inconvenience suffered ‘particularly over the last two years’ from 2017.

Analysis – was there fault leading to injustice?

32. My role is to decide if the Council properly considered and exercised its enforcement powers. If it did not, then we must consider what impact that had on Mr and Mrs X and say what the Council should do to address it.
33. The Council followed the correct procedure in considering the planning applications by Mrs Y. It rejected those applications. The Planning Inspectorate gave planning permission for a new extension clearly saying it had not retrospectively approved the unauthorised extension.
34. Once granted her approval by the Planning Inspectorate in May 2017 Mrs Y had three years in which to start the approved scheme. As built the conservatory did not comply with the approved scheme but could be modified to do so. Now that Mrs Y had an approved scheme the Council decided to allow a year rather than the six months it previously allowed for compliance before issuing an enforcement notice. The Council must allow a reasonable time for compliance before issuing an enforcement notice or risk dismissal of the notice on appeal. With Mrs Y having an approved scheme (which she did not have in 2016) and intending to complete the scheme the Council decided a year would be a reasonable timescale. I find that it acted without fault in applying that timescale.
35. That brings me to the Council’s assumed ‘substantially complete’ date. The decision to accept 14 August 2014 as the substantially complete date, prevented the Council from meeting the deadline for immunity from enforcement. The Council did not attempt to verify the substantially complete date but assumed what Mr and Mrs X told officers met the test for substantial completion. I find the Council acted with fault.
36. At Stage 1 of the Council’s complaints procedure the Council accepted fault in wrongly assuming the substantial completion date to be 14 August 2014. Having accepted fault the Council offered £250 in recognition of the injustice arising from that fault. My role is to decide if that is in fact enough.
37. To decide that I must consider what Mrs Y could have built under the Planning Inspectorate’s planning permission. The Council says she could build something similar to the construction on site but for the guttering arrangement which needed a parapet gutter. The Council argues faced with a building that is 98% in its view compliant with the planning permission it may decide it is not expedient to take enforcement action. The facts are, the Council did decide to issue an enforcement notice which failed on appeal because the breach of planning control had gained immunity from enforcement.
38. The injustice arising from that is the Council raised Mr and Mrs X’s expectations of successful enforcement action. This fault also denied Mr and Mrs X the opportunity of seeing if the enforcement notice would succeed on appeal on the merits of the building as built. Given what the Planning Inspectorate had said about not approving any of the building then in existence, there is a possibility the Council could have succeeded. We shall never know.
39. Mr and Mrs X would always have faced an extension not unlike the one Mrs Y built, but possibly without the problematic rainwater arrangements and not resting on the party wall. They have experienced significant time and inconvenience in dealing with this matter. We try to put people in the position they would have been but for the fault. Here we will never know if that may have been the removal of the extension or adapting it to provide the guttering approved by the Planning Inspector. Clearly, we cannot put Mr and Mrs X in the position they would have been and so a symbolic payment in recognition of the injustice caused provides a proportionate remedy. The Council offered £250, but I believe a sum of £500 is more proportionate to the injustice experienced.

Agreed action

40. In recognition of the injustice arising from the faults identified in the investigation the Council shall within four weeks of my final decision:
• Apologise in writing to Mr and Mrs X for the failings identified in this statement;
• Pay Mr and Mrs X £500 in recognition of the avoidable distress caused by hopes raised and the avoidable time and inconvenience in following up the issue with the Council;
• Share with staff the final decision to remind staff of the importance of properly recording conversations with, and advice given to, the public. It will also remind staff of the need to corroborate through their own investigations, statements made by the public.

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Final decision

41. In completing my investigation, I find the Council acted with fault leading to injustice for which it has agreed a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman