Summary: We will not investigate Mr X’s complaint that the Council has failed to take full and effective enforcement action, from late 2016, regarding a nearby house built in breach of the planning permission. The Council has taken effective enforcement action. Mr X complains too late about the history of the case, does not have an ongoing injustice, and investigation will not result in a different outcome.

The complaint

1. Mr X complains that the Council failed, from late 2016, to take effective action against a developer who breached the planning permission to build a house nearby. The development included an extra floor making the building too high and overbearing. Mr X complains that the Council failed to fully enforce following the planning inspector’s decision, in 2018, to uphold its enforcement notice. He says the Council’s practice is flawed and it delayed replying to his questions or did not answer. He says the development may significantly reduce the value of his property should he sell. Mr X wants the Council to fully enforce especially regarding a window that should be fixed closed.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

3. 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)

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How I considered this complaint

4. I have considered Mr X’s information, comments, and reply to my draft decision statement. I have discussed the complaint with him by telephone. I have considered case information on the Council’s planning website and internet street scenes of the area. The information held includes photographs of the position in 2017, the planning inspector’s decision in 2018 and the complaint correspondence. I have considered comments and photographs from a Mr Y who has an interest in a neighbouring property.

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What I found

5. In 2016 the Council granted planning permission for a developer to build a house. The Council applied planning conditions including:
1. Condition 6 - south facing first floor windows must be glazed. The reason to protect neighbour amenity.
2. Condition 10 - the first floor rear balcony must have a privacy screen which is fitted with obscure glazing. The reason to protect neighbour amenity.
6. The developer breached the plans when building work started by building a larger property. In Spring 2017 the Council refused an application for retrospective planning permission because of the size and overbearing nature of the development which harmed neighbour amenity.
7. In August 2017, the Council issued the developer with an enforcement notice requiring the removal of the first floor of the building (two rooms named). In 2018 the planning inspector dismissed the developer’s appeal and upheld the Council’s enforcement notice with some variation. The inspector found:
1. Mr X’s amenity was affected by overlooking from two first floor windows which could be opened. The enforcement notice required the windows be permanently fixed so they would not open and fitted with obscured glazed glass.
2. The size of the development had an overbearing impact on Property B. Privacy at that property was affected by one first floor window directly overlooking private space.
8. On 27 March 2019 the Council, replying to Mr X’s complaint, explained it has discretion to judge what enforcement is required and the action taken:
1. The first floor of the property (two named rooms) had been removed as required. The Council had allowed a small sloping section to be retained so there would be headroom for an internal staircase. Mr X tells me the first floor has mostly been removed.
2. The Council says windows are permanently fixed shut. Mr X tells me the internal handles have been removed so they do not open. He says he has not had a problem. He says the property is being sold and the Council has said if the new owner changes the windows it would enforce.
9. Mr X tells me that new occupants moved into Property B about five months ago.
10. The Council says the balcony is built in accordance with the planning permission. There is a timber screen on the sides rather than the required obscured glass screen. Mr X tells me there is a solid timber screen, “I don’t personally have a problem with that”. He thinks another property on the other side might be affected.
11. On 13 May 2019, the Council advised Mr X he could complain to the Ombudsman. On 29 May 2019 Mr X confirmed his intention to do so. Mr X first complained to the Ombudsman on 16 March 2020. The same day we wrote and advised him to complain to the Council. We thought the complaint might be premature to this office. On 13 May 2020 Mr X complained to the Council. The next day the Council confirmed it had already dealt with the complaint and he could complain to us. Mr X complained again on 23 October.
12. Mr X’s reply to my draft decision statement says the breaches of planning condition also related to occupancy and drainage. He says his property will be worth £50,000 less should they sell. He says the planning inspector said removing the fastenings on the windows that overlook his property, to ensure they do not open, was not enough.

Analysis

13. I will not investigate this complaint for the following reasons
14. The history of the Council’s planning and enforcement actions before 17 March 2019 is outside the Ombudsman’s jurisdiction. Mr X complained to this office outside the legally permitted period of 12 months (see paragraph 3 above).
15. I will not exercise discretion to investigate the history because Mr X could have complained sooner. For example, Mr X delayed 10 months in complaining to us following the Council first telling him he could in May 2019 (see paragraph 13).
16. There is insufficient reason to investigate the outcome of the enforcement action. The Council has discretion on how it handles enforcement. The Council has ensured that the essential reduction of the size of the first floor has happened (paragraph 9). Regarding Mr X’s property the two windows that affect him do not open and have not caused him a problem. There is no injustice.
17. This decision relates to Mr X’s property. The planning inspector identified Property B as being most affected. We do not have a complaint or written consent from the person who formerly lived in that property. The new occupants have moved to the current position and therefore would have no injustice. Mr Y has written to the Ombudsman and I will communicate with him separately.
18. Investigation will not achieve the outcome Mr X wants. The value of his property is not a material planning matter and therefore would not affect the Council’s enforcement decisions. I have not seen evidence of an ongoing enforcement issue which causes Mr X an injustice.
19. There is no reason to investigate the communication or complaint handling. We would rarely do so when the substantive matter is not being investigated.

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Final decision

20. The Ombudsman will not investigate Mr X’s complaint that the Council has failed to take full and effective enforcement action, from 2016, regarding a nearby house built in breach of the planning permission. The Council has taken effective enforcement action. Mr X complains too late about the history of the case, does not have an ongoing injustice, and investigation will not result in a different outcome.

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Investigator's decision on behalf of the Ombudsman