Summary: Mr D complained there was fault in the way the Authority dealt with a breach of planning permission. We find the Authority was not at fault.

The complaint

1. Mr D complained there was fault in the way the Authority dealt with a breach of planning permission. He says he was prevented from raising his objections because the Authority failed to provide him with accurate plans of the proposed development. He adds the Authority relied on measurements provided by the owner, failed to conduct a site visit when he made it aware of the breach and has not explained how the new building design complies with the National Planning Policy Framework (NPPF).
2. Mr D says the new design means the house is visible from the surrounding hills in the national park area and it has decreased the value of his property.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. If we are satisfied with an authority’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)
4. We cannot question whether an authority’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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.

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How I considered this complaint

6. I considered information Mr D submitted with his complaint. I made written enquiries of the Authority and considered information it provided in response.
7. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Planning enforcement

8. The law says local planning authorities should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate otherwise. Material considerations include issues such as overlooking, traffic generation and noise. Material considerations do not include factors such as the reduction in the value of a property.
9. Local planning authorities can take enforcement action if they find a person has breached planning rules. However, local planning authorities should not take enforcement action just because there has been a breach of planning control.
10. Government guidance, “Ensuring effective enforcement”, says local planning authorities should act in a proportionate way. They have discretion to take enforcement action when they regard it is as appropriate to do so. They should consider the development plan and any other material considerations.
11. In considering any enforcement action, local planning authorities should have regard to the National Planning Policy Framework (NPPF). This sets out government's planning policies for England and how these are expected to be applied. Paragraph 58 says: “Effective enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control”.

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What happened

12. The Authority granted planning permission for two dual-pitched dormers on a house close to where Mr D lives. Dormers are vertical windows that project from a sloping roof.
13. Mr D emailed the Authority a few months later and said the ongoing work differed from the approved plans. He also requested information on how the planning application was published. The Authority responded and confirmed it put up a site notice and sent 14 letters to neighbours inviting them to comment on the plans. It also said it would contact the owner and the case officer for their comments.
14. The Authority emailed Mr D the following day and asked for his photographs of the alleged breach. It also told Mr D that because of the COVID-19 pandemic, only essential site visits would be allowed and so it was unlikely it would visit the property.
15. The Authority also emailed the owner and asked for photographs of the building work.
16. Mr D emailed the Authority with a photograph of the roof. He said the development was visible from the local hills which represented a change from the approved plans. He also suggested that the Authority should visit the site to get its own measurements. The Authority replied to Mr D and said it would need to make a site visit to investigate further when it was able.
17. The Authority emailed the owner again. It asked for photographs of the dormers with a tape measure next to it so it could see the measurements. It also asked for views of the property from the local hills and the surrounding area.
18. The Authority emailed Mr D and said it had looked at the photographic measurements of the dormers. It confirmed the development breached the conditions of the approved planning permission because the dormers were closer together than on the approved plans. However, as the new design meant the dormers had also reduced in size, it concluded there was no significant harm to the visual amenity of the area. It said that if the dormers had been built according to the approved sizes, it is likely they would have been more noticeable from the opposite side of the building. Therefore, it said it would not take further action.
19. Mr D complained to the Authority. He said he was concerned that despite the overwhelming evidence, the Authority had decided not to act. He said there was an increase in the size of the dormers and a change in the layout of the design. He also said public consultation had not taken place on the altered plans.
20. The Authority responded to Mr D’s complaint. It said it had looked at the photographs of the dormers, including views of the roof taken from the local hills. Although the dormers differed from the approved plans, it did not have a harmful effect on the character or appearance of the area. It also said it was not obliged to consult the public on enforcement matters.
21. Mr D remained unhappy with the Authority’s first response to his complaint and so escalated his concerns to stage two of its complaints procedure. He said the photographs showed how the development was easily distinguishable from the surrounding roofs. He also said the impact on the character of the area could only be determined by a site visit. He said the development would damage the landscape of the area and the enforcement decision was made based on measurements provided by the owner. Finally, Mr D complained there was no additional information provided to the public about the resubmitted plans.
22. The Authority issued its final response to Mr D’s complaint. It said it had to consider whether the unauthorised development differed from the approved plans to a degree that would warrant enforcement action. Its judgement was that it did not, and there was no material harm caused to the conservation area or Mr D.
23. Mr D remained unhappy with the Authority’s response and referred his complaint to the Ombudsman.

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Analysis

24. I cannot question whether the Authority’s decision is right or wrong simply because Mr D disagrees with it. I must consider whether there was fault in the way the Authority reached its decision.
25. The Authority has wide discretion whether to take enforcement action in response to a breach of planning permission. As I have detailed in paragraph 18 of this statement, the Authority explained to Mr D why it would not take enforcement action. It considered photographs and information from Mr D and the owner. It looked at the impact of the development on the area and decided its appearance was not significantly harmful to the visual amenity of the area. I acknowledge Mr D disagrees with the Authority’s decision, but I find no fault in its decision-making process.
26. Mr D says the Authority has not explained how the new building design complies with the NPPF. As I have mentioned in paragraph 11 of this decision, local planning authorities should have regard to the NPPF when considering whether to take enforcement action. The NPPF says local planning authorities should conserve the character and beauty of the natural and local environment. The evidence shows the Authority considered this and decided there was no material harm caused to the conservation area.
27. Mr D says he was prevented from raising his objections because the Authority failed to provide him with accurate plans of the proposed development. He says the original plans could not have been built to the approved measurements without breaching conditions of the application. The Authority says it is not required in law to provide complainants with plans or seek their views on an enforcement matter. This is correct. There is also no evidence that the original plans would have breached the condition of the application as Mr D suggests.
28. Mr D also says the Authority failed to conduct a site visit. While this is correct, the Authority initially explained to Mr D that a site visit was unlikely because of the COVID-19 pandemic. The Authority then emailed Mr D and said it would conduct a site visit when it was able. However, it was able to get the necessary information without conducting a site visit. This was the correct approach to take because of the circumstances and therefore I do not find fault.
29. Finally, Mr D is unhappy that the Authority relied on measurements provided by the owner. The reasons for this are directly linked to the decision to not carry out a site visit. Having considered the measurements, the Authority decided the differences between the approved plans and the unauthorised development was not significant enough to warrant further action. It explained this to Mr D. There is no evidence of fault.

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Final decision

30. I have completed my investigation. There is no evidence of fault by the Authority.

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Investigator's decision on behalf of the Ombudsman