Summary: Mr X complained the Council failed to take suitable enforcement action against his neighbour, who he said built an extension without permission and that was structurally unsound. The Ombudsman found the Council was at fault for delays and inaction. This caused Mr X frustration and uncertainty which the Council agreed to remedy.

The complaint

1. Mr X complained the Council failed to take suitable enforcement action against his neighbour, who he said built an extension without permission and that was structurally unsound. He said his neighbour ignored the Council’s enforcement notice, and the Council did not follow it up or take further action.
2. Mr X said he and his family suffered distress as a result of the Council’s inaction and delays.

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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. 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)
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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
• The Town and Country Planning (General Permitted Development) (England) Order 2015.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Loft Conversions

8. Converting the loft of a house is considered to be permitted development, and therefore does not require planning permission, subject to some limits and conditions, including:
• Materials must be similar in appearance to the existing house.
• Volume of enlargement (including any previous enlargement) must not exceed the original roof space by more than 40 cubic metres for terraced houses, or 50 cubic metres otherwise.
• Must not exceed the height of the existing roof.
• On the principal elevation of the house (where it fronts a highway), must not extend beyond the existing roof slope.
9. If these limits are not met, the householder will need to make an application for full planning permission (Schedule 2, Part 1, Class B of The Town and Country Planning (General Permitted Development) (England) Order 2015).

Planning Enforcement

10. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. This means councils can decide whether or not it is ‘expedient’ (proportionate) enforcing a breach, having regard to its particular circumstances and potential impact on amenity.
11. A breach of planning control is defined in section 71A 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.
12. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is “expedient” to do so under section 172 of the Act. It is for the planning authority to decide whether it is “expedient” to take action.
13. The Council has the power to take a range of actions, but it has no duty to do anything more than consider the position. If the breach is trivial, no action would be proper. The key issue is whether the alleged breach of control “would unacceptably affect public amenity or the existing use of land or buildings meriting protection in the public interest.”
14. Government policy in the National Planning Policy Framework says councils should “act proportionately” in responding to possible breaches. The Government’s Planning Practice Guidance also refers to “proportionate” council enforcement action.

What happened

15. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
16. Mr X contacted the Council on 18 July 2018 to report a breach of planning control. He said his neighbour had built an extension contrary to the plans approved by the Council in November 2017.
17. A Council officer visited Mr X’s neighbour on 1 August. The officer could not access the house but could see from outside that the extension had not been built in accordance with plans.
18. The officer spoke to Mr X on 11 August to explain the situation. They told Mr X they wanted to return to his neighbour’s house when the occupants were home.
19. The officer visited Mr X’s neighbour again on 26 September and was allowed access to the rear of the house. It was clear to the officer that the rear dormer extension was not built according to the plans. The officer considered this made it not in keeping with the terrace the house forms part of. The officer spoke to the owner and told them they would need to change the rear dormer and remove the gable. The owner said he was advised by his builder to build it in that way, and he would need time to call his builder about changing things.
20. The officer then wrote to Mr X’s neighbour on 14 November. They said the way the rear dormer had been built was different to what the Council granted planning permission for in 2017. The officer said the extension was not in keeping with the architecture of the ridge line of the house and terrace it forms part of. The officer gave Mr X’s neighbour 28 days to correct this, or the Council may take enforcement action requiring the extension to be demolished.
21. Mr X complained to the Council on 13 April 2019 about a failure to take enforcement action for a serious breach of planning control. He said the case officer failed to update him, despite saying he would do so on 8 March.
22. A planning officer emailed Mr X on 18 April 2019. They confirmed his neighbour’s extension exceeds the 50 cubic metre threshold and is a breach of planning control. It said the investigating officer contacted the owner, who was willing to work with the Council to make the extension complaint. It said this is preferable to formal action and is consistent with Government advice. The officer accepted this had not resulted in any agreement yet in this case. They said it would instruct the investigating officer to give the owner 14 days to provide a programme of remedial works. If this is not provided, the Council would consider serving a formal enforcement notice.
23. An enforcement officer wrote to Mr X’s neighbour on 18 April asking for a plan of the work they intended to carry out.
24. The Council responded to Mr X’s complaint on 2 May. It agreed officers took too long to respond to his complaint and did not stick to agreed timeframes for responses. It apologised for the frustration this caused.
25. It said the planning team has been suffering significant recruitment and resourcing issues, putting it under significant pressure, but it is working to enhance capacity. It said it will ensure customer service and communication is embedded in planning service performance management processes.
26. Mr X asked the Council to escalate his complaint on 1 June. He said he was disappointed with the continuing failure of the planning department to take appropriate action more than 11 months after he reported a breach of planning control.
27. The Council engaged with Mr X’s neighbour to try to reduce the volume of the dormer extension to bring it under permitted development. However, this was not possible.
28. The Council sent a further complaint response to Mr X on 16 October 2019. It referred to its earlier response about delays. It said it had now served a formal enforcement notice requiring action by 24 October 2019. It said decisions to proceed with enforcement action are authorised by managers and there were no grounds to question the conduct of the investigating officer.
29. Mr X brought his complaint to the Ombudsman on 21 October 2020. He said his neighbour had not complied with the enforcement notice and the Council had not taken any further action. He also said the Council ignored his e-mails about the matter. He said the Council used the COVID-19 pandemic as an excuse. He suggested this was down to impropriety on the part of Council officers.
30. The Ombudsman decided this was a new complaint the Council had not yet investigated. On 1 December, we asked the Council to put the complaint through its complaint process but go straight to the final stage due to the history.
31. Mr X’s neighbour put in a planning application on 2 December 2020. They asked for permission to extend their home and regularise the work already done.
32. The Council responded to Mr X’s new complaint on 8 March 2021. It said:
• It previously upheld his complaint about delays and officers not keeping to agreed timescales.
• It served an enforcement notice and was prepared to prosecute for non-compliance. However, as the owner was willing to discuss making changes to their property, the Council felt it was appropriate to explore this before taking further action.
• The volume by which the dormer extension exceeds permitted development tolerances is relatively minor, so it hoped it could be modified.
• If this does not happen the Council will consider prosecution. It said that had not been pursued to date because the courts have operated on a limited basis throughout the pandemic and have not had the capacity to deal with enforcement proceedings.
• The enforcement notice was served because of the impact of the extension on the character and visual amenity of the street scene, not because of any impact on neighbouring houses. It said the increased size does not harm residential amenity.
• Mr X’s neighbour made a planning application in December 2020. If accepted, this will approve the loft conversion and cancel the enforcement notice. The Council said it cannot take further enforcement action until it has determined the planning application.
• It found the delays were due to a desire to reach a negotiated and proportionate solution, but Mr X’s comments about impropriety were passed to its counter fraud team.
• It apologised for any distress and inconvenience caused by its delays.
33. Mr X brought his complaint back to the Ombudsman on 14 March 2021.

Response to my enquiries

34. The Council told me it investigated the size and volume of Mr X’s neighbour’s hip to gable extension. That was not due to any structural danger, but the impact on the street scene. The Council considers there is no impact on Mr X’s amenity.
35. Mr X’s neighbour’s extension exceeded the tolerances under Class B of the Town and Country Planning (General Permitted Development Order), meaning the work was not permitted development.
36. Mr X’s neighbour later made a planning application to extend their home and to regularise the works already done.
37. The Council said it was in regular contact with Mr X in 2019, but after COVID-19 contact slowed. This was in part due to officer redeployment. The Council also said the Courts were closed to enforcement prosecutions during COVID-19. That meant the Council had no next step when the applicant breached the enforcement notice, so it tried to seek a negotiated solution.
38. The Council said the lack of progress between September 2019 and September 2020 was a regrettable oversight, caused by workload pressures. It apologised for this.
39. The Council has now rejected Mr X’s neighbour’s planning application and is considering whether to prosecute them.

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Analysis

40. When the Council discovered a breach of planning control in August 2018 it chose to deal with it informally at first, which it was entitled to do. It wrote to Mr X’s neighbour in November 2018 giving them 28 days for corrective work.
41. However, the Council then allowed the matter to drift for about five months. Mr X’s neighbour did not carry out corrective work and Mr X had to make a complaint before the Council sent a reminder letter on 18 April. That was too long and amounts to fault.
42. The Council did then follow up its warning letter promptly. It issued an enforcement notice about a month later.
43. Enforcement action is discretionary. The serving of an enforcement notice does not automatically bind the Council to pursue that course of action, providing it has good reason not to.
44. I cannot share information about the Council’s communications with Mr X’s neighbour, as this is confidential third-party information. However, I have seen the relevant evidence and can say Mr X’s neighbour did engage with the Council about making the necessary changes.
45. It is not fault for a council to try to resolve a planning breach where it appears the person responsible is cooperating. However, this should be over a reasonable timeframe. The Council should not let matters go on indefinitely without a solution. In this case, the Council let matters drift and took no action for about a year. That was fault.
46. While I recognise the impact the COVID-19 pandemic had on the Council’s resources from around March 2020 onwards, that does not account for a delay of this length and does not justify the pre-pandemic delays at the end of 2019 and early 2020. The Council accepts this was an oversight.
47. Mr X considers his neighbour’s extension is structurally unsound. The Council confirmed it has no structural concerns. The breach relates to the visual impact of the extension. In that sense, the Council’s delays did not have a detrimental impact on Mr X’s home and did not place him at risk.

Injustice

48. As above, Mr X was mistaken about possible structural problems. I have also not seen evidence his neighbour’s extension has any impact on Mr X’s amenity. The impact is on the street scene. The Council’s delays and lack of further enforcement action therefore did not cause Mr X to suffer any personal injustice in this respect.
49. However, the Council’s delays were a source of avoidable frustration and uncertainty for Mr X about what the outcome may be. He regularly chased the Council for updates, and the Council did not always respond. The Council’s delays and inaction was distressing for Mr X, particularly because he thought there were structural problems. That is Mr X’s injustice.
50. Now the Council has refused Mr X’s neighbour’s planning application, it needs to act quickly to decide whether it will prosecute without further delay.

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Agreed action

51. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mr X for its significant delays and lack of action in its enforcement investigation.
• Pay Mr X the sum of £300 to recognise the distress its delays caused.
• Commit to a timescale by which it will conclude enforcement action against Mr X’s neighbour.

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Final decision

52. I have completed my investigation. The Ombudsman found the Council was at fault because of delays and inaction. This caused Mr X frustration and uncertainty which the Council agreed to remedy.

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Investigator's decision on behalf of the Ombudsman