Bracknell Forest Council (20 009 897)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 23 Jul 2021

The Ombudsman's final decision:

Summary: Mr B complained about the Council’s handling of his neighbour’s breach of planning permission and its enforcement process. He said the Council wrongly found enforcement action was not warranted. As a result, Mr B said he experienced distress, his health was affected, and he has had a loss of amenity. There was no fault in the enforcement process the Council followed, and it properly considered Mr B’s allegations. It reached a decision it was entitled to make, and we cannot therefore criticise the merits of its decision.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained about the Council’s handling of his neighbour’s breach of planning permission. He said it:
    • wrongly considered his neighbour’s retrospective planning application as a full planning application;
    • failed to take enforcement action before the development was completed; and
    • was wrong to find enforcement action was not expedient.
  2. As a result, Mr B said he experienced distress, his health was affected, and he had had a loss of amenity.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)

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How I considered this complaint

  1. As part of my investigation, I have:
    • considered Mr B’s complaint to the Council and its responses;
    • discussed the complaint with Mr B and considered the information he provided;
    • considered the relevant planning documents and the information the Council provided in response to my enquiries; and
    • given Mr B and the Council the opportunity to comment on a draft version of this decision and considered the comments I received.

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What I found

Law and guidance

  1. 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)

  1. Councils have a range of options for formal planning enforcement action available to them. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
  2. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.

What happened

  1. In 2018 Mr B’s neighbour applied for planning permission to build a single storey front, side and rear extension to his property. Mr B did not object to the application as he found the development acceptable based on the proposed plans.
  2. The Council’s Planning Officer granted planning permission and Mr B’s neighbour started the development.
  3. In late 2019, the development was still taking place. Mr B found the development was not as set out in the approved plans and he asked the Council’s Planning Enforcement to investigate.
  4. The Council’s Planning Enforcement Officer investigated. He found there was a breach of planning permission but did not find this caused a material harm. He asked Mr B’s neighbour to submit the amendments to the Council.
  5. Mr B asked the Planning Officer how the height of the development should be measured so this could be compared with the approved plans.
  6. The Planning Officer told Mr B the height should be measured from the ground level, not from the damp proof course.
  7. In early 2020, the development had progressed further. Mr B again asked the Council’s Planning Enforcement to investigate the developments. He said it was not being built as set out in the approved plans.
  8. The Council’s Enforcement Officer investigated again. He found the development did breach the approved planning permission, which included the flank wall being 110mm too high.
  9. The Officer told Mr B’s neighbour he should either build the development as set out in the approved plans or apply to the Council for consent for the works he had done. The Officer also spoke with Mr B about his findings.
  10. Mr B’s neighbour applied to the Council for a retrospective planning permission under Section 73 of the Town and Country Planning Act 1990. He asked it to approve the works he had done and his plans for the completion of the development.
  11. The Council told Mr B’s neighbour it could not consider the Section 73 application, as the proposed development had changed. It told him he had to make a full planning application instead. And so, he made a new planning application to the Council which included a flank wall height of 2.75m and alterations to his garage.
  12. Mr B and other neighbours raised objections to the new application. The main concerns were that the development was overbearing and would result in a loss of amenity to neighbours of the development.
  13. Mr B said the objections were removed from the Council’s website and he complained to the Council. He also said it was wrong to decide the new application should be considered as a full planning permission.
  14. In response, the Council told Mr B:
    • the objections were removed due to an administrative error but were now back on the website;
    • it said its Officer had considered the objections received but intended to recommend approving the application;
    • a Section 73 application can be considered for minor material amendments. However, Mr B’s neighbour has since changed his plans and made a new full planning application, which it would consider. It had therefore followed legislation;
    • as enough objections were made, it is the Council’s Policy for its Planning Committee to consider the application; and
    • its enforcement investigation remained open and works on the development had stopped pending the outcome of the application.
  15. Mr B was not satisfied with the Council’s response. He said he expected the Council would investigate and act on his neighbour’s wilful deceit of the planning permission. However, he felt its officers had facilitated the deceit by fettering their discretion.
  16. In response, the Council found its officers had acted appropriately, proportionally and applied legislation correctly. It accepted what had been constructed was not as set out in the approved plans. However, it said this was why it sought a further application for the works and kept its enforcement case open. It also said it would consider whether enforcement action was warranted when the new planning application had been decided.
  17. The Council’s Planning Committee disagreed with the Planning Officer’s recommendation and refused the new planning application. It found the proposal to be unneighbourly, overbearing, and harmful to the amenity of neighbouring properties.
  18. The Council told Mr B it would review enforcement action within 12 weeks as his neighbour may appeal the refused planning application.
  19. Two weeks later, Mr B asked his local Councillor for help as the works on the development had started again. The Councillor raised Mr B’s concerns with the Council.
  20. As a result, in June 2020 the Council’s Officer spoke with Mr B and did a site visit to the development. This led to a cut back in the roof overhang toward Mr B’s property. Mr B also said the Enforcement Officer was more helpful on this occasion.
  21. The Enforcement Officer found the development did breach the 2018 planning approval, but this was minor and did not warrant enforcement action. The report says the flank wall, measured from the finished floor level, was up to 30mm higher than permitted. It also said he had discussed the difference with Mr B, and he was happy with this.
  22. Mr B remained unhappy about the development and asked a chartered surveyor to measure the flank wall form the ground levels. The Surveyor measured the wall to be 2.94m at the highest point. And so, Mr B complained to the Council again. He said:
    • its Planning Committee had refused the new planning application as the development was unneighbourly, overbearing and affecting neighbouring amenity. The Enforcement Officer was therefore wrong to go against this and decide the development was a minor breach, which did not warrant enforcement action;
    • the Enforcement officer acted disproportionately when he inspected the development in June 2020. This was because he could have asked the builders to remove blocks to reduce the height of the wall at this stage;
    • the Council wrongly considered the new planning application. He said it should only have considered a Section 73 application;
    • he was not happy with the wall height, as suggested by the Enforcement Officer, but he was happy with the reduced roof overhand towards his property; and
    • the Council’s measures of the wall contradicted itself. This is because it said it was 110mm higher than permitted, but later said this was only 10-30mm. He also said the Council’s officer failed measure the wall correctly from the ground levels along the wall.
  23. The Council’s final complaint response acknowledged the development was not as set out in the approved plans. However, it considered, investigated, and responded to Mr B’s concerns. It found it had followed legislation and properly exercised its discretion to find enforcement action was not expedient. It also said it will reopen an investigation into concerns about the roof.
  24. Mr B remains unhappy about the Council’s handling of the planning application and the enforcement investigation. And so, he complained to the Ombudsman.

Analysis

  1. A planning authority may take enforcement where there has been a breach of planning control, but this enforcement action is discretionary.
  2. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of permission, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.

Was the Council wrong to consider a new planning application?

  1. The Council considered Mr B’s allegations and agreed his neighbour’s development was in breach of planning control. It discussed the breach with Mr B’s neighbour and advised him to make a new planning application, instead of his Section 73 application. It said this was because the works he proposed also had new elements to the development.
  2. A Section 73 application can be made to get approval for unauthorised works that has already been built. This was what Mr B’s neighbour had done. However, he also proposed new plans to his development. While I understand Mr B’s view, it is not fault for the Council to consider the retrospective works and his neighbours’ new plans as part of a full planning application. It was entitled to do so. In addition, as the planning application was refused, I am not satisfied this caused any injustice to Mr B.

Was there fault in the Council’s Planning Enforcement process?

  1. The Council determined there was a breach of planning control. It took informal action with Mr B’s neighbour. During this process, no development took place, and it became clear the Council needed to consider new planning matters. And so, it decided to pause its investigation pending the outcome of the planning decision.
  2. Also, when the Council’s Planning Committee refused the new planning application, the Council’s Enforcement process started again. However, as Mr B’s neighbour could appeal its decision, it decided to wait and review the case after 12 weeks. The Council was not at fault for pausing its investigation. It told Mr B its reasons for doing so, and this was a decision it was entitled to make.
  3. Shortly after, the local Councillor raised Mr B’s concerns the building work had recommenced. The Council therefore decided to inspect the development again without delay.
  4. The Enforcement Officer spoke with Mr B and inspected the development. This led to some changes Mr B hoped for, and the Council believed he was content with what was being built. Mr B said he remained dissatisfied with the height of the flank wall.
  5. The Council’s Enforcement Officer reached his view that it was not expedient for the Council to take further enforcement action and shared his decision with Mr B. I am satisfied the Officer properly considered whether any action was warranted, I cannot therefore criticise his decision. In reaching my view, I am conscious the Officer:
    • considered Mr B’s allegations and discussed his concerns with him;
    • inspected the development and compared this with the 2018 approved plans;
    • discussed the development with Mr B’s neighbour and agreed some changes;
    • considered national and local planning policy;
    • measured the height of the flank wall to be in breach of planning control; and
    • assessed the developments impact on amenity of Mr B’s and other neighbouring properties.
  6. I acknowledge Mr B’s view that enforcement action should have happened when the Officer inspected, and the development was not complete. Mr B believes it was proportionate to act at that stage as only limited corrective work was needed. However, the Officer did not find remedial work was necessary and this was a judgment he was entitled to make.
  7. In addition, the Council’s responses gave Mr B two different measures for the height of his neighbour’s flank wall. The way these were measured were also different to how the Planning Officer said the wall should be measured. This caused Mr B some understandable confusion, and it is not clear to me how or why this happened. However, the Enforcement Officer agreed there was a breach of planning control. He inspected and assessed the impact of the development, including the height of the flank wall, but did not find the harm was significant enough to warrant enforcement action. As there is no fault in the process the Enforcement Officer followed, I cannot criticise the merits of his decision.

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Final decision

  1. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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