Summary: Mr C complains about the Council’s response to his reports of breaches of planning control which he says allowed a harmful impact on his family’s residential amenity and led to him spending unnecessary time and trouble in trying to resolve the matter. We have found fault by the Council in the time taken to address Mr C’s reports and poor communication but consider the agreed action of an apology, £750 and timely enforcement action going forward provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to respond properly and take effective action in response to his reports of breaches of planning control at an adjacent development from August 2018 to October 2021.
2. Mr C says because of the Council’s fault there is a harmful impact on his family’s residential amenity and he has spent unnecessary time and trouble in trying to resolve the matter.

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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)

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How I considered this complaint

5. I read the papers provided by Mr C and discussed the complaint with him. I have also considered some information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
7. Section171A of the Town and Country Planning Act 1990 (the Act) provides that a breach of planning control is defined 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.

8. Councils can use Planning Contravention Notices to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
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 section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
10. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
11. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application – such an application must be considered in the normal way.

Key events

12. Mr C contacted the Council towards the end of July 2018 about the development as he had been told by the site manager that it was proposed to add an extra non-obscure window which he was concerned would be breach of the planning permission. The Council responded to say this was speculative at this stage and Mr C should revert if such a window was added with a photograph. Mr C asked the Council if there was such a window on the approved plans as he could locate one.
13. The Council further replied to Mr C in early August to set out the relevant planning conditions and confirmed the windows in the north elevation were all shown to be non-opening and obscurely glazed (at Level 5).
14. Mr C replied to say all these windows were opening windows and not obscure glazed and there was also an additional skylight window which was not shown on the approved plans. Mr C provided photographs. The Council acknowledged this further information in early August.
15. Mr C asked for an update in mid-August. The Council apologised that Mr C’s report had not been actioned which was due to a backlog of cases. The Council wrote to Mr C at the end of August to say his report would be assessed and he would be advised of the outcome in due course.

16. Mr C says he emailed the Council twice during September for an update but did not receive a reply. Mr C says he complained to the Council in February 2019 and understands it visited the site towards the end of February. Mr C emailed the Council again in July for an update but did not receive a reply. Mr C says he telephoned the Council in mid-July about the lack of response and was told a letter was due to be sent to the developer requiring a reply within 21 days. Mr C says he emailed the Council in September for an update and was told the matter was being chased up.
17. The Council visited the site in October 2019. The Council wrote to the developer following this visit to say a particular window needed to be removed or they would need to make a planning application.
18. The Council subsequently received a retrospective planning application for the installation of an additional window within the mansard roof at third floor level. The Council gave planning permission in February 2020 subject to a condition requiring the window to be non-opening, acoustic double glazed and glazed in obscure glass at level 5.
19. The above planning application did not address Mr C’s original August 2018 report that all the windows on the north elevation were opening windows and not obscure glazed. Mr C contacted the Council towards the end of February about this outcome. Mr C sought an update on the outstanding matters in April, May and June and involved his local Councillor. Mr C received a holding response in October.
20. Mr C complained to the Council in November 2020 that it had not provided a response to his original report of planning breaches. The Council does not appear to provide a reply to Mr C’s complaint until March 2021.
21. Mr C escalated his complaint in April as he remained unhappy with the Council’s response. The Council responded to Mr C in April and apologised for the delay in dealing with his concerns. The Council accepted there had been a delay due to officer absence after the retrospective planning application was approved in February 2020. The Council had contacted the developer in October 2020 but there had been a change of ownership. The Council was considering serving a breach of condition notice.
22. The Council visited the site in August 2021 and noted the window was open and clear glazed. The Council provided an update to Mr C in October to say the matter was with its Legal team.
23. The Council visited the site in October and prepared a report in November about enforcement action. This recommended serving a planning contravention notice to obtain ownership information followed by a breach of condition notice for both breaches of planning control.
24. The Council served a planning contravention notice towards the end of November about two breaches. The first breach related to the windows that were originally conditioned to be non-opening, acoustic double glazed and obscure glass (level 5) that had not been complied with. The second breach related to the additional window in the mansard roof that was subject to the same condition that had not been complied with.
25. The Council confirmed to the Ombudsman in March 2022 that it was still considering further enforcement action. The Council also confirmed it was to complete a wide review of this service area before the end of the year. The Ombudsman would welcome this action.

My consideration

26. There is a significant delay between August 2018 when Mr C reported both an additional window and other windows as being open and not obscure glazed as required and the Council’s site visit in October 2019 and subsequent contact with the developer. This is fault.
27. The subsequent retrospective planning application for the installation of an additional window within the mansard roof was not decided until February 2020 and did not address Mr C ‘s report from August 2018 about other windows being open and not obscure glazed. This matter remained outstanding. The Council also noted the additional approved window as being open and not obscure glazed in August 2021. However, the Council did not issue a planning contravention notice until the end of November about both the original windows and added window. The Council had not taken further enforcement action in relation to either breach of planning control by March 2022. This is fault.
28. It is also clear there has been a failure to respond to Mr C’s correspondence or keep him adequately updated during this extended period. This is fault.
29. I am satisfied the excessive delay outlined above has caused Mr C an injustice both in terms of the continuing impact on his residential amenity and his frustration, time and trouble in pursuing the matter. I consider the Council’s poor communication with Mr C has exacerbated this injustice.

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Agreed action

30. The Council has agreed to take the following action to provide a suitable remedy for Mr C’s injustice:
1. to provide a written apology to Mr C for the unacceptable delay in dealing with his reports and the failure to keep him properly updated within one month of my final decision;
2. to pay Mr C £750 in recognition of the distress caused by the impact on his residential amenity and frustration, time and trouble in pursuing the matter within one month of my final decision;
3. to complete the next stage of its proposed further enforcement action and provide an update about this to Mr C within six weeks of my final decision; and
4. complete an interim review of its procedures to ensure reported breaches of planning control are not allowed to drift for excessive periods without action and that regular updates are provided to complainants within three months of my final decision.

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Final decision

31. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman