Summary: Mr X complained the Council failed to ensure a developer installed a privacy screen in line with the planning conditions or approved drawings. Mr X says the resultant privacy screen does not provide him with the intended privacy. The Ombudsman found fault with the Council failing to include the relevant drawings in the decision notice preventing effective enforcement. The Council agreed to the Ombudsman’s recommendation to apologise to Mr X and pay him £1,000 for the impact on his amenity.

The complaint

1. Mr X complained the Council failed to ensure a developer installed a privacy screen on a balcony neighbouring his property in line with the planning conditions or approved drawings.
2. Mr X says the resultant privacy screen does not provide him with the intended privacy proposed through the Council approved drawings.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I have considered all the information Mr X provided and the relevant planning documents. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Ms X and the Council had opportunity to comment on my draft decision.

Back to top

What I found

The Law

8. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
9. Councils can take enforcement action if they find a developer has breached planning rules. However councils do not have to take enforcement action just because there has been a breach of planning control.
10. 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 2012, paragraph 207)
11. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
12. Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.

Council planning enforcement procedure

13. The Council has a statutory duty to investigate alleged breaches of planning control and conditions attached to planning consents.
14. The Council’s enforcement procedure says it will acknowledge a report of a planning breach within three working days.
15. Following acknowledgement, the Council will complete a “desktop” investigation in the first instance. This involves the Council checking the planning history of the site, checking the planning conditions and the relevant legislation.
16. If the Council finds no breach of planning controls or conditions it will close an investigation and advise the complainant of its reasons.
17. If the Council decides it will continue an investigation into an alleged breach it may require repeat site visits, monitoring, negotiation, serving of notices and more formal action.

What happened

18. Mr X’s neighbour, the Developer, applied for planning permissions to demolish a building and replace it with a three-storey block of flats. The planning proposal included a balcony on the first floor.
19. On 8 March 2018, the Developer submitted a proposed elevation drawing for the planning application, Drawing 1, and layout drawings including a layout drawing of the first floor, Drawing 2. Drawings 1 and 2 showed the first-floor balcony design. Both Drawings showed a short metal balustrade set back about 1-metre from the edge of the balcony with planters between the balustrade and balcony edge.
20. In April 2018, Mr X provided comments about the planning application. Mr X raised concerns about overlooking from the proposed balcony.
21. The Council planning officer recommended approval of the planning application in the planning report on 19 July 2018. The planning officer acknowledged Mr X’s concerns about overlooking from the balcony and recommended a planning condition for screening on the balcony to prevent an impact on Mr X’s amenity.
22. The Council produced a decision notice approving the planning application subject to planning conditions. Relevant to Mr X’s complaint the Council included the following planning conditions:
• The development should be carried out in accordance with the approved drawing(s) listed in the decision notice. The Council did not include Drawing 1 and Drawing 2 in the list of approved drawings.
• The Developer should install a privacy screen on the first-floor balcony. The Developer would need to submit for approval a plan of the screen showing the "positions, dimensions and specification” of the screen.
23. Mr X contacted the Developer to query the plan for the privacy screen in June 2019. On 5 July 2019, the Developer confirmed with Mr X the privacy screen would be 1.2metres tall installed on a parapet creating a total of 2metre height. The Developer also confirmed the screen would return 1-metre on the rear elevation. The Developer also confirmed they would install perimeter planters on all three elevations.
24. On 30 August 2019, the developed submitted drawings for the privacy screen. The privacy screen was as explained to Mr X on 5 July 2019 and also showed details of the planters an internal balustrade.
25. The Council’s planning officer contacted Mr X for his comments on 16 October 2019. Mr X advised he agreed in principle with the privacy screen on the provision the planting feature was a permanent fixture.
26. On 17 February 2020, the Developed submitted a revised drawing for the privacy screen. This revised drawing still retained the relevant features relating to the privacy screen, balustrade, and planters.
27. The planning officer recommended approval of discharge of the planning condition relating to the privacy screen on 1 May 2020. The planning officer reached this conclusion because the drawings submitted in February 2020 provided suitable details of the privacy screen which “sufficiently screens outlook into neighbouring garden spaces”. The Council discharged the planning condition on this date.
28. On 31 July 2021, Mr X submitted a report to the Council about unauthorised development at his neighbour’s property. Mr X said the Developer failed to comply with the privacy screen planning condition. Mr X said the Developer had not installed the planters or internal 1.1metre balustrade which allowed overlooking into his garden.
29. The Council acknowledged Mr X’s report on 5 August 2021 and logged a planning enforcement case to investigate.
30. The Council enforcement officer met with the planning department to discuss Mr X’s enforcement case on 11 August 2021. The Council agreed the Developer had technically complied with the planning condition because only the privacy screen itself was subject to the planning condition and not the planters and internal balustrade. The Council provided this information to Mr X on 12 August 2021.
31. Mr X disputed the Council’s response by saying he provided comments on the planters in his response to the discharge of the planning condition. Mr X said the Council did not make it clear that the planning condition was only specific to the privacy screen.
32. Mr X made a formal complaint to the Council on 16 August 2021. Mr X complained the Council had not adequately addressed the planning breach in the enforcement case. The Council acknowledged the complaint and promised a response within 10 working days from 17 August 2021.
33. The Council provided its Stage 1 complaint response on 1 September 2021. The Council said the enforcement team had considered the matter correctly. The Council said the condition related specifically to the screen itself and nothing else on the balcony.
34. Mr X appealed the Stage 1 response on 7 September 2021. Mr X said the Developer misled him by saying the planters would remain in place. Mr X also said he assume the drawings submitted were for the whole drawing for approval and not just the screen. Mr X also said he commented to the Council that the planters should remain in place.
35. The Council responded to Mr X on 16 September 2021. The Council advised it would not issue a Stage 2 complaint response because it could not achieve what Mr X wanted. The Council directed Mr X to the Local Government and Social Care Ombudsman (the Ombudsman).

Analysis

Privacy screen planning condition

36. Mr X complained the Council failed to ensure a developer installed a privacy screen on a balcony neighbouring his property in line with the planning conditions or approved drawings.
37. The Council took suitable steps to consider Mr X’s concerns about overlooking from the balcony on the Developer’s planning application. The Council’s decision to require the Developer to install a privacy screen through a planning condition to prevent overlooking was proportionate and directly addressed Mr X’s concerns. I do not find fault with the Council’s decision to include this planning condition.
38. When Mr X complained to the Council about the breach of the planning condition on 31 July 2021, the Council had a duty to investigate this breach.
39. The Council took steps to investigate Mr X’s concerns and discussed the report with the planning department. The Council provided its response to Mr X in 8 working days to advise it found no breach of planning conditions and explained its reasoning.
40. The Council has adhered to its policy and conducted a suitable desktop investigation in a short timescale to reach its conclusion. I do not find fault with the Council’s enforcement investigation.
41. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable.
42. The Council’s enforcement decision was that it found no breach because the planning condition specifically related to the privacy screen itself.
43. The planning condition attached to the planning approval refers to the privacy screen and nothing else on the balcony. The Council asked the Developer to provide details about the privacy screen to discharge the planning condition.
44. The Developer provided details of the position, dimensions and specification of the privacy screen when it sought to discharge the planning condition. While the Developer did submit drawings showing planters and a balustrade, this did not form part of the actual privacy screen. The information about the planters and balustrade did not have any bearing on whether the Council would discharge the planning condition about the privacy screen. The inclusion, or exclusion, of the planters and balustrade in completing the works would therefore also have no bearing on whether the Developer adhered to the planning condition.
45. The Council’s decision that the Developer had installed the privacy screen in line with the planning condition is therefore not unreasonable. The Ombudsman cannot question this decision and I do not find fault.

Failure to adhere to planning drawings

46. Mr X complained the Developer’s failure to adhere to the planning drawings has resulted in a loss of amenity to his back garden.
47. The Council included a planning condition in its planning approval that required the Developer to complete the works in line with the approved drawings.
48. The Council did not include Drawings 1 and 2 within the approved drawings list on the decision notice. The Council should have included all drawings it relied on when forming a decision about the suitability of the planning application within the approved drawings list. The Council relied on Drawings 1 and 2 when it reached its planning decision and the planning officer referenced these in their report recommending approval of the application.
49. The Council has admitted failure to reference Drawings 1 and 2 in the planning decision notice was an administrative error in response to the Ombudsman’s enquiries. This was fault by the Council.
50. Failure to reference Drawings 1 and 2 in the planning decision notice means the Developer was not bound by any of the drawings showing the design of the balcony area. This means the Developer could design the balcony in any format they saw fit provided they installed the privacy screen from the separate planning condition. In turn this prevents the Council from taking effective enforcement action against the Developer for failing to adhere to the balcony drawings.
51. The Developer has built the balcony area without the planters and balustrade. The Developer has not breached planning conditions by completing these works because of the administrative fault by the Council. This amendment to the balcony has resulted in the residents of the development being able to overlook Mr X’s rear garden from the balcony. This is because the residents’ angle of view from the rear of the balcony is greater than it would have been had the balustrade and planters been installed. The Council’s fault has directly impacted Mr X’s amenity in his rear garden and prevented the Council from taking effective enforcement action.
52. Failure to include the reference to the relevant drawings in the decision notice has circumnavigated the Council’s intentions to protect Mr X’s amenity through the privacy screen planning condition. The Council cannot now act to restore Mr X’s amenity. The Council should provide Mr X with a payment to enable him to install his own form of screening, such as an evergreen tree, should he wish to restore his privacy.

Back to top

Agreed action

53. Within one month of the Ombudsman’s final decision the Council agreed to:
• Provide Mr X with an apology and a payment of £1,000 to go towards reducing the impact on his amenity because of the Council’s fault.

Back to top

Final decision

54. There was fault by the Council as the Council has agreed to my recommendation I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman