Summary: Ms X complained the Council failed to take enforcement action against her neighbours, when they built an extension to a greater height than permission allowed for. We have discontinued our investigation. The planning enforcement case is still active so it is not possible for us to determine the level of injustice the alleged fault may have caused Ms X.

The complaint

1. Ms X complained the Council failed to take enforcement action against her neighbours, when they built an extension to a greater height than permissions allowed for.
2. Ms X does not live in the property. Tenants live there.

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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. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered Ms X’s complaint and spoke to her about it.
6. I also considered the Council’s response to Ms X and to my enquiries.
7. Ms 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

Enforcement policy

8. 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.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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 July 2021, paragraph 59)
11. The Council’s Local Enforcement Plan explains that the Council’s decision to take enforcement action is a final response and that the Council is expected to give those responsible the chance to put matters right before taking formal action.

What happened

12. Ms X’s neighbours applied for permission to build an extension in 2015 and 2016. The Council refused the applications. One of the reasons was the proposed height would mean the development would have a negative impact on the neighbours’ amenity (the tenants living at Ms X’s property).
13. In 2017, the Council granted the neighbours prior approval for the erection of a single storey extension with a maximum height of 2.2 metres. In 2019, the neighbours began to build the extension at a height of 3.65 metres. Ms X reported the alleged breach of planning control to the Council immediately.
14. In May 2019, the Council opened an enforcement case and began negotiations with the neighbours and the builders. This case remains open.

Analysis

15. The Council responded to Ms X’s report of an alleged breach of planning control. The issue is not resolved, and the enforcement case remains open nearly 3 years after the initial report of a breach. The Council’s delay in reaching a resolution is likely to amount to fault.
16. When making a decision, the Ombudsman must determine whether any alleged fault caused an injustice. We also need to consider the level of any injustice in order to recommend a meaningful remedy.
17. As Ms X does not live at the property and does not experience the day to day impact of the development, any injustice is likely to be limited.
18. While the enforcement case remains open, it is not possible for me to determine any injustice caused by the alleged fault. This is because until the Council has decided the outcome of its investigation, any injustice would be speculative.
19. For this reason, I have discontinued my investigation.

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Final decision

20. I have discontinued my investigation. The planning enforcement case is still active so it is not possible for me to determine the level of injustice the alleged fault may have caused Ms X.

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Investigator's decision on behalf of the Ombudsman