Summary: Mrs X complained it took the Council too long to begin enforcement action against her neighbour’s development, which she said causes an impact on her amenity and damages her property. We did not investigate this complaint further because enforcement action is ongoing.

The complaint

1. Mrs X complained the Council took too long to take enforcement action against her neighbour, who had carried out development to a listed building without consent.
2. Mrs X said the development causes loss of privacy and has damaged her property.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we cannot show that any alleged fault has caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including an enforcement notice.
5. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest.
• Grade II – Buildings of particularly important/more than special interest.
• Grade III – buildings of special interest.
10. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
11. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.
12. 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.

What happened

13. Mrs X’s neighbour carried out works to a listed building without planning or listed building consent.
14. Earlier this year, the Council served a listed building enforcement notice requiring removal of development works to the listed building. A few weeks later, the Council withdrew this notice and revised it before reissuing it.
15. The Council said that the developer has not appealed against the notice and has several more months to comply with it.
16. Mrs X is glad the Council has taken enforcement action, but she is disappointed it has taken so long.

My findings

17. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
18. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
19. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
20. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
21. I should not investigate this complaint further, because:
• Planning enforcement action is ongoing, and we cannot know the outcome until the process has finished. Though the developer did not exercise their right of appeal, there remain other opportunities to challenge at different stages of the process. While the Council can enforce the notice, it is also possible the developer might apply for a revised scheme of works, which could be approved, or refused and appealed to the planning inspectorate.
• Without knowing the outcome, we cannot properly assess the extent of any injustice caused by any alleged fault, including delay in the decision making process.
• Even if we were to find evidence of fault, we can only recommend remedies for injustice caused by the Council. Because of this it is unlikely we would be able to hold the Council responsible for alleged damage to property.

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Final decision

22. I ended my investigation, as enforcement action is ongoing, which means I cannot assess injustice caused by the alleged delay in taking enforcement action.

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Investigator's decision on behalf of the Ombudsman