Summary: Mr X complained the Council delayed planning enforcement resulting in loss of privacy and distress. We find the Council at fault for its delay in addressing Mr X's complaint. The Council will apologise to Mr X and pay him £1000 for his loss of privacy and avoidable distress and £150 for his time and trouble in resolving his complaint.

The complaint

1. Mr X complains the Council delayed enforcing against a breach of planning control between April 2020 and March 2022 despite his multiple reports and delayed responding to his complaint.
2. Mr X says this caused him and his family loss of privacy, distress and time and trouble trying to resolve the complaint with the Council.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr X was aware of his complaint issues from April 2020 but reported the breach in February 2021. He formally complained to the Council in December 2021 and approached the Ombudsman in March 2022. This is approximately 24 months after he first knew of the complaint issues.
6. Mr X told me he delayed contacting the Council in 2020 because it was during the peak of Covid-19. He was busy with caring duties for his son who is diagnosed with a disability. Mr X said his neighbours also gave him personal assurances but then later told him they would not comply. He therefore decided to contact the Council in 2021. Mr X’s potential injustice is also continuing for over a year. I have therefore decided to exercise discretion and investigate his complaint.
7. If we are satisfied with an organisation’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

8. I spoke to Mr X and considered the information he sent me. I considered information provided by the Council.
9. Mr X and the Council had an opportunity to comment on my draft decision. I carefully considered their comments before making my final decision.

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What I found

Law, Guidance and Local Policy

10. Section 171A 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.
11. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A.
12. 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).

Council’s Enforcement Policy

13. The Council investigates all reports about unauthorised development. It decides whether to take enforcement action based on the circumstances of each case. The Council’s service is therefore reactive; it acts upon a complaint. The Council does not otherwise monitor developments to ensure compliance with any planning permission.
14. The Council aims to acknowledges all reports within 5 working days. If there is a potential breach, the complaint is categorized into priority A, B or C. Priority B complaints relate to unauthorised changes to the detriment of neighbouring amenities. In such cases, if necessary, the Council will conduct a site visit within 15 working days of acknowledgement.
15. Throughout the investigation the Council aims to keep contact with the complainant and the person (s) suspected of breaching. At all stages of the investigation, the Council decides on proportionate future action. The Council may take enforcement action such as serving an enforcement notice or a breach of condition notice if necessary.

Council’s Corporate Complaints Policy

16. A senior planning officer looks into planning complaints. The Information Compliance Team then reviews the investigation findings and responds.
17. A complaint investigation should take no longer than 20 working days, however, if the complaint is complex, this may be extended to 30 working days. The Council advises complainants of any extensions as soon as possible.

What happened

18. Mr X’s neighbour, Mr Y, obtained planning permission to develop their home (Permission A). This included two balconies which were not complete rectangles. The balcony corners were to be cut away at a diagonal with added privacy screens to prevent overlooking.
19. Mr X noticed the balconies were not constructed according to the plans. They were fully rectangular in shape and did not include screens. Mr X reported the issue to the Council. He said it allowed direct views into a bedroom and the lounge which was an invasion of privacy causing him and his family distress.
20. The Council completed a site visit and had a managerial review meeting. It decided Mr X’s neighbour was in breach and should put in a non-material amendment application (NMA), stipulating bars across the balcony corners with screening. This was to prevent access to the extended area of the balcony which allowed views into Mr X’s property. The approval needed submission of plans for the bars within two months, and if approved they be fitted within three months of that date. The Council approved the revised application (Permission B) at the end of 2019. Mr X expected the issue would be resolved by mid-2020.
21. The Council records show it closed the case after Mr Y filed the NMA.
22. Mr X said his neighbours did not install the bars or the screens in 2020 but gave him assurances for 10 months. He decided to give them time to maintain good relations. Mr X said the Council did not check compliance in this period and his neighbours eventually told him they would not complete the works.
23. Mr X told me he fitted new blinds in the bedroom and the lounge to maintain privacy. He said he and his family still found it difficult and his son often sat in a different corner of lounge away from the windows to avoid people seeing them from the balconies. Mr X said they also kept the blinds down during daylight hours which was also inconvenient.
24. Mr X telephoned the Council who advised he raise his concerns in writing. In February 2021, Mr X emailed the Council about his neighbour’s failure to comply. Mr X told me he did not receive a response.
25. Mr X therefore sent further emails to the Council in March, June, August, and October. He said he only received an automated acknowledgment on each occasion but no further response. In his August email Mr X told the Council that Mr Y had fitted the screens but not the bars.
26. Mr X told me the Council’s lack of response resulted in relationship breakdown with Mr Y and caused arguments.

Mr X’s complaint and Council response

27. On 16 December 2021, Mr X formally complained to the Council. He said it had failed to enforce an approved planning application despite his multiple reports between February and October 2021 and failed to keep him updated. Mr X asked the Council take proper enforcement action and improve its communication.
28. The Council accepted Mr X’s complaint and said it would respond by 18 January 2022. It said it would tell Mr X of delays as soon as possible.
29. On 25 January, the Council told Mr X it needed until 1 February. On 1 February, it apologised for the delay and said a response would follow 14 February.
30. Mr X’s complaint was initially processed on 16 December 2021. The records show an unexplained delay between 25 January and 23 February in producing the Corporate Complaint Investigation Report and sending it to the Council’s Information Governance Officer.
31. On 24 February the Council told Mr X a senior officer had to check the report but was on annual leave. It would be finalised the following week on her return. It apologised again for the continued delays.
32. The Council’s response on 2 March, said:
• It had taken suitable enforcement action (NMA) as set out in paragraph 20 (above) but had failed to communicate with Mr X from early 2021. This was because of staff changes which resulted in one temporary employee in a planning enforcement role.
• There was an increase in planning complaints during 2021 and a heavy backlog. This affected its capacity to adequately manage enforcement investigations. The Council recruited a new senior planning enforcement officer and was increasing other staff to address the situation.
• Mr X’s complaint was complicated by overlapping applications (Permission A and B). The Council was therefore seeking legal advice on how to continue with enforcement.
• It accepted its communication with Mr X since April 2021 was poor and caused Mr X frustration and stress. It apologised for this.
• The new senior planning enforcement officer would get legal advice and keep Mr X updated.
33. Mr X asked the Council why it was only now seeking legal advice as he had complained about the issue for almost three years. The Council replied it was necessary to ensure it selected the most suitable enforcement action.
34. Mr X was unhappy with the Council’s response and approached the Ombudsman.
35. The Council obtained legal advice in April 2022 and informed Mr Y they were in breach of planning permission. The Council told them it would issue enforcement notices if they refused to comply.
36. Mr Y submitted details for the bars in June, but the time scale for installation could no longer be complied with. Mr Y was advised to submit a non-material minor amendment application. He did this in July and a new timescale was set for the works to be completed within two months.
37. The planning officer monitored compliance and kept Mr X updated. In mid- September, Mr Y emailed the planning officer to say the remedial works were complete. The Council carried out an inspection at the end of September 2022.
38. At the end of September, the Council wrote to Mr X and confirmed the breach of planning control had been remedied. It said the bars and screens were now fitted. The Council proposed that no further action would be taken, and the case was closed.

Was there fault and did it cause injustice?

i) Failure to enforce approved planning applications

39. The Ombudsman is not an appeal body. It is not the Ombudsman’s role to decide whether or when the Council should take enforcement action; that is the Council’s job. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
40. The records show the Council acted in line with its enforcement policy after Mr X’s first report about Permission A. The Council engaged with Mr X and Mr Y, conducted a site visit, and discussed the case at a review meeting. The Council decided the balconies should be adjusted with bars and screens to preserve Mr X’s amenity. The Council asked Mr Y to submit an NMA application (Permission B) which was approved in November 2019. There was no further need for the Council to monitor compliance as set out in paragraph 13 (above). The Council completed its investigation and closed the case. There was no fault by the Council up to this point.
41. Mr X reported the Permission B breach in February 2021. The Council eventually obtained legal advice in April 2022. It then contacted Mr X’s neighbours to ensure compliance. However, it could have taken this action much sooner and prevented the case from drifting. This delay in assessing and deciding appropriate action was fault and not in accordance with its enforcement policy. This resulted in Mr X and his family suffering continued invasion of privacy for approximately 14 months as well as avoidable uncertainty and distress for longer than necessary. This is injustice.

ii) Failure to respond to Mr X’s reports of breach

42. The Council has admitted it failed to respond to Mr X’s email reports in February, March, June, August, and October 2021 because of staff shortage. It has accepted its communication with Mr X was poor and apologised. It has recruited new staff to address the situation which is a partial remedy.
43. However, its repeated failure to respond was not in line with its enforcement policy which requires an acknowledgment within 5 working days followed by investigation to decide further action and an update to the complainant. Its failure to respond was poor communication and service delivery. This meant Mr X had to send multiple emails chasing the Council which caused him avoidable uncertainty, frustration, and distress. This is injustice.

iii) Delay in responding to Mr X’s complaint

44. Mr X complained on 16 December 2021. The Council provided its response on 2 March. This is around 50 working days after his complaint was allocated for investigation. This delay amounts to fault as the Council’s complaints policy, allows 30 working days for complex planning complaints.
45. The Council informed Mr X about delays on 25 January and 24 February and explained this was due to the planning officer being on annual leave. However, the Council’s complaints records show there was an earlier unexplained delay in the completing the complaint report, which impacted resulting stages of complaint handling. This was fault and Mr X was put to avoidable time and trouble in the complaints process. This is injustice.

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Agreed action

46. To remedy the injustice identified above the Council has agreed, within a month of my final decision, to:
• Write to Mr X and apologise for its delay in addressing the breach of planning conditions related to Permission B, failure to respond to Mr X’s emails between February and October 2021 and delay in responding to his complaint.
• Pay Mr X £1000 in recognition of his loss of privacy and distress.
• Pay Mr X £150 for his time and trouble in resolving the complaint.

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Final decision

47. I find the Council delayed taking enforcement action following Mr X’s report of a breach of planning approval. It also failed to respond to Mr X’s multiple reports about the breach and delayed responding to his complaint. The Council has now addressed the breach which is a partial remedy. The Council should also carry out the recommended actions as set out in this statement which is a suitable remedy.
48. I have completed my investigation,

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Investigator's decision on behalf of the Ombudsman