Summary: Ms X complained about the way the Council dealt with a breach of planning control by her neighbour. We found the Council was at fault in that it delayed in serving a breach of condition notice and in responding to some of Ms X’s communications. The Council has agreed to apologise to Ms X for the injustice caused.

The complaint

1. Ms X complains about the way the Council has dealt with a breach of planning control by her neighbour. In particular, she complains about its decision not to prosecute her neighbour for failing to comply with a breach of condition notice and its delay in reaching that decision. She also says the Council failed to respond to her communications.
2. Ms X says the Council’s failings have caused her distress and inconvenience and she is still suffering from loss of privacy.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Planning law and guidance

7. A breach of planning control is defined in the Town & Country Planning Act 1990 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 was granted.
8. Where there is a breach of planning condition, the council may serve a breach of condition notice. Failure to comply with the notice is an offence that may be tried in the Magistrates’ court.
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.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

The Council’s enforcement policy

11. The Council investigates reports about unauthorised development. It decides whether to take enforcement action based on the circumstances of each case and taking into account planning policies for the Borough and national planning policy guidance.
12. The Council aims to acknowledge all reports within five working days. The complaint will be given a priority classification and an investigation will be carried out in accordance with the relevant timescale for that complaint. The enforcement policy sets out how cases are prioritised.
13. The Council will notify the complainant of its findings and what action, if any, it proposes to take as soon as it has concluded its investigations. The policy states that dealing with enforcement complaints can be a lengthy and complex process so it is not possible to give a standard ‘target’ time for dealing with complaints. It says if the Council has been unable to complete its investigations within 56 days and needs further time, it will inform the complainant accordingly.

Key facts

14. Ms X’s neighbour, Mr Y, was granted planning permission for a two-storey side and single storey rear extension. The permission was issued subject to conditions including:
• the development should be carried out in accordance with the approved plans;
• the materials used in the construction of the external surfaces of the building should match those used for the existing building; and
• the first floor window in the rear elevation serving the bedroom should be obscure glazed and non-opening.
15. On 7 June 2021 Ms X notified the Council that there was a breach of planning permission because:
• the first floor window in the rear elevation serving the bedroom was not obscure glazed and was fully openable;
• the roofing materials on the side extension did not match those on the original building; and
• the block wall to the single storey extension facing her property did not match the original building.
16. Ms X said the failure to comply with the condition regarding the window had resulted in loss of privacy as her neighbours could see into her kitchen, dining room and bedroom causing her distress. She wanted the Council to resolve this so that her privacy was restored.
17. An officer acknowledged Ms X’s email and asked her to complete a planning enforcement complaint form.
18. On 22 June a planning enforcement officer, Officer A, wrote to Ms X confirming the Council was investigating her concerns to decide whether there had been a breach of planning control and, if so, whether any action was justified. The officer said he would inform Ms X of the outcome when the investigations were concluded. He explained that, in some cases, the investigation could take a long time to be concluded.
19. Officers visited the site on 24 June and found three breaches of planning control. Officer A wrote to Mr Y the following day saying that, following a site inspection and examination of the planning records, the Council considered the development was not being carried out in accordance with the planning permission. He asked Mr Y to contact him to discuss the matter.
20. On 14 July Ms X sent an email to the Council’s planning team asking them to take action regarding the breaches of condition. Officer A explained officers had visited the property and written to Mr Y but he had not yet responded. He explained there was a process to follow and the Council was working towards resolving the matter but he could not predict how long it would take.
21. On 20 August Mrs X sent an email to Officer A requesting an update. Officer A responded saying he had received no response from Mr Y to his letter and, as Ms X’s email suggested no changes had been made, he had now sent a follow-up letter. He said, if no response was received, he would seek authority to commence formal enforcement proceedings.
22. On 6 October Ms X wrote to Officer A saying nothing had yet been done about the windows and asking for an update. She received no response and, on 5 November, she wrote to Officer A again asking for a response to her previous email. Having received no response, Ms X sent an email to the planning team on 9 November. Officer A responded the following day saying he needed to discuss the matter with Head of Planning Services who had just returned from leave.
23. Officer A wrote to Ms X again later the same day saying he had discussed the matter with the Head of Planning Services and had drafted a breach of condition notice and sent it to legal colleagues to serve on Mr Y.
24. On 1 December the Council served the breach of condition notice requiring Mr Y to:
• ensure the window was obscure glazed and non-opening within three months;
• replace the roofing materials on the extension with tiles that matched those used on the original building within six months; and
• render the wall facing Ms X’s property within six months.
25. On 5 January 2022 Ms X wrote to Officer A requesting an update. He confirmed a breach of condition notice had been served but Mr Y had not yet responded.
26. On 21 March 2022 Ms X requested a further update. Officer A responded on 29 March. He explained the Council would wait until the six month compliance period was up before commencing prosecution proceedings. So, all matters could be tied together when presented to the court and heard at the same time.
27. Ms X sent a further email to the Council on 13 May asking for an update. She received no response.
28. The six-month compliance period expired at the end of May. Enforcement officers visited the site and spoke to Mr Y. They found the notice had not been complied with.
29. On 13 June Ms X again requested an update. The Head of Planning responded explaining that the planning enforcement service did not have sufficient resources to prosecute all failures to comply with breach of condition notices and that the Council would decide on the priority of the case and the next steps.
30. Ms X complained to the Council the same day. She said it was 12 months since she reported her concerns to the planning department and nothing had been done. She said she had written to the department many times and they were slow to respond.
31. The Head of Planning responded the following day. He confirmed the period for compliance with the notice had expired and the Council was aware it had not been complied with. He said it would now need to pursue the matter via a prosecution through the courts, but this would unfortunately lead to a further delay in resolving the matter.
32. Ms X replied requesting confirmation that the Council would be taking legal action. The Head of Planning explained a prosecution would be the next step unless the Council received evidence that Mr Y was taking positive steps to remedy the breaches and there was a genuine reason why compliance had not occurred within the specified timescales.
33. Ms X escalated her complaint to stage 2. The Council responded on 4 July and agreed to inform Ms X of its decision on whether to prosecute Mr Y by 31 August 2022.
34. By August 2022 the Council was satisfied Mr Y had addressed the breach of condition regarding the roof tiles. In addition, he had enquired whether the obscure glazing/non-opening of the window could be removed by a planning application to vary or remove a planning condition.
35. On 23 August Officer A wrote to Ms X saying he had called at her house the previous week to check on the situation and to discuss the matter but there was no reply.
36. On 30 August 2022 Officer A wrote to Ms X explaining that, following discussions between planning and legal officers, the Council had decided to take no further action in relation to the remaining breaches of planning control for the following reasons:
• it was satisfied the situation relating to the window could be addressed by Mr Y submitting an application to vary or remove the condition and it would then be a matter for planning officers’ professional judgement whether the application should be granted. Mr Y had confirmed he intended to make such application; and
• Mr Y had given an undertaking to render the block wall facing Ms X’s property as soon as possible and had provided mitigating circumstances to explain why it had not yet been done.
37. Officer A explained the breach of condition notice would remain in force and the Council would review the matter periodically at its discretion.

Analysis

Breaches of planning control

38. The Ombudsman is not an appeal body. It is not our 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 decide whether a significant injustice was caused to the individual complaining. If we consider there was no fault in the process, we cannot question whether the Council’s decision was right or wrong.
39. I am satisfied the Council acted in line with its enforcement policy when Ms X first reported the breach of planning permission. It engaged with Ms X, conducted a site visit and asked Mr Y to remedy the breaches of planning permission. It later served a breach of condition notice.
40. Mr Y remedied one of the breaches but failed to remedy the remaining two breaches. The Council decided not to prosecute the remaining breaches because:
• the breach relating to the window could be addressed by an application to vary or remove the condition and Mr Y had confirmed he intended to do this; and
• Mr Y had given an undertaking to render the wall facing Ms X’s property as soon as possible and the Council was satisfied there were mitigating circumstances to explain why this had not yet been done.
41. Enforcement is discretionary and it was a matter for officers’ professional judgement as to whether prosecution was appropriate. The Council has explained its reasons for concluding that there were insufficient grounds to prosecute the remaining breaches of planning control. In the absence of fault in the way the decision was reached, I do not criticise that judgement.

Delay in the process

42. I find there was a delay in the Council serving a breach of condition notice. It wrote to Mr Y in June and August 2021 asking him to remedy the breaches of planning control. Officer A told Ms X on 23 August that, if Mr Y did not respond to the letter, he would seek authority to begin formal enforcement proceedings. However, he did not do so until 10 November 2021 and the Council did not serve the notice until 1 December.
43. In my view, the officer should have sought authority to issue formal enforcement proceedings when Mr Y did not respond within a reasonable time. If he had done so, the Council could have served a notice by October 2021. I do not consider the delay in doing so affected the outcome, but it caused Ms X uncertainty and she was put to time and trouble in pursuing the matter.
44. I find no grounds to criticise the Council for allowing Mr Y six months to comply with the notice. Although the notice stated that the breach relating to the window should be remedied within three months, the remaining two breaches did not have to be remedied for six months. The Council has explained it waited until the six-month period expired because it was not a good use of resources to prosecute the three breaches of conditions separately. Councils must use their resources efficiently. So, there are no grounds to criticise that decision.
45. The six months expired at the end of May 2022. The Council reached a decision on whether to prosecute by the end of August 2022. I do not consider this to be a significant delay. Officers visited the site and liaised with Mr Y. They then reviewed the matter and discussed it with legal colleagues before deciding how to proceed.

Communication

46. I find the Council delayed in responding to some of Ms X’s requests for an update. In particular:
• Ms X requested an update on 6 October 2021 having heard nothing since 20 August 2021. Officer A had told her he had written to Mr Y again and, if no response was received, he would seek authority to commence formal enforcement proceedings. Having heard nothing further, it was legitimate for Ms X to request an update on this. Officer A did not reply so Ms X sent a further email on 5 November 2021. She received no response and sent an email to the planning team on 9 November. Officer A responded on 10 November. It therefore took over a month for Ms X to receive a response to her request.
• Ms X requested an update on 13 May 2021 having heard nothing since 29 March 2021. Officer A did not respond so she sent a further email on 13 June. The Head of Planning responded the same day. Again, there was a delay of a month in responding.
47. I find that, overall, officers responded to Ms X communications promptly. But there were some instances where there was a significant delay in doing so. This was fault and caused Ms X uncertainty and frustration. She was also put to the time and trouble of sending further emails.

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Agreed action

48. The Council has agreed that, within one month, it will apologise to Ms X for the distress caused by the delay in issuing the breach of condition notice and in responding to some of her communications.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I find the Council was at fault in that it delayed in serving a breach of condition notice and in responding to some of Ms X’s communications.
51. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman