Summary: Mr and Mrs C complained about the Council’s response to their report of a breach of planning control at a neighbouring property and say they suffer from an overbearing development which affects their outlook. We have found no fault in the Council’s consideration of the planning breach but there was fault in failing to provide a complaint response. I consider the agreed action of an apology and procedural review provides a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs C, complain about the Council’s response to their report of a breach of planning control at a neighbouring property. In particular, Mr and Mrs C say the Council wrongly dismissed the breach as insignificant and its Regulatory Committee based its decision not to take enforcement action on inaccurate and misleading information.
2. Mr and Mrs C say because of the Council’s fault they suffer from an overbearing development which affects their outlook.

Back to top

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 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)
5. 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)

Back to top

How I considered this complaint

6. I read the papers provided by Mr and Mrs C and discussed the complaint with Mr C. I have considered some information from the Council and provided a copy of this to Mr and Mrs C.
7. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.

Back to top

What I found

Background and legislation

8. Section171A of the Town and Country Planning Act 1990 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.

9. 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. 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.

Key events

10. Mr C contacted the Council towards the end of February 2022 to report that a garden store being built at a neighbouring property was not in accordance with the approved plans as it was higher than approved. The Council confirmed it had passed the matter to its planning enforcement team at the beginning of March.
11. The Council contacted the developer and visited the site on 17 March. The Council has provided photographs and system notes from this visit. The photographs show both the internal part of the building and outside to the fence boundary showing no obvious change in ground levels. The Council noted the building on site had two levels of flat roof measured at 3.3 metres and 4 metres at the highest point. The Council noted a height of 3.8 metres was set out in the case officer’s report for the planning application.
12. The case officer’s view was that an additional 20 centimetres did not represent sufficient planning harm to make formal enforcement action expedient. In accordance with the Council’s Local Enforcement Plan the case officer sought the agreement of the Ward Member to close the case on that basis. The Ward Member did not support the case officer’s request to close the case.
13. As the case officer assessed the 20 centimetre increase as a technical breach which would normally be considered acceptable as a non-material amendment to a planning permission if revised plans were submitted, they sought a variation of condition application. The agent advised the Council the developer was not prepared to submit such an application.
14. The Council visited the site again on 9 May and measured the building as being 4 metres high at its highest point and noted there were no evidence of a change in ground levels. The Council has provided photographs from this visit.
15. As the Ward Member had not agreed to the case being closed the matter was referred to the Council’s Enforcement Committee in line with its Local Enforcement Plan.
16. The Council visited the site again on 13 June when both the Ward Member and Planning Manager attended. The Council has provided a copy of an annotated plan and photographs from this visit. The plan sets out from the finished floor level of the front elevation that the lowest point measured 3.21 metres and highest 3.91 metres and from excavated ground level these measurements were 3.51 metres and 4.21 metres respectively against the approved plans which showed 3 metres at the lowest point and 3.85 metres at the highest point.
17. The matter was subsequently considered at the Council’s Enforcement Committee. Mr and Mrs C say their Ward Member was told they could not speak at the Committee and had to submit written representations but was told just before the meeting that they could speak which placed them at a disadvantage.
18. The Committee Procedure Rules form part of the Council’s Constitution, which is published on the Council’s website. Committee Procedure Rule 16.6 states:

“Save for the exception in Paragraph 16.7, any Councillor will have the right to attend any meeting of a Committee of which he is not a member but may not speak or vote unless reference is made to items of a particular local concern to his Ward, when he will be entitled to address the Committee and, if necessary, propose amendments to any relevant recommendations, but not vote, unless he is a nominated substitute member.”

19. Paragraph 16.7 states:

“A Councillor shall only have the right to remain in a meeting, considering an item in private session, where he can demonstrate a “need to know” to the satisfaction of the Monitoring Officer, in consultation with the Chairman of the Committee.”

20. The Council says that when establishing a ‘need to know’, each case is considered by the Monitoring Officer on its own merits.
21. The Council advised Mr C’s Ward Member in April of the Committee process for the enforcement case. It was explained they could attend the meeting but there was no speaking on exempt items.  The Council set out the opportunity to make written representations which would be included in the case officer’s report.
22. Mr C’s Ward Member provided a detailed written representation and this information was included in the case officer’s report to the Committee and photographs provided also formed part of the visual presentation at the meeting.
23. The Council confirmed in June to Mr C’s Ward Member the date of the Committee meeting and provided a copy of the case officer’s report. The Ward Member was advised they could observe the enforcement case being presented but would not be allowed to address the Committee and third parties could not attend the exempt part of the meeting. The Council says this was consistent with how two other enforcement cases had been considered by the Committee in November 2021, based on the advice from the Monitoring Officer on each of those cases.
24. Following subsequent enquiries from some Members, the Monitoring Officer sent a Guidance Note to all Councillors including Mr C’s Ward Member which referred to the Committee Procedure Rule 16.6 as set out above. This noted councillors had the right to attend any meeting of a committee of which they were not a member and speak on items of a particular local concern to their ward, but a councillor could only remain in private session if they could demonstrate a “need to know” to the satisfaction of the Monitoring Officer, in consultation with the Committee Chairman. This guidance was sent a couple of days ahead of the Committee meeting.
25. The Monitoring Officer gave advice to the Chairman at the start of the Committee meeting that, given the facts of the case, the Ward Member should be allowed to remain present if the Committee decided to exclude the public and the press, and that in that scenario the Ward Member should also have a right to speak.
26. Although there appears to have been an initial lack of clarity about speaking arrangements, I am satisfied Mr C’s Ward Member was made aware of the possibility of being able to address the Committee for this enforcement case but this would be subject to the agreement of the Monitoring Officer in consultation with the Charman on the day. On balance, I do not consider this constitutes fault. I also consider that, even if we were to find some fault here, there was no particular injustice given the detailed written comments the Ward Member had already provided.
27. The minutes for the Committee meeting set out the case officer presented the case following which a Motion was made to proceed in accordance with the case officer’s recommendation which was resolved with 4 votes in favour and 3 against that no enforcement action should be taken and the case closed.
28. Mr C contacted the Council in August to challenge the Committee’s decision on the basis it relied on incorrect measurements and seeking a site visit to view the development from his property. The Council’s Monitoring Officer responded to say as they had attended the relevant meeting the matter would be dealt with by the Deputy Monitoring Officer. The Deputy Monitoring Officer provided a reply in early September. This set out that Members of the Committee were shown two measurements taken at the June site visit. A measurement taken from the inside slab level (what the developer called the finished floor level) and a measurement taken from the existing ground level, although this had been excavated (lowered) not raised. It was further noted Members were advised they needed to assess how the building appeared visually in its setting with the additional height and were aware of the different arguments about measurements. The Council noted Members were entitled to exercise their planning judgement and conclude that the building, although built taller than shown on the approved plans, did not cause sufficient harm to warrant the taking of enforcement action.
29. Mr C complained to the Ombudsman at the end of September. The Ombudsman asked the Council on 17 October to put Mr and Mrs C’s complaint through its complaint procedure and provide him with a response directly. We also provided a copy of the complaint to the Ombudsman for information. Mr C contacted the Ombudsman in January 2023 to say he had received nothing further from the Council. The Council has not been able to provide a copy of its complaint response to Mr and Mrs C following the Ombudsman’s request or any reason for failing to provide one.

My consideration

30. I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mr and Mrs C’s reports. Councils have power to enforce but they have no duty to do so. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.

31. The Council has provided evidence it responded to Mr and Mrs C’s reports of a breach of planning control and took appropriate action including visiting the site. The case officer’s initial assessment was that any breach could be addressed through the submission of a variation to condition application.
32. Although I appreciate Mr and Mrs C wanted the building returned to the height of the approved plans, I see no fault in the Council’s approach here. Addressing breaches of planning control without formal enforcement action when appropriate to do so can often be the quickest and most cost effective way of achieving a satisfactory outcome.
33. Following confirmation the developer was not prepared to submit a further application, the case officer assessed the breach did not represent sufficient planning harm to make formal enforcement action expedient. In line with the Council’s Local Enforcement Plan the matter was considered by its Enforcement Committee as the Ward Member did not agree to the case being closed with no further action.
34. I am satisfied based on the evidence provided that the Council’s Enforcement Committee had enough relevant information to reach its view not to proceed with formal enforcement action. This included a detailed representation from Mr and Mrs C’s Ward Member which set out concerns about the actual height of the building and methodology used for measurement.
35. The Council considered all relevant considerations, did not consider any irrelevant considerations, and its conclusions were rational. This was a decision within its discretion to make. I am satisfied the Council followed the proper processes which means I cannot question the merits of the decision reached.
36. However, I am concerned the Council did not progress Mr C’s formal complaint through its complaint procedure as requested by the Ombudsman. Whilst the Council had replied to Mr C’s correspondence about the conduct of the Committee meeting, he was entitled to receive a response to the concerns he had raised about how the Council had responded to his reports under its complaints procedure. I consider the failure to do so constitutes fault. However, when taking into account the previous correspondence Mr C received and the outcome of my investigation, I consider any injustice can be appropriately remedied through an apology and service improvement as set out blow.

Back to top

Agreed action

37. The Council will complete the following action to provide a suitable remedy:
1. write to Mr and Mrs C to apologise for not providing a response to their complaint within one month of my final decision; and
2. review its procedure and guidance to relevant staff to ensure that complaints receive a timely response under the Council’s complaint procedure within three months of my final decision.
38. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

39. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman