Summary: Mrs X complains on behalf of Mr Y about the Council’s delay in taking planning enforcement action. We find there were periods of avoidable delay which caused Mr Y distress, uncertainty and loss of residential amenity. The Council has agreed to apologise to Mr Y for the delays and make payments to him of £1100 to reflect his temporary loss of residential amenity and £300 for uncertainty and distress caused. It will also put in place procedures to prevent long periods of case inactivity.

The complaint

1. Mrs X complains on behalf of Mr Y, the Council delayed taking enforcement action against a neighbour (‘Ms N’) between February 2019 and September 2021, to ensure compliance with a planning enforcement notice (‘EN’).
2. Mrs X says the Council’s delay caused Mr Y distress, uncertainty, loss of privacy, and loss of enjoyment of his home and garden.
3. Mrs X says Mr Y wants the Council to take enforcement action to ensure Ms N complies with the enforcement notice (‘EN’) and compensate him for his difficulties and inconvenience.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. 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)
7. Mrs X complained to us on behalf of Mr Y in October 2021, but he was aware of the complaint issues from February 2019. Mrs X said she was in regular communication with the Council for Mr Y between 2019 and 2022 to try to get the situation resolved. She said the Council provided repeated assurances of legal action but did not act. Mrs X said sent a formal complaint, but the Council has not provided any correspondence to show its response. Mr Y’s potential injustice is also ongoing as Mrs X said the remedial works were yet to be completed. I have therefore exercised discretion to investigate matters from February 2019 until September 2022.
8. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. 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)
10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.
11. The Ombudsman published guidance on good administrative practice setting out the standards we expect when we investigate the actions of local authorities. This includes providing:
• Effective services and timely decisions.
• Planning and prioritising resources to ensure good customer service.
• Explaining and responding to any delays proactively.
12. Our COVID-19 guidance advised Council’s to adapt procedures, anticipate backlogs and ensure service users received updated advice on any potential changes to timescales or delays.

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How I considered this complaint

13. I spoke to Mrs X and considered documents provided by her and the Council in response to my enquiries. I considered relevant law, guidance and the Council’s planning and enforcement policy (version August 2022) which is available online.
14. Mrs X and the Council had an opportunity to comment on a second draft of this decision. I considered their comments before reaching a final decision.

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What I found

Background and legislation

15. Planning authorities may take enforcement action where there has been a breach of planning control. 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.
16. The Government guidance says:

“Effective enforcement is important to upholding 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 2021 para 59)

17. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is appropriate to do so. An Enforcement Notice creates a right of appeal to the Planning Inspectorate. (s172 Town and Country Planning Act 1990)
18. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application – such an application must be considered in the normal way.

The Council’s Planning and Enforcement Policy

19. This says:
• Following its investigation, enforcement action is discretionary and must be proportionate, expedient and in the public interest.
• Cases are assigned in order of priority and investigated in line with government guidance, but each case is different and there are no set procedural rules about enforcement.
• When breaches are identified, the Council will first consider informal resolution through negotiation with owners and retrospective applications.
• If informal negotiations fail and a retrospective planning application is refused, the Council will consider formal action. In most cases this will be a formal Enforcement Notice setting out remedial action.
• Where the requirements of an Enforcement Notice, Breach of Condition Notice or Stop Notice are not met or in time, an offence will have been committed. In such circumstances the Council may consider it appropriate to pursue the matter through the courts. The Council may also apply for a suitable injunction.
• If a developer fails to comply with an enforcement notice the Council may also take Direct Action. This is where the Council appoints contractors to carry out the works and recover from the owner of land expenses incurred. However, the Council is unlikely to take Direct Action where alternative action is possible with less risk to public funds.

What happened

20. Mr Y and Ms N’s rear gardens directly face each other. Ms N constructed a raised patio, some associated steps, and a wall in her garden without planning approval.
21. The Council investigated and served Ms N with an Enforcement Notice (EN) ordering her to restore the patio to its previous state. Ms N appealed to the Planning Inspectorate (PI).
22. Mrs X explained the new patio was large and on raised ground which allowed Ms N to see directly into Mr Y’s garden and his living room on the ground floor. She said his family had to draw the curtains even during the day to maintain their privacy. She explained the extent of overlooking had affected Mr Y’s well-being and he stopped sitting in his garden. The Council’s plans and photos confirm Ms N had a direct view of Mr Y’s garden from the raised patio but does not clearly present the proximity. Mr Y’s account of impact on him is consistent with the findings of the planning appeal mentioned at paragraph 23 (below). Mrs X also provided photographic evidence in support of the impact on Mr Y’s residential amenity.
23. In late 2018, the PI confirmed the breach. It said the development was large, out of keeping with others, overwhelming in size and could be seen from neighbouring properties. The PI noted the development would impact the living conditions of nearby properties because of its effect on outlook and privacy. The PI also found the Council had referred to the wrong plans in its EN. It directed the Council to amend the plans and upheld the EN. Ms N had until February 2019 to comply.

2019

24. The records show Ms N did not meet the deadline and the Council had enforcement meetings with her in late February. Concerns were raised about patio changes potentially affecting Ms N’s house, but the Council reminded Ms N to follow the EN.
25. In March, Mrs X sought an update for Mr Y and queried why it was all taking so long. The Council wrote to Mrs X with a detailed explanation. It set out how it was resolving the situation through negotiations with Ms N but needed time.
26. In early July, the Council wrote to Ms N and said the compliance period had run out and gave her 21 days to complete remedial works. It said it would refer the matter to its legal team for prosecution if she did not comply.
27. The records do not indicate Ms N took any remedial action by the deadline. The Council has provided evidence to show it did not let the matter rest between mid- August until mid-November 2020. It contacted Ms N and asked her to urgently regularise the development, appoint a suitable representative and provide further information about how she would comply.
28. The Council’s records indicate Ms N did not engage and the records do not show any case progression between mid-November 2019 and late January 2020. Mrs X said she experienced continued uncertainty and distress in this period.

2020

29. The Council’s evidence shows its ongoing efforts with Ms N from late January until the end of February. The evidence does not indicate any further action from this point until April.
30. From early April until mid-July, a third party (TP) acted on behalf of Ms N negotiating with the Council to help resolve the enforcement issues.
31. There Council’s records do not show any further case activity from mid- July 2020 until the beginning of January 2021. The Council said COVID-19 impacted its services during this period and it adjusted its enforcement approach. However, the records do not set out how it applied any revised Council COVID-19 enforcement policy to Ms N’s case or how it kept Mrs X informed of progress.

2021

32. In early January, the Council sent Ms N letters about its intentions to prosecute unless she took immediate remedial action.
33. In March 2021, the Council again reminded Ms N of the necessary EN notice compliance works and gave a further deadline of 16 April 2021.
34. The evidence shows the Council then entered into further negotiations with the TP which continued until May 2021. These required Ms N to submit further plans and a planning application. The Council explained this was consistent with its policy to allow developers to regularise developments.
35. Mrs X also contacted the Council on behalf of Mr Y about the continued delays and the lack of progress. The Council’s case notes refer to an update provided to Mrs X in mid-May but does not state the contents.
36. In June the Council agreed to hold prosecution and allow Ms N to put in a new planning application to gain approval for works to ensure compliance. The Council has provided evidence to show it pursued Ms N between June and September to submit the further planning application.
37. In September, the Council told Ms N it had not received the planning application. It said it would begin prosecution unless Ms N applied within a matter of days.
38. Mrs X also sent the Council a further complaint on behalf of Mr Y to the Council at this time, expressing his frustration with the continued delays. She said the Council acknowledged her complaint and said the enforcement team would respond.
39. The records show Ms N filed a new planning application in late 2021 but failed to include suitable plans.

2022

40. In January 2022, the Council wrote to Ms N to provide suitable application plans by the end of the month.
41. In March, Ms N’s planning application was refused. The records indicate the Council intended to give Ms N four weeks to follow the previous EN.
42. However, in April, the Planning Officer (PO) managing the case left post. The new PO (NPO) updated Mrs X and said the Council would consider prosecution if Ms N failed to provide the plans. The Council later extended the deadline again until mid-June.
43. The Council has provided evidence to show it kept in communication with Ms N between April and June. It reviewed if prosecution would be a successful option and decided to delay because Ms N had provided evidence to suggest she would comply. It believed it could reach a better long-term resolution in this way.
44. At the end of June, the Council again wrote to Ms N to say if she did not either reduce the patio or remove it in its entirety, it would prosecute her for failing to comply with the EN.
45. At the end of July, Ms N wrote to the Council to say she would complete the remedial works by 24 August.
46. In early September the NPO undertook a site inspection. He noted most of the patio was already removed and had been lowered but the garden was still a building site. He said the changes made to the patio just about met the EN’s minimum standard. He told Ms N to complete the rest of the works to the steps and wall.
47. The NPO then wrote to Mrs X and explained:
• Ms N’s remedial work had reduced the patio level. A site visit confirmed it could not be used for entertainment or congregating. On review the Council believed this resolved the reasons for the initial EN, which were overlooking privacy issues for neighbouring homes.
• The Boundary fence remained in place at its original height as the Council accepted it also acted as a privacy screen. This had not been part of the original EN.
• The Council accepted it took a long time to complete remedial works. This was because officers had to seek compliance through formal action and pursuing prosecution.
48. At the end of September, the records showed some works remained with regards to the steps and a fence wall. The NPO said following the completion of the above, the Council would be satisfied that the harm caused has been significantly reduced and the enforcement case would be closed.

The Council’s response to our enquiries

49. In response to our enquiries the Council explained:
• It initially delayed prosecution because it considered the breach minor and Ms N was taking steps to comply. However, the case was later considered by a specialist planning enforcement prosecutor to negotiate compliance. If that failed, it planned to gather evidence to review whether the public interest justified a prosecution.
• There were further delays because Ms N wanted approval of planned works to achieve compliance. The Council had started preparing prosecution documents, but Ms N provided evidence in mid-2022, which suggested she would comply and has since cooperated with the Council.
• Enforcement action is intended to be remedial rather than punitive. Ms N had now taken steps to remedy the harm caused by breach, so the Council does not believe further action is warranted.
• It was entitled to review the need for prosecution once compliance deadlines passed. It balanced prosecution against finding alternative means of resolving the issues to ensure a better long-term outcome for Mr Y and avoiding lengthy court action.
• It accepted there were some delays between 2020 and 2021, due to case complexity, COVID-19, change in enforcement and officer turnover. It apologised for avoidable delay and impact on Mr Y.
50. When recommending a remedy, we seek to remedy the injustice caused because of identified fault. Where there has been a temporary loss of residential amenity (for example pending remedial or enforcement action), the Ombudsman normally recommend a payment in the range of £75-350 a month until resolution. The amount will take account of the severity of the loss and the circumstances of the complainant.

Was there fault and did it cause injustice?

Mr Y says the Council delayed taking enforcement action against a neighbour (Ms N) between February 2019 and September 2021, to ensure compliance with a Planning enforcement notice (‘EN’).

51. 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.
52. I am satisfied the Council acted in line with its planning and enforcement policy when Mrs X first reported the breach. It engaged with Mrs X about the reported breach, conducted a site visit, and asked Ms N to remedy the breach. It later served an EN which the Planning Inspectorate (PI) upheld. That EN required Ms N’s compliance by February 2019.
53. The records show the Council also maintained its proactive approach between March and July 2019. It had meetings with Ms N to try to negotiate a resolution. This was also in line with its planning and enforcement policy. In July, it gave Ms N a 21-day deadline and threatened prosecution if she did not comply, as set out in its policy (paragraph 19). Mrs N sought an extension, but the Council refused and maintained a determined position. I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures between February and July 2019.
54. The evidence also shows the Council progressed matters promptly between August and November 2019 (paragraph 27). However, the Council’s records do not show any case activity between late November 2019 and late January 2020. This period of case inactivity (2 months) was avoidable delay and fault. Mr Y was left affected by Ms N’s unauthorised development for longer than necessary. This caused him distress, uncertainty and loss of privacy and impacted his enjoyment of his home. This is injustice.
55. The Council’s records show it pursued Ms N again from late January until late February 2020 and then worked with the Third Party (TP) from April until July 2020 to try and address enforcement issues. I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures in this period.
56. The Council’s evidence does not show any action between mid-July 2020 and early January 2021 (6 months) to address the enforcement issues. I have considered COVID-19 pressures on the Council’s resources mentioned in paragraph 31 (above). However, the evidence does not show how it applied any revised Council COVID-19 enforcement policy in Ms N’s case or kept Mr Y updated. This is inconsistent with our guidance on good administrative practice and COVID-19 guidance (paragraphs 11-12) which require Councils to maintain good communication, provide timely decisions or explain delays. This period of avoidable delay and poor communication is fault. It left Mr Y affected by Ms N’s unauthorised development for longer than necessary and unsure if the reported breach was being properly managed. This caused him distress, uncertainty and loss of privacy which impacted his enjoyment of his home. This is injustice.
57. The Council then placed any prosecution on hold to give Mrs N time to submit a new planning application. The period of negotiation (February-May 2021) is consistent with the Council’s policy of allowing developers to regularise developments (paragraph 19). I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures during this period.
58. The Council’s records also show it pursued Ms N between May and September 2021 to submit her planning application. I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures during this period. From September until end of December 2021, the Council waited on the outcome of the application before deciding the next steps.
59. In January 2022, the Council asked Mrs N to submit accurate plans for a new planning application, which was refused in March. At the end of March, the Council gave Ms N four weeks to comply. It then repeatedly extended this deadline from May until Ms N finally agreed to comply by the end of August 2022 (3 months). The Council has explained it was within its rights to review the need for prosecution (paragraph 49).
60. However, I consider the Council’s repeated threats of prosecution to Mrs N without action throughout the enforcement case (including the period May to August 2021) was not in keeping with NPPF guidance (paragraph 16). This provided Mrs N with a disproportionate number of opportunities to remedy the situation without compliance. The evidence suggests Ms N reached the view the Council would not actually take the matter further and persisted in failing to meet its demands. The Council’s failure to take robust action allowed the case to drift which is fault. This meant Mr Y was impacted for longer than necessary, lost confidence in the enforcement system and felt the need to bring his complaint to the Ombudsman. This is injustice.
61. In September the Council reviewed Ms N’s actions to comply and advised her what further action was needed. It also provided Mrs X a suitable update for Mr Y. I am satisfied it acted in line with its policy. I cannot look at ongoing matters. If Mr Y has any complaints about the Council’s actions from September 2022, he will need to raise these with the Council in the first instance and then the Ombudsman if unresolved.
62. In summary, I find 11 months of avoidable delay by the Council between February 2019 to September 2022. I will make recommendations to remedy Mr Y’s personal injustice. The Council has not justified the delay in these identified periods or explained how it will prevent recurrence, and so I will also make a service improvement recommendation.

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Agreed action

63. The Council has agreed within a month of my final decision to:
• Write to Mr Y and apologise for the periods of avoidable delay identified in this statement and the negative impact caused to Mr Y.
• Make a payment to Mr Y of £1100 for his temporary loss of residential amenity caused by the Council’s delays.
• Make a payment of £300 to Mr Y for distress and uncertainty caused.
• Put a process in place to monitor enforcement cases to prevent long periods of inactivity on a case.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I find the Council at fault for avoidable delays in taking enforcement action between February 2019 and September 2022. This caused Mr Y distress, loss of privacy and enjoyment of his home. The Council has agreed to apologise, make payments to reflect the injustice caused and put in place procedures to prevent recurrence.
66. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman