Summary: Ms X complains that the Council failed to properly investigate and take action against an unauthorised window in a neighbouring development. The Council is at fault as it let its planning enforcement investigation drift which caused injustice to Ms X. The Council has agreed to remedy Ms X’s injustice by making a payment of £500 to her.

The complaint

1. Ms X complains the Council failed to properly investigate and take enforcement action against her neighbour to deal with an unauthorised window in a loft extension before the development became immune from enforcement action. As a result, the window overlooks bedrooms in her property and compromises her privacy.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and the information provided by Ms X;
• discussed the issues with Ms X;
• made enquiries of the Council and considered the information provided;
• invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

5. 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.
6. 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.
7. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action if there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach.

What happened

8. The Council granted a certificate of lawful development for Ms X’s neighbour to build a loft extension. The plans for the development show one window facing Ms X’s property which would be obscure glazed.
9. In June 2020 Ms X reported to the Council that her neighbour had installed another window facing her property when building the development in 2017. This window was clear glazed and Ms X said it overlooked bedrooms in her property.
10. The Council advised Ms X that it would open an enforcement case and contact the owner of the property.
11. Ms X chased the Council for an update in July and early August 2020. The Council’s records show it wrote to the owner in August 2020. The letter advised the owner should make the window obscure glazed and non opening if not more than 1.7m above the floor level within 28 days. The Council also asked the owner to respond to the letter within 10 days. The owner did not respond so the Council sent another letter in September 2020.
12. In October 2020 Ms X contacted the Council for an update. The case officer advised that the owners had not responded to his letters. Ms X replied and said the owner had not been at the property for a while. She suggested the Council contact the owner by email. The case officer said he would see if he could find an email address. The Council has said he was unable to find an email address at this time.
13. In March 2021 Ms X contacted the Council to advise the owner intended to sell the property. The case officer told Ms X that he still had not received a response from the owner. He asked Ms X to send recent photographs of the development. Ms X replied and said the work had been completed some years ago so recent photographs would be no different to the ones she had already sent.
14. The Council sent a further letter to the owner in late April 2021 requesting contact from the owner.
15. Ms X chased the Council for an update in late April and early May 2021. She was concerned the property was under offer and would be sold without the issue being resolved. I understand the Council did not respond to Ms X’s emails.
16. In mid May 2021 the case officer obtained an email address for the owner and sent a letter by email explaining the situation. The case officer warned this would be the last attempt to resolve the issue before taking enforcement action. The owner responded and advised they had not lived at the property for some time. In June 2021 the owner provided a photograph from early March 2017 which showed the completed development including the additional window without obscure glazing. The owner advised Ms X had sent her the photograph.
17. The Council concluded the window was immune from enforcement action as it had been in place for more than four years. There is no evidence to show the Council notified Ms X of its decision.
18. In December 2021, Ms X made a complaint to the Council as she considered it had delayed in investigating her concerns about the window and not responded to her emails. The Council considered Ms X’s complaint through its two stage complaints procedure. The Council advised the window was immune from enforcement action as it had been in place for more than four years. The Council acknowledged the case officer did not respond to Ms X’s emails but he had assumed Ms X’s local councillor had updated her as she had contacted the Council on her behalf. The Council apologised for not notifying Ms X of the outcome and for its lack of communication.
19. In response to my enquiries the Council has said the case officer tried to resolve the issues with the owner without the use of the Council’s enforcement powers.
20. Ms X considers the Council delayed in investigating her concerns about the window which meant it is now immune from enforcement action.

Analysis

21. On balance, I consider there is evidence of fault in how the Council investigated Ms X’s concerns about the window as it let the investigation drift. Ms X’s email of June 2020 reporting the window said the loft extension was built in 2017. So, the Council was on notice that the matter was time critical as the development was nearing the statutory time limits for taking enforcement action. The investigation, therefore, should have been timely. There is no evidence to show Council actively pursued the investigation, including trying to find the owner’s email address, between October 2020 and April 2021. This is fault.
22. The Council should have considered if it was expedient to take enforcement action before May 2021 given it was aware the development was nearing the statutory time limit for taking enforcement action. It could have considered if it should take enforcement action when it was unable to contact the owner. The Council’s failure to consider its options sooner, including taking enforcement action is fault.
23. I acknowledge that it was open to Ms X to raise her concerns about the window sooner than she did and she may have been able to provide the email address for the owner. But this did not absolve the Council from its responsibility to investigate the window in a timely way.
24. The Council acknowledged in its response to Ms X’s complaint that the case officer had not always responded to her emails or notified her of the outcome. The Council also failed to keep Ms X informed of the progress of the investigation. This is not in accordance with the Council’s enforcement plan and is fault.
25. I cannot know what the outcome would have been if the Council had not let the investigation drift and if it had considered whether it should take enforcement action in 2021. This is because I cannot know if the Council would have taken enforcement action or successfully negotiated with the owner to obscure the window. But the delays meant Ms X lost the opportunity for the matter to be resolved. She is therefore left with uncertainty as to whether the window could have been obscured glazed to reduce the overlooking of her property.
26. Ms X was also put to avoidable time and trouble in chasing the Council for updates and caused uncertainty by its failure to respond to her emails and directly notify her of the outcome of the investigation.
27. The Council should remedy the injustice to Ms X by making a symbolic payment of £500 to acknowledge the loss of opportunity to reduce the overlooking from the window, uncertainty and avoidable time and trouble caused by the faults. This remedy is in accordance with our guidance for remedying injustice.

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Agreed action

28. The Council will:
1. send a written apology and make a payment of £500 to Ms X to acknowledge the loss of opportunity to reduce the overlooking from the window, uncertainty and frustration caused by the faults by the Council.
2. by training or otherwise, remind officers of the requirements of the enforcement plan to keep complainants informed of the progress and outcome of investigations.
29. The Council should take this action within one month of my final decision. The Council should also provide us with evidence it has complied with the above actions.

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Final decision

30. Fault causing injustice to Ms X.

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Investigator's decision on behalf of the Ombudsman