Summary: Mrs X complained about the Council’s handling of a planning enforcement investigation. We ended the investigation because it is unlikely to result in a finding of fault, a remedy for Mrs X, or any other meaningful outcome.

The complaint

1. Mrs X complained about the Council’s handling of a planning enforcement case relating to a building on her neighbour’s property.
2. Mrs X says the building impacts her amenities, including her privacy.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I spoke with Mrs X and considered information she provided.
5. I considered the Council’s response to my enquiry letter.
6. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

7. Councils can take enforcement action if they find planning controls have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
8. 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.
9. 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)

Planning Enforcement Options

10. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
11. However, 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.
12. If the development is already substantially completed, the developer may submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective application where they find evidence that development is not lawful. If an application is not received within a reasonable time, the Council must decide what action, if any, is necessary.

Permitted development

13. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

What happened

14. Several years ago, Mrs X informed the Council her neighbour had constructed an extension on the side of their home which she believed was in breach of planning regulations.
15. Over the next several months, the Council visited the site and spoke with Mrs X about the matter. It found the extension was in breach of planning control because it was not built in the same materials as the house. The Council told Mrs X it had written to the owner and informed them planning permission was required.
16. Several months later the Council and Mrs X communicated about the matter. The Council told Mrs X the neighbour was unable to obtain permission under permitted development for the extension, and that the neighbour intended to separate the structure from the main building to make it into an outbuilding. The Council told Mrs X it was satisfied the neighbour was working with it to resolve the issue and gave them a deadline of four months to comply.
17. Some months later a new planning enforcement officer wrote to Mrs X and told her the Council’s investigation was ongoing. It told her it would send a final letter to the landowner to inform them they must either:
• Ensure the external materials match the original building; or:
• Submit a retrospective planning application for the extension; or:
• Remove the extension.
18. The Council continued to monitor the case over the next several months. After its investigation, it was satisfied the extension had been separated from the main building, and so was now an outbuilding. This meant different permitted development limits and conditions applied.
19. The Council then wrote to Mrs X and told her it was satisfied the construction had been separated from the main building and that it now complied with permitted development regulations for outbuildings.
20. Shortly thereafter, Mrs X wrote to the Council and complained. The Council responded and said:
• Once the original issue was brought to its attention it had informed Mrs X that planning permission was required because the external material did not match the original dwelling.
• It had informed her of the actions it had taken to address the issue since the original report.
• After further investigation, the Council was satisfied the extension had been separated from the main house. This meant there was no requirement for the materials to match and the structure was now lawful under permitted development regulations.
21. Mrs X then requested a stage 2 response from the Council. The Council responded and told Mrs X:
• It was satisfied the structure met permitted development limits, as it is now separate outbuilding.
• Providing the structure complied with the regulations, there were no conditions it could enforce in respect of the impact of the dwelling on her privacy.
• Whilst Mrs X was dissatisfied with the Council’s decision, as there was now no breach of planning control, it could not take further action.
22. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us. During our involvement, Mrs X said she believed the extension was still attached to the main house.

Analysis

23. Before we begin or continue our investigations, we consider two linked questions, which are:
• It is likely there was fault?
• Is it likely any fault caused a significant injustice?
24. If at any point during our involvement with a complaint, we are satisfied the answer to either questions is no, we may decide:
• Not to investigate; or
• To end an investigation we have already started.
25. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigation.
26. I should not investigate his complaint further, and my reasons are as follows:
• We are unlikely to find evidence of fault in the Council’s enforcement process. Enforcement is discretionary, and the evidence shows the Council has investigated and satisfied itself the extension was separated from the main building and therefore meets the criteria for outbuildings under permitted development regulations, and this is the process we would expect. Where there is no fault in the decision-making process, we cannot question the outcome, and further investigation is unlikely to result in a different outcome.
• Whilst the enforcement process took some time to complete, there is no evidence of unreasonable delay. The Council was ultimately satisfied with the outcome and further investigation by the Ombudsman is unlikely to result in a different outcome.
• Beyond the limits and conditions set out in the permitted development regulations, there are no further controls in how outbuildings affect a neighbour’s amenity, such as privacy. Once the Council found the outbuilding complied with the permitted development regulations, it had no power to take enforcement action. The Council followed the decision-making process we would expect, and so further investigation is unlikely to find fault or lead to a different outcome.

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Final decision

27. We ended this investigation because it is unlikely to result in a finding of fault, a remedy for Mrs X, or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman