Summary: Mrs X complained the Council delayed taking action in respect of unauthorised development at a neighbouring property and failed to effectively communicate with her about the situation causing stress. There was avoidable delay determining a retrospective planning application meaning Mrs X and her family had to live with an intrusive loss of privacy. There is also fault in how the Council handled this complaint and corresponded with Mrs X. A suitable remedy is agreed.

The complaint

1. Mrs X complained the Council delayed in taking action in respect of unauthorised development at a neighbouring property and has failed to effectively communicate with her about the situation.
2. Mrs X says the situation has caused stress and potentially limited her ability to sell her home due to the ongoing dispute.

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. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

6. In 2017, the Council granted Mrs X’s neighbour planning permission for a single storey rear extension. The neighbour finished the extension in render rather than materials to match the existing dwelling. In 2019, the Council granted permission for the retention of the rendered finish and for the construction of a garden boundary wall two metres in height.
7. The wall has been built more than 2.4 metres in height. The neighbour also raised the ground level behind the wall to provide a level rear garden area. The Council said the ground level had risen by 0.7 metres at the rear of the garden.
8. The neighbour submitted a further retrospective planning application in January 2020. This application was for the retention of the existing rear garden level, bound walls to the rear and side with alterations to the wall corner. The Council refused this application on 19 November 2021 and the neighbour submitted an appeal to the Planning Inspectorate.
9. The Planning Inspector visited the site and viewed the situation for himself. He issued his decision in May 2022. The Inspector noted that anyone standing in the garden of the neighbour’s property would have clear, unobstructed views over the garden and rear windows of Mrs X’s property. He said Mrs X was likely to suffer from invasive overlooking as a direct result of the development. The appeal was dismissed.
10. The Council issued an enforcement notice in September 2022. It required Mrs X’s neighbour to reduce the height of the rear garden/land to the original ground level and remove all resulting materials or reduce the height of the unauthorised boundary walls, pillars and fence panels to that approved under the 2019 planning permission and remove all resulting materials. The neighbour was required to complete this by 24 January 2023.
11. Mrs X contacted the Council in January 2023. She asked if the Council was monitoring the works in respect of the enforcement notice. She said that while there had been works to excavate the height of the land, the surrounding wall had not been touched.
12. The Council responded on 25 January saying that an officer had met with the neighbour and the garden level had been reduced to his satisfaction. He confirmed that the case was considered closed. Mrs X responded asking the Council to reconsider. She said the planning application stated the walls would not be visible for the residents of her road yet it is visible. She also said the planning approval required the corner of the wall to be removed and this has not happened.
13. The Council said it was unable to revisit the issue of the walls as they were approved under the 2019 permission. It said it had raised the issue of the visibility splay with the neighbour and that it was waiting for confirmation of when the works would be completed. It said that it would consider serving a breach of condition notice if the works were not completed.
14. An officer undertook a planning enforcement visit on 3 April and found the visibility splay had been formed on the inside but the external section of the wall had not been removed. The work was due to be completed that week. I have not seen any information which suggests this did not happen.

Analysis

15. Mrs X complains about delay in taking action in respect of unauthorised development at a neighbouring property and that is had not effectively communicated with her. I will deal with each issue in turn.
16. The information provided shows that the neighbour’s extension did not fully accord with the planning permission. When a retrospective planning application was submitted in January 2020 it took the Council until November 2021 to determine it. I asked the Council to explain why it took so long and it said it was due to the COVID-19 pandemic and an increased workload. It says the main delay appears to be due to resolving issues around the visibility splay which it says were ongoing for 12 months.
17. While I can accept that some delay could be attributed to problems arising from the COVID-19 pandemic, I consider there was avoidable delay in this case. This was not a complicated or major application and so it should not have taken almost two years to determine. This was a retrospective application and so the ground levels at the neighbour’s property had already been raised. I note the Planning Inspector’s opinion about the impact of this development on Mrs X’s residential amenity which was described as causing significant harm through loss of privacy. As this continued throughout the periods of lockdown when families were required to stay at home, I consider the avoidable delay caused a significant injustice to Mrs X and her family.
18. I note the Council was aware the appeal to the Planning Inspectorate had been dismissed on 18 May 2022. The Council served the planning contravention notice on 1 August and the enforcement notice on 29 September. While this timescale was longer than Mrs X would have liked, I cannot say it amounts to fault.
19. The Council visited the site promptly after the expiration of the timescale on the enforcement notice. It then wrote to Mrs X and wrongly told her the case was closed. It appears that it was only because Mrs X made further representations about the visibility splays that the Council revisited and ensured this was correctly undertaken. I also note that there were occasions throughout this matter that Mrs X had to chase the Council for a response.
20. When the Ombudsman accepted this case for investigation, we notified the Council, and its Chief Executive contacted me to request we put our investigation on hold for 20 working days to enable her to find an expedient resolution. She said she had made a commitment to a local councillor to do this. I agreed to this request in the hope the Council would resolve the matter more quickly than our investigation could. However, the Council’s Chief Executive failed to take the promised action and we received no update even after I chased by email and telephone.
21. While the Council has apologised to me in its response to my enquiries, it is not the impact on me that raises concerns. This further delay and failure to act adds to the frustration already experienced by Mrs X and undermines her confidence in her local council.

Back to top

Agreed action

22. To remedy the injustice caused to Mrs X as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• The Chief Executive to personally apologise to Mrs X;
• Make a symbolic payment of £500 to Mrs X to recognise the frustration, distress and loss of residential amenity due to the delays in this case; and
• Carry out a review of its procedures, especially in respect of the complaints process and the Chief Executive’s input, to ensure timescales are adhered to.
23. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

24. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman