Summary: Ms X complained about the Council’s failure to take enforcement action against her neighbour’s unlawful use of land next to her home. I found no evidence of fault in the way the Council has acted.

The complaint

1. Ms X complained the Council failed to take enforcement action against her neighbour, who is using land next to her home for residential purposes in breach of planning controls.
2. Ms X said the use of the land and the Council’s failure to control it causes an adverse impact on her life and wellbeing.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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)
5. 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)
6. We publish guidance on how we remedy complaints on our website – www.lgo.org.uk. For individuals caused an injustice by fault in the planning decision making process, we aim to reduce the impact or compensate for the impact on residential amenities. When evaluating these impacts, we have regard to separation distances and spatial relationships between buildings and land uses that are generally considered acceptable by planning authorities.

Back to top

How I considered this complaint

7. I read the complaint and discussed it with Ms X and a planning enforcement officer. I read the Council’s response to the complaint and considered documents from its planning files, including a decision by the Planning Inspectorate. The planning enforcement officer sent me a chronology of events since April 2022.
8. I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

Back to top

What I found

Planning enforcement powers

9. 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.
10. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
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. As an alternative to their planning powers, councils may choose to use statutory powers from other departments, such as environmental health or highways, to resolve problems.
13. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

14. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
15. Individuals may also challenge council decisions by asking for judicial review in the High Court. We have no power to investigate matters that have been before a court.
16. Although local planning guidance can set different limits, planning authorities normally expect 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
17. In making their judgements, planning authorities will take account of offset angles between buildings, features that may obstruct views or soften impacts, such as fencing, trees, the height of buildings and differences in land levels. If buildings are offset at an angle or views disrupted by structures or vegetation, it may be possible to allow reduced separation distances.

What happened

18. Ms X said the land next to her home has been used for residential purposes in breach of planning controls for decades. Ms X said that several years ago, the Council promised to take enforcement action to control the unlawful use, but did not do so.
19. Ms X said the Council has failed to act promptly after recent decisions from the planning inspectorate and the High Court.
20. Ms X’s house is about 40 metres from the boundary of the land and is screened by trees and bushes.
21. I asked the Council to provide me with a chronology of events for the period which began in April 2022, which is 12 months before Ms X brought her complaint to our attention, until now.
22. The main events were as follows:
• April – late June – the case was on hold pending an appeal to the planning inspectorate.
• Late May – planning enforcement officers carried out a site visit.
• Late June – the appeal to the planning inspectorate was dismissed. A meeting was arranged with other departments and a barrister. Information was gathered for the meeting.
• Early July – There was a meeting between departments and the barrister. Different powers and options were discussed, and it was decided to pause action until the time limit had expiredend of period for the inspectorate’s decision to be challenged by judicial review in the High Court.
• Late July – the Council received notice of a challenge by way of judicial review under section 288 of the Town and Country Planning Act 1990.
• Early August – the Council received and considered anti-social behaviour allegations.
• Mid-September – the judicial review claim was dismissed by the High Court. A meeting was arranged between the service Director and planning enforcement officers.
• Mid-October – the meeting decided the authority needed a corporate decision on the various options available to the Council. Work began on writing a briefing paper.
• Late December – the first draft of options report was circulated. There were also discussions with the Highways Authority regarding highways options.
• Mid–January – deadline for responses to the options report.
• Early March – a second draft of the options report was sent to the barrister.
• Mid-March – the Council received the barrister’s’ comments. There were further discussions between the barrister and enforcement officers.
• Late March – a new Head of Planning starteds working for the Council. A third draft options report was circulated and a deadline for response was set for the end of April.
• Late April – comments on the third draft options report were received and considered.
• May – June – there were discussions between the planning enforcement officer leading the investigation and Head of Planning, and final amendments were made to the options report. A meeting was sought with heads of different departments with relevant powers, and this was arranged early July.
23. In response to an earlier draft of this decision, Ms X said:
• Other residents had also been affected by the unlawful use of the land;
• The Council had acknowledged its own inaction hads caused delay and this failure stemmeds from 2006. This included a period of inactivity of 6 months.
• The use of the land wais in direct contravention of planning policy.
• The Council hads not yet formed a plan to regain planning control of the site.
• The Council wais failing to be proactive and ensure resolution.
• The longer the case wentgoes on, the more likely it wais the use wouldill eventually be allowed.
• The time frame provided by the Council to the Ombudsman showed as lack of activity between June and October 2022.
• HerMs X’s human rights hadve been impinged by the Council’s lack of action.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
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 investigations.
26. Where we find evidence of fault, we must be able to show it caused a significant injustice for which we should recommend a remedy.
27. I have found no fault and I explain my reasons below. However, I should also add that I have seen no evidence to show Ms X (or any other person) was caused a personal injustice that we should remedy. This is because of the significant distances between the site and existing dwellings.
28. Ms X also said her human rights have been infringed. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
29. I have seen no evidence to show the Council has failed to respect Ms X’s human rights. The Council is considering enforcement action against Ms X’s neighbour, not Ms X.
30. Ms X complained that the Council has discriminated against her under the Human Rights Act, but I I have seen no evidence to suggest the Human Rights Act is relevant to the issues in Ms X’s complaint.
31. If Ms X believes the Council has breached her rights and wants to enforce them, she can seek a determination in the courts.

Matters before April 2022

32. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit, but would need a good reason to do so.
33. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
34. Ms X brought her complaint to our attention in April 2023 but she could have brought it to us sooner. I have considered Ms X’s complaint and see no good reason to investigate events that happened before our 12 month limit.

Matters since April 2022

35. The Council is aware of Ms X’s concerns and its powers under the Town and Country Planning Act 1990. I have seen no evidence of fault in the decision making process or undue delay.
36. This is clearly a complicated and difficult problem for the Council to resolve, and I understand why Ms X is frustrated. However, I am satisfied the Council is currently dealing with the case and that it will make a decision on its best course of action without undue delay.

Back to top

Final decision

37. I completed my investigation as I found no evidence of undue delay or fault in the way the Council has acted.

Back to top

Investigator's decision on behalf of the Ombudsman