Summary: Mrs X and Mr Z complain that the Council has failed to take appropriate enforcement action against a neighbour for planning breaches, or delayed action when it said it would. We did not find fault with how the Council came to its decision not to take further action for one breach. We found fault with delays in its investigations. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mrs X and Mr Z (“the Complainants”) complain about the Council's delays and decisions about enforcement action in relation to their reported planning breaches by their neighbour, specifically:
1. Their neighbour’s building has been built outside the dimensions of the original plans submitted with increases in height, width, and length;
2. The added installation of additional high length windows overlook and face their properties which negatively affect their privacy;
3. The building impedes on the public footpath; and
4. The Council has not taken steps to remove a temporary structure on their neighbour's land despite saying it would take enforcement action for over two years.
2. They say this has affected them financially, caused significant frustration and distress with a major negative impact on their residential amenity.

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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 significant injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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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What I have and have not investigated

8. It appears the Complainants have been in contact with the Council for several years about their neighbour’s property. This is more than 12 months before complaining to us. Paragraph 5 refers to our general position on late complaints. In this case, I have exercised discretion to consider matters from November 2021 (when the Council opened an enforcement file after it received a planning breach referral) to January 2024 (when the Council sent its final stage complaint response to the Complainants). This is because the investigation seemed to be ongoing during this and the Complainants appear to have maintained some contact with the Council.

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How I considered this complaint

9. I discussed the complaint with Mrs X and Mr Z and considered their views. Mrs X is dealing with the complaint for herself and on behalf of her neighbour Mr Z. They consider themselves both affected by the matters of complaint.
10. I made enquiries of the Council and considered its written responses and information it provided. The Council said it sent me all the information from the Council’s system. The records are patchy, brief, and limited.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Planning enforcement

12. 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.
13. Government guidance makes clear that enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control. 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.
14. 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.

The Council’s planning enforcement policy

15. In responding to any breach of planning control, the Council may take a number of actions, including inviting a retrospective planning application, if the breach that has occurred could be regularised. The policy also says, “if such applications are not received within a reasonable timescale, the expedience for taking formal action will be considered”.

Background summary

16. Over five years ago, the Complainants’ neighbour (“Q”) submitted a prior notification application for a change of use of a storage building on their land, to a dwelling.
17. The Council confirmed the application did not require prior approval, in accordance with the approved details. This included plans of the proposed building conversion. The Officer report noted the plan did not show that either the footprint or the height of the building would be increased.

What happened – summary of key relevant events

Q’s building

18. In early November 2021, the Complainants contacted the Council with concerns about the work being done to the building by Q. They reported it was not in line with the approved plan. They reported it also impeded on the public footpath which ran between their properties.
19. The Council opened an enforcement file to investigate for works in excess of a conversion. In mid-December 2021, an Officer conducted a site visit to Q’s property with some notes about the build. The records say the Council sent a few emails to Q requesting information and it received a response in January 2022.
20. In April 2022, the Council’s records state it wrote to Q to advise a planning application was needed.
21. In mid-December 2022, an Officer visited Q’s building. They noted the original frame formed part of the build and the windows were not in line with the approved plans.
22. The next day, the Council wrote to the Complainants accepting Q’s building appeared over and beyond the original plans. It had now established it was a conversion, not a new build, but with other works. It had previously advised Q to make a planning application for these.
23. In March 2023, the Council completed a report and decided to close the case. In its view, the works did not exceed a conversion. With the windows, the Council assessed the impact on the neighbouring properties and the character of the area according to its policies. It decided it did not cause amenity issues and it was not expedient to pursue the matter further.

Temporary structure

24. Q had also built a separate temporary accommodation structure on their land without approval. Later, Q submitted a retrospective planning application for this. The Council refused the application. Q appealed and the Planning Inspector said the structure should be removed by early 2022. The Council said to the Complainants it would monitor compliance with this and then assess whether it should take formal enforcement action.
25. In April 2022, the Council emailed Q advising it was considering enforcement action against the temporary structure.
26. In mid-December 2022, a site visit by an Officer confirmed it was still in place. In mid-January 2023, the Council issued a Breach of Condition notice to Q requiring them to remove the structure within a month. Between March and July 2023, the Council visited the site three times and confirmed it was still there.

Mrs X and Mr Z’s complaint

27. In June 2023, the Complainants’ solicitors formally complained to the Council. They were dissatisfied with the Council’s handling of the investigations and communication; their specific points of complaint have been summarised in Paragraph 1.
28. In July 2023, the Council responded at Stage One. It accepted its communication was below its usual standards with delays since the referral in November 2021. It noted the building appeared higher with a different footprint. It was a technical breach, but it decided not to pursue formal action. It had assessed the impact of the building and windows on the Complainants, noting they were at an angle to them. It was satisfied with its judgement without visiting the Complainants’ properties. It did not have jurisdiction over the public footpath; this was the responsibility of Essex County Council (“ECC”). It confirmed it was taking prosecution action against Q for not complying with a Breach of Condition notice for the temporary structure.
29. In mid-January 2024, the Council responded at Stage Two after the Complainants escalated their complaint. It accepted service failure for taking too long to act against Q for the temporary structure.
30. In response to my enquiries, the Council described a number of internal and external factors affecting their enforcement team over a long period, contributing to delays.
31. The Council said there were no notes of whether an Officer made a referral to ECC about the public footpath. It said it did this in August verbally and ECC are now aware of the site.

Analysis

32. 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 a decision for the Council to make. Our role is to review the process by which decisions are made, and where we find fault, to decide whether a significant personal injustice was caused to the complainant. If we consider there was no fault in the process, we cannot question the outcome or say whether the Council’s decision was right or wrong.

Decision not to take enforcement action

33. I recognise there is dispute about whether Q’s building was a conversion or a new build and if this was a breach of the approved plans. The Council decided it was a conversion, to which the Complainants disagree, but it noted a technical breach with some size difference from the plans. It is not for me to make judgements on who is ‘correct’. The Council considered relevant evidence through photos, by visiting the site, and speaking to Q to make its decision. I do not find fault with the Council’s decision making process.
34. With the windows, the Council accepted there was a breach. I appreciate the Complainants’ frustration and their view that this means the Council should take planning enforcement action, however, the Council does not have a statutory duty to do so. Councils have discretionary powers with planning enforcement, and it also has to decide if it is expedient (the right thing to do) to take action.
35. While Q did not make an application, the Council later explained why it decided the matter did not warrant formal action. It is the role of qualified planning officers (not mine) to decide whether, in their professional judgement, there is significant harm, in planning terms, because of Q’s building and windows.
36. The Complainants are unhappy the Council did not visit their properties to assess the breach. This is not fault. There is no legal obligation for the Council to do so. It is up to the discretion of the Officer if it was necessary. In this case, the Officer had visited Q’s property and was aware of the relationship between them and the Complainants and also considered photos. It assessed their amenity on relevant information. This is a decision the Council is entitled to make. I appreciate the Complainants strongly disagree with the Council’s conclusions about the extent of the impact on them. But in the absence of fault in the decision making process, the Ombudsman will not interfere with this type of professional merits decision by an Officer.

Delay

37. While I do not find fault with the Council’s decision making, based on the limited records provided, I consider the Council delayed with its investigation above. After the November 2021 referral, it visited the next month and then made enquiries with Q. But after receiving the response, there are no notes showing how the Council assessed this or what else it was doing or needed to progress the case. It took three months to write to Q asking for a planning application. I have not seen if the Council included a deadline for Q to action this, or if it monitored compliance. It took eight months to carry out another visit and then a further three months to decide it would not take further action. The Council appeared to let this drift and is not in line with its policy referred to in Paragraph 15. This is fault.
38. While there are no set timeframes, we would expect a case to be progressed regularly. I note the Council gave reasons for general delays. But without supporting records showing some meaningful progress, I consider the Council’s case notes do not show sufficient oversight of this enforcement investigation for a notable period. There is also uncertainty as to whether there was avoidable delay. This is injustice to the Complainants.

Temporary structure

39. The Council accepted service failure for the significant time taken for enforcement action with the temporary structure, since early 2022. I cannot add further to this as the Council said its legal department is now commencing prosecution proceedings. I recognise it faced internal difficulties to get to this point, but I agree this was fault.
40. While there is fault here, I must consider the injustice. The Complainants say the temporary structure is an eyesore from the distance of their properties. However, I do not consider this is significant personal injustice to them directly in planning terms, because of the temporary structure in itself.
41. In my view, the Complainants’ injustice is some general distress over the delays with the Council’s enforcement action. It raised their expectations that it would resolve the matter in a timely manner, causing frustration.

Public footpath

42. The public footpath is under the jurisdiction of the responsible highway’s authority, in this case, ECC, and so the Council is not at fault for not investigating this itself. However, the Council said a case officer should have referred this to ECC but did not have a record of doing this before August 2023. It delayed in passing information to the relevant authority. This is fault.
43. I cannot say, on balance, whether ECC could have addressed this part of the Complainants’ concerns sooner. However, this has caused some uncertainty as to whether ECC could have or if the outcome might have been different, had it been notified sooner by the Council. This is injustice.

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Agreed action

44. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
45. Within one month of the final decision:
• Apologise to Mrs X and Mr Z (in line with our guidance on making an effective apology) for the frustration and uncertainty caused with delays in handling their planning enforcement reports; and
• Pay £200 each to Mrs X and Mr Z as a symbolic payment to recognise this injustice.
46. Within three months of the final decision:
• Carry out a review of its procedures to ensure investigations into reported breaches of planning control do not drift without action; and
• Send written reminders to relevant Planning staff to make timely referrals to other authorities when it is deemed necessary and to ensure it records this on file.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I found some fault with the Council’s planning enforcement investigations which caused injustice to Mrs X and Mr Z. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman