Summary: Mrs X complains the Council failed to take appropriate action following complaints she made about breaches of planning conditions at her neighbour’s property. We found there was fault by the Council that affected Mrs X’s amenity. We recommended an apology and a payment to recognise the impact.

The complaint

1. Mrs X complains the Council failed to take appropriate enforcement action when the owners of a neighbouring property breached a planning condition which required opaque glazing to be used. She complains faults by the Council have led to a loss of 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 significant injustice, or that could cause injustice to others in the future 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 spoke to Mrs X and considered her complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
5. Mrs X and 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

Town and Country Planning Act 1990

6. Section 187(A) of the Act allows a local planning authority to serve a breach of condition notice if someone does not adhere to conditions that apply to planning permission.
7. Section 171B(3) places a timescale on the period within which action must be taken on a breach of condition. It states that no action can be taken against a breach of planning control once ten years have passed since the breach first occurred.

What Happened

8. Mrs X moved into her property in 2011. Mrs X’s neighbour’s property is on higher ground than hers. It has large windows on the ground floor and first floor which face towards Mrs X’s house and garden. At the time Mrs X purchased her property, these windows were obscured (not clear glazed).
9. In April 2020 Mrs X made a report to the Council that her neighbours had removed some film that was being used to obscure the windows. They had cut a large section of film on several windows.
10. The original planning condition that applied to her neighbour’s development stated:

‘Prior to the occupation of the development hereby permitted, the bedroom and kitchen window proposed in the north-east elevation of the extension shall be glazed in obscure glass and fixed shut, the en-suite window to this elevation should be glazed in obscure glass. These windows shall be maintained as such thereafter, to the satisfaction of the Local Planning Authority.’

11. The Council wrote to the neighbour asking them to rectify the situation. This occurred while COVID-19 restrictions were in place. In May 2020 the Council told Mrs X it would have to wait until a site visit could take place.
12. In October 2020 the Council refused an application by Mrs X’s neighbour to have the relevant condition removed.
13. The Council says a site visit took place. It is not clear when. An undated note stated, having seen the window concerned, the officer would not be taking action. The Council told us the enforcement case was closed on 19 May 2021. No reason for the closure was recorded.
14. In 2021, Mrs X raised the matter again. At this time, I understand all the film had been removed, so the windows were clear. The property owner had also changed. The Council wrote to the property owner and requested obscure glazing was reinstated.
15. A report by the Council in 2022 determined that enforcement action was considered expedient and necessary to uphold public confidence in the planning system. The report noted, at the time of the original application, the Council considered Mrs X’s property would suffer a loss of privacy from the windows proposed in the neighbouring property. This was the reason for the condition. It noted, since the original application, a hedge had been planted on the boundary. It had been allowed to grow relatively tall and it partially obscured views from the windows. Mrs X’s property had also been extended, closer to the boundary. Notwithstanding this, the Council found the hedge would not provide as much privacy during winter months and it did not extend along the whole boundary. Also, given the size and elevated position of the windows, there would still be a perception of being overlooked, particularly towards Mrs X’s front garden. It concluded:

‘given the elevated position of the windows in relation to the neighbouring property and the proximity of the windows to the boundary, replacing the obscure glass with clear glazing would result in a level of overlooking that would be considered harmful to the amenities of the neighbouring occupiers. This would be contrary to Local Plan Policy ES3.’

16. The Council issued a Breach of Condition Notice in July 2022. The Council followed this up with a second notice when the property owner denied receiving it. As the owner did not agree to reinstate the obscure glazing, the Council began considering prosecution.
17. The Council visited in January 2023 when the owner stated they had complied. They found some film had been applied with sellotape. The Council told the owner an application by the previous owner to remove the condition was refused because the overlooking was considered harmful. Officers stated they would take advice.
18. The Council took legal advice in June 2023 about the validity of the Breach of Condition Notice. It found that the notice was not valid. The Council explained this was because of a decision it took in 2009.
19. The Council received a complaint that the windows were not obscure glazed in 2009. At a site visit in 2009 they established ‘obscure glazing’ had not been used. They established a breach of condition had occurred. The property owner was considering applying paint or film to obscure the windows. Officers explained to the then owner, that the glazing itself had to be obscure to comply with the condition.
20. When officers returned to consider the matter further, they found thick film had been applied to the windows to obscure them. The Council records noted that it was not possible to see into or out of the windows. They agreed, although obscure glass had not been used, it was satisfactory. They decided to take no further action.
21. The Town and Country Planning Act sets a time limit for acting on breaches of condition. Once ten years has passed since a breach of condition first occurred, it can no longer be enforced. The planning condition specifically required the use of obscure glazing. When film, rather than obscure glazing was used in 2009, this remained a breach of condition. As a result, action could only be taken up to 2019.
22. The Council’s decision not to continue enforcement action led Mrs X to complain in July 2023. The Council explained its position that it could not take planning enforcement action because the breach of condition was immune. The Council found it was reasonable for officers to decide in 2009 to accept opaque film. The Council acknowledged that it was not clear why the 2020 enforcement investigation was closed (in May 2021) but it noted action would not have been possible at this time because the breach was immune from 2019.
23. The Council accepted it was partially at fault in 2021. This was because officers had not fully understood the condition and the implications of the action taken in 2009; they believed it was possible to take enforcement action for the removal of the film. This was not the case because it was out of time. It apologised that the 2021 investigation had not correctly identified the situation.
24. In response to our investigation the Council accepted that the 2021 investigation had raised Mrs X’s expectations that the Council could act, when it had no legal basis to do so. It offered Mrs X £100 to recognise it was at fault.

Was there fault by the Council

25. Planning conditions are imposed on development to ensure the quality of development and to mitigate and control harm that may otherwise have led to development being refused. The National Planning Policy Framework states, amongst other things, that conditions must be necessary, precise and enforceable.
26. The condition placed on Mrs X’s neighbours development required that the relevant windows had to be ‘glazed in obscure glass and fixed shut’. When, in 2009, Mrs X’s neighbour used clear glass, but applied an opaque film, this did not comply with these requirements. It was a breach of condition.
27. Councils are not under a duty to take formal enforcement action whenever they identify a breach of planning control. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system while also and acting proportionately. So, in principle it was not fault that the Council decided not to take enforcement action. The Council was satisfied that the effect was to limit overlooking.
28. However, no consideration was given to the long-term implications of this decision. The law only allows enforcement action to be taken against a breach of condition within ten years of the breach occurring. In this case, because the breach started in 2009, action was only possible until 2019. This meant, when Mrs X’s neighbour removed the film in 2020, the Council had no legal basis to require the property owner to comply with the original condition or retain the film.
29. Had the property owner been required to submit an application to vary the condition (to allow opaque film, rather than opaque glazing), the revised condition would have allowed the Council to control/insist on its use in perpetuity. However, because the Council informally accepted a breach could continue, it lost control of the measures it considered to be appropriate to protect Mrs X’s amenity. I found the actions that led to the Council inadvertently losing control of the situation amounted to fault by the Council.
30. There was some further fault by the Council. It is not clear how and why the Council reached its decision to close its investigation into the matter in 2020. In 2022, the Council accepted that it did not fully appreciate the situation initially which led to raising Mrs X’s expectations that it could take action, when it could not. Although there was fault in 2020 and 2022, by this time the breach of condition was immune from enforcement action in any event, so these issues did not affect the eventual outcome.

Injustice

31. The loss of control of the planning condition has impacted Mrs X’s amenity. The neighbouring property is higher than hers and is fairly close to the shared boundary. The windows concerned overlook her front and rear gardens as well as two roof-light windows. The Council’s expediency report noted that the overlooking would be harmful if the neighbour’s windows were not obscured.
32. Our guidance recommends a symbolic payment in situations where, through fault by the council, someone has lost amenity. I have recommended the Council makes a payment of £1000 to Mrs X to recognise the loss of amenity in this case.

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Agreed action

33. Within four weeks of our final decision:
34. The Council should apologise to Mrs X for the failure to properly consider the long-term impact when reaching its decision not to take enforcement action in 2009. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
35. To recognise the impact on Mrs X’s amenity, the Council should make a payment to her of £1000.
36. The Council should review its guidance and produce a briefing note for officers to reflect the need to consider the implications of under-enforcement of planning conditions and the Council’s long-term ability to control development as it intended when it originally imposed those conditions.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman