Summary: X complained the Council had failed to take planning enforcement action and properly reply to X’s correspondence. We found fault causing an injustice to X that the Council has agreed to remedy.

The complaint

1. The person that complained to us will be referred to as X.
2. X has complained on behalf of their elderly parents, who live next to a site which has a development the Council has found to be in breach of planning controls.
3. X complained that the Council failed to:
• take planning enforcement action against the neighbour; and
• respond to their many emails asking for updates and action.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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

6. I read the complaint and accompanying documents and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report for the original application and a more recent planning enforcement officer’s report following a site visit.
7. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of any comments I received.

Back to top

What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. 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.

Planning enforcement powers

13. 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.
14. 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.
15. Government guidance says that effective enforcement is important to maintain public acceptance of planning controls and the integrity of the planning decision-making process.

What happened

16. More than five years ago, the Council approved a planning application on land next to X’s parents’ home. The Council issued a decision subject to conditions, which included one that required obscure glazing and opening restrictors on the side of the development facing X’s parents. The windows are above the rear of their home and private space in their garden.
17. A year later, X complained to the Council’s planning enforcement department that the windows were not restricted or obscured. The Council opened an enforcement file.
18. X has provided us with details of their emails to the Council. X sent more than a dozen emails to the Council detailing their concerns and asking for action and updates. X complained that for many of these emails, there was either no response or no meaningful response, other than to acknowledge receipt. X said that several responses merely stated that the Council could not meet its response timescales because of staff shortages.
19. To consider X’s complaints I made a chronology showing X’s contact with the Council and its responses. The time period for the correspondence begins more than five years ago and continues until the summer of last year. In summary, it shows:
• X’s allegation about a breach of the planning condition relating to side windows;
• the Council’s response that there was no breach because the rooms were not occupied, and so its enforcement file was closed;
• X’s email to the Council that the rooms were now in use;
• emails from X chasing a response from the Council;
• an apology from the Council that it had not responded because the enforcement officer had left the service;
• several chasing emails to the Council and its automatic acknowledgements;
• details of a new enforcement officer who will open a new enforcement file and investigate the allegations. This happened two and a half years ago;
• an update from the new officer that they had written to the developer to prove they had complied with the condition. If this did not happen, the officer intended to proceed with enforcement action. The officer apologises for delay and failure to respond to previous emails;
• an update that the planning enforcement officer needed to visit the site to ensure there was a breach and harm caused by it;
• jn the following months, X sent several email chasers asking for updates and complained about what had happened. The Council responded to say it was unable to meet its complaint response time scales;
• the Council responded to X’s complaint to say it would recommend a planning enforcement officer visited the site and update X. Just over two years ago, there was a site visit, but the officer did not gain access to the development site. The officer viewed the site from X’s parents’ garden and saw that some of the windows had been obscured;
• the developer confirmed that the rooms were occupied and only one window needed obscure glazing. The Council said it would visit again;
• about a year ago, X chased the Council for an update. A few months later, X wrote again to tell planning enforcement that a window was open without restrictors and the glass is clear glazed. In the next few months, X sent chasing emails requesting an update;
• about 9 months ago, the current planning enforcement officer visited the site and found evidence of a breach of planning control in relation to one of the windows, which was clear-glazed and opening was not restricted. Another room was unfinished, and the officer did determine whether the window to this room was restricted or obscured. However, the officer had concerns for their wellbeing and left the site before agreeing resolution with the developer;
• the current planning enforcement officer wrote a report of what was found during the visit;
• the enforcement report did include updates written about six months ago, showing that legal advice had been sought on whether the condition was enforceable. There is a note of the response which says the Council’s solicitor advised that all windows should have been obscured once the first room had been occupied.
20. The enforcement file is still open and, as I understand it, the Council has not yet begun formal action to enforce the breach of the planning condition it has identified. The Council has written to me to say a senior manager will speak to enforcement officers about revisiting the site.

My findings

21. 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.
22. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
23. The original Council’s enforcement file was opened five years ago and the current file was opened a few years later. I accept that the Council has encountered difficulty in accessing the site, that it has concerns for its officers’ wellbeing, that there were difficulties caused by staff shortage and turnover, but it has been nearly three years since the current file was opened and over six months since the last enforcement site visit. The records I have seen show long gaps in activity, and this has led the case to drift. This matter remains unresolved after several years, and the delay is fault.
24. X has provided details of emails, many of which went unanswered, some were answered after long delays, and none provided meaningful reassurance that X’s concerns would be dealt with soon. The failure to respond properly to X’s enquiries and complaints is also fault.
25. The Council’s failures to act and respond within a reasonable time has caused unnecessary frustration and disappointment to X.
26. I will recommend a remedy to acknowledge the injustice caused to X and for the Council to take steps to avoid the same faults recurring. I will also recommend a time and trouble payment because the fault I have found should be clear from the Council’s records. Councils have access to our decisions and guidance on remedies. It could have resolved this complaint without the need for X to complain to us.

Back to top

Agreed action

27. To remedy the injustice caused by the fault I have found, the Council has agreed to:
1. continue its enforcement investigation without further delay;
2. apologise to X for the delay, disappointment and frustration caused by the fault I have found;
3. pay £500 for the injustice caused by the fault;
4. pay £150 for the time and trouble caused to X in bringing their complaint to our attention; and
5. consider what has happened and what changes to practice and procedure are necessary to avoid the delay in action and failure to properly respond to complaints and enquiries in future.
28. The Council will provide us with evidence it has complied with recommendations set out in paragraph 26 (a) to (d) within one month from the date of our final decision.
29. The Council will provide us with evidence that the recommendation in paragraph 26 (e) has been satisfied within three months from the date of this decision.

Back to top

Final decision

30. I found fault that caused an injustice to X. I made recommendations to remedy the injustice caused by the fault and help avoid recurrence of it in future. I completed my investigation because the Council agreed to my recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman