Summary: Mrs X complained about how the Council handled an alleged breach of planning control. We have found fault with the Council for how it handled the planning application that the enforcement case relates to. This caused Mrs X a loss of amenity that the Council has agreed to remedy.

The complaint

1. Mrs X complained about the Council’s decision not to take enforcement action against her neighbour. She said her neighbours breached a planning condition as they replaced an obscurely glazed window facing her property with clear glass. Mrs X said the Council has not properly investigated her concerns and the breach has a significant impact on amenity and the enjoyment of her home.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 have considered Mrs X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Mrs X’s complaint and to my enquiries.
6. 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

Planning legislation and guidance

Site visits

7. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.
8. During the Covid-19 pandemic, many councils introduced restrictions to site visits.

Case officer reports

9. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
10. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Enforcement

11. 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.
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.
13. 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.
14. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)

Planning fault

15. When planning applications are determined incorrectly, neighbours often ask for planning permission to be revoked. We will only recommend a council revoke planning permission in very exceptional cases. This is because any injustice can usually be remedied by taking other action at significantly lower cost to the public and planning applicants are generally not responsible for fault by a planning authority.
16. To determine what injustice has been caused by any fault we identify we will consider what development has been carried out and compare this what development would have been allowed if there had been no fault in the way the planning authority reached its decision. There must be a clear and direct link between the injustice we are remedying, and the fault we have identified. In most cases we will be able to reach a balance of probabilities judgement based on relevant policies and our own experience of dealing with planning complaints.

What happened

Background

17. In 1998, the Council approved plans for two new houses (House One and House Two) on the plot next to Mrs X’s house (she did not live there then). The planning permission included a condition which required a first floor window on the south west elevation of House One and the north east elevation of House Two to be glazed with obscure glass. The condition stated it should be maintained as such. This was in the interests of the privacy of neighbouring properties. House One’s first floor window overlooks Mrs X’s property.

Planning application

18. In 2021, Mrs X’s neighbours (House One) submitted plans for alterations to their house including the replacement of windows. As the plans did not include detail of the type of glass, Mrs X said she spoke to them about the obscure glazing in the first floor window. Mrs X said her neighbours assured her that they would replace the window with obscure glass.
19. Mrs X did not object to the neighbour’s proposals. She said she felt she did not need to as the neighbours had promised to maintain the obscure glass.
20. The Council approved the planning application. The permission did not include a condition to glaze the first floor window with obscure glass. Mrs X was not concerned given the neighbours agreement.

Planning permission implemented

21. In 2022, work commenced on House One. When the contractors installed the new windows, the first floor window contained clear glass. Mrs X contacted the Council to report a breach of planning.
22. The Council responded and said a breach had not occurred as there was no condition attached to the recent application that required obscure glazing. Therefore, it would not be taking enforcement action.
23. Mrs X complained. The Council said the original condition did not require the window to be non-opening so there was always going to be some overlooking. It also said the window did not serve a habitable room so it would not have been justifiable to impose a condition to obscure the glazing as part of the recent application. The Council subsequently acknowledged that the window served a dressing room which would require obscure glazing in the same way that a bathroom would.
24. The Council acknowledged the planning officer mixed up House One and House Two when they made their decision. The officer report referred to House Two instead of House One stating that the window was no longer present so a condition to maintain the obscure glazing was not required.
25. The Council said, due to Covid-19 restrictions, the officer did not visit the site before reaching their decision.

My findings

The 2021 planning decision

26. There is no requirement to visit a site, and at the time, site visits were restricted due to Covid-19. Therefore, I have not found fault here although a site visit would have made it clear to the officer which property was subject of the application.
27. The Council was at fault for considering the wrong property/elevation/ window when reaching its decision. The officer specifically referred to the original condition for obscure glazing in their report. They then categorically state that the window was no longer present, so a further condition was not required. This was fault. On balance, if it had not been for this fault, the officer would have included a condition to maintain the obscure glazing.
28. The officer’s mistake caused Mrs X and her family an injustice. The window remains un-obscured resulting in some loss of amenity and limited overlooking of Mrs X’s property.
29. The Council has agreed to attempt to negotiate an amendment to the permission with Mrs X’s neighbours by applying obscure glazing film to the window (paid for by the Council). However, the neighbours carried out the development in line with the planning permission and have done nothing wrong so are not obliged to accept this amendment.
30. If the Council’s negotiations result in the neighbours applying obscure film to the window, then Mrs X’s loss of amenity will have been remedied.
31. If the negotiations fail to result in the neighbours applying obscure film to the window, the Council has agreed to make a remedial payment to Mrs X in recognition of her loss of amenity. This amount reflects the limited significance of the loss. As the previous permission did not restrict the window to non-opening, there would have been overlooking even if there had been no fault. In addition, the distance between Mrs X’s property and the neighbouring property is significant so any overlooking and loss of amenity would be minimal.
32. The Council offered Mrs X £150 in recognition of the distress its mistake caused her and her family. This amount is in line with our guidance on remedies to recognise the stress, inconvenience and frustration Mrs X and her family experienced as a result of the Council’s mistake.

Enforcement investigation

33. When Mrs X reported the alleged breach of a planning condition, the Council investigated before reaching its decision that a breach had not occurred. I have found no fault with the Council’s actions here. The Council correctly considered the latest planning permission and highlighted that as there was no condition for obscure glazing, the applicant was not in breach for installing clear glass.
34. It was only upon further investigation after Mrs X had complained, the Council became aware of the planning officer’s mistake when reaching their decision. This does not affect the Council’s conclusion that no breach occurred and therefore it would not take enforcement action.

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Agreed action

35. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the planning officer mistakenly considering the wrong property when reaching their decision about the obscure glazing.
2. Negotiate with Mrs X’s neighbours to try and achieve an amendment to the permission requiring them to apply obscure glazing film to the first floor window on the south west elevation.
3. If ‘b’ is unsuccessful, the Council will pay Mrs X £500 in recognition of her loss of amenity.
4. Pay Mrs X £150 in recognition of the distress caused by the Council’s fault.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I have found fault with the Council for a mistake it made when deciding a planning application. This resulted in the loss of amenity for Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman