Summary: Mr X complained about the Council’s handling of his report of a breach of planning control near his home. We found no fault in how the Council reached its decision not to take enforcement action against the breach.

The complaint

1. Mr X complained about the Council’s delay and failure to properly respond to his report of a breach of planning control near his home.
2. Mr X said the unauthorised development overlooked his home and compromised his privacy. Mr X wanted the Council to put right the breach of planning control.

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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 a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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)

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How I considered this complaint

6. I considered evidence provided by Mr X and discussed the complaint with him. I also considered the Council’s comments on the complaint and relevant law, policy and guidance. I gave Mr X and the Council an opportunity to comment on a draft of this statement and considered any responses received before making a final decision.

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What I found

Background

7. Councils have legal powers to take enforcement action if they find planning rules have been breached. Government guidance says, as enforcement action is discretionary, councils should act proportionately in responding to suspected breaches. (National Planning Policy Framework (NPPF) paragraph 60)
8. As planning enforcement is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements or asking for a planning application so the council can formally consider the planning issues relevant to the development. Planning applications made after development takes place are ‘retrospective’ applications.
9. When deciding whether to enforce, councils should consider the likely impact of harm to the public and if they might grant approval on receiving an application for the development or use.
10. The Council has a December 2024 Local Enforcement Plan (‘the Plan’), which reflects the NPPF guidance. The Plan says enforcement investigations “will take some time” as cases may be complex and raise many issues needing careful consideration. The Plan says enforcement officers will not provide regular updates on the status of investigations.
11. The Plan says enforcement cases receive a ‘Priority Rating’ depending on the breach and the degree of harm caused. The Council tries to investigate all reported breaches but its focus is on Priority 1 cases. Priority 2 and 3 cases may take many months to investigate. Priority 3 cases do not have a wide impact but may affect the amenity of a single property. Priority 3 cases are also likely to remain stable and unlikely to result in severe or lasting harm to amenities. (Here, the Council said Mr X’s enforcement case was Priority 3.)
12. The Plan says the Council will normally give those responsible for breaches an opportunity to resolve matters before taking formal enforcement action. The Plan also says people have a right to make a retrospective planning application. And the Council will ask for a retrospective application where it considers there is a reasonable likelihood it may grant planning permission for the development. The Council aims to decide any retrospective application within the relevant timescale. (For the development in Mr X’s case, the timescale would be eight weeks.) And, if the Council refuses permission, it will rarely take enforcement action until any appeal to the independent Planning Inspectorate is concluded.
13. The Plan says the case enforcement officer will issue a report on conclusion of an investigation. The report recommends the action, if any, the Council will take. And the person reporting the breach is told of the decision when the Council closes the enforcement investigation.

A summary of key events

14. The Council granted planning permission (‘the Permission’) for development on land (‘the Site’) near Mr X’s home. In early 2023, Mr X contacted the Council to report a breach of planning control. Mr X said the development, which was substantially complete, was not built in line with the Permission. Mr X’s concerns included the development projecting beyond a local building line. Mr X said the development, as built, reduced privacy to his home.
15. The Council registered the alleged breach and gave the case a reference number. A few days later, the Council wrote to Mr X and sent a letter addressed to the owner of the Site. The letter to the Site owner described the alleged breach of planning control and said the Council had opened an enforcement investigation. The letter gave information about planning enforcement procedures and the owner’s options for responding to the alleged breach. The letter asked the owner to contact the Council and warned that failure to do so might result in formal action.
16. The Council’s letter to Mr X (‘the Letter’) also gave information about planning enforcement procedures. The information included that, on finding a breach, the Council would normally negotiate with the responsible person and give them “some time” to deal with it. This might include applying for planning permission to keep the development. The Letter also said the Council did not action cases in strict date order but according to their planning merits. And it was not possible to provide a timescale for the investigation.
17. On communication, the Letter said a planning enforcement officer would contact Mr X “in due course” if they had significant news or needed more information from him. And, while Mr X could make contact, the Council asked that he understand its officers’ time was limited and best spent investigating cases. The Letter asked that contact was kept to a minimum, while recognising it could sometimes seem nothing was happening. The Letter guaranteed Mr X would be told about the enforcement decision on conclusion of the investigation.
18. Over the following four months, the Council sent two further letters seeking a response from the Site owner. The letters again gave details of the alleged breach of planning control and enforcement procedures and asked the owner to make contact. Mr X also sent the Council three emails chasing for action on the breach.
19. The Council then responded to Mr X, apologising for its delay, which was caused by staff shortages and a case backlog. The Council said it had written to the Site owner but received no response and would now visit the Site and then update him.
20. About a month later, and following two further chaser emails from Mr X, the Council updated Mr X. The Council confirmed it had visited the Site and been in touch with the owner’s agent. The Council said it had asked for a retrospective planning application and given a deadline for its submission. Mr X replied objecting to a retrospective application and asking the Council to remove the unauthorised development.
21. The agent made a planning application for the development (‘the Application’). The Council publicised the Application and gave Mr X and other nearby residents an opportunity to comment on the development. Mr X contacted the Council repeating that he wanted it to take enforcement action against the development. Mr X also said the Application plans did not accurately show the built development.
22. Six months passed, making it a year since Mr X had reported a breach of planning control at the Site. Mr X again contacted the Council saying it had failed to act on the breach or determine the Application. Mr X asked the Council to deal with the unauthorised development. The Council replied saying it was still considering the Application. And, if it granted planning permission, it would close the enforcement case and if it refused permission, the applicant could appeal the decision. The Council said enforcement investigations could take months to complete and not all breaches resulted in enforcement action. Mr X was not satisfied with the response and wrote again to the Council, asking many questions.
23. The Council then refused planning permission for the Application. The Council’s reasons for refusing permission did not include the development having an unacceptable planning impact on Mr X’s home, including on his privacy. The Council’s decision notice included information about the right to appeal, within six months, to the Planning Inspectorate.
24. About six weeks later, Mr X complained to the Council saying it had not responded to his concerns and was ignoring the breach. Mr X asked the Council to act against the unauthorised development on the Site. The Council referred the complaint to its Planning Department, which replied saying the applicant still had time to appeal its refusal of permission. And, if there was no appeal, it would assess whether formal enforcement action would be reasonable and proportionate. After further contact with the Council, Mr X brought his complaint to the Ombudsman.
25. During my investigation, the six-month appeal deadline passed without the Planning Inspectorate advising the Council of an appeal. The Council also decided not to take enforcement action. The Council considered the changes between the approved and as built development did not cause planning harm making it expedient to act.

A summary of the Council’s response to the complaint

26. The Council did not consider there was a local defined building line near Mr X’s home given the varied positions of some existing buildings. And breaching a defined building line would not result in enforcement action unless it caused significant planning harm. Here, the position of the approved and built development on the Site did not cause harm that justified refusing planning permission on that ground.
27. It had made a further visit to the Site and taken measurements to assess the built development against the Application plans. It considered the Application plans showed the development as built on the Site. Its planning enforcement officers considered the differences between the built development and the Permission did not cause significant harm. But they decided to await the Council’s decision on the Application before ending the enforcement investigation.
28. On the time taken to decide the Application, the Council said the development was controversial and needed careful consideration. And, due to staff changes, it had had to reallocate the Application to another development management officer.
29. The Council said it was dealing with many higher priority enforcement cases. After deciding the Application, its development management and enforcement officers had liaised about next steps for the enforcement investigation. It preferred to resolve enforcement matters by negotiation. And, here, possibly revising the development was preferable to formal enforcement action or an appeal. However, it expected to reach a decision on Mr X’s case by Summer 2025 (and did so).
30. The Council said, during enforcement investigations, it did not have enough time and staff to keep in touch with people that reported breaches. Such communication would divert officers from their substantive enforcement work and impact on the time taken to close cases. If cases were reported that had a higher priority, it moved its resources from existing, lower priority, cases. This also affected the time taken to close individual cases. The Council also referred to the letter it sent to people that reported a breach of planning control. The letter gave information about planning enforcement and said that investigations were likely to take many months. The letter made clear it would not keep people updated on investigations but would let them know when it decided their case. The letter also stressed that people reporting a breach should not email for updates.

Consideration

Introduction

31. The Ombudsman is not an appeal body and our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at the procedures a council has followed to reach a decision. If we consider it followed those procedures correctly, we cannot question whether any resulting decision is right or wrong, regardless of how strongly a complainant may disagree with it.
32. As a publicly funded body we also must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what a council did or how it acted.

Late complaints

33. The evidence showed Mr X quickly became concerned about what the Council was doing in response to the breach he reported and, later, the time it took deciding the Application. The evidence also showed Mr X’s frustration at the Council’s failure to keep in touch or respond to his emails. But, more than a year had passed before Mr X complained to the Ombudsman. The complaint was therefore a late complaint (see paragraph 4).
34. However, the Council’s enforcement investigation remained open and the substantive matters Mr X complained about were continuing. And, despite the passage of time, Mr X had not let the matter drop and finally contacted us after seeking help from his Member for Parliament. So, rather than limit my investigation to the 12 months prior to Mr X’s complaint to us, I exercised my discretion to consider the Council’s actions back to when he reported the breach.

Planning enforcement

35. Over two years passed between Mr X reporting the breach of planning control to the Council and its decision not to take formal enforcement action. That was a long time and the evidence showed periods of inactivity. But, when first writing to Mr X, the Council’s Letter said it could not give a timescale for its investigation and would contact him when there was ‘significant news’. The Letter also said the Council progressed cases on their merits and not in date order. (See paragraphs 16 and 17). I recognised Mr X might find the lack of regular updates, even if they merely confirmed ‘no change’ in the status of the investigation, frustrating. However, the Council had sought to manage Mr X’s expectations that communication during the enforcement investigation would be infrequent. Overall, I did not find the Council fell below acceptable administrative standards in how it communicated with Mr X during the enforcement investigation.
36. The Council said the breach reported by Mr X was Priority 3. The Plan sets out Priorities 1, 2 and 3 and gives examples of alleged breaches for the three priority categories. The Plan was not in place when Mr X reported the breach on the Site. However, I had no reason to question the Council’s assessment of Mr X’s breach as ‘Priority 3’ under the Plan. Accordingly, Mr X’s breach would not have had high priority under the merits-based approach that preceded the Plan.
37. Both the NPPF and the Plan referred to informally resolving breaches and using retrospective planning applications. Here, after Mr X had reported the breach, it took the Council about six months to secure a retrospective planning application from the Site owner. That was a long time. But, given the Council’s merits-based approach and its later assessment of the breach as Priority Three, the case would not have had priority. And, in asking for a retrospective application, the Council was suggesting it might grant the built development planning permission. So, despite the time taken to reach this position, I did not find the Council fell below acceptable administrative standards.
38. The Council should have decided the Application within eight weeks but took over seven months. No doubt this further added to Mr X’s frustration as he did not consider a retrospective application was a suitable response to the breach. However, councils usually hold any further enforcement action while deciding a retrospective planning application. And here, the Council said its enforcement officer, after visiting the Site, had informally decided that formal enforcement action would not be expedient. So, despite the time it took, I did not find the Council at fault for not pursuing enforcement action while it processed the Application.
39. I recognised Mr X’s further frustration because the Council’s reasons for refusing the Application did not refer to the impact of the built development on his home. However, the Council gave Mr X the opportunity to comment on the Application. And, the Council’s report assessing the Application provided evidence it took account of peoples’ comments. This included the report responding to comments about a building line affecting the Site. People also commented about the loss of privacy and overlooking by the built development. The report assessed the impact of the built development on existing nearby properties as a ‘main issue’ in deciding the Application. Having considered that issue, the Council was entitled to reach a view on whether that impact was acceptable or unacceptable in planning terms. Unfortunately for Mr X, the Council found the development did not have an unacceptable impact on existing nearby properties. The evidence therefore showed the Council followed the correct procedure in determining the Application. As the Council acted without fault, I could not question its view notwithstanding the strength of Mr X’s objections to the built development reducing his privacy.
40. After refusing the Application, the Council still did not take further enforcement action. However, councils often refrain from further action until after the expiry date for any appeal against the refusal of planning permission. Here, that meant a further six months passed without any substantive action. It was during these six months that Mr X complained to the Ombudsman. The Council has now ended its investigation into Mr X’s report of a breach of planning control. And, in closing the case, the Council decided enforcement action was not expedient as the unauthorised changes to the development did not cause planning harm.
41. In reaching its enforcement decision, the evidence showed the Council had engaged with Mr X and the Site owner, visited the Site, and liaised with the development control officer that assessed the Application. These were steps I would expect the Council to take in dealing with a reported breach of planning control. I saw no evidence of fault in how the Council investigated the breach and reached its decision although it took two years to complete the investigation. And, if the Council had reached its enforcement decision sooner, Mr X would have found himself in the same position, that is with the Council not taking enforcement action against the built development, but sooner.
42. I recognised Mr X might find the Council’s decisions, to refuse the Application and not take enforcement action, inconsistent. However, while national and local planning policies apply in both cases, differing laws and guidance apply to the Council’s development control and planning enforcement decision making. And, here, I found no fault in how the Council reached its two decisions.

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Decision

43. I found no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman