Summary: Mrs B complained that the Council delayed in taking enforcement action against unauthorised work to a neighbouring property. We accept the process took a long time but we have not found fault with the actions of the Council.

The complaint

1. Mrs B complained that Rother District Council (the Council) delayed in taking enforcement action against breaches of planning and listed building control by the owner of the neighbouring property. This has caused Mrs B significant distress and frustration over a prolonged period. It also delayed in considering her complaint about the matter.

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The Ombudsman’s role and powers

2. 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)
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, 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)
4. 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

5. I have investigated the complaint from April 2023, when the retrospective planning and listed building consent applications were submitted. The events before this, including the decision not to prosecute the neighbour for unauthorised works to a listed building, are too old to consider now.

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How I considered this complaint

6. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Enforcement

8. 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.
9. 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.
10. 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.
11. 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 60)

Listed building consent

12. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:

• Grade I – buildings of exceptional interest;
• Grade II – buildings of special interest; and
• Grade II* – particularly important buildings of more than special interest.

13. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
14. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.

Decision making and material considerations

15. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
16. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
17. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
18. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

19. Mrs B lives next to property C which is a listed building. The owner undertook work to the property without obtaining listed building consent or planning permission. The work included a number of internal alterations removing significant features of the property and replacing the window frames with uPVC frames. Mrs B believed some of the work damaged her property.

Background

20. The Council received a complaint in early 2019 that work has been carried out without the correct planning permission. An enforcement investigation was opened. Listed building consent and planning applications were first submitted in September 2021 but withdrawn in March 2022.

April 2023 onwards

21. Applications were resubmitted in April 2023. The Conservation Officer requested further details in January and June 2024.
22. Mrs B complained on 9 July 2024 about the delay in resolving the unauthorised work or taking any enforcement action. She said the work had damaged her property and the neighbour had not obtained the correct permission in respect of the party wall. She also said the Council had not followed its own enforcement policy.
23. The Council responded to the complaint at stage one of its complaints procedure on 15 August 2024. It said the case was due to be considered by the Planning Committee shortly. The law allows the Council to issue an enforcement notice if unauthorised works are carried out to a listed building and where it is expedient to do so. As the Council was seeking to resolve the breaches through the pending planning applications, it had not yet considered the expediency of enforcement action.
24. It agreed its enforcement policy was confusing but said the section Mrs B was referring to was not applicable to this situation. It also explained that concerns about the party wall and allegations of damage were private civil matters and not material planning considerations.
25. Mrs B escalated her complaint to stage two of the complaints procedure.
26. The case was then considered at the planning committee. Mrs B spoke to the committee explaining her concerns and objections. The committee spent over two hours considering the applications. The issues were fully discussed including the lack of enforcement action, the alleged damage to Mrs B’s property and the decision not to prosecute the owner. The Chair of the committee clarified that this was not the decision in front of the committee today and damage to a neighbouring property was not a material planning consideration. The members voted to approve both applications. They recognised the lack of enforcement action and prosecution but agreed that the proposed work was the best way of securing the preservation of the building in the long-term. The only external element of the proposals was to change the window frames back to wood.
27. The Council then responded to Mrs B’s complaint. It said the unauthorised work had been regularised by the permissions granted by the planning committee. The Council’s main concern had been the best approach for the long-term preservation of the building. The approved changes would reverse much of the unauthorised work and be beneficial. Alleged damage to Mrs B’s property was a private civil matter, not for the planning process.

Analysis

28. I understand Mrs B’s dissatisfaction with the unauthorised work carried out to the neighbouring property and the time the matter has gone on unresolved. The decision to request planning applications (to regularise the work and ensure the building’s long-term preservation) rather than pursue formal enforcement action or prosecutions was made prior to 2021 and is too old for me to investigate now. There are no exceptional reasons why Mrs B could not have complained earlier.
29. Additionally, enforcement is a discretionary power, including the decision to prosecute. We would not direct a Council to take a particular type of action and we recognise that a decision to take formal action involves many factors, such as the extent of the harm, the applicant’s willingness to take action to put matters right, and their personal circumstances. That is a complex decision for the Council to take and in this case, it was taken at least four years ago. Neither would we find fault with a Council for not taking formal enforcement action while retrospective applications were decided.
30. It is clear these applications took a long time to be decided but the Council has explained the situation was complex and several rounds of further details were requested, lengthening the process considerably. However, I have not seen evidence of unnecessary delay, and I consider the planning committee properly and thoroughly considered all the relevant issues.
31. I have also considered that the personal injustice to Mrs B is limited because most of the approved works are internal and do not affect her amenity. Damage to her property is a civil matter about which she should take legal advice; it is not a material planning consideration.
32. I understand that Mrs B feels there is public interest in a situation where people can make irreversible changes to a historic building and not be punished for it. But we do not recommend punishment on any party: we make recommendations to put right injustice caused by fault. The system allows for retrospective applications to be submitted and even if that is not ‘fair’ on those who correctly apply for permission before doing the work, that is the system in place.
33. The Council delayed in responding to Mrs B’s complaints at both stages, but the delays were not excessive, and the Council has apologised.

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Decision

34. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman