Summary: Mr X complained the Council failed to take planning enforcement action about a neighbour’s air-conditioning unit. He said it is an eye sore and affects his property’s amenity. We do not find the Council at fault.

The complaint

1. Mr X complained the Council failed to take planning enforcement action about a neighbour’s heat pump/air-conditioning unit, and took too long to investigate.
2. Mr X said the heat pump/air-conditioning unit is an eye sore and affects his property’s amenity. He said he has had to plant trees to obscure the pump at his own expense.

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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 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)
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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How I considered this complaint

5. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
6. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

7. 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.
8. 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.
9. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
10. 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)

The Council’s planning enforcement policy

11. The Council’s enforcement policy says it will triage planning enforcement complaints. It sets out three bands of priority, depending on how serious the alleged breach is. “Priority three” is the lowest priority.
12. For priority three cases, the policy says the Council will aim to either start legal action or resolve to close the case within 16 weeks.
13. The policy says where there may be a technical breach of planning control, but the harm caused is not sufficient to warrant formal action, it will notify the complainant of the reason it is not taking formal action and close the case.
14. The policy says:

“Just because a breach may exist does not automatically mean that formal action will follow. Enforcement powers are discretionary and minor technical breaches may not be considered expedient to pursue as they may be … too minor to warrant the time and expense involved in pursuing them.”

What happened

15. In April 2024, Mr X complained to the Council about his neighbour’s new air conditioning unit/heat pump (which I will refer to as “the pump” from now on).
16. The Council tried to visit the site but could not gain access to the neighbour’s property.
17. The Council wrote to Mr X. It said the pump did not conform exactly to permitted development rules for installing air-conditioning units. However, it decided if the pump’s installation did conform to those rules, the impact of the pump would be very similar. The Council said it decided it was not expedient to pursue it further, so it would not take enforcement action. It said the case was closed.
18. Mr X complained.
19. In its complaint response, the Council said it did a desktop review of the alleged breach. It said it looked at Mr X’s photos. It said if it has relevant photos, it can make a judgement without having to visit a site. The Council said this ensures efficient use of time and resources.
20. The Council said it considered all the elements of the installation and decided it would not be expedient to pursue it.
21. Mr X then complained to the Ombudsman.

Analysis

Enforcement action

22. Mr X complained the Council failed to take planning enforcement action about a neighbour’s heat pump. Mr X said the Council told him it had arranged to re-visit the site after it could not gain access on its first site visit. He complained the Council did not conduct this second site visit and did not explain the reason for this. He said the Council made its decision without visiting the site.
23. I do not consider it significant enough to constitute fault if the Council told Mr X it had arranged a second site visit then later decided not to do one, and if it did not communicate this or its reason for this with Mr X. The Council tried to visit the site, which is good practice. However, councils do not have to visit sites to make enforcement decisions.
24. The Council did a desktop review. It concluded that although the installation of the pump did not comply with permitted development rules, it was not expedient for the Council to pursue it further. The Council was entitled to make this decision. This decision was in line with the Council’s policy and planning guidance, set out above.
25. The Council’s policy says if there is a technical breach of planning control, but the Council decides the harm is not sufficient to warrant formal action, the Council will notify the complainant of the reason it will not take enforcement action. The Council did this.
26. Mr X complained the Council replied only on his photos when making its decision. I find the Council was entitled to do this.
27. For these reasons, I do not find the Council at fault.

Time

28. Mr X complained the Council took too long to investigate his report of a planning breach.
29. The Council’s policy says it aims to close a priority three case within 16 weeks.
30. Mr X complained in April. The Council determined this was a priority three case. It closed the case in July, within 16 weeks.
31. I find the Council responded within the timeframes set out in its policy. I therefore do not find the Council at fault.

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Decision

32. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman