Summary: Mr and Mrs X complained about the Council’s delay in investigating a planning breach by their neighbour. They also complained of poor communication. Mr and Mrs X said this caused them frustration and distress. We do not find the Council at fault for the way it handled the alleged planning breach, or for the way it communicated with Mr and Mrs X.

The complaint

1. Mr and Mrs X complained the Council failed to properly investigate a planning breach involving their neighbour’s extension. They said that, despite reporting the breach in 2021, the Council did not take action until 2024. They also complained of poor communication from the Council. Mr and Mrs X say as a result they have suffered significant frustration and distress.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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(1), as amended)

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What I have and have not investigated

6. Mr and Mrs X told the Ombudsman that they first reported the issue in 2021. We typically expect people to come to us within 12 months of first becoming aware of an issue. They did not approach the Ombudsman until December 2024 and gave no good reason for not approaching us sooner. Therefore, this investigation focuses on events between November 2023 and December 2024, which is the 12 months preceding the Council’s final complaint response through to Mr and Mrs X’s first contact with the Ombudsman.

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How I considered this complaint

7. I considered evidence provided by Mr and Mrs X and the Council, as well as relevant law, policy and guidance.
8. Mr and Mrs X and the Council had an opportunity to comment on my draft decision.

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What I found

Planning law and policy

Permitted development

9. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
10. Some permitted development proposals need an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.

Enforcement

11. Councils can take enforcement action if they find a breach of planning rules. 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 December 2024, paragraph 60)

Planning Enforcement Notices

15. Councils have a range of options for formal planning enforcement action available to them, including Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.

Outbuildings

16. Outbuildings, such as sheds, greenhouses, cabins and other ancillary garden buildings, are considered to be permitted development provided they meet certain limits and conditions. These include; maximum single storey height of 2.5 metres where it is within two metres of a boundary of the curtilage of the property; no more than half the area of land around the original house would be covered by additions or other buildings. (Class E1, Part 1 of Schedule 2, Town and Country Planning (General Permitted Development) (England) Order 2015)
17. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission
• A decision to refuse planning permission
• Conditions placed on planning permission
• A planning enforcement notice.

What happened

18. This is an overview of events and is not intended to be a detailed chronology.

Background

19. In 2021 Mr and Mrs X notified the Council their neighbour (Resident A) had built a shower block in their garden, which they said increased the scale of Resident A’s existing summerhouse considerably. Mr and Mrs X complained again in 2022 and 2023 and told the Council that Resident A continued to add to the building without planning consent. They said this was affecting their amenity and the outbuilding was almost encroaching on their garden boundary.
20. The Council carried out a site visit in 2023 and subsequently decided not to investigate further because the outbuilding was incomplete and it did not identify a planning breach. The outbuilding was under 2.5 metres in height and therefore considered permitted development (PD). The Council also said it did not believe the building was being used by Resident A for residential purposes.

2024-2025

21. In April 2024, Mr and Mrs X informed the Council that Resident A had added a roof to the outbuilding. They said they believed this was being used as residential accommodation. A senior officer subsequently asked a planning officer to carry out a site visit to measure the finished building height and determine if there was a planning breach.
22. Mr and Mrs X complained to the Council in June about its handling of the reported breach and said the Council had taken no action in response to their concerns. They also said the Council’s communication with them had been poor.
23. In July, the planning officer carried out a site visit. They measured the height of the outbuilding, including the roof, as 2.6 metres in total. This was over the PD limit of 2.5 metres. The Council considered the outbuilding a planning breach.
24. The Council issued a response to Mr and Mrs X’s complaint the following week. It said it had spoken to Resident A before the roof was added, explained PD height limits and advised what they needed to do to comply with planning rules. It said, now it had identified a breach, it had given Resident A the option to either completely remove the structure, or to reduce it by 150 millimetres to bring it within PD limits.
25. The planning officer carried out a further site visit in November to inspect inside the building. The officer confirmed the building had several rooms and was being used as primary accommodation. The Council categorised the case as high priority.
26. The Council issued an expediency report which confirmed the building had been built for residential purposes without planning permission and was therefore in breach of planning control. The report set out the Council’s intention to take enforcement action based on the scale, layout and intended use of the building, which it assessed as an “inappropriate development out of keeping with character and established pattern of development in the area”. It said, as a result, the building required demolition, as reducing the height would no longer be sufficient.
27. The Council subsequently served an Enforcement Notice on Resident A the following day. The Council wrote to Mr and Mrs X to advise them of its decision.
28. Resident A appealed the Council’s decision to the Planning Inspectorate in December. The appeal decision remains outstanding.
29. Mr and Mrs X approached the Ombudsman in December 2024.

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Analysis

Delay

30. Prior to the addition of the roof, the outbuilding measured less than 2.5 metres in height and was therefore within PD limits. The Council has provided evidence it spoke to Resident A and advised them of the PD height limits before the roof was added and said they should not exceed this. This was an appropriate action and is in line with what we would have expected the Council to do at that stage.
31. The roof was then added and the outbuilding completed in 2024. The addition of the roof increased the height of the outbuilding, bringing it to 2.65 metres above ground level, which exceeded PD limits. In response to my written enquiries, the Council said it could not make an assessment about whether there was a planning breach until the outbuilding was completed, and explained this is why it did not take any action until 2024. This was a reasonable position for the Council to have taken, and it was not at fault for not taking enforcement action against a breach that did not yet exist.
32. The Council’s policy does not dictate specific timescales in which it must deal with a breach once identified. However, once the Council became aware the outbuilding was completed, it acted within a reasonable timeframe. Mr and Mrs X notified the Council in April that the roof had been added. The Council carried out a site visit in July, where a planning officer confirmed completion of the outbuilding and identified the breach. It contacted Resident A swiftly to inform them they either needed to reduce the height of the outbuilding to bring it within PD limits or completely remove it.
33. The Council carried out an additional site visit in November to determine how the building was being used. Once it identified the outbuilding was being used as primary accommodation, it immediately issued Resident A with an Enforcement Notice instructing its removal. This is in line with what we would expect the Council to do.
34. I have reviewed the Council’s notes and records, in addition to internal emails, which show the Council’s decision making. The Council considered the outbuilding to be only minimally above PD limits and had initially said an Enforcement Notice ordering removal would be overenforcement. This is a matter of professional judgement, and a decision the Council was entitled to reach. The basis for its decision to later issue an Enforcement Notice was Resident A’s use of the outbuilding as primary accommodation, which it classed as “inappropriate development” and against case law.
35. The Council told the Ombudsman the Enforcement Notice was not issued because of any impact on Mr and Mrs X’s property and said any impact on their property would have occurred even if the outbuilding had complied with PD limits. Where a development, such as an outbuilding, complies with PD limits, the Council is not required to consider the impact on neighbouring properties, because such development is automatically granted planning permission.
36. Because enforcement action was also not taken on the basis of any impact on Mr and Mrs X’s property, it therefore follows that, even if there had been a delay in enforcement action, this would not have caused any injustice to Mr and Mrs X.

Communication

37. I understand Mr and Mrs X were unhappy with the Council’s communication. During a planning breach investigation, we would expect the Council to provide progress updates and respond to any further contact. That appears to have happened here, although updates were delivered through the Council’s complaint responses. The Council provided updates in July and November, which is a reasonable level of contact. It told the Ombudsman it had no record of additional contact from Mr and Mrs X outside of their complaints during 2024.
38. Mr and Mrs X contacted the Council in April 2024 and told me they did not receive a response until July. I can see from the Council’s records it decided, as a result of this contact, to arrange a site visit, but there is no evidence it sent a holding message explaining this or indicating when further action would occur. Sending such a message would have been good practice, but its failure to do so does not amount to fault.

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Decision

39. I find no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman