Summary: We found fault on Mr Y’s complaint about the way the Council dealt with his reports of his neighbour breaching planning consent. It failed to let him know what action, if any, it was taking on his report. It also failed to ensure his case suffered no delay when an officer it was assigned to left. The Council agreed to send Mr Y an apology for the injustice caused by its failings. It also agreed to review procedures to ensure those making reports are kept updated at key stages and of decisions. It will also act to ensure cases are not left to drift due to staff changes or absence.

The complaint

1. Mr Y complains about the Council failing to:
1. take enforcement action against a neighbour who breached planning consent when erecting an outbuilding and carrying out a loft conversion: and
2. properly investigate his reports and give accurate information about the alleged breaches.
2. As a result, water pools in his garden due to a lack of proper drainage, the whole experience has caused him a great deal of stress and frustration, as well as affecting his health.

Back to top

The Ombudsman’s role and powers

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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

Back to top

What I have and have not investigated

7. I have not investigated any complaint Mr Y might have about property damage because this is a matter for the courts to determine, not us. I saw no good reason why we should exercise discretion to investigate it.

Back to top

How I considered this complaint

8. I considered all the evidence provided by Mr Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

Back to top

What I found

Planning law and policy

Enforcement

9. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. 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.
12. 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)

Time limits for enforcement

13. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Planning Enforcement Options

14. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

Loft conversions

15. Section 55 (2)(a) of the Town and Country Planning Act 1990 states certain operations or uses of land shall not be taken for the purposes of this Act to involve development of the land. This includes the carrying out for the maintenance, improvement, or other alteration, of any building of works which:
1. affect only the interior of the building; or
2. do not materially affect the external appearance of the building.

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)

What happened

17. Mr Y’s neighbour converted his loft into a bedroom and converted a gazebo to the rear of the property into an outbuilding. The outbuilding was fitted with a water supply, kitchen sink, and a toilet. Water from this outbuilding caused Mr Y damage to his property.
18. Despite making reports about the breaches, he claimed the Council took no effective action against the neighbour. Mr Y also claimed planning enforcement officers wrongly recorded facts and failed to properly investigate his concerns.

2023

19. In September, Mr Y reported the neighbour to the Council for development without planning consent. He reported a loft conversion and referred to the erection of an outbuilding years before which was removed following officers visiting. He went on to note they then built a gazebo which contained electrical appliances. Walls, a ceiling, and door were later added. He added problems started a few years ago when a kitchen sink, toilet, and mattress were added. In his timeline of events, he then referred to what happened in 2020 which related to the loft conversion. When referring to how he was affected, he mentioned the leaking from the outbuilding.
20. The Council acknowledged his letter and asked for photographs as well as when works started.
21. In October, Mr Y sent photographs from an estate agent’s website of the neighbour’s loft. This gave the address of the road but not the number of the property. He also referred to the outbuilding again. The estate agent screen shots he sent said, ‘2 Self Contained Flats’. It also said there were two flats which were currently let with Assured Shorthold Tenancies and set out the income they produce each year. He also sent two photographs of the outbuilding
22. The enforcement officer visited the neighbour’s property twice and took photographs from outside. There was no dormer or rooflights in the neighbouring property’s roof. As there were no works, the officer closed the case because there was no breach of planning consent. The officer emailed Mr Y saying as only internal works to the loft had happened, no planning consent was needed.
23. Building Control also visited and saw the internal work in the attic. A floor was installed with insulated walls along with a toilet room which was incomplete. The tenants told the officer the landlord was doing the works. The following month, a Building Control officer met the landlord who agreed to convert the space back to what it had been.
24. The planning enforcement officer passed on a report about the outbuilding to a senior officer to investigate as this was considered a possible rebuild under the previous Enforcement Notice. I have not seen a copy of this report.
25. In November, a case review decided the loft was a conversion to a habitable room not a separate flat, so consent was not needed. I have not seen a copy of this review.
26. In response to my draft decision, the Council said it notified Mr Y on 7 November that it would be looking into the outbuilding report. I have not seen evidence of the Council doing this.
27. As a result of Building Control’s involvement, the loft conversion was removed in December.

2024

28. A follow up visit in January by Building Control found the loft had largely been converted back to what it had been.
29. In May and June, Mr Y contacted the Council again about the outbuilding. This time, his report was about the outbuilding only. He argued it was too high to amount to permitted development, and he gave the date of its completion as February 2021.
30. An acknowledgement was sent the following month asking him to send photographs, further details, and information about when activities started.
31. The original enforcement officer visited the property again in July. The outbuilding had no kitchen only a table and some cupboards. There was a canopy covering a BBQ area. The officer measured the eaves.
32. There was a case review in August which decided it was not expedient to pursue this outbuilding. I have not seen a copy of this review. The Council said this review decided it was small and similar to those in the rear gardens of other properties. Aerial photographs, copies of which I have seen, showed it was there in 2019. It was not related to a previous enforcement case but, there were no planning grounds to act.
33. The officer told Mr Y of this decision, a copy of which I have not seen. The officer said she measured the eaves which were two metres in height but could not measure the top of the building which was likely to be 2.5 metres. It was clear it had a shallow pitch. The officer decided there was no impact on Mr Y’s amenities as it was of a similar size to a garden shed.
34. In September, Mr Y complained about the officer’s handling of his reports about the loft and outbuilding.
35. The senior enforcement manager responded saying enforcement for a breach was only taken if expedient to do so. As the neighbour’s property consisted of flats, the outbuilding and loft would need planning consent no matter their size. There was no dormer window for the loft, and the outbuilding was immune from enforcement action. He was also told it likely the outbuilding would have received planning consent because of its small size and use as a garden shed. Even if not immune, it would not be expedient to enforce.
36. In December, Building Control issued a Regularisation Certificate about the removal of floorboards, plasterboards in the loft area, and the toilet/sink in the outbuilding.

2025

37. In January, the Council replied to his complaint. It explained consent was not needed to make internal changes to the loft provided there were no changes to the roof’s structure. If there had been external changes, consent would have been needed. It said photographs Mr Y provided did not identify they were of the neighbour’s house. They had been taken from a website. The Council’s power of entry could only be used where there were sufficient grounds to suggest a breach of consent. There was not enough evidence to suggest this.
38. The Council accepted it would have been good practice to have given Mr Y an update and acknowledge his correspondence when he chased it about the outbuilding. The Council explained it was only when he sent an online form in June 2024 that it was clear it was not a rebuild. An officer noted it was in a different location, size, and design to the previous one and was not used for living space.
39. The Council accepted while the officer the case was passed to had a large number of cases, the officer left before getting to Mr Y’s report. This meant it was not picked up until Mr Y made his online report.
40. The Council confirmed the outbuilding breached planning consent but was in place since 2019 so meant it was now immune from prosecution.

My findings

Loft conversion

41. I am satisfied the conversion of the loft was not a breach of planning consent. This was because of Section 55 (2)(a) of the Town and Country Planning Act 1990. This sets out what cannot be classed as development of land for planning purposes. If certain works do not amount to development of that land, the Council cannot consider taking enforcement action. This is because there is no breach of planning consent.
42. The section of this Act refers to two circumstances when planning consent is not needed. One is where works only affect the interior of the building. The other is where works do not materially affect the external appearance of the building. The works in the loft Mr Y reported were covered by both. This was because they only affected the interior of the neighbouring property. There were no external works, such as a dormer window or rooflights, for example.
43. As the works did not amount to development needing planning consent, whether they amounted to permitted development was irrelevant. I found no fault on this complaint.
44. Even if there had been fault on this complaint, I am not satisfied there would have been any injustice to Mr Y. This was because Building Control secured the loft’s removal anyway within 12 weeks of his initial report.

Outbuilding

45. I have seen Mr Y’s original report sent to the Council in September 2023. His main report was about the loft conversion but part of it was about the outbuilding and its history. He was quite clear about its use and considered it had no planning consent. He also referred to it when completing the section of the online form which asked how the breach affected him.
46. The officer passed on the report to a senior officer as there was a concern this might be a rebuild of a structure a previous Enforcement Notice dealt with. There was no evidence Mr Y was told this and nor was there any evidence of the Council telling him the outcome of the senior officer’s review. Nor was he told whether the Council intended to take any further action. The Council explained this delay happened because a busy officer had left and Mr Y’s case had not been picked up by anyone else. I am satisfied these failings amount to fault.
47. I am also satisfied the fault found caused him an injustice. This was because he did not know whether the Council was considering this report. This caused some frustration and uncertainty. There was also a lost opportunity to have it explain its position much sooner to him. He also was put to the time and trouble of making a further report to the Council about it eight months after originally doing so.
48. Hearing nothing further, Mr Y contacted the Council again in May and June 2024. He was asked to provide information and photographs which he did. He also said he had previously told the Council about the outbuilding.
49. Following a site visit, and further consideration, the Council decided it was not expedient to take enforcement action against the neighbour. This was because it had no impact on his amenities. Although it said it told him of this decision, I have not seen a copy of its letter to him. Mr Y was told of its decision about 12 months after he made his original report.
50. When Mr Y formally complained, he was told it was not expedient to take enforcement action as it was likely to have received planning consent anyway, had the neighbour applied. He was also told it was now immune to enforcement because it had been in place for more than four years with no enforcement action taken.
51. I am satisfied Mr Y was given different reasons over time about why the Council would not take enforcement action. These included no impact on his amenities, planning consent would have likely been given anyway, and it was too late to take enforcement action. I can see why Mr Y considered the Council had been inconsistent with its approach to this report.
52. While he was given different reasons over time about why it would take no enforcement action, I am satisfied he was told it was not going to take it. Although the reasoning for this changed over time, essentially, he was aware it would not be acting.

Back to top

Action

53. I considered our guidance on remedies.
54. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for failing to: provide him with an update on his initial report about the outbuilding; tell him the decision of the senior officer; tell him whether it intended to take any action on it; ensure adequate systems were in place to ensure his case was not overlooked when an officer left.
2. Review procedures to ensure those making reports are kept updated about progress at key stages and of decisions made on them.
3. Act to ensure cases are not left to drift when officers leave the Council’s employment or are away from work for significant time, such as illness for example.
55. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

56. I found the following on Mr Y’s complaint against the Council:
1. Complaint a): No fault; and
2. Complaint b): Fault causing some injustice.
57. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman