Summary: We have found no fault with how the Council handled Mr X’s report that his neighbour had breached planning control. The Council acted in line with national and local planning enforcement policy.

The complaint

1. Mr X complained about how the Council handled a planning enforcement investigation after he reported that his neighbour had breached planning control. He said the Council showed bias as it did not acknowledge the planning breach. He also said the Council operated a two-tier enforcement process.

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The Ombudsman’s role and powers

2. 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)
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(1), as amended)

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What I have and have not investigated

4. I have not investigated Mr X’s concerns about the party wall. This is a civil matter that could be handled by the courts.

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How I considered this complaint

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

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What I found

Law and guidance

Enforcement

7. 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.
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. 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.
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 December 2024, paragraph 60)
11. Planning enforcement action is subject to statutory time limits. Since 25 April 2024, breaches of planning control are immune from enforcement if no action is taken within 10 years of:
• Substantial completion of development on, over or under land;
• Change of an unauthorised use of a building to a use as a single dwelling house; and
• Any other breach of planning control, such as a change of use.

Retrospective planning application

12. A local planning authority can invite a retrospective application. In circumstances where the local planning authority consider that an application is the appropriate way forward to regularise the situation, the owner or occupier of the land should be invited to submit their application without delay.
13. It is important to note that although a local planning authority may invite an application, it cannot be assumed that permission will be granted, and the local planning authority should take care not to fetter its discretion prior to the determination of any application for planning permission – such an application must be considered in the normal way.

Non-Material Amendments

14. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
15. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:
• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
16. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.
17. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.

Council planning enforcement policy

18. The policy states that the enforcement team will decide upon the priority of the case upon receipt. It says that the Council will aim to respond to the complainant within 10 working days to inform them of the reference and priority. It goes on to say that due to the nature of planning enforcement cases, it is inappropriate to attach timeframes on when the Council aims to resolve the breach of planning control or close the case.
19. It states that cases are assigned either Level A, B or C priority. Following assignment to a priority group, cases will be addressed by the date in which a complaint is raised. Generally, the higher the priority, the sooner officers will carry out a site visit.
20. The policy explains that some complainants contact councillors, their local MP, the chief executive, or leader of the Council to amplify their concerns or to incite a quicker response. It says that formal process will be followed, and a response will be provided by the hierarchy of the Council.
21. In every case the Council investigates, it must first establish whether a breach of planning control has taken place. This usually involves a site visit. Where the Council identifies a breach, the Council may write to the person responsible, explain the breach and what steps can be taken to rectify it. This can include the submission of a planning application.

What happened

Initial report of planning breach

22. In July 2023, Mr X reported to the Council that his neighbour was carrying out building works (single storey extension) without planning consent. The Council contacted Mr X’s neighbour about the alleged breach. The neighbour submitted a planning application (Application A) for the work.
23. Between August and November Mr X frequently contacted the Council and his local councillor with photos and additional information about his neighbour’s development.
24. In November, the Council approved Application A. The neighbour continued to build the extension. The Council closed the planning enforcement case.

Report that development not in accordance with approved plans

25. In March 2024, Mr X contacted the Council to report that the neighbour was not building in line with the approved plans. Mr X contacted his local MP.
26. The Council contacted the neighbour who submitted a non-material amendment application (Application B) to account for the change in build. They later withdrew Application B and submitted Application C for the retention of the extension.

Non-priority case

27. Mr X continued to ask the Council to take enforcement action against his neighbour. The Council told Mr X the case was categorised as a category C and the enforcement department had other priorities. Mr X asked the Council to issue a stop notice on his neighbour. Mr X then asked the Council to issue a Deadlock Letter as he said the issues were not being addressed.
28. A “deadlock letter” applies to some ombudsman processes (OffGem, OffCom and the Rail Ombudsman), which is confirmation from the service provider stating that the issue cannot be resolved. However, this process doesn’t apply to the Local Government and Social Care Ombudsman.

Complaint

29. In July 2024, Mr X complained to the Council about the lack of enforcement action. The Council did not uphold Mr X’s complaint.
30. The Council said it registered an enforcement investigation and has been in regular contact with the neighbour who has submitted an application for some of the revisions made. It said this approach is in line with government guidance which supports mediation and amicable solutions over enforcement notices and formal action.
31. The Council explained that local authorities have a significant amount of time to take any necessary enforcement action. Therefore, the Council’s inability to investigate lower priority planning breaches will not ultimately prejudice its ability to take any necessary and proportionate action further down the line.
32. In March 2025, Mr X brought his complaint to the Ombudsman.

Update

33. In May 2025, the Council approved Application C.

My findings

34. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.

Initial breach

35. When Mr X initially reported a breach of planning, the Council was quick to register the case. It then contacted Mr X’s neighbour and invited them to submit a retrospective planning application. This showed that the Council identified the breach. I have found no fault here as this ‘soft’ approach is supported by policy as the first stage after a breach has occurred.
36. Although Mr X believed this process to be a way of his neighbour circumventing the planning system, it is a legal and common practice. The Council considered the planning application and granted permission. I have found no fault with this process as the Council considered all relevant information and planning considerations when reaching its decision.
37. I have also found no fault with the Council for closing the enforcement case at this stage. It had granted planning permission and therefore, the breach had ceased.

Further breach

38. Five months later, when Mr X reported a further breach as the development was not in accordance with the approved plans, the Council investigated again. I have found no fault with how the Council approached this.
39. Mr X’s neighbour submitted a retrospective application.
40. The Council considered the application in the way it would consider a general planning application. It took account of Mr X’s concerns about the impact that the change in design would have on his residential amenity, as well as other material considerations.
41. The Council concluded that the changes to the design of the development would impact Mr X’s amenity in terms of sunlight, overlooking and leakage from the guttering. However, the Council decided that these were not significant enough to warrant the refusal of the application.
42. This was the Council’s decision to make, and I cannot question it if it was reached correctly. I have found no fault with how the Council assessed the planning application.

Conclusion

43. I have considered the steps the Council took to address Mr X’s concerns of planning breaches, and the information it took account of when deciding to not take formal enforcement action. I have found no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.
44. I have found no evidence of bias or Mr X’s perceived view that the Council operates a two-tier enforcement process.

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Decision

45. I find no fault with how the Council handled Mr X’s report of a planning breach.

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Investigator's decision on behalf of the Ombudsman