Summary: Ms X complained about errors in the Council’s consideration of her neighbour's planning applications dating back to 2014. We found no fault in the Council’s decision-making when considering enforcement action. There was fault when it failed to decide one of Ms X’s neighbour’s applications, but this did not cause Ms X significant injustice. There was also fault when the Council delayed responding to Ms X’s stage two complaint. Its earlier apology is sufficient remedy for the frustration caused.

The complaint

1. Ms X complained about errors in the Council’s consideration of her neighbour's planning applications dating back to 2014.
2. Ms X said the Planning Inspector and the High Court confirmed the Council incorrectly measured the height of the eaves of her neighbour’s home when approving a side extension under permitted development. She said the unauthorised development blocked their natural light and outlook to their kitchen.
3. Ms X would like the Council to reimburse her legal costs in pursuing the matter with the Council. She said that, but for the help of her solicitor, the Council would not have issued an enforcement notice over the works.

Back to top

The Ombudsman’s role and powers

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. 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)

Back to top

What I have and have not investigated

6. I cannot re-investigate issues already covered by the Ombudsman’s previous investigation and decision from 2017. I have included some earlier information for context.
7. I investigated events around the Council issuing a planning enforcement notice for the removal of Ms X’s neighbour’s side extension, and the later applications the neighbour made to build the side extension again and connect it to the rear extension.

Back to top

How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Ms X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Permitted development

11. 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’.
12. 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.

Certificate of lawfulness

13. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so does not need planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
14. This may happen where:

• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

Enforcement

15. 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.
16. 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.
17. Planning enforcement action is subject to statutory time limits. For breaches prior to 25 April 2024, the 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.

18. 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.

19. However, 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.

What happened

20. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
21. Before 2014, Ms X’s neighbour there had a single storey rear extension to the house and a garage to the side. Since 2014, the neighbour made several planning applications and submitted numerous lawful development certificates for extensions.
22. The Council approved a lawful development certificate for proposed single storey side and rear extensions in December 2014.
23. It was then brought to the Council’s attention Ms X’s neighbour’s plans were inaccurate and, in March 2015, the Council said it considered the neighbour’s construction needed planning permission as it was not permitted development. That was because the enlarged part of the house had a width greater than half the width of the original house. The Council advised the neighbour to stop work and submit an application or modify the works.
24. The neighbour also constructed a dormer roof extension at the rear of the house during 2015 and 2016.
25. The Council’s head of planning met Ms X at her home in November 2016. Ms X says she told the Council her neighbour’s extension was unlawful due to the eaves height, the extension not being next to the original building, and non-matching materials. Ms X asserts the Council told her to engage a solicitor.
26. In March 2017, the Council said it was satisfied the side extension met maximum height limits for a single storey extension within two metres of a boundary. It also said the neighbour’s plans show the flat roof extension does not exceed the eaves height.
27. Ms X complained to the Ombudsman in 2017. We did not criticise the Council for not revoking the 2014 certificate of lawful development or for the delay taking enforcement action, because of the competing legal arguments. We found the Council warned Ms X about the difficulties in taking formal action and we did not criticise the Council for wanting to wait until after Ms X’s neighbour’s various applications before deciding its next steps.
28. The Council granted planning permission for Ms X’s neighbour to keep the single storey rear extension in October 2017.
29. The Council refused Ms X’s neighbour’s application for a certificate of lawful development for their unauthorised single storey side extension on 29 March 2018.
30. In April 2018, the neighbour applied for permission to retain a roof extension including alterations from a hip to a gable end roof and rear dormer to the main roof. The Council refused permission.
31. The Council received legal advice from a barrister in July 2018. This was about the neighbour’s unauthorised single storey side extension, and whether it would be expedient for the Council to take enforcement action. The advice the Council received is privileged, so I have not repeated it.
32. The Council wrote to Ms X’s neighbour in February 2019 stating the single storey side extension cannot benefit from permitted development and is unlawful.
33. Ms X’s solicitor wrote to the Council on 8 March 2019 threatening judicial review. This was over what they said was the Council’s ongoing failure to take enforcement action. They said the Council told the neighbour in February 2019 that the side extension was unlawful but had not indicated it would take enforcement action. The solicitor threatened judicial review if this was not forthcoming.
34. The Council produced an enforcement report on 26 March 2019. It explained the Council did not grant consent for the single storey side extension because the width, when first constructed, was greater than half the width of the original house and was not constructed in materials similar to the existing house. The Council therefore deemed it was not permitted development.
35. The report also considered arguments from Ms X’s solicitor about a gap between the side extension and rear extension of the neighbouring home. They assert this was merely done to get around permitted development requirements.
36. The Council considered an enforcement notice could not require the removal of the rear extension, since prior assessment determined it was acceptable. It considered it was appropriate to proceed against the side extension only.
37. The Council also considered that, while it could act to remove the entire unauthorised side extension, it was only the rear part containing the kitchen which caused harm to Ms X’s amenity. As such, it was only proportionate to require removal of the part of the unauthorised extension which caused harm.
38. The Council issued an enforcement notice to Ms X’s neighbour on 5 April 2019, which took effect on 7 May 2019. The requirements were for the owner to:
• Reduce the depth of the single storey side extension.
• Remove all resulting debris from the land.
39. Ms X’s neighbour appealed the enforcement notice to the planning inspector.
40. In June 2019, the Council sought legal advice in relation to the dormer roof Ms X’s neighbour constructed without planning permission. The advice it received was that it was not expedient to take enforcement action. This was because there were other examples of hip to gable extensions and dormers on the street, and it did not have an overbearing impact on neighbours, given separation distances. There was not considered to be any significant loss of amenity.
41. The planning inspector dismissed Ms X’s neighbour’s appeal against the enforcement notice in February 2021.
42. In respect of the eaves height, the inspector said based on their observations at the site visit, it appears, on the balance of probability, that the height of the eaves of the flat roof of the side extension exceeds the eaves height of the existing house.
43. Ms X’s neighbour sought judicial review against the planning inspector’s decision. That was on the grounds that the planning inspector failed to consider the fact Ms X’s neighbour’s house had different eaves heights.
44. The High Court upheld the enforcement notice in October 2021. It decided the planning inspector’s assessment, without taking measurements, was acceptable.
45. The Council visited Ms X’s neighbour on 23 March 2022 to check compliance with the enforcement notice.
46. It found the neighbour had removed the section of the side extension highlighted on the enforcement notice. The appearance of the site was crude, owing to recent demolition works. The floor of the original extension remained intact. The neighbour said it contained underfloor heating pumps and to remove it would cause additional costs. They asked the Council to hold off further enforcement action on the floor until it decided a revised planning application. The Council agreed this was reasonable as the harm to amenity outlined in the enforcement notice was addressed. The owner said the tarpaulin erected on the boundary with Ms X will only be there for the duration of the demolition works. They would then erect a wooden fence.
47. Ms X’s neighbour then applied for a lawful development certificate to demolish the single storey sides extension and erect a revised new single storey side extension.
48. The Council did not make a decision on the application within the statutory eight-week period. Ms X’s neighbour therefore appealed to the planning inspector against the Council’s deemed refusal.
49. The planning inspector allowed the appeal on 19 October 2022 and issued Ms X’s neighbour a lawful development certificate for the proposed works.
50. The eaves height of Ms X’s neighbour’s new extension were lower, so as not to exceed the height of the existing house, and there was a new roof design so no part of the existing side extension would touch the rear extension behind the original house. These changes were designed to comply with permitted development rules. The inspector decided it was a materially different extension to that which was subject to enforcement action. They said the extension would not have a width greater than half of the width of the original house. They also found the plans showed the side extension extending 3 metres beyond the position of the rear wall on the original house, which complies with permitted development rules.
51. Ms X complained to the Council in June 2024 and sought reimbursement of her legal costs. Ms X said she spent more than £50,000 since 2015 as a result of the Council’s actions and mishandling of investigations into her neighbour’s unlawful extensions. Ms X said if the Council had not mishandled matters at the outset, they would not have incurred these costs.
52. The Council responded in August 2024. It said the complaint stems from a lawful development certificate it issued in December 2014. Those matters were investigated by the Ombudsman in 2017, and the Council would not re-open those matters.
53. The Council said the only recent issue Ms X mentioned was the Council’s failure to ensure the neighbour complied with an enforcement notice. Ms X’s solicitor wrote to the Council because the neighbour erected a tarpaulin. The Council said the neighbour complied with the enforcement notice. They erected the tarpaulin when demolishing the extension. The Council said once this was raised with the Council it acted and the tarpaulin was removed. It said it is not reasonable for the Council to reimburse legal costs incurred in relation to this.
54. The Council said some matters Ms X raised, such as about the party wall and trespassing, related to civil matters. Others related to appeals to the planning inspectorate, rather than actions of the Council.
55. Ms X sent further information. She said there were a catalogue of missed opportunities by the Council that cost them financially.
56. In its final complaint response, the Council apologise for delay considering Ms X’s stage two complaint. It said:

• Since it revoked the lawful development certificate it issued in 2014 Ms X’s neighbour submitted 16 planning applications and certificates. It also said there were legal submissions from Ms X and their neighbour, and applying the GPDO was not straightforward, with the position evolving over time.
• The Ombudsman’s decision from 2017 found that because of the competing legal arguments, there was no criticism of the Council wanting to be confident of its position before taking action.
• The height of the eaves was not obvious or clear cut, and it asked the planning inspector to rule on it. It also said the fact the Court allowed the challenge to the inspector’s decision to go ahead shows there was sufficient ambiguity.
• After the Court upheld the planning inspector's decision to uphold the enforcement notice, the neighbour submitted a lawful development certificate to rebuild the side extension within permitted development rules. The Council failed to make a decision in eight weeks, so the neighbour appealed and the planning inspector approved the certificate, despite the Council’s arguments.
• It cannot be held responsible for Ms X’s neighbour submitting an incorrect lawful development certificate in the first place, nor for their subsequent applications containing inaccurate or misleading information, or for their subsequent appeals and legal challenges.
• An assessment of a lawful development certificate looks at whether the proposal is lawful against permitted development rules, not at the impact on neighbours.
• Several factors contributed to the timescale of serving the enforcement notice, such as competing legal arguments the Council had to carefully consider.
• Officers explained to Ms X in 2016 that matters relating to a covenant were private civil matters and that Ms X may take her own legal advice on this. It said this is standard practice for private civil matters and was only a suggestion. It also said there was no suggestion the Council would reimburse these costs.

57. The Council ended by saying it cannot be held responsible for costs resulting from Ms X’s legal advice and her complaint was not upheld.

My investigation

58. Ms X told me her neighbour has now completed their extension. They did partially demolish the extension in March 2022. They then rebuilt the extension and asked the Council to approve this as permitted development. The Council delayed, so the neighbour appealed to the planning inspector. The planning inspector decided the rebuilt extension was permitted development. Ms X asked the Council to challenge this, as it was contrary to the High Court decision, but the Council refused.
59. Ms X said there was a gap between the side extension and the rear extension, which she considered was designed to get around planning rules. The neighbour then applied for planning permission to fill in this gap. The planning committee granted planning permission.
60. Ms X said the impact of the approved new extension is the same as the one which was demolished. It blocks their natural light and outlook, so they always need to have lights on in the kitchen.
61. Ms X said they were not told about the second involvement of the planning inspector, and the inspector did not visit her property to see the impact on them.
62. The Council told me Ms X’s neighbour applied to extend the side and roof of their property, which the Council refused. The neighbour then submitted a lawful development certificate for a single storey side and rear extension, which the Council approved. However, the Council then became aware the plans were inaccurate, leading to the Council serving an enforcement notice.
63. The Council said it cannot be held responsible for the fact Ms X’s neighbour submitted an inaccurate certificate initially, nor for their subsequent applications and appeals.
64. The Council said it obtained a range of professional and legal opinions, both internally and from external counsel, to ensure a thorough and balanced assessment of the situation before determining the most appropriate course of action.
65. There were several factors that contributed to the timescale of serving the enforcement notice. These were the competing legal arguments submitted by both parties, which needed careful consideration and assessment, and the submission of various applications the Council had to determine.
66. The Council said it has four years to act against unauthorised development and ten years for breaches involving changes of use or planning conditions. Its investigation and subsequent action were carried out within these statutory timeframes.
67. The Council said the development that was subject of the enforcement notice was found to have an eaves height of 3045mm, which exceeded the existing eaves height and therefore did not meet the parameters of permitted development. The new proposed extension subject of the lawful development certificate appeal had an eaves height of 2900mm. The difference in height is that the current extension is 14.4cm lower than the previous extension.
68. The Council acknowledged the development, as now constructed, results in a similar degree of impact on natural light and outlook to that of the previous extension. However, the enforcement notice sought to address the depth of the extension rather than its height. And while the dormer roof extension was refused via an application, the planning enforcement team considered the harm and used its discretionary powers to not take the matter any further.
69. The Council does not consider there are grounds to reimburse private legal costs. It considers there is no statutory basis for such reimbursement, and it acted within its professional and legal discretion at each stage, based on the information available at the time.

Analysis

70. Ms X said she raised the height of the eaves in December 2015. The Council disputes this. It says the issue arose later. The height of the eaves was considered by the planning inspector and by the High Court when the neighbour challenged the inspector’s decision.
71. If Ms X raised the height of the eaves with the Council in 2015, then she could have raised it when she complained to us in 2017. I have not seen evidence she did.
72. I appreciate the matter of Ms X’s neighbour trying to gain permission for their extensions has been ongoing for several years, and was only recently finally resolved, but the issue about the eaves was confirmed by the planning inspector in February 2021, and then again by the Hight Court in October 2021. That was over four years ago. Ms X’s neighbour’s later applications involved lower eaves height to comply with permitted development rules, so it was no longer a live issue.
73. Ms X said the Council should be responsible for checking the accuracy of plans. The plans in question were submitted in 2014, and were subject to a previous Ombudsman investigation in 2017. I did not reconsider these matters and consider any complaints about this period to have been addressed, or to be late.
74. Ms X alleges the Council told her to instruct a solicitor in November 2016 to challenge its decision to approve an earlier application. There is no positive evidence either way in the records I have seen. The Council asserts it said Ms X could take legal advice over what it considered to be private matters, and this is routine advice it gives. There was no suggestion it would reimburse Ms X if she sought legal advice. In any event, the Ombudsman will only consider recommending a remedy to reimburse costs which directly and necessarily flow from any fault identified.
75. At the time Ms X instructed their solicitor the Council was considering whether the neighbour’s current plans should be accepted as permitted development. There was also a suggestion the Council had delayed in taking enforcement action. Given the Council was considering an open application/certificate, we would not fault the Council for not taking enforcement action at that time.
76. Taking enforcement action is not straightforward. The Council needs evidence and must be mindful of the fact there is a right of appeal, which the neighbour used in this case. The Council is also under a duty to consider planning applications it receives.
77. The Council determined the side extension was not permitted development, and was therefore unlawful, on 12 February 2019. It produced an enforcement report in March and issued an enforcement notice on 5 April. I do not consider there is evidence of significant or unreasonable delay. The Council had to consider the impact of the unlawful works, expediency of enforcement, and possible defences/appeals. This was particularly the case in light of previous legal arguments.
78. The Council sought legal advice when deciding not to take enforcement action over Ms X’s neighbour’s dormer roof extension in June 2019. It considered other similar extensions in the area when making its decision, and also considered it did not result in significant loss of amenity. Enforcement action is discretionary and I cannot challenge the Council’s professional judgement. I saw no evidence of fault in this decision.
79. What unfolded was a continuous stream of planning applications, lawful development certificate applications, appeals, legal challenges and legal arguments. The Council also had to take its own legal advice. This underlines the complexities and the need for the Council to be sure before it made decisions or took enforcement action. I would not criticise the Council for its, at times cautious, approach. And I did not see any clear fault or periods of inactivity or drift over the period investigated which resulted in significant injustice to Ms X.
80. There was procedural fault by the Council when it did not reach a decision on the neighbour’s 2023 application for a certificate of lawful use or development to demolish the single storey side extension and erect a new single storey side extension. However, I do not consider this caused direct or significant injustice to Ms X. The result of the lack of a decision was a deemed refusal. The neighbour appealed to the planning inspector for a decision. Given the planning inspector granted the application and considered it to be lawful, on balance I must find the neighbour was likely to gain permission for it. It was likely the neighbour would have appealed even if the Council had made a decision in time. And if the planning inspector determined the extension was lawful then I cannot question that decision. Consequently, I do not consider Ms X suffered injustice. I recognise the revised side extension causes the same impact on Ms X’s amenity. However, that was not a material consideration. The Council and the inspector could only consider whether the proposal met permitted development rules.
81. This was clearly a complex matter, so I do not criticise Ms X or question their decision to take legal advice. However, we can only recommend a council reimburses legal fees which directly flow from any identified fault. That being the case, there is no basis on which I can recommend the Council reimburses any of Ms X’s legal costs.
82. I also found the Council was at fault for delay responding to Ms X’s stage two complaint. This will have caused frustration. However, I consider the Council’s apology at the time to be sufficient remedy for the injustice.

Back to top

Final Decision

83. I found no fault in the Council’s decision-making when considering enforcement action. There was fault when it failed to decide one of Ms X’s neighbour’s applications, but this did not cause Ms X significant injustice. There was also fault when the Council delayed responding to Ms X’s stage two complaint. Its earlier apology is sufficient remedy for the frustration caused.

Back to top

Investigator's decision on behalf of the Ombudsman