Summary: Mrs X complains the Council has not properly considered taking enforcement action against breaches of planning permission. The Council is not at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not properly considered taking enforcement action against breaches of planning permission for a development near her home, including:

• The location of buildings on the site;
• Raised terraces that were not on the approved plans;
• Missing retaining walls; and
• Works to an oak tree which is subject to a Tree Protection Order.

2. Mrs X says she has suffered avoidable distress.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. 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.
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about a decision to refuse planning permission

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What I have and have not investigated

9. I have investigated that part of Mrs X’s complaint about how the Council has dealt with enforcement action from January 2024 to July 2025
10. I have not investigated any period of time before January 2024 as this is out of time. The Council is still considering some issues concerning hard landscaping. I cannot consider those matters as part of this investigation. I have not investigated the most recent permitted works to the tree as this occurred after Mrs X complained to the Ombudsman.

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How I considered this complaint

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

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What I found

Law, guidance and policies

Enforcement

13. 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.
14. 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.
15. 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.
16. 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 Options

17. 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.

18. 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.

The Council’s Enforcement Policy

19. The Council’s policy says it aims:
• To exercise the planning enforcement powers of the council on an individual case by case basis of the expediency and public interest, before taking action. The council has a wide range of planning enforcement powers but must act in accordance with national policy and guidance.
• If the council considers that a breach of planning control has occurred, officers must then decide whether or not this is sufficiently harmful as to require action to be taken in the public interest, having regard to the facts of the case. At one end of the scale, if no or little harm is identified, the matter could be treated as a ‘technical breach’ with no further action to be taken, or a planning application might be invited to ‘regularise’ the situation. At the other end of the scale, where it is assessed that serious harm has occurred, a formal notice might be served and other formal steps considered.
• To protect and enhance Rother District Council by active and responsible use of the full range of enforcement powers.
20. The policy explains how complaints are considered:
• The complaint will be recorded and acknowledged, so long as the minimum required information of address and location is provided. Complaints made based on sound planning issues will be investigated, while non-planning related matters where there is a potential breach of other legislation will be referred onto relevant regulatory authorities, where it is not a civil matter between individuals or landowners.
• Civil matters are private matters between the respective parties and can include loss of value to property, competition with other businesses, land ownership and boundary disputes or breaches of covenant.
• An assessment is then made as to the nature and degree of harm of any breach in relation to relevant planning policy, legal context and the need for remedial action. Following this assessment, the Council will consider how to proceed with the investigation.
• The Council will only take formal enforcement action when expedient to do so. Formal enforcement action will not be instigated solely to regularise trivial breaches of planning control. In taking formal enforcement action, the Council will be prepared to use all the enforcement powers available, but the action taken will be commensurate with the seriousness of the breach.
• Where complaints are investigated an acknowledgement letter will be sent within 7 working days of receipt and the initial assessment which may require a site visit will be undertaken within 2, 10 or 20 working days of receipt depending on the seriousness of the breach. After the initial assessment a decision will be made within 3 months of receipt as to whether or not planning permission is necessary for the development.
• If planning permission is required a decision will be taken as to whether to:
1. Take no further action and recommend case closure
2. invite a planning application (only if permission is likely to be granted),
3. advise them to take remedial action to achieve a satisfactory negotiated outcome with the interested parties within a practical timescale
4. take enforcement action in respect of those breaches that are unreasonably harming amenity or the environment, having regard to the development plan and any other material considerations.
• This ‘action stage’ will follow up on the above matters after suitable timescales. These timescales are indicative and may vary considerably depending on the nature, complexity and severity of the planning breach, the negotiated outcome required or the details to be submitted for the submission of retrospective planning permission.
21. Actions open to the Council in respect of enforcement include taking no formal action, inviting a retrospective planning application, issuing a planning contravention notice, issuing a breach of condition or enforcement notice, applying for a planning enforcement order, issuing a stop notice and applying for injunction.

What happened?

22. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
23. The developer submitted a planning application for a housing developing near to Mrs X’s property in 2020. The Council refused this planning application.
24. The developer appealed the refusal decision to the Planning Inspector. The Planning Inspector granted the developer’s appeal in September 2021.
25. The development has started to be built.
26. Mrs X contacted the Council repeatedly about various aspects of the development since the development work began. Mrs X complained to the Council in January 2025. The Council did not uphold her complaint

Analysis

27. Since January 2024 the Council says Mrs X has raised issues relating to ground levels, damage to a tree, privacy and overlooking, and light pollution.
28. The Council says it:
• conducted 14 enforcement site visits between 2022 and 2025.
• commissioned a site survey to assess the development;
• considered and approved hard landscaping details for the development;
• Approved boundary treatments to the development site; and
• Is considering further revised hard landscaping proposals from the developer.
29. I have reviewed the available planning documents for the original application and the planning appeal, together with subsequent correspondence dealing with discharge of condition applications.
30. I have reviewed a copy of the site survey report provided by the Council.
31. I have reviewed a large number of photographs taken during site visits provided by the Council as well as photographs provided by Mrs X.
32. I have reviewed the enforcement policy of the Council.
33. The granting of planning permission by the Planning Inspectorate is not fault by the Council.
34. The Council has been asked to consider taking enforcement action against the developer in respect of the plans approved by the Planning Inspector.
35. I have reviewed the available photographs of the buildings immediately adjacent to Mrs X’s property. They are consistent with the building designs approved by the Planning Inspector.
36. The site survey report commissioned by the Council found that, “there is no evidence to suggest any discrepancy or that the constructed Plot levels are not in accordance with the approved planning drawings.”
37. The Council accepts that by approving plans in relation to the discharge of conditions that additional areas of hard landscaping have been introduced to the development. It says, “However, the raised terraces remain relatively narrow and close to the rear walls, and it is not considered that they afford new opportunities for overlooking beyond what already exists from the windows in the new build properties at ground and first floor levels. The raised terraces are not considered large enough to give rise to any concern in respect of noise or disturbance.”
38. The Council also says, “the originally approved plan shows the dwellings … with large areas of flat garden adjoining the rear elevations of the dwellings, consisting of both soft landscaping and hard landscaping (albeit smaller in area than now provided), but notably of the same spot heights. The gardens then steeply step down towards the …. boundary. The landscaping details subsequently approved, and specifically the raised terraces, are at the same height as the originally approved garden heights adjoining the rear elevations of plots 12 and 14, but the soft landscaped areas have been lowered, thus arguably having less of an impact on Mrs X’s property in terms of overlooking.” Having reviewed the plans, I agree the Council’s comments relating to heights are accurate.
39. In relation to the tree works, the Council says, “there was no clear evidence at that time that the tree in question had been recently pruned by the developer and nor was there any evidence that the tree had been seriously harmed by any recent pruning. Therefore, as explained to Mrs X at the time, the Council did not consider it expedient or proportionate to pursue the matter further and the investigation into this matter was closed with no further action being taken.” The photographs I have seen of the tree are from multiple angles and in close up detail. It shows the tree at different times in different seasons, indicating multiple site visits and consideration of the tree over many months. There is no indication of serious harm or pruning. On the balance of probability, the Council’s explanation above is correct.
40. Although the development has a clear impact on Mrs X and her home, this is primarily as a result of the Planning Inspector’s decision to allow the development planning application.
41. The Council has investigated Mrs X’s concerns about the development near her home. On the balance of probability, it has considered and made decisions about whether it should take enforcement action on the results of site inspections, a further site report and in accordance with its enforcement policy. This is not fault by the Council.

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Decision

42. I find no fault.

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Investigator's decision on behalf of the Ombudsman