Summary: Mr X complained the Council failed to properly investigate or take appropriate enforcement action in relation to breaches of planning permission at a neighbouring property. Mr X also complains the Council has wrongly approved a retrospective planning application and included a planning condition that does not secure its objective. We found the errors and delays in considering and responding to Mr X’s concerns about breaches of planning control are fault. As is the failure to specify the level of obscurity to be retained in the planning condition. These faults have caused Mr X distress and uncertainty. The Council will apologise and make a payment to Mr X.

The complaint

1. Mr X complained the Council failed to properly investigate or take appropriate enforcement action in relation to breaches of planning permission at a neighbouring property. Mr X also complains the Council has wrongly approved a retrospective planning application and included a planning condition that does not secure its objective of protecting the long term privacy of Mr X property.
2. In addition, Mr X complains the Council has failed to properly investigate his concerns that his neighbour has not installed level four obscure glass as required by the planning condition.
3. Mr Y is assisting Mr X in raising this complaint.

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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)

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How I considered this complaint

6. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
7. Mr X, Mr Y 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

Planning enforcement

8. 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.
9. 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.
10. 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.
11. 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)

What happened here

12. The following is a summary of events outlining key facts relevant to our consideration of the complaint. It does not include everything that happened.
13. Several years ago the Council granted Mr X’s neighbour, Mr Z planning permission to build a single story extension. As work on the extension progressed Mr X was concerned it was not being built in accordance with the approved plans. In early September 2023 Mr X contacted the Council regarding the height of the new extension, which he considered was higher than shown on the plans. He also noted the roof did not appear to be as shown on the approved plans.
14. An officer visited the site and met with Mr X the following month. The officer then wrote to Mr X in January 2024 with a copy of the enforcement report confirming there was no breach of planning control and they did not intend to take any further action.
15. The report noted a window and door had been altered from the original plan but considered there was no additional detrimental impact. It also noted the separation distance between window to window of 11m. It said this was only a modest shortfall from guidelines which state 12m gaps, which could be reduced when the windows are at an angle.
16. The report also considered the roof generally complied and any roof height changes were negligible and would not impact on the extension or neighbouring properties. In addition it considered the height of the extension was more or less in line with the approved plans. A window had been placed two or three bricks higher than the plans but had no detrimental impact on the design.
17. Mr X disputed the Council’s view and raised a formal complaint. He consider the enforcement report failed to deal with the substance of his complaint, contained factual inaccuracies and misrepresented the Council’s own policy on house extensions. Mr X maintained the extension as built was significantly higher than his property than was shown on the approved plans. As a result it was overbearing and led to direct overlooking of principal windows in Mr X’s property which is at a significantly lower height.
18. Mr X noted the approved plans showed the extension stepped down but it had been built to maintain the same floor level as the existing house. This meant the extension wall along the boundary was much higher than approved and the windows in the extension facing Mr X's property were also much higher.
19. In addition Mr X complained the Council had wrongly applied its own guidance as there should be a distance of 21m between facing windows rather than 12m.
20. The Council acknowledged Mr X’s complaint and said it would respond by 16 February 2024. An officer visited Mr X on 12 February 2024 to view the extension from Mr X’s property and discuss his concerns. Mr X then chased the Council for an update on 10 March 2024. The officer apologised for the delay and said they would be unable to provide an update until 12 April 2024.
21. Mr X then chased the Council again on 16 and 24 April 2024 as he had not received an update. The officer advised they hoped to respond before 9 May 2024. This was then extended by a further week.
22. The Council responded to Mr X’s complaint on 16 May 2024. It acknowledged it had taken longer than its published timeframes to investigate Mr X’s report of a breach of planning control. The Council apologised for the lack of proactive updates and progress on the case.
23. The Council was satisfied the conclusion that the overall height of the extension was more of less in line with the approval was a reasonable one. However there was a clear step in the eaves lines of the extension which was not shown on the approved drawings. This resulted in an increase height in the flank wall adjacent Mr X’s boundary.
24. In relation to the height and position of the windows, the Council noted their form and proportions differed from those approved. A window serving one of the rooms allowed for significant overlooking of Mr X’s garden because it was so close to the boundary and its height above the boundary fence. The Council suggested this may not have been so obvious when the officer visited in October 2023 as the boundary fence had been removed. The fence had been reinstated when the officer visited in February 2024 and the relationship was clear. The Council noted views into Mr X’s bedroom window were prevented by the boundary fence.
25. The Council also confirmed the approved drawings showed a change in floor levels in the extension of 700mm. During their recent visit the officer noted the floor level had only been lowered by approximately 200mm. This was a significant contributory factor in the change in window heights.
26. Given the harm this caused to Mr X’s living conditions, the Council confirmed the decision to close the enforcement case was not appropriate and the case would be reopened.
27. In addition, the Council acknowledged that the reference to the separation distances in the enforcement report did misinterpret or misrepresent the Council’s supplementary planning guidance (SPG). It apologised and confirmed the guidance identifies a 21m window to window distance.
28. The Council noted the distance from the new window to the side facing window in Mr X’s property was 17.5m which was below the 21m privacy distance. However this could be reduced where windows are angled rather than directly facing. In this instance the Council noted there was a clear view into Mr X’s property and the proximity of the window to the boundary allowed a direct view of Mr X’s garden.
29. The Council told Mr X it would invite his neighbour to submit an application to seek approval of the works with remedial elements to remove the overlooking element. The Council would then make a judgement on the extent of any deviation and the consequential impact.
30. Mr X questioned what modifications could be made under a retrospective application that would be acceptable. He did not consider the issues could be resolved by replacing the windows with high level windows or through re-glazing with obscure glass. Mr X felt the Council needed to take immediate enforcement action to remedy the breach rather than seek a retrospective application.
31. The Council wrote to Mr Z and his agent to confirm the scope of the changes between the approved and as built extension and invited a retrospective planning application. Mr Z subsequently submitted a planning application. Mr Y made representations objecting to the application.
32. During the course of the application Mr X made a Freedom of Information request for copies of pre-application correspondence between the Council and Mr Z/ his agents. Having received this information Mr Y then made a further complaint to the Council. Mr Y asserted they had been substantially prejudiced when making representations by the Council’s failure to provide this information earlier. He was concerned the Council was not considering the application on its objective merits but rather to avoid the need for enforcement action.
33. The Council told Mr Y that informal pre-application advice to an applicant while resolving an enforcement complaint is routinely considered confidential and would not be shared. It did not agree that Mr Y had been prejudiced or that his ability to make representations was affected by not having sight of this correspondence.
34. Mr Y made further representations when Mr Z submitted amended plans. He was unhappy when the Council then informed him Mr Z would be submitting further amended plans following the officer’s discussion with Mr Z’s agents.
35. Mr Y asked the Council to escalate their complaint to stage two of its complaint procedure. Mr X complained the application should not have been validated as the plans were inaccurate and the Council should not have allowed Mr Z to amend the application once validated. He noted Government guidance emphasized the need to deal with breaches of planning control swiftly. And asserted the length of time being taken to determine the application or recognise the harm caused raised significant concerns about the approach the Council was taking.
36. The Council assessed the application and granted planning permission subject to conditions. This included a requirement for the two new windows facing Mr X’s property to be obscure glazed to a minimum standard of level 4 obscurity.
37. The case officer’s report noted that one of the windows would allow for considerable overlooking of Mr X’s rear garden and the windows to a bedroom. In relation to the Council’s SPG it noted the windows do not directly face Mr X’s windows, so the 21m minimum separation distance was not directly applicable. A shorter distance was justified while taking account of the difference in land level.
38. The distance between the main windows was 9-10m with Mr X being on lower land. Without mitigating circumstances the resulting relationship would be unacceptable in term of privacy. The report noted the guideline applied to clear glazed windows as obscured windows would not affect privacy. It concluded the windows should be obscure glazed to a suitable standard and non-openable up to a height of 1.7m. This would ensure there would be no unacceptable overlooking of Mr X’s property.
39. The Council responded to Mr X’s complaint in early 2025. It accepted the detail around what was being applied for initially caused some confusion within its administration team. And that there were grounds for the application to be invalidated until it established clarity around the proposal and the type of application.
40. However, the Council was satisfied that once this issue was identified, officers took steps to bring the application to a resolution. It apologised for the initial confusion.
41. The Council also said it was at the Council’s and applicant’s discretion to agree extensions to the deadline to determine a planning application. It said the parties were seeking a resolution to a challenging situation and felt allowing extra time to reach a positive conclusion was justified.
42. It also reiterated that it was standard practice for the Council to treat pre-application enquiries as confidential. The Council was satisfied there was nothing unlawful in this approach.
43. In February 2025 Mr X raised concerns about the level of obscure glass installed in his neighbour’s property. He did not believe Mr Z had used level 4 obscurity and suggested a plastic film had been applied over the glazing.
44. Although an officer visited the site to check compliance in late February 2025, they did not inform Mr X. Mr X chased the Council for an update in April 2025 and the Council responded the following month. It apologised for the delay and confirmed it had visited and it appeared obscured glazing had been installed. However, given Mr X’s concerns about the use of an obscured film, the Council said it would investigate further.
45. The Council then wrote to Mr X in late May 2025 advising an enforcement officer had visited and confirmed the windows had been obscure glazed rather than obscure filmed. The Council also confirmed it was satisfied with the level of obscurity and would not take any further action.
46. Mr X made a formal complaint in June 2025. He said they were able to distinguish clearly people and objects through the windows, which would mean Mr Z was able to see them moving around their house and garden. Given this inter-visibility Mr X disputed that level 4 obscure glazing had been fitted and questioned the effectiveness of a visual inspection. He asked the Council to obtain evidence Mr Z had installed level 4 glazing.
47. Mr X also asserted that if level 4 obscure glazing had been installed it demonstrated that the condition was not adequate to overcome the privacy issues.
48. The Council responded in early July 2025 confirming it had contacted Mr Z again and was satisfied they had installed glazing of level 4 obscurity. It also confirmed its decision to take no further action stood.
49. As Mr X remains dissatisfied, Mr Y has asked us to investigate his concerns. He said the uncertainty caused by the Council’s handling of the situation caused Mr and Mrs X great distress.
50. In response to my enquiries the Council acknowledges the enforcement process spans from September 2023 to July 2025 and involves two separate cases.
51. It received Mr X’s initial enforcement enquiry in September 2023 and issued a response in January 2024. This exceeds the target of 25 days set out in its local enforcement plan. It also notes the stage 1 complaint response accepts the case should not have been closed.
52. The second enforcement case began in January 2025 following compliance monitoring, prior to Mr X raising concerns in February 2025. This case was not formally closed until July 2025.
53. Although 22 months passed between the initial complaint and case closure, the Council notes there was substantial interaction & investigation. It acknowledges some actions could have been completed more promptly; closing the initial case prematurely was an error; and there were occasional lapses in progress. It does not however consider the delays in the case to be significant.
54. The Council also acknowledges it did not respond to Mr X’s formal complaints within the timeframes set out in its complaints procedure either. But says Mr X received progress updates throughout the stage 1 process.
55. The Council notes its stage 1 response to Mr X’s complaint addressed the error in the enforcement report and the possible views into Mr X’s bedroom. Guideline 6 of the SPG deals with privacy and refers to a 21m window to window separation distance. While guideline 5 deals with overbearing impact and overshadowing and refers to a 12m separation distance. The Council says it correctly interpreted and applied its SPG when assessing the retrospective application.
56. In addition the Council says it has long applied a similar standard condition to that used in this case regarding the need for obscure glazing, without any issues. However it has now reviewed and revised the condition. It recognised that prohibiting clear glass alone allows for varying degrees of obscurity. Its standard condition now requires glazing once installed to be retained at an equivalent specification.

Analysis

57. The Ombudsman is not an appeal body. It is not our role to determine whether there has been a breach of planning control or whether enforcement action should be taken. That is the Council’s role. Our role is to look at the way these decisions are made, and to consider if any fault in the process is likely to have affected the outcome.
58. There is no dispute that there have been errors and delays in considering and responding to Mr X’s concerns about breaches of planning control. The Council accepts it was an error to close the initial enforcement complaint in January 2024, and that the enforcement report misrepresented its SPG. There was also a lack of clarity regarding the scope of the retrospective application which led to confusion regarding what Mr Z was seeking approval for. The Council also accepts that matters were not progressed as promptly as they should have been.
59. These delays and errors amount to fault and caused Mr X unnecessary distress and uncertainty.
60. Mr X and Mr Y disagree with the Council’s decision to grant retrospective planning permission on the condition the windows are obscure glazed. However, I am satisfied the Council took account of all relevant evidence and followed a proper decision-making process in this regard. The case officer’s written justification is detailed and reasoned. It shows the officer considered the impact on Mr X’s privacy, having regard to its SPG guidelines. The officer acknowledges the guidelines do not explicitly encourage or allow for mitigation measures such as obscured windows to address privacy issues. But notes the SPG is intended to be a guideline and should not be applied slavishly, and requires judgement based on the levels of harm identified.
61. The condition required the installation of level 4 obscure glazing but does not specify that this level of obscurity must be retained. The Council clearly considered level 4 obscurity was necessary in this instance and the failure to require it to be retained in these windows is fault. The Council has now revised its standard condition to require the specified level of obscurity to be retained. This is to be welcomed and should ensure there is no uncertainty in future cases. However it does not assist Mr X or address his concerns that the glazing could be replaced at some point in the future. This fault has added to Mr X’s distress and uncertainty.
62. The delays in responding to Mr X’s complaints are also fault and will again have exacerbated Mr X’s distress and uncertainty.

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Action

63. The Council has agreed to:
• apologise to Mr X for the distress and uncertainty caused by its errors, delays and poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Mr X £500 to recognise the avoidable distress the errors, delays and poor communication caused.
64. The Council should take this action within one month of the final decision on this case and provide us with evidence it has complied with the above actions.

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Decision

65. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman