Summary: The Council was not at fault for the way it responded to Miss X’s reports of planning breaches in her block of flats. It took account of the relevant law and its own procedures and acted proportionately to resolve the breaches.

The complaint

1. Miss X complained the Council failed to act against breaches of planning permission and noise issues in the block of flats where she lives. She says this impacted her mental health and she had to pay unnecessary legal fees to challenge the Council. She wanted the Council to act against the developer and compensate her.

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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. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended).
5. Miss X’s noise complaint is late because it concerns Council actions that happened more than 12 months before she complained to us. I have not investigated events before February 2024. It was open to Miss X to complain to us sooner about events before that date and I consider it was reasonable for her to have done so.

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council have 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 permission and enforcement

8. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.
9. Material planning considerations may include:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

10. Material planning considerations do not include:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

11. 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.
12. 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.
13. 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.
14. 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).

Background

15. Miss X bought a flat within a large block of flats several years ago. The purchase included a section of an area previously designated as an outdoor communal area for Miss X to use as private outdoor space. Over the next couple of years, the Council pursued enforcement action against the developer over several potential breaches of its planning permission raised by Miss X. During this time, Miss X erected fencing around her outdoor area.

What happened

16. In early 2024 the Council issued a planning contravention notice (PCN) against the developer to find out whether it had resolved the potential breaches of its planning permission. At the same time, it emailed Miss X and told her it was investigating:
• The incorrect location of a bin store and cycle storage area.
• A breach of a planning condition requiring an area to be used as a car park, that was currently being used for storage.
• Unlawful fencing around Miss X’s outdoor space. The Council said this was not in accordance with the approved plans for the building.
17. A Council note shortly after confirmed the developer had removed the storage section of the car park, but no work had started on the bin and cycle stores. The developer told the Council it could not relocate the bin and cycle storage to the correct location as the correct location was now an allocated resident parking space. It said it needed to explore legal changes to the use of the space before it could proceed.
18. Over the next few months, the Council kept Miss X up to date about the situation, but the legal process over the parking space remained ongoing. Miss X complained to the Council. She said the developer had failed to comply with several planning conditions and the Council had failed to take enforcement action. She said the car park was still being used as storage and the bin and cycle storage were still in the wrong place. She also complained that the Council had failed to take action to clarify the layout of communal areas to confirm her private space and its fencing. At the same time Miss X started legal proceedings against the developer over the sale of the communal space to her.
19. The Council responded to Miss X’s complaint at stage one of its complaint process. It accepted there were breaches of several planning conditions including the location of the bin and cycle store and the layout of communal areas. It said the legal process over the parking space was holding up resolving these issues. It said the developer had restored the car park and agreed in principle to move the bin and cycle store. The Council said it had invited a retrospective planning application to resolve the issues over the communal spaces.
20. The Council remained in dialogue with the developer over the coming months. Miss X asked the Council to escalate her complaint to stage two. In its stage two response the Council reiterated it was addressing the issues as quickly as possible. Miss X remained unhappy and complained to the Ombudsman.
21. The Council recently served a breach of condition notice (BCN) against the developer over the location of the bin and cycle storage. In response to our enquiries the Council confirmed the developer had finished relocating the bin and cycle storage. It noted while the layout was slightly different from the approved plans, it did not consider it expedient to take further action.
22. The Council also noted an element of storage remained in the car park but said this was temporary and did not amount to a material change of use. It said the developer intended to submit an application over the revised communal layout. It said Miss X’s fencing remained unlawful.

My findings

23. Planning enforcement is discretionary, and councils are entitled to pursue informal as well as formal action to resolve breaches. The Council issued a PCN against the developer. The developer did not resolve the breaches immediately but explained this was due to the lengthy legal process around ownership of the resident parking space.
24. Throughout this time the Council remained in dialogue with the developer and issued a further notice to escalate proceedings. I am satisfied the Council acted proportionately, taking account of all relevant information in deciding what enforcement action to take and when. The Council was not at fault.
25. The Council is now satisfied the developer has relocated the bin and cycle storage, resolved the storage issues and has invited a retrospective planning application to address the issues with communal areas. Our role is not to ask whether the Council 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.
26. In deciding to take no further action against the developer, and inviting a retrospective application, the Council took account of the relevant guidance, information from Miss X, the developer and its own policies. It followed the appropriate procedures when making its decision and I cannot therefore criticise it. The Council was not at fault.
27. Miss X remains unhappy that the issue around her outdoor space is unresolved. The buying process is a private matter between Miss X and the developer. It is not a matter for the Ombudsman. If Miss X wishes to resolve the issue of her fencing it is open to her to either apply for her own planning permission or remove the fencing.

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Decision

28. I find no fault.

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Investigator's decision on behalf of the Ombudsman