Summary: Mr D complains the Council failed to properly investigate an alleged planning breach. The Ombudsman has not found evidence of fault by the Council and has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to properly investigate his reports of a planning breach in 2018. He states a new build home is too close to his property and not in line with the approved plans and the Council should take enforcement action.

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What I have investigated

2. I am looking at events from 2018 onwards.

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The Ombudsman’s role and powers

3. The Ombudsman cannot investigate late complaints unless he decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
4. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
5. If we are satisfied with a council’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)

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How I considered this complaint

6. I have considered the information supplied by Mr D. I asked the Council questions and carefully examined its response.
7. I have shared my draft decision with both parties.

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What I found

What happened

Background

8. In 2015 the Council’s Planning Committee approved planning permission for new houses near Mr D’s home. The Planning report did not refer to Mr D’s house.

Events I have investigated

9. Mr D says he contacted the Council on 29 September 2018 to discuss planning issues. I have no contemporaneous records of that call. On 10 October 2018 Mr D contacted a Planning Officer at the Council. He was unhappy that a new home nearest his property would overlook his garden and he believed it was higher than permitted. He wanted the Council to shut down the build whilst it investigated. The Planning Officer responded two days later and asked for Mr D’s address and details of the property he was complaining about. Mr D responded the same day but did not give the information requested. On 18 October Mr D visited the Council and met the Planning Officer. He supplied details about his property and the new build. The Planning Officer emailed Mr D later that day and explained the planning enforcement investigation process. The next day the enforcement case was allocated to the same Planning Officer to investigate. On 23 October Mr D complained, via a Councillor, about the Council’s handling of the case.
10. On 2 November, the Planning Officer carried out a site visit to the new build and to Mr D’s home. He took measurements from both sites and assessed the height of the new property. He found the height appeared to be in line with the approved plans but would check further. He noted there were two upstairs windows at the new property which could overlook Mr D. One was already set as being obscure glazed and he would ask the developer to do the same for the second window at a meeting. On the same day, the Council responded to Mr D’s complaint. It explained what was happening with the enforcement investigation and indicated there had not been any delay.
11. On 28 November Mr D’s solicitor wrote to the Council complaining about its failure to take action. The next day the Planning Officer met the developers to check measurements and ground levels. It was noted that whilst there was a difference between site measurements and those on the plans this was in part due to problems identifying the boundary. Mr D was in a boundary dispute with the developers and the plans did not necessarily show the exact boundary. In respect of ground levels there had been some levels raised to the front of the new property but these were in line with the approved plans. The developer agreed to the obscure glazing of the second window at the new build. On 30 November, the Planning Officer emailed Mr D’s solicitor about what actions had been taken. On 3 December, the Planning Officer recommended the enforcement case be closed because the new build was being built in accordance with the approved plans. He had found no breach of planning control.
12. On 8 January 2019 Mr D contacted the Council reiterating his complaint. On 13 January, the Chair of the Planning Committee forwarded an email from Mr D to the Planning Team. The Council replied to Mr D’s complaint on 22 January. It outlined the enforcement investigation and the Planning Officer’s view. On 24 January, the enforcement case was closed.

What should have happened

13. When the Council receives a report alleging a breach of planning control it will be logged and allocated to a Planning Officer to carry out a planning enforcement investigation. The Planning Officer will make a site visit within 20 working days and contact any parties needed if there is further information required. The Planning Officer assesses if there is a breach of planning control, for example whether a build is in line with approved plans and conditions. If a breach is found the Officer has to decide if it is proportionate to take formal enforcement action. If no breach is found the Officer will recommend the case is closed.
14. Under the Council’s policy, and in line with Government guidance, it will seek to negotiate a remedy to all but the most serious planning breaches. If an Officer can agree a way forward without formal action they are expected to do so.

Was there fault by the Council

15. Mr D says the Council delayed in its enforcement investigation. I have not seen evidence of any such delay. The Planning Officer carried out a site visit well within the expected 20 working day target. He then arranged to meet the developer the same month to clarify matters before reaching a decision on the case. I appreciate Mr D feels the overall investigation took too long but I see no evidence of unreasonable delay by the Council.
16. The evidence shows me the Council acted in line with procedures when investigating Mr D’s case. It took account of the information he provided, visited the site, took measurements and liaised with the developer to verify information. The Planning Officer did not find evidence of a breach of the approved plans. He found distances between properties were acceptable. He noted there was the potential for a bedroom window to overlook Mr D’s home and took reasonable steps with the developer to negotiate a remedy. I see Mr D wanted the Council to stop the build whilst it investigated. There was no duty on the Council to do this. It followed the correct process to consider Mr D’s case.
17. Mr D refers to contacting the Chair of the Planning Committee whom he says did not pass on his concerns to the Planning Team. There was no need for Mr D to contact that person as he was already aware the Council was investigating his case. The Chair of the Planning Committee has no role in an enforcement investigation and so would not be able to assist. I see an email was referred by that person to the Planning Team in 2019 but the Council had already completed its assessment of Mr D’s report. I do not see evidence of fault or that any injustice would have arisen in this matter.
18. Mr D feels the Council should have sent him a decision letter on the enforcement case rather than setting out its actions in a complaint response. Whilst the Council would usually send a separate enforcement decision letter I do not see that its sending that information as part of the complaint response was a significant fault. The letter clearly explained what decision the Council had reached and why.
19. I appreciate Mr D disagrees with the Council’s decision. He disputes the measurements and the decision to not take enforcement action. However, the Council has fully assessed Mr D’s case in line with procedures. It is not the Ombudsman’s role to question the merits of such decision where the correct process has been followed.

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Final decision

20. Subject to further comments by Mr D and the Council I intend to complete the investigation and not uphold the complaint.

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Parts of the complaint that I did not investigate

21. I am not looking back to the original planning application and decision to grant planning permission in 2015. The Ombudsman would expect a complaint to be made to him within 12 months of the complainant being aware of the issue.

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Investigator's decision on behalf of the Ombudsman