Summary: Mr X complains there was fault in how the Council dealt with unauthorised development by his neighbour. There was fault in the way the Council decided a planning application and a subsequent report to the planning committee did not make this clear. There was a delay in taking planning enforcement action and a failure to properly consider action for the removal of trees when it was first apparent. However, the Council has since considered retrospective planning applications for changes to regularise the breaches. We found, despite the faults we identified, it was not likely the outcome would have been different. The Council agreed to make a payment to recognise the impact of the delays and other faults identified.

The complaint

1. Mr and Mrs X complain:
• the Council failed to deal with planning enforcement reports about a neighbour’s development within a reasonable timescale;
• the Council failed to take appropriate action in response to their enforcement reports;
• the case officer reports presented to the planning committee for two 2019 retrospective planning applications were misleading and inaccurate;
• the decisions the Council took to approve the two retrospective planning applications ignored information provided by objectors and went against council policies.
• the neighbouring development has affected their amenity unreasonably.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I spoke to Mr X and considered information he provided. I looked at the planning applications decided in 2015, 2016 and 2019 for the development adjacent to Mr X’s property.
5. I considered planning decisions back to 2016 because Mr X made an earlier complaint to us which could not be decided at that time. This was because it was necessary to wait until the eventual decisions about enforcement had been made.
6. I asked the Council for information and considered the online planning files, council response and guidance concerning planning enforcement matters.
7. I sent my draft decision to Mr X and the Council to enable both parties to comment. I considered the comments I received before reaching a final decision.

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What I found

Planning Applications in 2015/16

8. Mr X lives in a conservation area. In 2015 a developer submitted a planning application for the re-modelling and extension of a property adjacent to his. I have referred to this as Planning Application A.
9. The plans submitted for Planning Application A showed the position of existing buildings. They showed clear space between the existing garage and the boundary with Mr X’s property with three trees growing in this space. Planning Application A did not propose work to the existing garage and the application form stated there would be no work to any trees as part of the application.
10. The Council approved Planning Application A.
11. In 2016 another planning application was submitted (Planning Application B). This was also for an extension to the house and the replacement of the garage and adjacent outbuilding.
12. The case officer visited the site in March 2016. The site inspection notes for Planning Application B are blank. However, I understand, at the time of the site visit, the existing garage had already been knocked down, without permission.
13. Planning Application B proposed a replacement garage against the boundary with Mr X with a ridge height of 5.5m. It also proposed connecting it to the main house. In correspondence, the case officer told the applicant this was not acceptable. He stated there would need to be a very clear break between the garage and the house. He stated the Council would accept a like for like replacement without the link, retaining the element of space in that part of the site. The officer referred to other points and stated in its current form the application would be refused.
14. The applicant submitted revised plans in April 2016. The plans showed the link to the house had been removed. The rear of the garage was no longer part of the boundary wall, but it was still to be built right up to it. The proposed garage was still closer to the boundary wall than the existing garage had been. The existing position had been evidenced by the plans submitted with Planning Application A. In addition, the April 2016 plans specified that the ridge height of the new garage would be 6m, higher than that rejected by the Council in 2015.
15. When assessing Planning Application B, the case officer noted the site was in a conservation area and the application property was considered a non-designated heritage asset. He noted space around the buildings was key to maintain the atmosphere in the area. The case officer’s report refers to the existing garage, but does not indicate it had been demolished already. Referring to the garage and outbuilding, the case officer’s report states:

“The applicants…seek to demolish this structure and erect an almost like for like replacement. The proposed out-building, would take on a slightly different foot-print to the existing garage, however, this not being erected any closer to either of the sites northern, or eastern side boundaries and would carry forward the same ridge height and architectural style and form as the existing structure.”

16. The case officer stated the proposed garage was “an almost like for like replacement” and he considered “the nature, siting and scale” would be acceptable. The case officer used his delegated powers to approve Planning Application B.

Mr X’s Enforcement Reports

17. In October 2016 Mr X raised concerns about the replacement garage. He noted the Council sought a like for like replacement, but this was not being built. Mr X said;
• He estimated the original garage was 4m high. The garage proposed in Planning Application B had been higher. So, it was not like for like.
• The new garage was being built right up to his boundary. The original was set back from the boundary with three trees growing in the space up to the boundary.
• The developer submitted misleading and inaccurate plans for Planning Application B. A plan suggested the existing garage had also been right on the boundary. This was not accurate. The plans the developer had previously sent (for Planning Application A) showed the existing garage was set back from the boundary.
• The developer had demolished the existing garage without permission and without a bat survey taking place and he had removed trees without permission.
18. The Council considered Mr X’s concerns. Initially, it reached the decision there was no breach of planning control in respect of the garage. However, in December, a team leader visited the site and met Mr X. She responded after referring to the Council’s legal team. She stated:
• The Council did not consider the developer committed an offence by providing inaccurate plans. So, the Council had no grounds to revoke Planning Permission B. However, she accepted the incorrect plans and statements by the developer should have been picked up by the planning officer when carrying out his site visit. He should have checked the plans to make sure they were accurate.
• She accepted by approving the drawings as submitted, the Council had granted permission for a larger garage (with a ridge height of 6m). She acknowledged Mr X’s concern that the developer misled the council deliberately. She apologised the officer had not picked up on the discrepancy but stated the only recourse now was through the courts.
• She also accepted that permission was needed to remove trees in a conservation area and agreed to pass this to the enforcement team.
19. Mr X engaged a solicitor and made a complaint to the Council in January 2017. I have not repeated the exchanges between the Council and Mr X’s solicitor here. However, they re-iterated Mr X’s concerns about the developer’s actions and the height and position of the garage. Mr X wanted the planning permission revoked.
20. In February 2017 the Council carried out a visit to the site and confirmed the development was not being built in accordance with the approved plans. Some of the changes related to the garage but there were numerous other breaches in the development too. The Council asked the developer to stop work on any elements of the development that were unauthorised and submit a retrospective planning application.
21. The Council warned the developer several times to stop works. There is evidence officers discussed issuing a formal stop notice. They advised the developer that any work they continued to carry out would be at their own risk. Officers also involved the legal department.
22. In correspondence with Mr X in May 2017 the Council’s stated:
• Because the developer had not built in accordance with the plans from Planning Application B, it did not consider it had been implemented. So, it was not necessary to revoke it as Mr X had asked. The Council did not consider there was injustice caused by its decision to approve it.
• When the case officer visited the site to assess Planning Application B in March 2016 the garage had already been demolished. It was intact when it considered Planning Application A. The Council accepted the officer did not identify the increase in ridge height or incorrect position of the replacement garage in 2016. It stated the officer relied, in good faith, on the plans submitted by the applicant.
• The Council stated “while the approved application may not be a like for like replacement it is considered…the approved application would not result in harm to residential amenity through appearing overbearing”.
• The Council did not re-consult neighbours about the change to the plans because, as far as the officer was concerned, the only change was to materials.
• The Council stated the removal of trees in a conservation area was permitted in so far as that work was necessary to implement a planning permission. It stated the trees removed by the developer were in conjunction with the implementation of Planning Application A.
23. In August the Council responded to a stage two complaint from Mr X. It re-iterated much of the position it set out previously. The Council stated there was an ongoing enforcement investigation.
24. The Council continued to visit the site and contact the developer about the breaches of planning control, seeking revised plans that accurately showed the development work being carried out.
25. The Council issued a Planning Contravention Notice (PCN) to the developer seeking information on 15 August 2017. After sending incomplete information several times the Council accepted the developer’s response to the PCN in December 2017.
26. In January 2018 the applicant submitted a retrospective application for changes to the main house. The Council could not validate the application until May 2018 due to concerns the plans being submitted by the applicant were inaccurate.
27. In October 2018 the developer submitted a retrospective application for the garage. Both planning applications were considered by the Planning Committee in January 2019. They were presented as separate reports.

2019 Retrospective Application – Main House

28. The case officers report described the planning history and stated there were breaches of planning control.
29. The application for the house itself covered numerous changes. It included changes to the roof line, adding dormer windows and converting roof space to create more living space. It also covered the erection of single and two-storey front extensions and a two-storey rear extension. Also, the removal of chimneys and changes to windows and doors throughout the development.
30. The report also set out changes to the front and side elevations and the rear of the property. These were mainly changes to the position and size of dormers and windows. The changes to the rear were to windows, dormers and the rear extension. The extension was not built in accordance with the approved plans. It stated it was higher, had more door openings and had a roof lantern.
31. Mr X felt the report did not make clear what elements of the development were approved by previous planning applications and which were unauthorised. He noted the Council had previously refused a rear extension of the scale the developer had built. Also, the Council had previously asked the developer to remove the roof lantern.
32. Mr X also felt the developer had increased the height of the house. The report referred to the concerns of neighbours and a statement by the developer about this. The developer said the ridge height of the house remained unchanged. They suggested the house may appear taller because of changes to ground levels.
33. Updates to committee reports are provided by Addition Information Reports (AIRs). In an AIR the case officer summarised a letter Mr X sent making further comments on the application. It referred to his concerns about the increased size of the rear extension, the increase in ridge height and the impact this had to his solar panels. The AIR updated the committee report to reflect the points Mr X made.
34. The officer felt the extension, although bigger than the plans allowed, only had a minimal impact. They noted that officers had previously asked for the removal of the roof lantern, but he stated the impact was not considered so harmful to the character and appearance of the area that it warranted the refusal of the application. The officer noted the information sent by local residents about the height of the main house but stated, on the basis of the evidence from the applicant and objectors, officers considered the ridge height remained unchanged.
35. The AIR commented on several other of Mr X’s points to clarify the content of the officer report. It stated the loss of trees had been raised but this was covered in the report for the replacement garage. It stated a number of trees had been removed along the north and west boundaries in association with the works carried out under Planning Application A.

2019 Retrospective Application – Garage/Landscaping

36. The original plans proposed building a garage 5.8m high. These were subsequently amended to a garage 5.5m high. The site location plan showed the proposal was to build the garage adjoining the boundary wall.
37. The case officer’s report set out the background. It stated “The application site originally featured a detached outbuilding/garage with an approximate height of 5.5m. The applicant’s (sic) received planning consent for the erection of a replacement garage and outbuilding within the same location as this former building on site, [Planning Application B]…This granted planning consent for a 6m high replacement garage/outbuilding. This permission was not implemented on site, with the erected garage/outbuilding differing from this former approval”.
38. After amendment by an AIR, the case officer’s report went on to state:

“The current application now seeks consent for a 5.5m high replacement garage on site, with a 4.2m high adjoining outbuilding. These are to be erected within the north-western most corner of the site, adjoining the site’s side (west) and front (north) boundary walls. The previous approval (Application B) permitted a garage that had a ridge height of 6m, but was set away from the boundary wall, rather than adjoining as the existing proposal is.”

39. The Council added paragraphs to the report through the AIR. One set out Mr X’s view that the original garage was less than 5.5m high, and another set out the developer’s view that the height (at 5.5m) had not changed.
40. A further paragraph stated “It is…noted that a previous planning application for a similar development on site [Application B], was submitted to the Council with inaccuracies. Irrespective of these facts, the current application for planning consent has been assessed on its individual planning merits and has been found to be acceptable by Officers”.
41. When assessing the impact on residential amenity, the officer stated:

“The proposed garage/outbuilding would have a maximum ridge height of 5.5m. This is 0.5m lower than the former approval on site, [Planning Application B]. It should also be noted that this would be in line with the former original garage/outbuilding on site which also had an approximate height of 5.5m. The previous approval is considered to comprise a realistic fallback position which should be given appropriate weight in the decision-making process.”

42. The case officer stated, given the former approval and the pitched roof design, the garage, at 5.5m would not result in an overbearing impact, loss of light or visual intrusion to Mr X’s property.
43. Mr X wrote to the chair of the committee ahead of the meeting and spoke at the committee meeting to object to the applications.
44. The planning committee approved both planning applications in early 2019.
45. Mr X felt the Council’s decisions were flawed and complained about the eventual outcome. The key points he complained of were:
• That the committee reports had not been accurate and had not explained the full background to the situation.
• That the Council should not have approved an increase to the size of an extension to the main house and a skylight window. They noted the Council had previously rejected such a large extension and they disagreed that the impact was minimal.
• That the Council failed to properly take account of the ridge height of the main house, the evidence they provided of an increase and the impact it had on their amenity and effectiveness of their solar panels.
• The Committee carried out no site visit and they felt they could not have decided the applications properly without this.
46. The Council responded to the complaint and explained some members of the committee had visited the site. It stated the AIR reports addressed a number of the points Mr X made about the officer reports. The Council recognised the works had been ongoing at the development site for some time and the applicant had not adhered to the approved plans. However, it considered officers fully assessed the retrospective applications and accurately advised Members about the applications to enable them to reach a decision.

National Planning Policy Framework (NPPF)

47. The NPPF says effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Government Guidance – Trees in Conservation Areas

48. Trees in a conservation area that are not protected by a Tree Preservation Order are protected by section 211 of the Town and Country Planning Act 1990. This requires people to notify the local planning authority, using a ‘section 211 notice’, 6 weeks before carrying out certain work on such trees, unless an exception applies. The aim of a notice is to allow councils time to consider whether a Tree Preservation Order should be made to protect the tree(s) concerned.
49. Exceptions relate to smaller trees (measured by the trunk diameter) and removal of trees by the Local Authority, Forestry Commission or solely for forestry thinning work.
50. A Planning Authority may treat a planning application for development in a conservation area that includes specified tree work as a section 211 notice if the applicant has clearly stated that it should be considered as such.

Planning Contravention Notices (PCNs)

51. A PCN is served by a council to require someone to provide information for enforcement purposes. It may not be issued speculatively, only when it appears there has been a breach of planning control.
52. Use of a PCNs is discretionary and local planning authority’s need not serve a PCN before considering other action, such as an enforcement notice.

Analysis

Planning Application B

53. The way the Council considered Planning Application B represents fault.
54. The Council says a site visit took place in March 2016, by which time the existing garage had already been demolished. However, the case officer’s report does not say this; it reads as though the garage was still in place. This is odd. The removal of the garage without planning consent was a breach of planning control as the site is in a conservation area. I would have expected the unauthorised demolition of the existing garage to be noted by the officer.
55. This is compounded by the lack of any site visit notes to explain what the officer saw on site. I would have expected the site visit to be recorded.
56. The failure to record the site visit and the unauthorised demolition of the garage was fault.
57. The Council’s planning files show, in 2016, officers were not prepared to accept an increase in the size of the garage. The correspondence on file shows officers were unhappy with a link between the garage and the house. They told the developer if he did not make changes, the application would likely be refused. In that correspondence, officers told the developer the replacement garage would need to be a like for like replacement.
58. When the applicant sent in fresh plans the officer failed to consider them properly. Although the developer removed the link to the house, the plans included a measurement showing the ridge height had been raised to 6m. His report described the proposed garage as a like for like replacement but earlier he had stated the existing garage had been around 5.5m high. As the officer had specifically required changes to the replacement garage, he should have identified the changes the developer made to the height. Mr X also noted the position of the garage along the boundary was not like for like as the existing garage was set back.
59. The failure to consider the plans properly was also fault. The Council accepted this in December 2016.
60. Because of the fault in the way the officer assessed the application, I found the decision to approve Planning Application B was flawed. If the plans had been correctly assessed, and given the Council’s earlier correspondence with the developer, it is likely the application would have been refused, or further amendments would have been required to the garage before it was approved.
61. Although there was fault in the way the Council decided Planning Application B, the applicant did not act on the planning permission it granted. Rather, what he built did not reflect any of the plans that had been approved. For this reason, the impact of the fault in approving Planning Application B was, in itself, limited. However, when someone reports a potential breach of planning control, councils have a duty to investigate and decide what they should do. I have gone on to consider how the Council dealt with the unauthorised work.

Enforcement 2016-2019

62. When councils investigate enforcement issues they should first establish if there is a breach. If there is, they consider what action to take. Councils have discretion to decide what (if any) action to take in response.
63. It is unclear why the Council decided there was no planning breach in October 2016. However, it revisited this when Mr X made further reports. Fairly quickly the Council decided it should act. So, any doubt about the initial decision did not cause significant injustice.
64. When the Council accepted there were issues with the development in February 2017 it contacted the developer to point out the breaches, advised him to stop works and asked him to submit a retrospective planning application. These are appropriate steps to take.
65. There is evidence that formal measures, such as a temporary stop notice were considered. However, the discussions with the developer continued over a period 6 months before the Council issued a PCN in August 2018. It was not fully complied with for another 4 months, until December 2018. During this time some work continued and it seems evident the Council was dissatisfied with the developer’s response. Plans he submitted were still considered inaccurate.
66. Effective enforcement action relies on accurate information about an alleged breach of planning control. Because the work continued, the developer did not provide what was needed, and as there had been inaccuracies in the information submitted by the developer at various points, I found the Council could and should have issued a PCN sooner. The Council allowed the informal contact with the developer to continue for too long. There was further delay when the developer submitted retrospective planning applications that were not complete. The delays in progressing the enforcement investigation at various points amounts to fault by the Council. This was obviously frustrating for Mr X.

Retrospective Planning Applications

The House

67. There were significant differences between the work the developer had done, and that which he had planning permission for. However, that does not in itself make the work unacceptable. The report set out and considered numerous changes. The majority were not considered to be significant, and were found to be acceptable.
68. The key issues of concern to Mr X were that he believed the height of the main house had been increased. He also noted the Council had previously declined the extension that the developer had built.
69. The report explained the differing views about whether the house was higher than approved. He concluded, on balance that it had not been raised. While I appreciate Mr X disagrees, this was a judgement the officer was entitled to take having considered the evidence available. I do not have grounds to question it.
70. I recognise that officers decided the extension and roof lantern were acceptable. It noted this had not been accepted by officers previously. However, ultimately officers have to decide whether their concerns are strong enough to warrant the refusal of a planning application. If a council refuses planning permission, a developer may appeal. So, they are entitled to consider if the grounds for refusal would be sustained at an appeal. The case officer decided, on balance, that the appearance of the extension and scale of and lantern were not grounds for refusal. This too is a decision officers were entitled to make. I do not consider it represents fault.
71. I do not consider there was fault in the way the Council considered the retrospective application for the changes to the main house.

The Replacement Garage

72. In response to Mr X’s complaint the Council told him that the removal of trees at the site was permitted because their removal was necessary to implement a planning permission.
73. The site is within a conservation area, so before removing trees a developer is required to submit a Section 211 Notice. This did not happen here.
74. The Council told us it considered Planning Application A had been implemented. Councils may treat a planning application as a Section 211 Notice if the applicant clearly states it should be considered as such. This was not the case for Planning Application A; the application form stated no work to trees would be needed to implement the permission. So, the Council’s suggestion to Mr X that the removal of trees was permitted by this application, was flawed and represents fault by the Council. The Council also told us that removal of trees was permitted under Planning Application B. However, it has acknowledged this application has not been implemented. So, this was not the case.
75. However, when considering the removal of trees as part of the retrospective planning application for a replacement garage, the Council included a landscaping condition. This allowed the Council to control the further landscaping of the site and to require replacement planting along the boundaries. Although the Council should have considered the removal of trees sooner, the condition now allows the Council to address this issue.
76. The crux of Mr X’s complaint was that officers had previously stated they would only accept a like for replacement for the garage with no increase in massing. He complained what he began to build, and later what he proposed in the retrospective application was not like for like. Mr X raised two main issues about the garage itself. The first is its height and the second is its position.
77. When considering the proposals the case officer’s report for the retrospective garage application stated the Council had approved a 6m high garage. While it is accurate to state a 6m high garage was approved, it omitted the circumstances surrounding the decision on Planning Application B; and that the height of 6m was approved in error. Some additional information was provided in the AIR reports, but it was not made clear that an error had occurred.
78. I have considered whether the suggestion that officers previously found a 6m garage acceptable (rather than approved it in error) had changed the outcome of the application.
79. The report could and should have better set out the background to the matter. However, on balance, I do not consider this point about the height of the garage was significant enough to affect the outcome. I say this because;
• Although the garage first proposed in 2016 was unacceptable, the key concern was the proposal to include a link to the main house. This was seen as overdevelopment so it sought the removal of the link.
• The existing garage had been demolished. There is little firm evidence to confirm the height of the original garage. Mr X relies on some photographic evidence. He believes the old garage was around 4m high. The image is, unfortunately, not strong evidence of this. The developer contends the original garage was around 5.5m high. I considered the Council’s historic planning records for evidence of the height of the original garage. This included a planning application to replace the garage which was refused in 1995. There is no firm evidence as to the size of the original garage that the Council could have relied on. So, to a large extent, the appropriate height of a like for like replacement for the old garage is subjective.
80. There is good evidence to show the original garage was not built so close to the boundary as the replacement the developer proposed. The developer’s own plans for Planning Application A shows that it was set back. The replacement garage is up against the boundary. It is clear this was not the position of the original garage.
81. Although I understand Mr X’s representations that the change in position affects him more, the position of the proposed garage and Mr X concerns are set out in the reports to Committee. The AIR to the Committee explains that previous plans show the garage set back from the boundary by up to 2m. So, Members were aware of this when reaching their decision.
82. I understand Mr X’s concerns. There has been fault in the process in this case; the consideration given to Planning Application B and lack of detail about this in the recent report, the delay in action around enforcement and the failure to properly consider the removal of trees at an earlier stage. However, I have not found that the outcome; the approval of the revised garage; was fault as a result. This is because Members were aware that the proposed garage was not in the same position the existing garage had been when approving it. They were aware of the differing views about the height of the original garage and there was no firm evidence to confirm it. Officers had explained their view that the size of the garage was acceptable at 5.5m and that it would not have an overly dominant or visually intrusive appearance; so the impact and appearance of the proposal on Mr X’s amenity was considered in the information before Members.
83. Although I have not concluded the outcome would have been different but for the faults we have identified, there is no doubt that Mr X has been put to time and trouble pursuing both his complaint with the Council and chasing enforcement action. Several errors have been made and the delay resulted in an extended period of frustration and uncertainty for Mr X about the outcome. A remedy is warranted to reflect this.

Agreed action

84. To recognise the time and trouble Mr X spent pursuing his complaint and chasing the Council’s responses to the unauthorised development, the Council agreed to pay Mr X £350.

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Final decision

85. There was fault by the Council that warrants a remedy.

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Investigator's decision on behalf of the Ombudsman