Summary: Mr B complains about the way the Council handled his neighbour’s planning applications and its failure to take enforcement action. The Ombudsman finds no fault on the Council’s part.

The complaint

1. Mr B complains about the way the Council handled planning applications submitted by his neighbour and its failure to take enforcement action to prevent loss of amenity and deal with antisocial behaviour by his neighbour.

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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 have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided together with information on the Council’s website.
5. I have written to Mr B and the Council with my draft decision and considered Mr B’s comments.

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What I found

Planning and enforcement law

Permitted development

6. Permitted development rights are a national grant of planning permission which allow certain development to be carried out without making a planning application to the local planning authority. The Town & Country Planning (General Permitted Development) (England) Order 2015 sets out the main types of permitted development. Each type of permitted development has certain conditions and limitations. If a development does not meet all the relevant criteria, a planning application will be required.
7. People may apply for a certificate of lawful use or development if they want formal confirmation that permitted development rights apply to their proposed works.

Certificates of lawfulness of existing use or development (CLEUD) and Certificates of lawfulness of proposed use or development (CLOPUD)

8. Section 191 of the Town & Country Planning Act 1990 enables any person to ascertain whether:
• any existing use of buildings or other land is lawful;
• any operations which have been carried out are lawful; or
• any failure to comply with a planning condition or limitation is lawful.
9. Section 192 of the Act enables a person to ascertain whether:
• any proposed use of buildings or other land would be lawful; or
• any operations proposed to be carried out would be lawful.
10. A certificate is not determined on the planning merits of the case but on the facts available. It is for the local planning authority to decide whether the available evidence is sufficient to allow it to make a decision.
11. There is no duty on a local planning authority to notify neighbours of an application, nor can it take a neighbour’s amenity into account when determining a certificate.

Section 215 of the Town & Country planning act 1990

12. Section 215 of the Town and Country Planning Act 1990 (‘Section 215’) states that, if it appears to the local planning authority that the amenity of a part of its area, or of an adjoining area, is adversely affected by the condition of land in its area, it may serve a notice on the occupier requiring specific steps to be taken to remedy the condition of the land within a specified period.
13. The Government has issued best practice guidance (‘the guidance’) to local planning authorities on how best to make use of their powers under Section 215. The guidance states the use of section 215 by local planning authorities is discretionary and it is for the authority to decide whether a notice is appropriate in a particular case, taking into account all the local circumstances including, for example, the condition of the site, the impact on the surrounding area and the scope of their powers.
14. The guidance states, “‘Amenity’ is a broad concept and not formally defined in the legislation or procedural guidance, i.e. it is a matter of fact and degree”.

Key facts

15. In March 2018 the Council issued a CLOPUD for a proposed single storey extension to Mr B’s neighbour’s property. The certificate confirmed the proposals were permitted development.
16. Shortly afterwards the neighbour, Mr C, applied for planning permission to provide accommodation in the roof space of his property and add a dormer window. Mr B raised concerns about the scale of the proposals and about loss of light and privacy. He asked his local councillor, Councillor X, to visit his property to consider the proposals. Councillor X contacted the case officer, Officer Y, who visited the application site and Mr B’s property.
17. Mr C submitted revised plans. The Council consulted Mr B on the new plans. He again raised issues of loss of light, the scale of the development and loss of privacy, particularly from the first floor window which would be larger than that in the previous proposal.
18. Meantime, Mr B contacted Councillor X saying Mr C had been hanging his washing on scaffolding in his garden causing upset to himself and his wife. Councillor X raised this with Officer Y. The team leader responded explaining the construction work being undertaken by Mr C was permitted development and the scaffolding did not need planning permission.
19. Officer Y visited Mr B again to discuss his concerns about the processing of the application and Mr C’s activities. Mr B considered Mr C was deliberately antagonising him.
20. In August 2018 Councillor X called in the application for determination by the planning committee.
21. Officers decided to recommend refusal of the application because of concerns about the design and appearance of the enlarged building. Officer Y notified Mr C that the application had been referred to the committee for consideration and that officers would be recommending refusal. Mr C decided to withdraw the application.
22. In October 2018 Mr B contacted the Council’s enforcement officer, Officer Z, about the outlook from his lounge and kitchen windows. He said Mr C’s property was an unacceptable eyesore and he was storing building materials on the roof of his extension causing overshadowing. He asked Officer Z to consider taking action under Section 215. Officer Z explained it would not be appropriate to consider the land an untidy site under Section 215 as it was a development site under construction. He said he could ask Mr C to remove the items but could not force him to do so. He wrote to Mr C asking him to consider neighbouring properties when storing building materials. He also wrote to Councillor X explaining that Section 215 is normally only used for untidy sites visible from the street.
23. In February 2019 Mr B submitted a letter of complaint which he hand-delivered to the head of planning. The Council did not respond.
24. In March 2019 the Council issued a CLEUD for a dormer window installed in Mr C’s property. The certificate confirmed the window was permitted development provided certain conditions were met.
25. Mr B raised further concerns with Officer Z about materials stored on the roof of his neighbour’s extension. Officer Z remained of the view that this would not be a section 215 matter and was satisfied the amount of material stored had been reduced since he last visited the site in October 2018.
26. At Mr B’s request, Officer Z visited his property again to see how the storage of materials on the roof of the extension affected his amenity. Following the visit, Officer Z discussed the issue with the team leader who considered this was not sufficient to successfully serve a Section 215 notice. Officers remained of the view that there was no breach of planning control.

Analysis

The Council’s handling of the planning applications

27. I find no grounds to criticise the Council’s handling of Mr C’s applications. It properly consulted Mr B after Mr C’s planning application was submitted and consulted him again after Mr C submitted amended plans. Officer Y also visited Mr B’s property to view the impact of the proposed development on his amenity. Officers considered the merits of the application and decided to recommend refusal but Mr C withdrew the application before it was considered by the planning committee.
28. Mr B says the Council incorrectly measured the distance between his property and the proposed development and incorrectly stated that the revised proposal would be smaller than that originally proposed. I have not checked the Council’s calculations because, even if Mr B is correct, he has suffered no injustice as a result because planning permission was not granted for the proposed development.

The Council’s failure to take enforcement action and deal with antisocial behaviour

29. I am satisfied the Council properly investigated Mr B’s concerns about storage of building materials on the site. Officers visited the site and Mr B’s property. The enforcement officer considered whether enforcement action could be taken under Section 215 but decided this was not appropriate because the site could not be defined as an “untidy site” as it is a building site where legitimate building work was being undertaken.
30. Mr B says that, as the building materials could be seen from public vantage points, the Council should have served a Section 215 notice.
31. The use of Section 215 is discretionary. It is a matter for officers’ professional judgement as to whether the condition of the land is such that it adversely affects the amenity of the area to such an extent that it is expedient to take enforcement action. In the absence of administrative fault, there are no grounds to question the officers’ decision that that was not the case here.
32. As regards Mr C hanging washing on the scaffolding, Officer Z visited Mr B’s property to witness this but concluded there were no grounds to take action. This is not a breach of planning permission nor could it be considered an untidy site. As such, there were no grounds for the Council to intervene.
33. In conclusion, I am satisfied the Council properly investigated Mr B’s concerns but concluded there were no grounds to take enforcement action. In the absence of administrative fault, there are no grounds to question that decision.

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Final decision

34. I do not uphold Mr B’s complaint.
35. I have completed my investigation on the basis I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman