Summary: Miss X complains about the Council’s decision to approve a planning application and its refusal to take enforcement action against breaches of planning control, causing her loss of privacy. The Ombudsman finds no fault in the Council’s decision making.

The complaint

1. Miss X complains about the Council’s decision on a planning application and its refusal to act against breaches of planning control. She says the development causes her loss of privacy.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I spoke to Miss X and I reviewed the documents provided by Miss X and the Council. I also reviewed the planning documents available on the Council’s website. I gave Miss X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

Planning decision

6. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on amenities, such as loss of privacy. A council must be able to show that it has considered material planning considerations. Evidence of this is normally found in the case officer’s report and the planning decision notice.

Planning enforcement

7. Planning enforcement action is discretionary. It is for the council to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.
8. Government guidance, “Ensuring effective enforcement”, says councils should ac in a proportionate way. They have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations.

Council policy; planning enforcement

9. The Council publishes its planning enforcement strategy on its website. This explains the vast majority of breaches of planning control are resolved informally by negotiation with the owner/occupier, or by the submission of a retrospective application for consideration. Legislation and central government guidance require that all formal action must match the degree of risk or harm associated with the breach. Each case will be considered on its own specific circumstances, and the personal circumstances of the person responsible may also be relevant. Therefore formal action is not always appropriate.
10. Following investigation the Council may:
• Decide there is a breach of planning control
• Decide the breach has become lawful
• Invite a retrospective planning application and negotiate a permission with certain conditions attached if appropriate;
• Take immediate enforcement action; or
• Take no further action.

What happened

Planning applications

11. In 2017 Mrs X’s neighbour, Mrs Y, applied for planning permission for a rear first floor extension. This included a proposal to use the flat roof as a balcony. Following objections Mrs Y withdrew the application. She then made a further application, removing the proposed balcony and leaving the flat roof accessible for maintenance only.
12. In early 2018 a planning officer produced a report for the Planning Committee to consider. I note the following relevant points:
• Neighbours had no objections now that Mrs Y had removed the balcony, though they had concerns about the future use of the flat roof.
• The Parish Council said the Council should not grant permission for a House in Multiple Occupation “HMO” and there would be overlooking and loss of privacy.
• The officer considered the local development plan and material considerations.
• The officer found there would not be significant overlooking if the windows and rooflights were obscured and fixed shut.
• The property was a small HMO; this was a permitted change of use. That meant the owner did not need the Council’s permission to use the property as an HMO and this was not a material consideration.
13. The officer recommended the Council grant planning permission subject to conditions:
• The windows and rooflights were fixed closed and obscure glazed, unless they were more than 1.7m above floor level. And no additional windows or doors could be added. This was to prevent overlook and safeguard privacy of neighbours.
• The flat roof could not be used as a terrace or balcony at any time, to safeguard the privacy of neighbours.
14. The Planning Committee considered the information available and decided to grant planning permission subject to those conditions.
15. In mid 2018 Mrs Y applied for planning permission for a rear first floor extension again, this time with an additional window.
16. A planning officer produced a report for the Planning Committee to consider. I note the following relevant points:
• Mrs Y had made a new application as a condition on the previous application prevented an additional window. The rest of the application remained the same.
• Neighbours had concerns about points which would have been considered on the previous application. They also had concerns that the property was an HMO and the new window may be used to access the flat roof as a balcony.
• The planning officer considered the local development plan and material considerations.
• The planning officer considered there would be minimal risk of overlooking provided the window was non-opening and obscured glazed.
• Mrs Y could lawfully use the property as an HMO.
17. The planning officer recommended the Council grant permission subject to the same conditions as on the previous permission.
18. The Planning Committee considered the information available and decided to grant planning permission subject to conditions.
19. In mid 2019 Mrs Y applied for planning permission to use the flat roof as a terrace, including doors for access.
20. A planning officer produced a report for the Planning Committee to consider. I note the following relevant points:
• Mrs Y had made a new application as a condition on the previous application prevented the use of the roof as a terrace.
• Neighbours objected due to the impact on their privacy. They complained Mrs Y had failed to build in accordance with the approved plans and again noted the property was an HMO.
• The planning officer considered the local development plan and material considerations.
• The planning officer found the impact of any overlooking was acceptable except to the north, where they recommended a privacy screen to prevent harmful overlooking.
• The condition preventing use as a terrace on the previous application did not prevent this use altogether. Rather this meant Mrs Y would need to apply for planning permission and the Council could consider any future proposal on its own merits.
• The enforcement team have dealt with enforcement complaints.
21. The planning officer recommended the Council grant permission subject to conditions, including a privacy screen.
22. The Planning Committee considered the information available and granted planning permission with conditions.
23. Miss X complained to the Council that its officer had told the Planning Committee the property was not an HMO, when other paperwork specifically said it was. Miss X also complained the Council had initially forbidden the use of the flat roof as a balcony but then allowed this in the later application.
24. The Council explained its officer told the Planning Committee the property could be used for up to six people without planning permission; it did not need planning permission for use as an HMO. This did not contradict the classification of the property as an HMO. The Council also explained it had imposed the condition saying the roof should not be used as a terrace to prevent that use without the Planning authority first being able to consider it. It never intended to prevent development from ever taking place. It considered each application at the time on its planning merits. The planning officer and the Planning Committee had clearly considered Miss X’s comments on this occasion and it had decided to approve the application.

Enforcement action

25. Mrs X reported the development was larger than the approved plans. The Council visited the site, assured itself the development was in accordance with the plans and informed Mrs X. Mrs X disagreed. However, the Council says it also visited Mrs X and talked through the plans with her in person to explain its view.
26. Mrs X reported the windows were opening and not fitted with obscured glazing. The Council visited the site and found a breach of planning control. It says it took action to ensure the owner screwed the windows shut and obscured the glass with film. The Council considers this achieved compliance. Mrs X disagrees as she considers the windows should be fitted with obscured glass and properly fixed closed to meet the planning conditions.
27. Mrs X also complained Mrs Y installed doors to access the flat roof in breach of planning conditions. The Council visited the site and found a breach in September 2018. It says it threatened enforcement action however Mrs Y then took action to regularise the breach by applying for planning permission. As a result, the Council did not consider formal enforcement action was necessary.

Findings

28. When considering complaints about planning applications, we look for evidence a council has followed a proper process before making its decision. We expect to see evidence a council has identified the material planning considerations and properly considered them. The weight an officer gives to those considerations is a matter for their judgement. The Ombudsman will not come to a view on the merits of the planning application. We cannot criticise an officer’s professional judgement or assessment of the application if there is no evidence of fault in how they reached that judgement.
29. The first planning application, in 2018, was not for the construction and use of a roof terrace. Therefore, the Council did not need to consider whether a roof terrace would be acceptable. The Council has explained it imposed a condition to ensure the flat roof was not used as a terrace or balcony without it first having chance to consider whether it would be acceptable. The Council did not refuse planning permission for a terrace or balcony at this stage.
30. The later planning application, in 2019, was specifically for the use of the flat roof as a terrace or balcony. The Council was entitled to consider the planning merits of that use or development anew; it had not refused permission before.
31. It is clear from the 2019 Planning Committee report that the Council consulted and considered objections from the neighbours and the Parish Council, including concerns about overlooking and loss of privacy. The Committee report also says this is an HMO property. The Planning Committee was therefore aware of its status and could take this into account when making its decision. The documents show the Planning Committee decided the planning application with reference to the local development plan and taking account of material considerations. While I appreciate Miss X is unhappy with the Council’s decision, I find no fault in the Council’s decision making process.
32. The Council first must decide if there is a breach of planning control and then decide whether to take enforcement action.
33. The Council inspected the site on multiple occasions upon Miss X’s reports that it was not built in accordance with the plans. The Council maintains the size of the development is in accordance with the plans. I acknowledge Miss X continues to disagree. However, the Council appears to have taken account of relevant information and I cannot find fault in how it reached its conclusion. As the Council found no breach of planning control in respect of the size of the development it did not have to consider enforcement action. I find no fault by the Council in this regard.
34. The Council accepted there was a breach of planning control regarding the windows, however it considers this resolved as the windows are screwed closed and obscured with film. I acknowledge Miss X disagrees and maintains the conditions have not been met. However, it is not my role to say how the Council should interpret and apply the relevant planning conditions. The Council appears to have taken account of relevant information in reaching its decision on compliance and I find no fault in its decision making process.
35. The Council also accepted a breach of planning control regarding the doors to the flat roof. It decided formal enforcement action was unnecessary as Mrs Y applied to regularise the build. The Council’s enforcement policy makes clear that a retrospective application may resolve a breach and therefore I find the Council’s decision is in line with its policy. Although the Council has not explained the delay between it identifying a breach in September 2018 and the application to regularise this in May 2019, given the application was approved and the doors remain, I find any delay by the Council did not cause injustice.
36. I note Miss X has since reported further breaches of planning control to the Council however I cannot comment on ongoing matters.

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Final decision

37. I find no fault in the Council’s decision making on planning matters.

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Investigator's decision on behalf of the Ombudsman