Summary: Mr D complains the Council did not properly consider the impact on his amenity when it granted permission to a development next to his home and failed to enforce planning breaches, causing stress. We have found no fault.

The complaint

1. Mr D complains the Council:
• Failed to consider land ownership when granting planning permission for development next to his home.
• Failed to properly consider the impact on his living conditions when it approved planning applications for the development.
• Failed to take enforcement action about breaches of pre-commencement planning conditions. As a result he has had to take legal action against the developer.
2. Mr D says the Council's actions have caused him stress, adversely affected his living conditions and has left him with a property he cannot sell.

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The Ombudsman’s role and powers

3. 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)
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 Mr D about his complaint and considered the information he sent, including photographs of the site, the Council’s response to my enquiries and:
• The Town and Country Planning Act 1990 (“the Act”)
• The Town and Country Planning (Development Management Procedure) (England) Order 2015 ("the Regulations")
• The Council’s Enforcement Service Plan 2017
6. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning permission

7. The Act gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils must decide the application under their development plan unless any other material considerations suggest otherwise.
8. Councils’ case officers need to consider the proposed development. The case officer’s report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking, loss of sunlight and privacy. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
9. Planning applicants do not need to own land to apply for permission for its development. However, the Regulations say applicants are required to notify owners of the land to which the application relates. They must also submit a signed certificate with their planning applications which confirms the ownership of the land to which the application relates and that the relevant notices have been served. Councils cannot take account of any land ownership disputes or existing rights over land when considering a planning application. These are private civil matters between individual landowners.

Enforcement

10. Councils can take enforcement action if they find planning rules have been breached. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
11. However, councils should not take enforcement action just because there has been a breach of planning control. 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 July 2018, paragraph 58)

12. In deciding whether it is expedient to start enforcement action, councils may consider:
• national and local planning policies.
• permitted development rights.
• whether the development is likely to be granted planning permission.
• whether the breach unacceptably harms public amenity, or the authorised use of land and buildings merits protection in the public interest.
• whether any enforcement action is proportionate to the breach.
• statutory time limits for taking enforcement action.
• the need to achieve a balance between protecting amenity and permitting development which is acceptable.
13. The Council’s planning enforcement service plan says when a breach is established the Council may ask the developer to submit a retrospective planning application, decide to take informal action or take no further action. The policy notes it is not an offence to start building works or make a change of use without first obtaining planning permission. The Council therefore may not take action to stop such development but instead advise developers they continue at their own risk.
14. If work is being carried out at or near the common boundary of the properties, it is possible that a Party Wall Act Agreement should be made between the neighbours. Local authorities have no part to play in party wall agreements, they are a civil matter between the neighbours.
15. Damage to a neighbour’s property by building work would normally be a civil matter between the two neighbours. Complaints about damage to property resulting from negligence are legal torts. The Ombudsman cannot decide liability. Such matters are for insurers and, ultimately, the courts.

What happened

16. Mr D lives in a first floor flat above a shop. His back door opens onto the flat roof of the shop, which contains two skylights. In 2018 a developer applied for planning permission to change the shop into a bar/restaurant and to make alterations to the property. The developer’s planning application form says the landowner had been notified and an ownership certificate was attached.
17. Mr D objected to the application. He also contacted the Council in February 2019 to advise that the proposed development would block access to land owned by a third party who had not been contacted and the ownership certificate was therefore wrong.
18. The Council’s planning committee granted permission. The case officer’s report considered the objections received and determined that the proposed development would not cause significant harm to neighbouring properties’ living conditions. It recommended permission was granted subject to a number of conditions, including some that had to be discharged before works could start. These related to the external materials and a side gate. Other conditions were also set which had to be discharged before the property could be used as a bar. These were in relation to the use of the side passage and sound insulation between the ground and first floor.
19. Mr D says works started on the development in June 2019 before the pre-commencement conditions had been discharged. He contacted the Council and a planning enforcement officer visited the site on 9 July 2019. She told Mr D that the works being carried out were to strip the internal finishes back to brick and works had not yet started on the change of use. In addition, an application was expected that week to discharge the pre-commencement conditions. The Council would therefore not take any further action. The developer then applied to discharge the pre-commencement conditions.
20. Mr D says that a few weeks later works started on the foundations, causing significant noise. He contacted the Council but says the noise team did not reply. The Council’s building control team could not get involved as the development was being overseen by a private building control body. The noise team later served a Section 60 notice on the site manager, stipulating the working hours for noisy works.
21. The developer then started to remove the insulation between the ground floor and first floor. Mr D says this was done without a party wall agreement or survey. The Council asked the developer to submit an application for the discharge of the sound insulation conditions. The developer did so. The planning enforcement officer told Mr D that formal enforcement action could not be taken when an application to discharge the conditions had been received. The Council discharged the pre-commencement and sound proofing conditions in late September 2019.
22. In October 2019 the developer applied to vary another condition. The changes included replacing the skylights in the roof outside Mr D’s door with roof lanterns that were significantly larger. Mr D objected to the application. The developer started installing the roof lanterns in November 2019 but stopped following advice from the Council as planning permission had not been granted.
23. The Council approved the application relating to the roof lanterns in January 2020. The Council dealt with this as a variation of a planning condition as the existing, albeit smaller, skylights meant the changes were deemed to be part of the alterations to the property, rather than a new installation. The case officer’s report listed the objections received and noted that amended plans and drawings had been submitted to clarify the dimensions. The report assessed the impact of the application on neighbour’s living conditions and concluded the overall affects were acceptable. It said the roof lanterns would be partly obscure glazed to prevent loss of privacy and laminated to reduce noise. The roof lanterns were not considered to be of excessive size.

Mr D’s complaint

24. Mr D complained to the Council on 31 January 2020 that:
• the Council had overlooked the issues of land ownership and had knowingly validated false documents.
• its unwillingness to enforce the conditions had left his family and neighbours very stressed and worried.
• it had not considered the impact on neighbouring properties’ living conditions.
25. As a result, Mr D said there would be a large roof lantern directly below bedroom windows, lit up until the early hours of the morning, they would need to enter their property through a beer garden and a gate would block access. Mr D also raised concerns about the use of the side passage and a proposed door into it, which he considered would lead to noise from drinkers outside. Mr D also noted that the amended plans for the roof lanterns had not yet been published on the Council’s website. He had had to take legal action against the developer because of damage to his property and the removal of insulation without his consent.
26. The Council’s response said it had investigated the alleged breaches of planning control and had determined the ongoing works on site were not causing serious planning issues which justified enforcement action.
27. Mr D remained dissatisfied and asked to escalate his complaint. As part of the review of his complaint, officers visited the site. The Council replied on 18 March 2020. It did not uphold his complaint. It said:
• It had been contacted by the third party landowner and the planning committee had been aware of the third party land ownership when it granted permission.
• The works undertaken by the developer in June 2019 were not considered to be development and were therefore not enforceable.
• The noise complaint had been dealt with.
• The developer had stopped works on the roof lanterns as instructed. The Council apologised the amended drawings were not uploaded to the planning portal on time but they had been considered during the application process.
• The soundproofing condition had been discharged. Mr D’s objections about the lack of consent for the works were a civil matter under the Party Wall Act 1995.
• It had set planning conditions to minimise the impact of the development on neighbouring residents.
28. Mr D complained to the Ombudsman in June 2020.

My findings

29. Mr D says it is wrong that planning permission was granted without the third party land owner’s knowledge and complains the Council validated an incorrect ownership certificate. He feels the Council should have investigated the ownership of the land before approving the planning application.
30. Planning permission does not impact land ownership. If the applicant develops land they do not own without consent from the land owner, that is a civil matter and not for the Council. The Council is not required to investigate issues of land ownership as this is not a relevant planning consideration and does not impact a decision on whether development is acceptable in planning terms. I therefore do not find fault by the Council.
31. Mr D complains that, when granting the permissions, the Council failed to properly consider the impact on his living conditions. In particular he says the roof lanterns were approved on the basis that the developer was replacing like for like, but in fact they are significantly larger and more intrusive.
32. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way the decision was made. I have considered the original planning application and the one relating to the roof lanterns.
33. The planning officer’s reports in both cases considered the relevant planning considerations, policies, and comments from local residents and consultees. In relation to the change of use, the report considered neighbouring properties’ living conditions and recommended conditions were set to reduce the impact of the development on them. In relation to the roof lanterns, the report notes there were existing skylights but it gives the dimensions of the roof lanterns and notes the obscure glazing and lamination to be used.
34. In both reports, the case officer considered the effect on Mr D’s amenity and his professional judgement was that it was acceptable. I am satisfied that for both applications the Council had enough information about and properly considered the relevant planning issues when reaching its decision. There was no fault in the way it determined the applications.
35. I understand Mr D does not agree with the Council's decisions, but they are ones the Council was entitled to make. The Ombudsman cannot question them without evidence of fault in the way they were taken.
36. Mr D says the Council failed to take enforcement action about breaches of pre-commencement planning conditions.
37. When a council receives a complaint about unauthorised development, it has a duty to investigate. If a breach of planning control is found, the Council's next duty is to take a view on whether it needs to do something about it or not. Based on the evidence provided, I am satisfied the Council responded to Mr D's reports of possible planning breaches and took appropriate action. The officer visited the site in July 2019 and considered the planning permissions and history. She found the works that had started did not constitute “development” and she was therefore unable to take any enforcement action. These are decisions she was entitled to make. I understand Mr D does not agree, but I cannot say there has been any fault. I am satisfied the Council properly considered if enforcement action was necessary and the Ombudsman cannot question the merits of a decision made when there is no evidence of fault.
38. When the developer started to install the roof lanterns before permission had been granted, the Council advised it to stop. The Council then approved the variation in the condition. There was no fault.
39. It is unfortunate that Mr D had has to take legal action against the developer but this is not evidence of fault by the Council.

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Final decision

40. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman