Summary: Ms X complains about how the Council has dealt with her neighbour’s planning applications and its offer of £2000 to remedy its faults in the consideration of an earlier planning application. There is no fault in how the Council reached its decisions not to take enforcement action when it refused a retrospective planning application and no fault in its decision to consider a further planning application. There is also no evidence of fault in how the Council reached its decision that planning permission for the development is valid. The payment of £2000 is sufficient to remedy the injustice caused by the Council’s fault in the consideration of the earlier planning application. However, the Council is at fault for failing to explain the basis for its payment and for failing to manage Ms X’s expectations. The Council has agreed to apologise to Ms X for this fault.

The complaint

1. Ms X complains that the Council:

• failed to take enforcement action against her neighbour’s unauthorised development when it refused a retrospective planning application;
• wrongly invited a further retrospective planning application which is in contravention of government guidance on ensuring effective enforcement;
• failed to take enforcement action to ensure part of the development which causes harm to Ms X amenity is removed despite the Council’s undertaking to do so.

2. Ms X considers that as a result she has suffered harm to her amenity for longer than necessary which has caused significant distress to her. She also considers the Council’s actions show it has been deceitful to her.
3. Ms X also complains that the Council’s offer of £2000 is insufficient as it does not take into account the permanent harm to her amenity and the ongoing distress caused to her.

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What I have investigated

4. I have investigated how the Council considered if it should take enforcement action, its decision to invite a further planning application and how it reached its decision to offer a remedy to Ms X for errors in the consideration of 2018 planning application.

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The Ombudsman’s role and powers

5. 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)
6. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement,

(Local Government Act 1974, section 24A(6), as amended)

7. 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

8. I have:

• Considered the complaint and the information provided by Ms X;
• Discussed the issues with Ms X;
• Made enquiries of the Council and considered the information provided;
• Interviewed two officers of the Council to obtain more information;
• Considered the Town and Country (General Permitted Development) (England) Order 2015;
• Invited Ms X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

9. Government guidance provides that a local planning authority can invite a retrospective planning application. In circumstances where the local planning authority consider that an application is the appropriate way forward to regularise the situation, the owner or occupier of the land should be invited to submit their application.
10. Government guidance also states that a person who has undertaken unauthorised development has only one opportunity to obtain planning permission after the event. This can either be by means of a retrospective planning application or appeal against an enforcement notice on the grounds that planning permission ought to be granted.
11. Councils can take enforcement action if they find planning rules have been breached. 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. Permitted development rights allow householders to improve and extend their homes without the need to apply for planning permission. (The Town and Country (General Permitted Development) (England) Order 2015)

Background

13. Ms X lives in a bungalow on a street with similar properties. In 2018 the Council granted planning permission to Ms X’s neighbour for front and side extensions with a loft conversion. The neighbour then did not build the development in accordance with the planning permission. The Council notified the developer that as he had demolished a large part of the original property the planning permission was null and void.
14. The developer subsequently submitted a retrospective planning application. This included a reduction of the side extension from that approved and the insertion of additional rooflights. The Council decided to wait until it had determined the application before deciding if it should issue an enforcement notice.
15. Ms X complained about the Council’s decision to grant planning permission for the development and decision not to take enforcement action. In response to Ms X’s complaint the Council acknowledged it had not thoroughly assessed the impact of the development on Ms X’s light to her habitable rooms. The Council offered a payment of £600 as a goodwill gesture plus £150 payment for Ms X’s time and trouble.
16. Ms X made a complaint to the Ombudsman about this matter. We found the Council had not properly considered the impact of its errors on Ms X when it determined the planning application. We recommended the Council carry out an assessment of the impact that its fault had on Ms X’s amenity and offer a suitable remedy once it had determined the retrospective planning application. We considered the Council’s offer of a payment of £150 to acknowledge Ms X’s time and trouble was appropriate.

This complaint

17. The Council refused Ms X’s neighbour’s retrospective planning application as it considered the rooflights would be detrimental to Ms X’s amenity by way of perceived overlooking. It also considered the development would result in unsympathetic additions.
18. The Council wrote to Ms X to inform her of this decision. The Council said it had carried out an assessment of the impact its fault had on Ms X’s amenity and offered £2000 as a remedy in accordance with the Ombudsman’s guidance. The Council also included the time and trouble payment of £150 so offered a total of £2150. Ms X has said she only accepted the payment as she was given assurances permission for the unauthorised windows had been refused. Ms X does not consider the remedy offered by the Council to be sufficient to acknowledge the permanent impact on her light and outlook, particularly to her lounge and kitchen diner.
19. Officer 1, an enforcement officer, informed Ms X that he was minded to progress formal enforcement proceedings following the refusal of the retrospective planning application. He said he would draft a report for a senior officer. However before doing so he would carry out a site inspection to ensure accuracy. Officer 1 further explained in a later email that an enforcement memo had been drafted and was ready to be sent to legal. But he was required to do a site visit to see the development as built.
20. Officer 1 carried out a site visit and viewed the development from Ms X’s garden. Ms X has said that during this visit officer 1 said he would take enforcement action. Officer 1 attempted to carry out a site visit to Ms X’s neighbour’s property but was unable to gain access into the development. He arranged to visit the site at a later date.
21. Officer 1’s record of the later visit notes the developer explained why part of the property had been removed and rebuilt. Officer 1 considered the development had largely been built in accordance with the planning permission granted in 2018 with the exception of the rooflights. Officer 1 later explained to Ms X that during his site inspection it became apparent parts of the property had been demolished to facilitate the works which is why he considered it had been built in accordance with the 2018 planning permission. Officer 1 and officer 2, a senior officer, considered it was not proportionate to serve an enforcement notice for the unauthorised rooflights. Officer 1 asked the developer to regularise the position.
22. Ms X contacted officer 1 as she had seen a site notice advising her neighbour had submitted amended plans. Officer 1 advised Ms X that he had noted a breach of planning control at this site visit and advised Ms X’s neighbour to remedy or regularise the breach. Ms X’s neighbour submitted a further planning application to vary a condition of the planning permission granted in 2018 to enable them to keep the rooflights. In a later email officer 1 explained to Ms X why he did not consider it was expedient to take enforcement action.
23. Ms X complained to the Council about its decision not to take enforcement action and invite a further planning application which she considered was unlawful. Ms X also complained that officer 1 had undertaken to issue an enforcement notice when he visited her property. She also considered the first planning permission could not be implemented as the Council told her it was void. The Council did not uphold Ms X’s complaint.
24. The Council has refused the planning application to vary the condition of the original planning permission. It served an enforcement notice requiring the removal of a number of rooflights. Ms X’s neighbour has appealed to the planning inspectorate against the refusal of the planning application and enforcement notice. The planning inspectorate allowed the appeal and granted planning permission for the extensions.
25. I asked the Council to explain why it considered its remedy of £2000 offered to Ms X to be appropriate. The Council has acknowledged that it failed to establish the impact of the first planning application on Ms X’s light and outlook and there is an impact on Ms X’s amenity. However, Ms X neighbour could have built the same or larger extensions under the permitted development rules. The Council therefore considered its remedy of £2000 was appropriate to acknowledge the loss of amenity and distress caused to Ms X.

Analysis

Council’s decision not to take enforcement action following refusal of the retrospective planning application.

26. There is no evidence of fault in how the Council reached its decision not to take enforcement action when it refused the second planning application. Councils do not have to take enforcement action over breaches of planning control as enforcement action is discretionary. Officer 1 had carried out a site visit to both Ms X’s property and the development site so was in a position to make a judgement about whether the development was in accordance with the plans, the extent of the breach and whether it was expedient to take enforcement action. I therefore do not consider there is fault in how the Council reached its decision not to take enforcement action at this time.
27. Ms X considers the 2018 planning permission is void. The Council considered the 2018 planning permission was void due to the extent of the works carried out by the developer. The Council revised this view following officer 1’s site visit where he established the works had taken place to facilitate the development and he considered it was in accordance with the 2018 planning permission. There is no fault in how the Council reached this decision. As above, the Council reached this decision after officer 1 carried out a site visit so it was in a position to determine if the works were in accordance with the planning permission.
28. Officer 1 raised Ms X’s expectations as he referred to taking enforcement action in his correspondence with her and when he visited her. Officer 1 had not visited the site at this point so did not have all the facts. It would therefore have been better for officer 1 to have clearly explained that his decision could change once he had seen the development as built and had all the facts. But officer 1 was entitled to change his mind about taking enforcement action once he had carried out the site visits, assessed the site and determined the extent of the breach of planning permission.
29. I understand Ms X’s concern about the Council allowing her neighbour to submit a further planning application after it had refused the retrospective application in view of the Government guidance. On balance, I consider the Council is not at fault for accepting a further planning application once it had refused the retrospective application. This was a different application from the previous retrospective application as it was to vary a condition of the original planning permission granted. So, I consider the Council was entitled to consider the application.

Injustice and Remedy

30. The Council offered a remedy of £2000 to acknowledge Ms X’s loss of amenity as a consequence of the fault in how it determined the first planning application and £150 for the avoidable time and trouble caused to her. Ms X considers the remedy of £2000 is insufficient to remedy the permanent harm to her amenity.
31. In coming to a view on Ms X’s injustice and appropriate remedy I have to take account of the fact that Ms X’s neighbour could have built extensions under the permitted development rules. This would have also been relevant to the Council’s assessment of the 2018 planning application. So, on balance, I cannot say the Council would have refused planning permission for the 2018 planning application even if it had properly considered the impact on Ms X’s light and outlook.
32. I also cannot conclude Ms X’s neighbour would not have built extensions under permitted development rules if the Council had refused the application. It is therefore likely Ms X would have had an extension close to her property and the consequent impact on her amenity. But Ms X has been caused significant distress by the Council’s fault in how it determined the 2018 planning application.
33. The Council’s remedy of £2000 is appropriate and proportionate to acknowledge the significant distress caused to Ms X. It is also at the higher end of what we would normally recommend for distress.
34. The Council did not clearly explain to Ms X why it considered the remedy of £2000 to be sufficient. It did not explain the consequence of its fault in not considering the impact of the 2018 planning application on her property, including whether or not the fault affected its decision to grant planning permission. So Ms X could not fully understand the basis for the remedy. The Council also did not explain at this, or any other time, that the developer could have built a similar extension under the permitted development rules and this is a key factor for its decisions. Such explanations would have managed Ms X’s expectations about what the planning and enforcement processes could achieve. Ms X would have been aware it was likely the extension close to her property would remain. On balance, I consider this to be fault and the Council should apologise to Ms X for its lack of clarity and for raising her expectations.

Ms X’s complaints of deceit

35. Ms X has raised a number of concerns about information provided to her by officers which she considers shows they have been deceitful and caused great distress to her regardless of the fact the Council refused the further applications. I do not consider it is proportionate to investigate these matters further as further investigation will not achieve anything more for Ms X. Even if I found the Council to be at fault it would not be proportionate to recommend a further remedy from the Council in addition to £2000 it has paid to her.

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Agreed action

36. That the Council sends a written apology to Ms X for failing to provide sufficient information for her to understand why it considered a remedy of £2000 to be sufficient and for raising her expectations by not explaining the developer could have built extensions under the permitted development rules. The Council should take this action within one month of my final decision.

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Final decision

37. There is no fault in how the Council reached its decisions not to take enforcement action when it refused a retrospective planning application and no fault in its decision to consider a further planning application. There is also no evidence of fault in how the Council reached its decision that planning permission for the development is valid. The payment of £2000 is sufficient to remedy the distress caused by the Council’s fault in the consideration of the earlier planning application. But the Council is at fault for failing to explain the basis for the payment and for failing to manage Ms X’s expectations. The Council has agreed to apologise to Ms X for its lack of clarity so I have completed my investigation.

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Parts of the complaint that I did not investigate

38. Ms X has raised concerns about how the Council has responded to her neighbour’s appeal against its decision to refuse the further planning application and the enforcement notice. I have not investigated the complaint as I cannot consider new issues which have arisen since I started my investigation. Furthermore, any concerns about the Council’s submission for the appeal and the appeal process are generally a matter for the planning inspectorate.

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Investigator's decision on behalf of the Ombudsman