Summary: Mrs B complained about an enforcement investigation undertaken by the Council when she reported a breach of planning control at a neighbouring property and about the way it considered a retrospective planning application by the developer. There was no fault in the Council’s handling of the enforcement investigation. However, we have found fault as we are unable to investigate the way the Council considered the retrospective planning application because relevant records are not available.

The complaint

1. Mrs B complains about an enforcement investigation undertaken by the Council when she reported a breach of planning control at a neighbouring property and about the way it considered an application for retrospective planning permission by the developer. She says the Council failed to consider the impact of the development on her amenity and this has resulted in loss of privacy.

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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 Mrs B, made enquiries of the Council and considered its comments and the documents provided. I have also considered documents available on the Council’s website.
5. Mrs B 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

Key facts

6. In 2017 the Council granted planning permission for a developer to erect a single storey upward extension to a building next to Mrs B’s property.
7. In October 2019, after building work began, Mrs B contacted the Council’s planning enforcement team because she was concerned that the development was not being built in accordance with the approved plans. She said the building was higher than it should have been and the extension had not been set back as it should have been and so was closer to her property. She said the window serving a bedroom in the new flat and the terrace allowed overlooking directly into her bathroom and her children’s bedroom.
8. An inspection officer visited the site on 19 November 2019 and an enforcement case was raised and allocated to an enforcement officer. He visited the site in January 2020 and found that the development was approximately 30 cm taller than it should be. He asked the developer to submit a retrospective planning application so the development as built could be considered by planning officers to decide whether planning permission should be granted to regularise the breach of planning permission.
9. The developer submitted a retrospective planning application which included increasing the height of the building, the footprint of the extension and the size of the terraces.
10. The Council granted planning permission for the retrospective application. The planning enforcement team then closed the enforcement case because there was no longer a breach of planning control as the changes had been regularised by the grant of planning permission.
11. Mrs B complained to the Council. The Council did not uphold her complaint. It confirmed it was satisfied the development as built was in accordance with the planning permission granted in 2020. It also stated that, when considering the retrospective application, the case officer found that because the proposal was on different floor levels there was not significant overlooking into neighbouring windows.

Analysis

Enforcement

12. I am satisfied that the Council properly considered Mrs B’s concerns about a breach of planning permission. A planning enforcement officer visited the site and agreed there was a breach. He asked the developer to submit a retrospective planning permission to regularise the breach.
13. This is the correct way to proceed when a council considers a development has been built in breach of planning permission. It is then for planning officers to decide whether planning permission should be granted for the development as built. If permission is granted there is no longer a breach. If officers decide to refuse planning permission the Council can require the developer to make changes to the building.

Retrospective application

14. Mrs B says that, in approving the retrospective planning application, the Council failed to consider the impact of the development on her amenity, specifically in relation to loss of privacy in her bathroom and children’s bedroom.
15. In considering the retrospective application, officers had to decide whether the increase in height and the fact that the flat was no longer set back away from Ms B’s property caused any overlooking over and above that which it had already considered to be acceptable when granting the 2017 application. This would be a matter for the officer’s professional judgement.
16. It is recognised and accepted that some planning permissions will adversely affect neighbouring properties. However, the test is whether the proposed development would reduce neighbours’ amenity below an acceptable level. This is a subjective test which depends on the character of the area and the nature of the proposed development. The Ombudsman has no authority to question the professional judgement of officers in the absence of administrative fault in the way the decision was made.
17. When planning permission was originally granted in 2017, the planning officer specifically considered the impact of the proposed development on Mrs B’s amenity. The officer’s report stated that Mrs B’s windows facing the new development could be overlooked from the bedroom window and the roof terrace “However given the 7.4 metres separation of the edge of the building from the boundary with that neighbouring property and the relative heights of the terrace, window and the neighbouring windows, such overlooking would be at oblique angles and would not be so significant as to cause unacceptable harm to the occupiers of the neighbouring dwelling”. The report also stated, “the impact would be mitigated by the significant setbacks of the extension from the edges of the building”.
18. I have not seen the officer’s report in respect of the 2020 application because the Council was a victim of a cyber-attack in October 2020 and has been unable to provide records relating to the application. So, I am unable to investigate Mrs B’s complaint that the Council failed to properly consider the application.
19. While we are not making any finding about fault in respect of the Council’s consideration of the retrospective planning application, our inability to do so is caused by service failure by the Council as record keeping and the ability to investigate and respond to complaints are functions we expect authorities to maintain at all times.
20. This service failure causes Mrs B a significant injustice as she may never know whether the Council properly considered the planning application. It should apologise for this.
21. We will revisit this case with the Council in around 12 months’ time to decide whether any evidence has become available that means we could investigate the full complaint. The Council and Mrs B can return to us if new evidence becomes available in the meantime. It is, however, possible that the records may be irrecoverable.

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Agreed action

22. In recognition of the injustice caused to Mrs B, the Council has agreed that, within one month, it will send her a formal apology.

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Final decision

23. I find no fault on the Council’s part in relation to the enforcement investigation.
24. I am unable to reach a finding in relation to the Council’s consideration of the retrospective planning application.
25. I have completed my investigation on the basis that the Council had agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman