Summary: Miss X complained a neighbouring development was not built to plan. The Ombudsman found the Council at fault for initial delays and lack of communication. This caused Miss X injustice which the Council agreed to remedy. However, the Council was not at fault for deciding not to take formal enforcement action.

The complaint

1. Miss X complained a neighbouring development was not built to plan. She said:
• The approved plans contain errors in scale and measurements.
• A planning condition prohibited windows to the flank wall of the building, but the applicant started work to install windows in breach of planning permission.
• Occupiers of the development cannot access or maintain the windows without trespassing on her land.
• The Council delayed investigating her reports about planning breaches and failed to keep her updated.
• The Council acknowledged there are planning breaches, but later said the planning condition prohibiting windows to the flank wall contained an error and it therefore may not be possible for Council to enforce.
2. Miss X said she suffered stress and inconvenience as a result.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
6. Miss X 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

Permitted development

7. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.

Planning enforcement

8. 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.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
10. 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 2021, paragraph 59)
11. Councils have a range of options for formal planning enforcement action available to them.
12. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

The Council’s planning enforcement policy

13. The broad aim of the Council’s planning enforcement policy is: “To ensure that all alleged breaches of planning control are investigated, to seek to resolve matters wherever possible by negotiation and to take formal enforcement action where it is proportionate and in the public interest to do so”.
14. All reports of breaches will be recorded on the Council’s computer system and it will investigate as soon as possible. The Council will give priority to cases which need to be dealt with quickly. In all cases, the Council will carry out an inspection within ten working days.
15. If there is no breach, the Council will not take further action. Where the Council determines a breach has occurred, it will decide whether it is expedient to take formal enforcement action. The action could include:
• Inviting a planning application or certificate of lawful use/development
• Negotiation
• Service of formal notices.
• Other formal action.
16. Where feasible, the Council will look to resolve matters without the need for planning permission or formal notices.

What happened

17. Miss X lives next to a property which was formerly a shop. In 2020, a developer (who I will call ‘the applicant’) applied to the Council for permission to convert the shop into three residential homes over four floors.
18. The Council refused the application. It said the plans were intrusive, harmed the visual amenity and outlook of neighbours, and failed to provide enough outside living space.
19. The applicant subsequently made changes and put in new plans in March 2020.
20. Miss X objected. She said the applicant made no consideration for parking and the garden would overlook her.
21. Other neighbours also objected to the applicant’s plans. Their objections included:
• Not enough parking, causing congestion on the street.
• Loss of light to neighbouring rear gardens.
• Loss of privacy due to outside terraces.
22. The planning officer who determined the application considered the main issues were the impact on amenities of neighbours and on the character and appearance of the site and local area.
23. The officer considered the reduced volume of the property from the first application meant the plans no longer represented overdevelopment at the site.
24. The officer found the applicant had drawn back the rear development, meaning it will no longer encroach into the outlook of neighbouring homes.
25. The applicant also removed the first-floor balcony and replaced with a drawn back Juliet balcony.
26. Overall, the officer determined the proposals would not cause detrimental impact to the parent building or adverse intrusion to the local neighbourhood.
27. Regarding parking, the officer said the location already suffered from a lack of on street parking spaces at certain times. They considered, because the property is close to public transport, it was likely the development would not need a full complement of parking facilities. On balance, the officer considered the development would not create significant new highway issues.
28. The officer concluded the applicant had suitably amended the development to address previous concerns. They considered there were no material reasons to refuse the application.
29. The officer’s report recommends the Council grant planning permission, subject to certain conditions. Two of those conditions being:
• The development shall be carried out and completed in accordance with the proposals contained in the application and drawings.
• No additional windows, doors or other openings shall be inserted in the flank elevations of the development hereby permitted. Reason - to safeguard the privacy of occupiers of the adjoining properties.
30. On 21 May 2020, the Council issued its Decision Notice to the applicant. The notice confirms the Council approved planning permission for the development and particulars proposed by the applicant. Planning permission was subject to several conditions, including:
• Condition 2 - The development…shall be carried out and completed in accordance with the proposals contained in the application and drawing…submitted therewith.
• Condition 6 - No windows, doors or openings of any kind shall be inserted in the flank elevations of the development…, unless the local planning authority otherwise agrees in writing. Reason – to safeguard the privacy of occupiers of the adjoining properties.
31. Miss X contacted the Council’s planning department on 15 June 2021. She reported the applicant had started work to install windows in the flank elevation, contrary to Condition 6 of the planning permission.
32. Miss X emailed the Council for an update on 25 June 2021 as she was still waiting for a response.
33. The Council said the matter was with its compliance team to investigate.
34. Miss X complained to the Council on 5 July 2021. She said:
• She raised concerns in June about a breach of planning at a neighbouring property.
• Condition 6 of the planning permission states no windows, doors or openings are to be inserted into the flank wall. However, the applicant started to cut for windows to be installed there.
• The applicant showed her an email from the Council saying condition 6 contained a typing error and the applicant could install windows.
• She received no reply from the Council’s planning enforcement team, and it took no action.
35. Miss X chased the Council for updates on 12 and 20 July.
36. A senior officer, who I will call Officer one, visited the site and spoke to Miss X on 6 August.
37. The Council sent its stage one complaint response on 11 August. It apologised for the lack of action and response to Miss X’s reports about a possible planning breach. It said it was unacceptable a compliance officer failed to visit the site or contact Miss X. It said the officer no longer worked for the Council.
38. The Council said there were some differences between the approved drawings and the ‘as built’ development. It said it would contact the applicant for accurate ‘as built’ drawings. It said it would consider those drawings through the planning application process and it would consult Miss X.
39. The Council said if the applicant chose not to engage, the Council must decide whether to take formal enforcement action.
40. The Council said the installation of side windows is contrary to planning condition 6, but it imposed that condition in error. It referred to the case officer’s report, which recommended a condition preventing additional windows. The Council apologised for this error and for the confusion and uncertainty it caused.
41. The Council said it was seeking a new compliance officer to take on the case, and the enforcement case remained ongoing.
42. Miss X thanked the Council for Officer one’s visit the previous week, but she still had outstanding concerns. She said there were issues about trespass because the applicant would need access to her property to install, clean, and maintain the windows. She also said the windowsills would encroach onto her property and so would opening the windows.
43. Miss X said the windows posed a privacy concern and the Council’s suggestion of covering the windows with a trellis would restrict a fire route.
44. Officer one emailed Miss X on 18 August. They said, following their site visit, they arranged to meet the applicant to discuss the issues and seek a resolution. Officer one said they would consult Miss X on any changes.
45. The Council sent its stage two response on 9 September. It said:
• The developer did not intend to access Miss X’s property to install the windows, they would do so from inside the house.
• The windows will not have sills and will open inwards.
• While it may not be possible to clean the windows, that is outside the Council’s control.
• There is no fire escape from the windows in question.
• The enforcement case was ongoing, and it would consult Miss X on the applicant’s new plans.
46. The Council asked Miss X to await the outcome of the enforcement case before escalating her complaint again.
47. On 17 September, Miss X asked the Council to escalate her complaint because it had not given her an update on officer one’s meeting with the owner of the neighbouring property.
48. The Council said Miss X had exhausted its complaint procedure and could complaint to the Ombudsman if she remained dissatisfied.
49. Officer one told Miss X the Council was still working without a compliance officer and managing high levels of applications and enforcement cases. They said a new compliance officer would start shortly and would pick up the case.
50. Officer one said they met the new owner of the neighbouring property. They were not the planning applicant and not involved in the planning process. Officer one confirmed from their site visit that the window of the neighbouring property is in a different position to the plans, and that it cannot physically fit in the approved location because of a solid, load bearing internal wall.
51. Officer one said they advised the new owner to get accurate drawings of the property ‘as built’, then submit plans to the Council to assess as a new planning application.
52. Officer one gave Miss X a sketch showing the current window location and two other possible locations. They asked Miss X to confirm her preferred location. Officer one recognised Miss X would prefer no windows on the side elevation of the property but said the Council had approved windows in the side wall and there is a reasonable expectation that provision for a window providing natural light will be made within the affected bedroom.
53. Officer one confirmed the windows do not need to provide a means of fire escape under building regulations. They said the windows would be obscure glazed and fixed with no part protruding the site boundary. They also said Miss X can erect a trellis within two metres of the ground level of her home.
54. Miss X said she would support an air filtering system to the bedroom instead of windows.
55. Miss X brought her complaint to the Ombudsman on 23 September 2021.
56. The Council emailed the property owner’s agent on 28 September. It said there was an issue between the as built development and the approved drawings. The Council suggested the property owner resolve this by submitting accurate as built plans to regularise the development. It also suggested plans show the windows will be installed and operated without encroaching onto neighbouring property.
57. On 11 October, Miss X asked Officer one for copies of the latest paperwork as the owner of the property said they had permission to proceed.
58. Officer one said the Council had not received anything from the property owner so there was no paperwork to share. They said if the owner installed windows other than in the position on the original plans it would be a planning breach. They confirmed a new compliance officer had started and would pick up the case.
59. The property owner’s agent emailed the Council on 26 October, copying in Miss X, to advise the owner intended to install a small window to the flank wall on 3 November. It would open inwards and be of obscured glass, so there will be no overlooking.
60. On 5 November, the property owner applied for permission to regularise the as built development and insert flank windows in a revised position.
61. Miss X emailed Officer one on 21 November. She said the property owner applied for condition 6 to be removed, but used the same drawings submitted with the original planning application which the Council now knows are not accurate.
62. Officer one said the Council had to deal with the application as presented, but the compliance officer and planning officer were aware of Miss X’s concerns and this will be fully assessed before a decision is made.
63. The Council’s new compliance officer emailed Miss X on 22 November. They said the property owner is entitled to submit a variation of condition application, and they were working with the planning officer to assess the application. They said by removing or rewording the window condition the issue could be resolved.
64. Miss X said it would be more appropriate if the Council stood by the conditions it imposed, given its failings. PA also said it was not possible to install windows in the position on the plans.
65. The Council approved the property owner’s revised application on 23 February 2022.

My investigation

66. In response to my investigation, the Council told me its own investigation of Miss X’s complaint established it was at fault for:
• Mistakenly imposing a condition preventing the insertion of windows included in the applicant’s planning permission.
• Failing to investigate Miss X’s planning enforcement complaint until after she made a formal complaint.
• Lack of communication with Miss X.
67. The Council said the planning condition error arose when an officer produced the Decision Notice. The planning officer who considered the application prepared a document of recommendations which an administrative officer then drafted the Decision Notice from. During that process, the administrative officer inserted an incorrect standard planning condition prohibiting flank windows, instead of the condition recommended by the officer that no ‘additional’ windows should be installed. The error was not noticed when the Council authorised the Decision Notice.
68. The Council accepted it provided a lack of service and communication to Miss X. It said it apologised to her for this. The Council has since decided to expand its enforcement team to prevent recurrence.
69. The Council said its recent assessments show the dimensions of the building adhere to the approved plans. The only error on the plans related to the position of an internal wall which was later found to prevent the insertion of flank windows in the planned position. The Council said it could not reasonably have identified this earlier.
70. The Council said it met its statutory duty to consider whether to pursue formal enforcement action, but decided it was not reasonable or justified. It considered the planning officer’s report was clear the windows in question were intended to be permitted and the Decision Notice was therefore contradictory.
71. The Council recognised its failings caused Miss X concern and inconvenience. As a gesture of goodwill, it offered to pay her £100 to reinforce its apologies and mitigate any distress.

Analysis

72. The applicant’s plans show two windows in the flank elevation of the property. The Council approved those plans and granted planning permission, subject to conditions. The Council accepts it was at fault for mistakenly imposing a condition which would not allow the plans to be fully implemented.
73. The Council said this was a typographical error when a different officer drew up the Decision Notice. Miss X was not convinced. On the evidence seen, I am satisfied with the Council’s explanation. The officer who considered the application produced a report recommending the Council grant planning permission. Within that report, the officer suggested conditions. One of those conditions was that no additional windows should be inserted into the flank elevations. The officer did not intend for the property to have no windows in the flank elevation, otherwise they would not have recommended the Council approve the plans.
74. Miss X was concerned about her privacy and about encroachment onto her property. She therefore did not want the Council to allow the property owner to install windows in the flank elevation.
75. The property owner agreed to install the windows internally, using obscured glass, and they will also open inwards. I therefore do not consider Miss X has suffered any significant injustice in that regard.
76. Planning enforcement action is at the Council’s discretion. It decided to take informal action to negotiate on a revised planning application with the property owner. That decision was in keeping with national planning guidance and with the Council’s own enforcement policy. I therefore do not find the Council at fault.
77. The Council accepted fault for its failure to communicate with Miss X or investigate her planning enforcement complaint earlier.
78. The Council’s lack of initial action or communication meant Miss X had to make a formal complaint to get a response and for the Council to start an enforcement investigation. That caused Miss X avoidable distress and frustration. This is her injustice.
79. The Council has offered to pay Miss X £100 in recognition of the distress. I consider this to be a suitable amount which is in line with the Ombudsman’s guidance on remedies.

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Agreed action

80. Within four weeks of my final decision, the Council agreed to pay Miss X the sum of £100 to recognise the avoidable distress and frustration its faults caused.

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Final decision

81. I have completed my investigation. The Ombudsman found the Council at fault for initial delays and lack of communication. This caused Miss X injustice which the Council agreed to remedy. However, the Council was not at fault for deciding not to take formal enforcement action.

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Investigator's decision on behalf of the Ombudsman