Summary: Mr C complained the Council failed to properly consider a prior approval application or respond to his subsequent reports and complaint. Mr C says he suffers from overlooking and unsecure access to his garden and spent unnecessary time and trouble in trying to resolve the matter. We have found no fault by the Council in its consideration of the prior approval application but there was fault in the way it responded to Mr C’s reports and complaint. I am satisfied the agreed action of an apology, £500 and a review of training and procedure provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly consider a prior approval application for the change of use of a neighbouring building to provide two residential properties. Mr C also says the Council failed to provide timely and effective action in response to his reports about the development or his complaint.
2. Mr C says because of the Council’s fault he suffers from overlooking and unsecure access to his garden from a rear window in the development and he has spent unnecessary time and trouble in trying to resolve the matter.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. Permitted development rights are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended.
8. Where a relevant permitted development right is in place, there is no need to apply to the local planning authority (LPA) for permission to carry out the work. In a small number of cases, however, it is necessary to obtain prior approval from a LPA before carrying out permitted development. The LPA can only consider the elements identified in the Order when making its decision. It has no authority to control anything else.
9. The statutory requirements relating to prior approval are much less prescriptive than those relating to planning applications. This is deliberate, as prior approval is a light touch process which applies where the principle of development has already been established. 
10. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings.  There are two options for getting Building Regulations approval:

• from a Council Building Control Inspector; or
• a private sector Approved Inspector.

11. Approved Inspectors are private bodies or individuals who may undertake building control functions. The Approved Inspector and applicant must submit an "Initial Notice" to the Council Building Control service before work begins. Once the notice is accepted, the Approved Inspectors’ is responsible for ensuring building works comply with Regulations. We cannot investigate complaints about how they carry out their work. Approved Inspectors have no enforcement powers: these are retained by the Council’s Building Control service.

Key events

Prior approval application

12. The Council received an application in early 2020 to determine if prior approval was required for a proposed change of use from retail to residential under Part 3, Class M of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). The detail of the application was to convert a commercial property with living accommodation above into two residential properties. The application site is next to Mr C’s property.

13. The Council says it sent a neighbour notification letter to Mr C and posted a site notice nearby. There is a photograph of the site notice in place outside the development on the Council’s planning portal. The Council did not receive any representations about the application from Mr C.
14. The case officer’s report about the application set out the relationship of the site with residential properties on either side and the relevant planning history. The report also noted the relevant legislation that applied at the time of the application. Class M development was permitted subject to the condition that before beginning the development, the developer shall apply to the LPA for a determination as to whether the prior approval of the authority will be required as to: (a) transport and highways impacts of the development; (b) contamination risks in relation to the building; (c) flooding risks in relation to the building; (d) whether it is undesirable for the building to change use to Class C3 because an adequate provision of services of that sort may be provided by a building falling within Class A1 or Class A2, or as the case may be, a building used as a launderette; and where the building is located in a key shopping area; and (e) the design or external appearance of the building. The case officer’s report provides an assessment against the above criteria based on the information provided and concluded that prior approval could be granted.
15. Based on the information provided, I have found no fault in the Council’s consideration of the prior approval application. I am satisfied the Council followed the correct process in making its decision on the application.
16. It should be noted the matters that could be considered by the Council under this application did not include the impact on residential amenity which meant the Council had no grounds to assess the impact on Mr C’s garden.

Mr C’s reports

17. Mr C contacted the Council in April 2021 about erecting a fence. The Council provided general advice that a fence can be erected up to two metres high without planning permission.
18. Mr C contacted the Council again in May and raised concerns about the development and a window overlooking his garden and the impact of this on his ability to erect a fence.
19. The Council confirmed in May the development had been approved as part of a prior approval application and the report was available on its website. The Council noted that if the window was a fire escape it may have been required to meet building regulations. The Council explained any ownership issues were a civil matter between Mr C and his neighbour but planning permission was not required for Mr C to increase the height of his fence if it did not exceed two metres in height. The Council has confirmed the permitted development rights have not been removed in relation to Mr C’s property and so he can erect a fence without the need for planning permission. I see no contradiction here.
20. Mr C sought further information about building regulations at the development in May and the Council confirmed this was being overseen by an Approved Inspector and provided the relevant details.
21. The Council did not provide the building control service for the development which was done through an Approved Inspector and provided the relevant details to Mr C. I have found no evidence of fault by the Council here.
22. The Council has no records of Mr C contacting it about the safety of a gas main/pipe to the front of the property or blocked drain in the road.
23. Mr C contacted the Council in July about whether a replacement window was a breach of planning control. The Council confirmed to Mr C in August that his report had been passed to an enforcement officer to investigate the issues. The Council provided an update towards the end of September to say an enforcement officer would visit the site.
24. The Council provided a further update in November to say the issue had been referred to a planning officer for further assessment. The Council contacted Mr C in early January 2022 to say that following its enforcement visit it was seeking a planning application to regularise the development and address the privacy issues. This was because it had been identified that the red edge location plan submitted with the application was incorrect.
25. The Council pursued the reinstatement of the previous non-opening obscured window or to move the window to protect the amenity of Mr C’s garden area during February with the developer on this basis. The developer did not agree to take this action. Mr C complained to the Ombudsman in March.
26. The Council has highlighted that although the Prior Approval application referred to the replacement of an existing window to the rear of the property (adjacent to Mr C’s garden) the replacement of a window would not be considered development that requires planning permission. The Council has also highlighted under the Prior Approval application it could not consider the impact on residential amenity. It also notes that for this type of application the applicant was only required to submit a plan that indicates the site which was provided with the application and does not require a red edged location plan as required by planning applications.
27. The Council has accepted that the information it provided to Mr C in January was incorrect as the development that had occurred fell under permitted development and so it was not unauthorised development. The issue was that the red edge location plan provided was incorrect. The Council says this was why it attempted to resolve the situation informally.
28. The Council has reached the view that given the above and its own legal advice it will not take any further enforcement action in relation to this matter.
29. I am satisfied the Council has provided cogent reasons for its decision to take no further action in relation to Mr C’s report and I have found no fault in its decision making process to allow me to question the decision reached.
30. However, I consider there was unacceptable delay by the Council in responding to Mr C’s report about whether the new window was a breach of planning control and that it failed to keep him up to date with its actions prompting repeated contact from Mr C. The Council has already accepted it also provided Mr C with incorrect information during this period. This constitutes fault.
31. I am satisfied the fault identified above has resulted in unreasonably raising Mr C’s expectations about the Council’s ability to take formal action in response to his concerns about the development when this was not the case. Mr C has also been put to avoidable time and trouble in pursuing the matter over a considerable period of time. For this reason, I consider the Council should provide a remedy.

Mr C’s complaint

32. Mr C complained to the Ombudsman at the end of March. We contacted the Council to ask if the complaint had completed its own complaint procedure the same day. We contacted the Council again on 5 April as we had not received a reply. The Council confirmed on 11 April that it had not treated Mr C’s reports as a complaint under its complaint procedure.
33. We asked the Council to consider doing so on 27 April. We contacted the Council again on 6 and 11 May as we had not received a response. The Council confirmed on 12 May it would put the matter through its complaint procedure.
34. The Ombudsman sent a reminder to the Council on 26 July as Mr C had advised us he had not received a response from the Council to his complaint. The Council confirmed on 1 August that it would provide a reply to Mr C by the end of August. The Council has accepted that it failed to do so. This is fault.

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Agreed action

35. The Council will take the following action to provide a suitable remedy to Mr C:
1. write to Mr C to apologise for providing incorrect information and its failure to provide a timely response to both his reports and subsequent formal complaint within one month of my final decision;
2. pay Mr C £500 in recognition of his unreasonably raised expectations and time and trouble within six weeks of my final decision;
3. review its complaints procedure within three months of my final decision to ensure that all complainants receive a response in line with its published timescales or an explanation where this is not possible and that referrals from the Ombudsman are acted on promptly; and
4. review its training and guidance to relevant staff within three months of my final decision to ensure correct information is provided about potential enforcement action with particular reference to prior approval applications;
5. review its enforcement procedure within three months of my final decision to ensure that reports are prioritised appropriately and members of the public are kept updated as necessary.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman