Summary: Mrs X complained the Council failed to take enforcement action in respect of breaches of planning permission by her neighbour. She also says the Council failed to update her on the progress of its investigation. We do not find fault with how the Council considered its discretionary enforcement powers. However, the Council was at fault for delay in taking timely enforcement action and failure to keep Mrs X updated. This caused her frustration and put her to the time and trouble of complaining and the Council has agreed to remedy the injustice caused.

The complaint

1. Mrs X said the Council failed to take enforcement action when told of possible breaches to its planning conditions. She said it also failed to keep her updated on the progress of the enforcement investigation or respond to her queries and complaints in acceptable time.
2. Mrs X says this has caused her frustration, and distress. She would like the Council to recognise its faults and consider and use its full enforcement powers when dealing with the potential breaches.

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What I have investigated

3. I have exercised my discretion to investigate issues from April 2020 when the Council opened its enforcement file.

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The Ombudsman’s role and powers

4. 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)
5. 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. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I read the documentation provided by Mrs X and discussed the complaint with her. I have considered the information provided by the Council. I have taken Mrs X’s and the Council comments on my draft decision into account.

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What I found

Background and legislation

9. Section 171A of the Town and Country Planning Act 1990 provides that 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.

10. 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. 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.
11. 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 asking for a submission of a planning application so they can formally consider the issues.
12. 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)

The Council’s enforcement policy

13. Priority 3 says unauthorised minor works at residential properties (porches, fences, balustrade, patios) will require an initial assessment and response on determination of future action and update the requestor.
14. Permitted development is where the described development does not need an application for planning permission.

The Council’s Complaints Policy

15. The Council has a two stage complaints policy Stage One should receive a response within ten working days. Stage Two will be undertaken by a senior manager and be completed within 20 working days.

What happened

16. Mrs X’s neighbour, Mrs D, was granted planning permission (subject to conditions) to build a detached outbuilding to the rear of her home in 2019.
17. Mrs X complained to the Council in March 2020. She said Mrs D had breached planning conditions because the outbuilding had not been built in accordance with the approved plans. In particular:

• The building was higher than shown on the approved plans and affected her amenity.

18. Mrs X also said she believed the Council had not canvassed her views or concerns about changes to the planning conditions.
19. The Council replied to Mrs X in April 2020 at Stage One of its complaint’s procedure. It told her:

• It would forward her concerns to the enforcement department.
• An application to dismiss the planning condition about ‘floor levels’ had been approved in 2019.
• It did not have to consult neighbouring residents about the discharge of condition applications.

20. Mrs X remained dissatisfied and asked the Council to consider her complaint at Stage Two in June 2020. The Council responded to her in August 2020. It:

• Apologised for not returning her calls or emails.
• Explained it had registered her concerns as an enforcement case in April 2020.
• Explained there had been delay in completing site investigations due to the COVID-19 pandemic.
• Said it would update her of any enforcement action if it identified a breach of planning control.

21. The Council made three site visits in 2020. Following its second site visit it said it was satisfied the outbuilding was built according to the plans. It told Mrs X of this in a meeting with her in September 2020.
22. Mrs X raised further concerns that there had been further breaches namely:

• Windows had been installed which overlooked her property and affected her privacy; and
• Mrs D had constructed a raised patio/decking area without planning permission. Mrs X said this was affecting her privacy.

23. Following this meeting with Mrs X, the Council contacted Mrs D and asked her to put in a retrospective planning application for the patio.
24. Mrs X said she was disappointed the Council had not kept her updated despite its promise to do so and requested an update in December 2020. The Council responded the same day and apologised for not updating her.
25. Mrs D submitted a retrospective planning application in December 2020. The Council refused the application in February 2021. Its delegated report expressed the view “a discrepancy is noticed in the ground floor level of the outbuilding in contrast to what is indicated in the current submission… the applicant did not follow the drawings granted… which clearly fails to accord with the granted scheme.”
26. Mrs X chased the Council on several occasions for a progress report between January and May 2021. On two occasions the Council responded and apologised for not responding.
27. The Council emailed Mrs X in June 2021. It told her it would contact Mrs D to try to resolve the issue of the patio informally. But, if this was not possible, it would consider enforcement action.
28. The Council contacted Mrs D in June 2021 to check on her progress, it informed her of what actions it expected her to take about the patio.
29. Mrs X contacted the Council again in August 2021 and said it had failed to progress the case or show a duty of care to her.
30. The Council held a short meeting with Mrs X in September 2021. Mrs X says during the meeting the Council specified a timeframe of six weeks to deal with the issues of the outbuilding and the patio.
31. In October 2021, the Council made a fourth site visit to Mrs D’s property. It took further measurements of the outbuilding and checked the dimensions and the ground levels. It updated Mrs X on the day of the visit.
32. Mrs X chased the Council on four occasions for an update on its progress between November 2021 and February 2022. The Council apologised for the delay in responding in both December and January 2022 and said it would contact the team reviewing Mrs X’s case.
33. In March 2022, the Council emailed Mrs X. It again apologised for the delay in responding. It explained it had re-inspected the property and had taken measurements of the building. It had reviewed the measurements, compared these to the approved plans and was satisfied the outbuilding was built in accordance with the plans. It also said it had asked for a further planning application from Mrs D for the patio and had tried to resolve the matter without moving to formal enforcement action. It said it was still considering its enforcement options.
34. While undertaking the site visits, the Council also considered Mrs X’s concerns about the additional windows that she believed would impact her privacy.
35. The Council’s notes show it considered the impact of the windows on Mrs X’s privacy, but decided they caused ‘little or no harm’ to Mrs X’s amenity.
36. Mrs X complained to the Ombudsman in April 2022.

Analysis

37. Councils have no duty to check whether developers have complied with all the conditions of planning permission. However, where a council receives complaints of potential breaches of planning control it has a duty to investigate. Councils have the power to enforce but they have no duty to do so. If a council decides enforcement action is suitable, it should follow government guidance. This says any action it takes should be proportionate to the breach of control to which it relates.

Outbuilding

38. The Council opened an enforcement case in April 2020 and considered Mrs X’s concerns. Following three site inspections, it told Mrs X in October 2020 the outbuilding had been built in accordance with the approved plans. I appreciate the views expressed in the delegated report published in February 2021 (about the patio) referencing the outbuilding’s height and measurements caused Mrs X to question the Council’s earlier response. However, the Council made a further site inspection in October 2021. It again told Mrs X the outbuilding had been built in accordance with the approved plans.
39. I am satisfied the Council properly investigated the alleged breach of planning permission. The decision about whether the building as built is acceptable and in line with planning permission is one of professional judgment. In the absence of fault, there are no grounds to question the Council’s decision.

Additional Windows

40. The Council considered Mrs X’s concerns about the additional windows in the outbuilding. It was satisfied they did not impact on her amenity, and, in any event, they did not require a separate planning application because they are permitted development.
41. I am satisfied the Council properly considered Mrs X’s concerns about the windows. In these circumstances, there are no grounds to question its decision.

Patio

42. The Council has found the patio as built required planning permission and required Mrs D to submit a retrospective application. The Council refused the application. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. I accept the Council has attempted to resolve the situation without the need for a formal notice.
43. However, the Council spoke to Mrs D in June 2021 and explained the actions she needed to take to rectify the issue, Mrs D has not done this. It also completed a further site visit in October 2021. The Council said it is in the process of issuing enforcement proceedings. I have reviewed the Council’s notes and chronology of events and consider the Council could reasonably have started enforcement proceedings by the end of December 2021. This has led to a nine-month delay in issuing proceedings, and this was fault. This has caused Mrs X frustration and put her to the time and trouble of complaining. I have made recommendations to address the injustice caused.

Complaints and communication

44. Mrs X had a reasonable expectation the Council would keep her informed of the progress of the case. The Council accepts there was delay in responding to Mrs X’s first complaint. It has also apologised on several occasions for failing to respond to her concerns. The Council held meetings with Mrs X in 2020 and 2021 to update her of the progress of its enforcement case. But I have also seen several emails where Mrs X has chased the Council for a response to her concerns without receiving a prompt response. This was fault and caused Mrs X frustration. The Council in its response to my enquiries has said it has completed an internal audit and review of its procedures leading it to adopt a new Planning Enforcement Policy. This is what I would have recommended. However, while the enforcement case is continuing, I will recommend the Council updates Mrs X of the current situation with the patio and keeps her informed of its progress at least once a month, until the case is closed.

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Agreed Action

45. By 9 December 2022 the Council will:

• Apologise to Mrs X for causing her frustration and putting her to the time and trouble of complaining.
• Pay Mrs X £100 for frustration caused by its repeated failure to respond to her emails and for poor communication in keeping her informed of the progress about the patio.
• Pay Mrs X £200 for the frustration caused and putting her to the time and trouble of complaining caused by the Council’s drift in dealing with the issues of the patio.
• Write to Mrs X and update her on the current situation about the patio (and send the Ombudsman a copy) and inform her of its progress with the enforcement case every four weeks until the enforcement case is completed.

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Final decision

46. I find fault with the Council for delay in taking timely enforcement action and failure to keep Mrs X informed. This caused Mrs X frustration and put her to the time and trouble of complaining. However, I do not find fault with how the Council considered its discretionary enforcement powers. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman