Summary: Mr X complained about the Council’s handling of planning application and enforcement matters for a neighbouring property. We find fault which caused Mr X avoidable uncertainty, distress, frustration, and inconvenience. The Council should apologise and make a payment of £100 to reflect injustice caused.

The complaint

1. Mr X complains the Council:
1. Failed to consult him in relation to an application to amend a planning application.
2. Failed to take enforcement action and its communication with him was poor.
3. Failed to consult him in relation to a further planning application.
4. Delayed its decision in relation to the further planning application.
2. Mr X says the Council’s actions affected his residential amenity, invaded his privacy, and caused him frustration. He says he also went to avoidable time and trouble trying to resolve his complaint.

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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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether an organisation’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)
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. During my investigation I spoke to Mr X to discuss his complaint and considered information he provided. I also made enquiries of the Council and considered its response.
7. Mr X and the Council had an opportunity to comment my draft decision. I considered their comments before reaching a final decision.

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What I found

Planning applications

8. The law says Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
9. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies.
10. Once a planning application has been validated, the local planning authority should decide on the proposal as quickly as possible, and in any event within the statutory time limit unless a longer period is agreed in writing with the applicant. The statutory time limit is eight weeks for non-major, non-technical developments unless an environmental impact assessment is required (16 weeks).
11. If an application is not decided within the statutory time limit, the applicant can make a ‘non-determination’ appeal to the planning inspectorate.

Applications to amend existing planning approval

12. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
13. If the Council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process.
14. There is no statutory definition of what is or is not a minor-material amendment. The question is one of fact and degree and a matter for the Council to decide given the circumstances of each case.

Planning enforcement

15. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary, and Councils should act proportionately in responding to suspected breaches. (National Planning Policy Framework (NPPF) 2021 para 59)
16. Councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance, or undertaking. Councils may also allow applicants to obtain approval for works completed by submitting a suitable retrospective planning application or application to amend or vary a planning condition as explained above.

The Council’s planning enforcement policy

17. The Council’s policy says it will:
• Acknowledge reports of planning approval breaches within three working days. It will then investigate and initially try to reach an informal resolution unless the matter is causing significant harm.
• Decide within eight weeks of a report, whether it will take enforcement action, negotiate an acceptable outcome, invite a planning application, or close the case. It will contact the complainant when the case is closed explaining its reasons.
• Cases are prioritised in order of seriousness (priority 1 -3). Priority 2 involves extensions to buildings and changes of use. The Council will visit these sites within 10 days of the report. It will also consider all the relevant planning circumstances before deciding whether enforcement action is necessary and proportionate in the circumstances of each case.

What happened

Planning applications

18. Mr X’s neighbour (‘Mr Y’) made a planning application to extend his property to construct basement and ground floor flats (‘Application A’). The plans accompanying Application A showed the new flats would have a special type of roof but did not include any designs for a roof terrace. The Council later approved Application A.
19. Mr Y then made a further application (‘Application B’), to vary conditions in Application A. The planning records show that these mainly related to the basement flat. The Application B drawing plans that accompanied this application refer to a ‘green roof terrace’ for the ground floor flat. Mr X believes the Council failed to notice this part of the plan, pointing out the terrace and roof were not explicitly referred to in the officer’s report. The Council asserts that it properly considered these aspects of the proposed development when making its decision. The Officer report for Application B refers to “A grassed roof to be provided above the basement which will form the terrace for the family duplex unit”, which indicates the Council considered the Application B plans.
20. The planning officer’s report confirms the Council considered the relevant planning history, publicised the application by way of neighbour’s letters without response and addressed what it considered to be material planning considerations. The Council later approved Application B requiring it to be built in accordance with the plans. Mr X confirmed he received a copy of the neighbour’s letter by post but said it did not mention any ground floor roof changes. He therefore did not respond to the consultation.
21. Mr X said in early March 2022, he noticed a roof terrace type structure was being built on the ground floor flat. He believed this was in breach of planning approval granted for Applications A and B. He was also concerned about the potential impact of a neighbouring roof terrace on his privacy and residential amenity. e

Enforcement investigation

22. In mid-March 2022, Mr X reported the matter to the Council. He has provided copies of his subsequent communications with the assigned Council enforcement officer (‘EO’). The evidence shows Mr X immediately informed the EO that he considered Mr Y was constructing a roof terrace without approval.
23. At the end of March, the EO told Mr X they had reminded Mr Y to carry out all works in accordance with the approved plans.
24. In early April, Mr X sent a further email to the EO requesting an urgent site visit. He included photographic evidence and said Mr Y had lowered the ground floor roof which indicated Mr Y’s intentions of building a roof terrace without approval.
25. The records say in early April, the EO conducted a site inspection. They advised Mr X that Mr Y had now submitted a non-material amendment application for the ground floor roof. They would wait until the outcome of the application before considering further action. The EO said Mr Y was however aware that any unauthorised works would result in an enforcement notice.
26. At the end of April, the EO told Mr X:
• The Council had now advised Mr Y to submit a minor-material amendment application (‘Application C’) for a balcony and his earlier non-material amendment application had been withdrawn.
• Their site visit had confirmed the ground floor roof was still being built in accordance with approved Application B plans.
27. In reply, Mr X explained Application B did not include any changes to the level of the ground floor roof and queried if Mr Y had been granted permission to make such changes.
28. The EO then advised Mr X that the developer’s letter accompanying Application B mentioned a green roof system and referred to the revised plans. But could not say why the ground floor roof was not explicitly mentioned in the letter. The EO again confirmed to Mr X that no planning breach had occurred.
29. Mr X replied to say the developer’s letter only referred to changes to the basement flat and not the ground floor roof. He again asked if Mr Y had permission to make changes to the ground floor roof.
30. The EO then informed Mr X they would discuss his concerns with the team leader and update him in due course. The records do not show a further update to Mr X as promised.
31. In early May, Mr X sought further updates from the EO without response.
32. In early June, Mr X again requested a reply to his previous queries. The EO then replied to say they had referred the matter to a senior manager for a response.
33. In mid-June Mr X sought a further update from the EO and complained about the continued delays. The EO replied on this occasion to say they would forward the issue for a management review before providing a response. The records do not show any further response to Mr X.

Mr X’s complaint

34. In late June 2022, Mr X complained to the Council. He said:
• The Council had failed to respond to his multiple queries about the changes to the ground floor roof.
• Mr Y had not mentioned any changes to the ground floor roof in Application B. The Council had therefore failed to spot the Application B plans referred to a ground floor roof terrace. It would have determined the application differently if it had identified this issue and consulted neighbours before granting approval.
• The EO had failed to serve an enforcement notice on Mr Y to stop him from building the roof contrary to planning approval.
• The EO had delayed in responding to his queries and he still did not have a clear answer about whether the change in height and shape of the ground floor roof were approved.

The Council’s complaint responses

35. In its stage one response, the Council said:
• It noted Mr X’s concerns about the height and shape of the ground floor roof approved as part of Application A later changed by way of Application B. However, Application B was properly approved and permitted an amenity space for the basement/ground floor and a ground floor grass roof in line with the revised plans. Its site visit confirmed the ground floor roof was being built in accordance with approval.
• It understood Mr X’s concerns about the potential use of the ground floor roof (as a terrace). It had therefore investigated and established it would remain a grass roof, but a small part would now be used as a balcony.
• A decision was pending about the balcony (‘Application C’). It would also consider adding conditions if approval was granted to prevent any future use as a terrace.
• It did not issue a stop notice as it was seeking an alternative resolution which was proportionate to the circumstances of the case.
36. Mr X was not satisfied with the Council’s response and escalated his complaint.
37. In its stage two response, the Council confirmed:
• Application B did not seek to make any changes to the ground floor roof. Permission only remained for a grass roof until any further alternative applications were approved.
• It consulted 24 residents about Application B.
• It accepted Application B plans showed a slight change to the datum level (point from which measurements taken) compared to Application A. This meant the ground floor grass roof would sit lower. However, it would also sit higher once there was a build-up of vegetation as happens with a sedum roof. The Council had deemed this issue non-material in planning terms and not a reason to withhold planning consent for Application B.
• Changes to an approved scheme could also be regularised by way of further applications as set out in law. And it was therefore now considering Application C and had consulted residents.
38. Unhappy with the Council’s response, Mr X approached the Ombudsman in March 2023.
39. In response to our further enquiries the Council explained:
• Application C was publicised, and the Council received two objections from neighbours, including Mr X who made representations.
• There was a delay in reaching a decision for Application C due to difficulties with obtaining information from Mr Y. The Council also required additional time to adequately address Mr X’s concerns and reach an outcome which was agreeable to all parties.
• It kept in regular contact with Mr X while Application C was being considered and kept him updated. It decided Application C in early 2023 and subsequently closed its enforcement investigation.
• It has offered to apologise to Mr X for the delay in deciding Application C.

Was there fault and did it cause injustice?

i) Mr X says the Council failed to consult him in relation to an amendment to a planning application.

40. The records show Application B was an application to vary conditions in Application A. The evidence shows the Council followed the relevant publicity steps as explained at paragraph 9 (above). The planning officer’s report says the Council publicised the application with neighbour’s letters (paragraph 20). The Council confirmed it consulted 24 residents. Mr X also accepts he received a copy of the neighbour’s letter by post. I therefore do not find the Council failed to consult Mr X about Application B.
41. Mr X has clarified his complaint about consultation extends to the Council’s consideration of Application B. He explained this was because the Application B plans describe a ground floor roof terrace and change to the level of the roof which was not in Application A. He said this amounted to a material change which the Council failed to spot and properly consider.
42. It is not for the Ombudsman to decide whether the proposed changes in Application B were material or not, that is a matter for the Council (paragraphs 13 and 14). The available evidence shows the Council followed the necessary steps in validating Application B including the accompanying plans, sending necessary neighbour’s notices and it then addressed what it considered to be material considerations in the officer’s report (paragraph 20). These plans included a site plan which referenced a roof terrace and green roof material.
43. The officer report did not explicitly refer to the terrace and roof. However, officer reports do not need to include every possible planning consideration, only those the council considers to be principal controversial issues. The report proposed approval of the development according to the submitted plans that showed these two elements. There was no fault in the Council’s report.
44. The Council later clarified, that while it accepted there was a slight change to the level of the ground floor roof in the Application B plans, it considered this non-material in planning terms. I do not find fault in the steps taken by the Council in its consideration of Application B. I therefore cannot question the merits of its decision.

ii) Mr X says the Council failed to take enforcement action and its communication with him was poor.

45. In March 2022, Mr X reported that Mr Y was building a roof terrace to the Council. The available evidence shows the Council acted in line with the law (paragraphs 15-16) and its planning and enforcement policy (paragraph 17), after Mr X’s report. The Council acknowledged Mr X’s concerns and in April it conducted a site visit to check compliance. It reminded Mr Y to ensure construction was in line with approvals. I do not find fault with the Council’s initial response.
46. Mr X remained concerned about the building works and submitted further photographic evidence. He asked the Council to order Mr Y to stop construction. The Council then informed Mr X that Mr Y had now submitted a non-material amendment application. The Council therefore decided to wait for the application outcome before considering further action. The Council was within its rights to adopt this course as set out in its planning enforcement policy (paragraph 17) and the National Planning Policy Framework (NPPF) guidance (paragraph 15). This states the Council is entitled to apply its discretion in deciding the most proportionate enforcement response in the circumstances of the case.
47. The Council later advised Mr X to submit a minor material amendment application for a proposed balcony (Application C), which required senior officer involvement and public consultation. The Council therefore kept its enforcement investigation open until a decision was reached in relation to Application C. I note Mr X had the opportunity to comment on this application and the Council added conditions in agreement with him to prevent any future use as a roof terrace. I do not find fault in the steps taken by the Council in its enforcement investigation. I therefore cannot question the merits of its decision not to take enforcement action.
48. However, the records indicate the Council’s communications with Mr X during its enforcement investigation and subsequent complaints process may have caused him avoidable confusion and frustration. Mr X wanted to know if Mr Y had permission to build a roof terrace as this reference appeared in the Application B site plans. The evidence indicates the Council did not clearly address Mr X’s query. The enforcement officer (EO) initially advised Mr X that the ground floor roof was being built in accordance with approved plans and no breach of planning had occurred (paragraphs 25 and 28). In its stage one response it said Mr Y had permission to create an amenity space for the ground floor flat and a grass roof in line with the approved plans. In its stage two response the Council accepted there was a difference in the level of the ground floor roof between Applications A and B, but it had not considered these to be material in planning terms.
49. The Council eventually clarified the situation in relation to the Application B plans. However, in my view it should have taken this action much sooner and alleviated Mr X’s concerns. The available evidence indicates there was a period during its enforcement investigation where the Council was unsure of the correct position in relation to the ground floor roof. It failed to clarify this point sufficiently and promptly. This was fault. The Council’s subsequent communications with Mr X therefore caused him uncertainty and distress as he believed Mr Y was building a roof terrace without approval. I also note the EO stopped responding to Mr X from June 2022 and Mr X then felt the need to complain. The Council’s lack of clear communication with Mr X and EO’s failure to provide an updated response to Mr X’s queries as promised is fault. This caused Mr X avoidable uncertainty, frustration and inconvenience trying to understand the situation until he felt the need to complain to the Council. This is injustice.

iii) Mr X says the Council failed to consult him in relation to a further planning application.

50. The planning records show the Council publicised the further application (Application C) and consulted residents. The evidence shows Mr X also submitted representations objecting to the proposed changes. This is in line with the law as set out at paragraph 9 (above). I therefore do not find fault in relation to this aspect of Mr X’s complaint.

iv) Mr X says the Council delayed its decision in relation to a planning application made in 2022.

51. The planning records show the Council took about a year to decide Application C. The statutory time limit for such an application is 8 weeks as explained at paragraph 10 (above).
52. The Council accepted there was delay in determining this application, however I should not investigate this part of the complaint further. This is because the statutory time limits do not create rights for Mr X (paragraph 11). Mr X complained the Council delayed its decision which caused him uncertainty and frustration. This is not a significant injustice that we would remedy even if we had found evidence of fault in the process. However, I note the Council has nevertheless offered to apologise to Mr X and the Ombudsman would welcome this action.

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Agreed action

53. Within one month of my final decision date the Council should:
• Write to Mr X and apologise for its failure to properly address his queries in relation to the ground floor plans and any avoidable uncertainty, distress, frustration, and inconvenience caused to him.
• Make a symbolic payment of £100 to Mr X for his avoidable uncertainty, distress, frustration, and inconvenience.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I find the Council at fault which caused Mr X avoidable uncertainty, distress, frustration, and inconvenience. The Council should apologise and make a payment of £100 to reflect injustice caused.
56. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman