Summary: Mr X complained about how the Council responded to his report of a breach of planning control at a neighbouring property. Mr X said this caused him significant distress and has affected the value of his property. We do not find fault with how the Council considered and responded to Mr X’s report.

The complaint

1. Mr X complains the Council failed to take suitable and timely enforcement action on a breach of planning control at a property that neighbours his home. Specifically, Mr X says light columns that were not included in the planning permission were put up without approval. Mr X says this has impacted his amenity, devalued his property, and caused him real distress. Mr X also complains there were issues with the original planning application.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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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What I have and have not investigated

6. I have investigated how the Council responded to Mr X’s report of a breach of planning control and the process it followed when making its decisions in relation to this. I have not investigated issues Mr X raised about the original planning application.
7. The original planning application was granted in 2021 and any concerns Mr X had about this would have been apparent when the report was published at that time. Mr X did not bring his complaint to us until March 2023, more than 12 months later, so this complaint has been raised late. I have seen no good reason why Mr X could not have brought it to us sooner.

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How I considered this complaint

8. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
9. Mr 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

Planning enforcement

10. The Town and Country Planning Act 1990 defines breaches of planning control 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.
11. 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.

National Planning Policy Framework

12. The National Planning Policy Framework sets out the government’s planning policies for England and how to apply these.
13. The Framework says effective enforcement is important to maintain 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.

The Council’s planning enforcement

14. The Council can decide on planning applications for developments where it intends to carry out work itself.
15. The Council’s team for considering planning applications and dealing with enforcement issues is distinctively separate from the teams who may make planning applications, but the Council remains one legal entity. The Council cannot initiate legal proceedings or issue enforcement notices against itself. The Council has a specific protocol for dealing with monitoring and enforcement on those developments.
16. The Council expects a high level of compliance in those cases, and uses site visits to proactively monitor the implementation of planning permission. It also offers advice on the implementation of permission and records any failure to obtain prior approval for works as a breach of planning control.
17. Where the Council identifies a breach of planning control, its planning officers have delegated powers to negotiate and agree an appropriate level of planning control and necessary remedial action. Planning officers will usually seek to resolve breaches promptly through discussion with the applicant and, where reasonable and appropriate, will set out the requirement for remedial work and action in a written notice.
18. Where the Council requires urgent action to avoid significant harm and the applicant has not resolved the breach, planning officers will refer the matter to a sub-committee of the planning and regulatory committee.

What happened

19. The Council owns land next to Mr X’s home. The Council’s Planning department received a planning application from its Land and Property department to develop part of this land. The Council granted planning permission with several conditions, including that no additional lighting should be installed without further approval and work began.
20. Later, the Land and Property department applied for several conditions on the original application to be discharged. This included a request to install lighting.
21. In September 2022, Mr X contacted the Council. He said he had noted changes to the approved layout which would put lighting poles directly beside his boundary. Mr X objected to this and said work had already started without permission.
22. A planning officer contacted the property managing agent, telling them they had received a representation against the works and reminding them nothing should happen prior to approval.
23. The Council conducted a site monitoring visit, noting no new lighting was installed.
24. A planning officer emailed Mr X in October 2022. They explained the Council had approved minor changes to the development’s layout. They also explained the Council was considering details of a lighting strategy but had not yet decided on this. They said the Planning department did not condone any work starting prior to approval and were looking into Mr X’s report.
25. Mr X sent the Council photos showing light towers were already installed.
26. In November 2022, the planning officer emailed the property managing agent. They said they should apply for permission before completing any more work and they were disappointed to learn light columns were installed. They told the property managing agent to stop work on this immediately. They also said the scale of the lighting proposed was a significant addition and needed a full planning application.
27. The property managing agent withdrew their application to remove the lighting condition and said they would submit a full planning application for this. The planning officer told them any retrospective application should include robust justification for why work started prior to permission being granted. They also reminded the property managing agent not to carry out any further work on the lighting while the application was pending.
28. The planning officer emailed Mr X to acknowledge work had started on the lights prior to planning approval. They explained the Planning department did not condone this and had raised the matter with the Land and Property department, asking it to cease work immediately. The planning officer said Mr X would have an opportunity to object to the application when it was submitted.
29. Mr X sent the Council photos to show disruption caused by existing light and car headlights entering his home through his fence.
30. Mr X contacted the Council again in December 2022. He explained he was disappointed in its handling of the situation and asked it to remove the light columns. Mr X also questioned if there was a conflict of interest as the Council was both the landowner and the planning authority. The Council explained it is not uncommon to decide planning applications it intends to carry out itself and it considers these applications in the same way as any other application.
31. Later that month, the Council held an internal meeting to discuss the lighting columns. It noted these were installed prior to permission to get them in place before pre-arranged tarmac pouring dates. It agreed a retrospective application would be submitted before any further work took place on them. It was also noted the new lighting columns did not have lights installed, and the light-spill Mr X referred to was from pre-existing lighting on a different part of the property, not the subject of this planning application.
32. The Council emailed Mr X to update him on the situation and reiterated that he could make objections once the application was submitted. However, Mr X said the Council had not answered his concerns or addressed the fact it had installed lighting that was not agreed. The Council agreed to treat this as a formal complaint.
33. In January 2023 the Council carried out a site visit. The planning officer noted no further work had been carried out on the lighting columns and they did not have light bulb fittings installed.
34. Mr X sought an update in February 2023 and the planning officer confirmed they were still waiting for a planning application to be submitted for the lights. They explained if Mr X felt light from the pre-existing lighting was causing a statutory nuisance, he could raise a complaint with an Environmental Health Officer.
35. The Council also responded to Mr X’s complaint. It agreed the lighting columns were installed without the appropriate permission. However, it said it had taken suitable action to address this and was currently awaiting a retrospective application. The Council offered to pay Mr X £200 to recognise the distress and anxiety caused by its Land and Property department starting work without permission and £150 to recognise the time and trouble Mr X had taken to complain.
36. In March 2023, the Council completed another site visit and a compliance check. This noted the light columns were still in place, but no further work had been completed since the planning officer asked for this to be stopped. It also noted it had not received a planning application and asked the managing agent to do this by the end of April 2023.
37. The Council has now received a retrospective planning application, which it is currently considering.

Analysis

38. The Ombudsman is not a planning authority and cannot decide whether a breach of planning control has occurred and, if so, what action should take place to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
39. Mr X has said he feels the Council ought to remove the light columns that were erected without prior permission. It is not for the Ombudsman to say what action the Council should take so I do not find fault here.
40. That said, we expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decision to any complainants. We would expect the council to do so without unnecessary delay. The Council has provided us with good evidence of its response to Mr X’s reports.
41. After the Council received Mr X’s complaint, it visited the site and identified lighting columns had been erected before permission was granted. It instructed the managing agent to cease any further work on this and told them they would need to make a retrospective application. I find no fault with the Council’s actions here. It appeared to assess the situation and enter negotiation in line with its usual process.
42. The Council regularly visited the site to confirm no further work was carried out on the lights. While the lighting columns remained in place, the Council satisfied itself the risk of harm was minimised as no lights were in place while it sought a retrospective planning application. I do not find fault with the Council’s decision-making process.
43. I have considered the Council’s site visit compliance check from March 2023, and this shows the Council fully considered the complaint Mr X had made when deciding a retrospective planning application was the appropriate next step. I do not find fault with the Council’s decision-making process.

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Final decision

44. I do not find fault with how the Council considered Mr X’s report of a breach of planning control and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman