Summary: Mr X complained the Council failed to take enforcement action over unauthorised development of a listed building. We did not find fault in the Council’s approach to dealing with planning enforcement complaints, or in its consideration of retrospective planning applications. However, the Council was at fault for delays, poor communication, and lack of proper oversight. The Council agreed to provide a suitable remedy.

The complaint

1. Mr X complained the Council failed to take enforcement action over unauthorised development of a listed building.
2. Mr X said a neighbour attached gates to property which he owns, and overhang land he owns, without gaining planning permission. He said the Council wrongly validated plans for retrospective planning permission, despite knowing about the land ownership issues, and allowed the applicant to make second retrospective planning applications, despite this being contrary to Government guidance.
3. Mr X said the Council failed to decide retrospective applications, meaning it did not have to follow through on its commitment to create an enforcement action plan.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. 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

Decision making

9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. Government statements of planning policy are material considerations.
13. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
14. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Listed building consent

15. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – buildings of exceptional interest;
• Grade II – buildings of special interest; and
• Grade II* – particularly important buildings of more than special interest.
16. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
17. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.

Enforcement

18. 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.
19. 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.
20. 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.
21. 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 September 2023, paragraph 59)

What happened

22. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.

Planning breaches

23. Mr X reported works taking place at the development site in August 2021, including excavations, a brick extension to an outbuilding, and a gate through a boundary wall onto the highway. He thought the owner did this without permission and using materials not in keeping with the listed building.
24. In late August and early September 2021, Mr X reported further changes to the listed building curtilage: A pair of gates enclosing the courtyard and attached to the historic walls, two CCTV cameras mounted on curtilage walls, and two lean-to structures attached to a rear wall. All without planning permission or listed building consent.
25. The Council visited the site on 28 September 2021 and took photographs.
26. Mr X reported more sand and cement arriving on site to continue the works in October 2021. He asked when the Council would investigate.
27. The Council said it was checking with a conservation officer about whether it could class the outbuilding as listed. It said if it can, it will start enforcement action.
28. A planning officer and planning enforcement officer visited the site on 9 November 2021.
29. The Council then confirmed to Mr X it was treating the development as ‘curtilage listed’. It said it would take suitable steps to regularise or correct any breaches of planning control.
30. The Council wrote to the development owner (the owner) at the start of December 2021, telling them they need listed building consent and planning permission for the works.
31. Mr X chased the Council for an update in January 2022. He said the owner attached a new CCTV camera to the historic walls of the courtyard of the listed building, and to an outhouse, without permission.
32. A planning enforcement officer confirmed they were the new case officer, and they would visit the site the following day to assess the position. If they found the unauthorised works are harmful, and a planning application would not resolve matters, the Council would consider how best to proceed. The officer said this could take some time.
33. The case officer visited the site on 21 January 2022.
34. Mr X chased the Council for an update on the courtyard gates and all other works in February 2022.
35. The case officer confirmed planning permission is required for any enclosure of a listed building. On the other works, the officer said it was best to work with the owner first to resolve the issues through planning applications. If there are matters the Council cannot resolve through the application process, it would consider whether it needs to take formal action. They pointed out formal action can take many months, so the best approach is usually to negotiate with owners.
36. Mr X contacted the Council again for an update in April 2022. He said the unauthorised courtyard gates are still in place, CCTV cameras remain attached to historic walls and outbuildings, and the new gate through the boundary wall onto the highway is still in place.
37. Another new case officer replied to Mr X. They said enquiries are still active, but staffing issues caused delays. They said the owner is aware of the seriousness and has suspended all works since November 2021 to await conclusion of the enforcement enquiry. They said they would update Mr X.
38. A planning officer met the owner and their agent at the site on 28 April 2022.

Retrospective planning application

39. The owner made a retrospective planning application in May 2022. This was for a change of use of an outbuilding to annex accommodation, including extensions and repairs, and a new pedestrian gateway to a curtilage wall. The owner also applied for listed building consent.
40. Mr X contacted the Council in June 2022. He said there had been no progress since April. He said the owner’s retrospective planning applications only related to some of the unauthorised works. He said the previous case officer told him the positioning of the CCTV cameras would not get planning permission, and the owner needed permission for the courtyard gates. Mr X said one of the courtyard gates trespasses on his property. He asked the Council if it intended to decide the retrospective applications while his enforcement complaints were still open, and if so, he wanted to make a formal complaint.
41. The case officer told Mr X the Council had validated the retrospective applications the owner made. They invited Mr X to comment. They said they were continuing enquiries about the other concerns and would let Mr X know when there is an update.
42. Mr X said this was not good enough and asked to make a formal complaint. He said the Council took no action to regularise or correct the breaches in the last six months, and gave no plan or timetable. He complained about delays, service failure, failure to follow policy, and poor communication.
43. The Council refused the retrospective applications in August 2022. It said the unsympathetic design and materials fail to conserve, and would result in substantial harm to, the character of the historic curtilage of the listed building. The application for overnight accommodation did not contain the necessary supporting information, and the new pedestrian access will cause a serious highway safety concern.

First formal complaint response

44. The Council responded to Mr X’s complaint in August 2022. It accepted it failed to reach a satisfactory conclusion within a suitable timescale, and communication with Mr X could have been better, for which it apologised. It said:
• It had to do checks to find out the listed status of parts of the development site to decide whether the applicant needed consent. The advice from a conservation officer at that stage was not clear so the Council could not confidently act. After more discussions the Council showed the relevant parts of the site were curtilage listed and told the owner they must make a listed building application in November 2021. There was then a change in case officer, and the new officer had to meet the owner and assess the site. There was another change in case officer in April 2022. That case officer met the owner to advise they should apply for all works, or the Council would start formal enforcement action. The owner sent retrospective applications in May 2022. Those applications are under consideration but the Council is likely to refuse them.
• It could have handled parts of the case better and this could have resulted in an earlier resolution. However, it said enforcement is discretionary and it was at first unclear whether there had been any breaches. Once it showed this it had to give the owner time to make planning applications.
• It accepted it did not act on all Mr X’s queries and requests, but it responded to most. It said there were staffing issues which caused added delay, and an upsurge in complaints. It said it assigned more resources to planning enforcement to improve timescales and clear the backlog.
• Where an application validly makes an application, it has a duty to deal with it. It is up to the applicant what they include in an application. It said it will decide the current applications shortly. This will give a basis for moving forward with suitable enforcement action.
45. Mr X was dissatisfied with the Council’s complaint response and asked to appeal. He said it was one year since he reported planning breaches, but nothing changed. The illegal gate in the curtilage wall is still in place, as were the CCTV cameras. The owner also replaced an unauthorised pair of wooden gates enclosing the courtyard with wrought iron ones, again without permission. He said the Council gave no timescales or deadlines for enforcement action. He asked the Council to send his complaint to the final stage, which was a hearing before a sub-committee.

Re-submitted retrospective planning application

46. A senior planning officer, planning officer, and conservation officer met the development owner and their agent on 29 September 2022.
47. In later written correspondence, the Council asked the agent to send the applications for the works to the outbuilding, and for the CCTV cameras and courtyard gates, as soon as possible.
48. In November 2022, the owner made a re-submission of their retrospective planning and listed building consent applications from May 2022. However, this time they only applied for an extension and changes to the outbuilding and main boundary wall, formation of access steps and pathway to create ancillary domestic annex. They did not apply for a change of use for overnight accommodation, or for a new pedestrian gateway.
49. This application is still awaiting determination by the Council. The Council wrote to the owner about the application in October and November 2023, then again in March and April 2024. I cannot share what they discussed, as this is confidential third-party information and I do not have permission to disclose it. However, broadly speaking, the Council was relaying the opinion of a conservation officer on the proposed works and on the requirements the owner must meet to secure planning permission and listed building consent.

Second formal complaint response

50. The Council confirmed the result of its sub-committee hearing into Mr X’s complaint on 6 December 2022. The sub-committee found there were failings and a disjointed approach in communication and case management. However, it did not find the Council was wrong to accept planning and listed building applications. The sub-committee recommended the planning service produce a plan, to which it should update at relevant times, and share it with Mr X. The plan should set out the next steps and timescales. The investigation also recommended all enforcement cases should have plans going forward, with clearer management, setting priorities, and time scaling.

Second retrospective planning application

51. In December 2022, the development owner applied for retrospective planning permission and listed building consent for domestic yard gates, CCTV cameras, and removal of minor lean-to structure.
52. The Council sent Mr X an action plan on 23 December 2022, following the conclusion of his formal complaint, detailing actions it would take on the enforcement enquiries. It told Mr X it was not appropriate to start formal enforcement action while the Council considers the retrospective planning applications. However, if the applications were unsuccessful, it would seek authority to serve enforcement notices requiring works to correct the breaches. The Council said its aim was to serve enforcement notices within 21 days of agreement from its legal team. It also pointed out any refusal of planning permission had appeal rights, as do enforcement notices.
53. In January 2023, Mr X asked the Council whether it would allow the owner to make fresh applications which are substantially the same.
54. Internal Council emails show the case officer took advice from the Council’s legal services about whether the Council could refuse to consider a similar application after a refusal. Legal services referred to the Town and Country Planning Act 1990 (TCPA) and set out the circumstances where the Council can decline to decide an application.
55. The Council refused retrospective planning permission for erection of domestic yard gates, CCTV cameras and removal of minor lean-to structure on 7 February 2023. That was due to the prominent location of the CCTV cameras harming the historic character and failing to protect privacy of close neighbours. There was also inadequate evidence the CCTV cameras and gates would be on land within sole ownership of the applicant. The Council also noted the owner erected a flag pole and CCTV signage which were not part of the application but do need listed building consent.
56. Mr X contacted the Council in mid-March 2023. He said, following the Council’s refusal, the owner installed an extra CCTV camera. He also said they removed a lean-to structure without consent.
57. The Council said the lean-to structure was unauthorised, so it does not object to its removal. It also said it was expecting the owner to remove the flag pole, CCTV cameras, and signs from their current positions and it will check this. It also said it will look into the added CCTV camera.
58. A senior planning officer and planning officer met the development owner and their agent on 16 March 2023.
59. Mr X contacted the Council again later in March 2023, referring to its promise to take enforcement action if it refused retrospective applications. He said the courtyard gates are the main enforcement issue, as they impede his right of way. He said the owner removed the CCTV camera at the entrance, and a sign and flag pole, but the Council should not allow them to keep the illegal gates. He already made the Council aware of the false certificate of ownership the applicant completed as part of that application.
60. The Council said it successfully negotiated the removal of the flag pole, CCTV units, and lean-to structure to correct planning breaches. This resolved the harm without serving enforcement notices, which the owner could have appealed. The Council said it had to consider a further amended retrospective application for the courtyard gates and it will invite Mr X to comment. The Council also said the new CCTV unit attached to a tree within the grounds does not need planning or listed building consent.

Second re-submitted retrospective planning application

61. In May 2023, the Council received a re-submission of the owner’s retrospective planning and listed building consent applications from December 2022. The re-submitted application was for change to and retention of the domestic yard gates. The owner was no longer applying for permission for the CCTV cameras or demolition of the lean-to structure.
62. Mr X referred to his earlier emails and said the Council lacked jurisdiction to consider the applicant’s resubmitted retrospective applications. He said Government guidance is clear you only have one opportunity to gain planning permission if you undertake unauthorised development. He said it was not right the applicant had a second chance. He also said he told the Council about the courtyard gates trespassing on his land in June 2021, before the applicant applied to regularise them. He said the Council therefore should not have validated the application, as it knew the applicant sent the wrong certificate of ownership.
63. The Council said Government guidance is not law, and the TCPA does not place limits on retrospective applications, only for repeat applications for similar types of development. It said this was discretionary and did allow for repeat applications in certain circumstances. It also said enforcement action is discretionary and should not be punitive.
64. The Council said it based its refusal of planning permission for the CCTV and courtyard gates on the impact of the cameras. It did not refer to the gates in the refusal reasons because it does not consider them inappropriate. It said the gates remain unauthorised until a further application addresses encroachment. It said the law requires the applicant to provide a completed ownership certificate. Where this is wrong, the Council must show it was a deliberate or reckless act.
65. Mr X said the Council had not explained why it ignored Government guidance, or why it entertained the applications, contrary to law. He said it is not the case the Council must show whether the ownership certificate was fraudulent recklessly or knowingly, just that it is wrong. He said that was unquestionably the case. He said all issues with ownership at the site are in dispute and are due to be decided in Court in August 2023. He said anyone sending an ownership certificate before the Court makes its decision is doing so recklessly.
66. The Council granted planning permission and listed building consent for changes to and retention of domestic yard gates, with conditions, in August 2023. The owner had to finish the work in smooth black paint to match the existing gates. They also had to remove the gate hinges to the southern edge, but not the gate pintles within the stone pillar (as they are a historic feature). The Council highlighted it granted listed building consent only, and does not override any existing legal agreement, covenant or ownership arrangement. It was the owner's responsibility to ensure all necessary arrangements were in place before starting the work.

My investigation

67. The Council told me it opened enforcement cases following Mr X’s complaints, but postponed any enforcement proceedings after the owner made retrospective planning applications.
68. The Council recognised some problems with communication and timeliness. It cited staffing issues in its enforcement team.
69. The Council said the owner corrected all alleged breaches on CCTV, courtyard gates, and the lean-to structure. The only remaining concerns are with two pending applications which the Council is processing. The Council will not take formal action while these applications await determination. The Council has been negotiating with the owner about the two outstanding applications and has proposed conditions before issuing a decision.
70. On the applicant’s secondary applications, the Council said the law does not prevent a second application to regularise unauthorised development, especially where it may be acceptable in principle or through conditions. This involves Council discretion, which has been the case here. The Council recognised Government guidance restricting secondary applications, but said this is not law. It said under section 70 of the TCPA, it can only refuse to accept a planning application where there is an enforcement notice in place, or if there have already been two refusals of similar applications, or if the Secretary of State has dismissed an appeal on a similar application. None of these applied. The applications were different enough from the originals for the Council not to consider them ‘similar’.
71. The Council also said it did not refuse the earlier application to keep the courtyard gates because of the gates themselves. The conservation officer had no objection to them. The Council therefore would not have served an enforcement notice if it had refused to accept the retrospective application as it considers the applicant would have been able to successfully appeal against it.
72. On Mr X’s complaint the Council acted contrary to planning provisions, the Council said it reviewed the ownership certificate for the application to keep the courtyard gates. It found there would be no physical connection between the gates and Mr X’s property. It was therefore enough for the applicant to only complete Certificate A.
73. The Council said, under section 65 of the TCPA, the applicant must provide a certificate confirming they gave notice to any owner or tenant of the land. It is the applicant's responsibility to complete the correct certificate. Where this was not the case, the Council must show this was a deliberate or reckless act. There is no clear evidence this was the case.
74. There has since been a change in courtyard gate design, resulting in the gate being within land owned by the applicant while open and closed. There was therefore no reason not to validate the application. The Council got land registry plans to verify this before reaching its decision.

Analysis

75. I can appreciate Mr X’s frustration over the time the enforcement issues have been ongoing, and why he considers the development owner took advantage of the Council’s attempts to work with them for a resolution.
76. The Council accepts there were problems with communication and timeliness in its management of Mr X’s enforcement complaint. While I appreciate there were staffing issues, that is not an excuse for the delays or lack of progress.
77. The Council did tell Mr X it had an action plan following his complaint, which was to take formal enforcement action where it refused retrospective planning permission. I consider the Council raised Mr X’s expectations here, because it continued to try to work with the applicant to resolve the breaches even after refusing initial retrospective applications. This comes down to the Council’s communication, which it accepted should have been better.
78. The Council should have been clearer and more up front with Mr X. This caused avoidable frustration when the Council agreed to consider secondary retrospective planning applications.
79. I consider the Council took a risk averse approach. It was conscious of the appeal rights the development owner would have if it served an enforcement notice, or if it refused to consider their secondary retrospective planning applications. However, those decisions are for the Council to make, on the individual facts of the case, and enforcement action is discretionary. Councils should work with people to informally correct or regularise planning breaches, so I do not consider the Council was at fault in the approach it took.
80. The Council did secure the removal of the CCTV units and lean-to structure, without needing to issue a formal enforcement notice, shortly after it refused retrospective planning permission. However, it took the owner over a year to make that retrospective application. That was far too long, and I can appreciate Mr X’s frustration over the delay.
81. When the Council gave Mr X an action plan after his complaint there were two live planning and listed building consent applications. The first being for changes and extension to an outbuilding. The second being for the courtyard gates.
82. The Council has yet to decide on the amended retrospective application for changes and extension to an outbuilding. That application has been awaiting a decision for a considerable amount of time, so I can understand Mr X’s frustration. Once the Council decides the application, it should update Mr X about what it plans to do next.
83. Mr X complained the Council should not have accepted amended retrospective planning applications, as it is contrary to Government guidance. The guidance says an applicant should only get one chance to regularise unauthorised development. I found the Council’s planning service considered this point and took advice from the Council’s legal service. This advice set out the grounds for the Council to decline to decide a planning application. One of those grounds being where the Council considers there has been no significant change since the refusal. The Council considered the applications were not similar enough as there were material changes or elements the applicant no longer included.
84. Whether an amended retrospective application is considered to be essentially the same as the previous refused application is one of professional judgement for the Council. It is also a question the Courts could decide. It is not a question for the Ombudsman.
85. The Council considered Mr X’s comments. It then considered the legal position, and the reasons why it believed the secondary retrospective applications were not ‘similar’ to the previous applications. I therefore do not find there was fault by the Council in agreeing to decide the secondary applications. That is not to say the Council is right and Mr X is wrong, but the legal question would be one for the Courts, not the Ombudsman. Our role is to consider whether there was administrative fault in the decision, which I did not find there was.
86. Mr X also complained about the Council’s decision to validate the application to regularise the courtyard gates, due to ownership issues. He said the Council knew the gates trespass on his land.
87. Mr X did alert the Council to his ownership of part of the land the gates originally hung on. However, it is the applicant’s responsibility to complete the correct ownership certificate as part of their application. And there would need to be a clear error for the Council to refuse to validate an application. The Council refused the first retrospective application to retain the courtyard gates, citing unresolved ownership issues. Mr X therefore did not suffer any significant injustice because of the Council’s decision to validate the application.
88. For the amended retrospective application to keep the courtyard gates, the Council reviewed the ownership certificate. It also considered land registry plans. It decided there was no longer a physical connection between the gates and Mr X’s property in the plans, so it validated the application. Mr X may dispute that, but I cannot fault the Council for lack of consideration. It would be for the Courts, not the Ombudsman or the planning service, to decide ownership or any trespass issues.
89. The wording in the conditions of the Council’s grant of planning permission makes clear the permission does not override any legal agreement. And it placed responsibility on the applicant to check before starting the work.
90. According to photographs supplied by Mr X, the access gate leading onto the highway remains in place more than a year later. The applicant’s plan is to permanently board up the access with dark treated boarding. The Council is considering this as part of the applicant’s plans for changes to the outbuilding and boundary wall.
91. Overall, the Council was entitled to take the approach it did. Enforcement action is discretionary, and councils are encouraged to work with planning applicants. The Council’s aim has been to remove or reduce the harm, in planning terms, caused by the unauthorised development. This is an approach we would not fault. But it has taken too long in this case. There has been a lack of oversight and management of the case at times, which led to periods of drift and delay.
92. As touched on by the Council’s complaint sub-committee, it would be helpful for the planning service to have case plans and timescales to work to for enforcement cases. Officers should communicate plans with complainants, and update the plans during the case.

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Agreed action

93. Within four weeks of my final decision, the Council will:
• Apologise to Mr X for delays managing his enforcement complaints and considering retrospective planning applications, and for not communicating more clearly about timescales and the action it intended to take.
• Make a symbolic payment of £200 to Mr X to recognise its faults raised his expectations and caused avoidable distress when it did not take formal enforcement action.
• Confirm to Mr X the date by which it intends to decide the remaining retrospective planning application and update Mr X on what enforcement steps, if any, it intends to take then.
94. The Council should provide us with evidence it has complied with the above actions.

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Final decision

95. I completed my investigation. I did not find fault in the Council’s approach to dealing with planning enforcement complaints, or in its consideration of retrospective planning applications. However, the Council was at fault for delays, poor communication, and lack of proper oversight.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman