Summary: Mr X complained about the Council’s failure to take planning enforcement action. We did not investigate this complaint further, as we were unlikely to find evidence of fault, recommend a remedy for Mr X or reach any other meaningful outcome.

The complaint

1. Mr X complained the Council failed to take planning enforcement action against a developer who submitted several applications to vary approved plans.
2. Mr X believes the Council was wrong to allow so many variations, and that it should have taken formal action when it found breaches of planning conditions.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave Mr X an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. Conditions can be challenged by way of appeal to the Planning Inspectorate, or by a new application to the council to remove or vary the condition.
10. Some councils issue guidance on planning policy to explain how they would normally make decisions on planning applications, and how they generally apply planning policy. Policy and guidance are sometimes found within the council’s local development plan or issued in separate supplementary planning documents.
11. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
12. Although a council’s guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
13. However, councils may allow closer separation distances, if circumstances allow. For example, if there are landscape features, vegetation or trees between houses, or if windows face towards space that is not private, like the public highway. Sometimes, councils require more space than guidance might indicate, for example, where changes in land level increase the impact on neighbouring amenities.
14. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.

Planning enforcement powers

15. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
16. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
17. However, 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.

What happened

18. Several years ago, the Council approved a planning application for housing development subject to planning conditions.
19. Since approval and the commencement of building works, the developer submitted several applications to vary the original approval. The Council’s planning enforcement officers received allegations of breaches of planning control, including failure to comply with planning conditions.
20. The Council’s enforcement officers found evidence of breaches of control and invited the developer to submit a further application to vary the plans. This application was approved subject to planning conditions.
21. Mr X lives across a public road from the development site. The new houses are set back from the road on rising land. The closest part of the development to Mr X’s home is an annex, which is about 20 metres from the front elevation of the nearest new house across a highway.
22. In a response to an earlier draft of this decision, Mr X raised the following concerns:
• The developer’s description in various applications and on drawings were inaccurate; and
• The Council should not have validated the application because the information provided by the applicant was false and misleading.

My findings

23. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
24. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
25. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
26. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
27. I should not investigate this complaint further and my reasons are as follows:
• There is a significant distance between the side of Mr X’s home (including his annex) and the new houses, and I am not persuaded he has been caused a significant injustice that might lead to a recommendation for a remedy.
• A decision on whether to take enforcement action is a matter for the Council to decide at its discretion. The Council was not obliged to take formal enforcement action when it found breaches of planning control.
• Councils may decide not to determine applications, but this is also a matter for the Council to decide.
28. Mr X’s comments on my draft decision made no difference to my view of his complaint, and my reasons are as follows:
• The principle of residential development on the site is long established. The most recent application was to vary an earlier application made and approved several years ago.
• I read the case officer report for the most recent approval, an application to vary the design approved plans by changing windows etc. Before this decision was made, the case officer considered the plans, the planning history including a large number of applications (some approved, some refused) relevant planning policy and comments from neighbours, including a comment that drawings and other information on the application were incorrect. I saw nothing to suggest fault in the decision making process and I do not consider further investigation is not justified. It is unlikely to lead to a different outcome or a remedy for Mr X.
• It is up to the Council to decide whether to treat an application as invalid. If it is satisfied that the information provided is satisfactory, it can consider and decide an application. These are matters for the discretion of the planning authority and we are not an appeal body to judgements it makes.

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Final decision

29. I ended my investigation as I was unlikely to find evidence of fault, recommend a remedy to Mr X or reach any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman