Summary: Mrs X complained about how the Council responded to her reports of breaches of planning control at a neighbouring property. Mrs X said this caused her significant distress and resulted in damage to her property. We do not find fault with how the Council considered and responded to Mrs X’s reports.

The complaint

1. Mrs X complains the Council failed to take appropriate and timely enforcement action relating to alleged breaches of planning control at a neighbouring property. Mrs X also says there were problems with how the initial planning application was considered. Mrs X says this has resulted in damage to her property and additional costs and stress to her.

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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. We cannot usually investigate complaints about events that happened more than 12 months before the complainant contacted the Ombudsman.
7. Mrs X brought her complaint to the Ombudsman in July 2023, meaning anything that happened prior to July 2022 would be treated as a late complaint.
8. The original planning application was approved prior to July 2022, and I have seen no reason why Mrs X could not have brought a complaint about this to us sooner. For this reason, I have not investigated how the Council considered the original planning application.
9. While the planning breaches Mrs X complained about started prior to July 2022, the Council’s investigations were ongoing beyond this time. For this reason, I have investigated how the Council considered and responded to Mrs X’s reports of breaches of planning control from October 2021.

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How I considered this complaint

10. I considered all the information Mrs X provided. I also considered information received from the Council.
11. Mrs 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

12. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 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.
13. 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

14. The National Planning Policy Framework sets out the government’s planning policies for England and how these are expected to be applied.
15. 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

16. The Council publishes it local enforcement plan on its website. This says:
• The Council initially attempts to resolve breaches through negotiation and giving landowners a reasonable opportunity to right the situation. If negotiation fails, it will then consider if formal action is needed. The Council’s power to take formal enforcement action is discretionary.
• Where a breach of planning control is identified, usually the Council will give owners of property an opportunity to put the situation right and advise them what steps are needed to do this. If it identifies a development is considered acceptable in planning terms, the landowner may be given an opportunity to submit a retrospective application.
• The Council can serve an enforcement notice if something requiring permission has been built before permission is granted. This is an instruction to put things back how they were before work started. The Council will take this action if the work done is not acceptable, is harmful to the environment, or if the work is not in the public interest.
• Dealing with enforcement cases can be a lengthy and complex process so it is not possible to give a standard time for dealing with them.

What happened

17. The Council approved a planning application relating to a property that neighbours Mrs X’s home.
18. In October 2021, Mrs X contacted the Council to explain the work that had been started was not in accordance with the original plan and the Council opened an enforcement case.
19. The Council visited the site the following month and identified a change to the approved plans which would require permission and invited Mrs X’s neighbour to submit a new planning application so this could be considered.
20. Mrs X’s neighbour submitted a new planning application, which the Council approved, and it closed the enforcement case.
21. Mrs X wrote to the Council again in August 2022 to explain she did not agree with the Council’s resolution. Mrs X said she believed the new planning permission would reduce the value of her property and increase the risk of flooding. Mrs X asked the Council to reinspect the property.
22. Mrs X wrote to the Council again in February 2023. Mrs X explained she was experiencing damp in her home, which she attributed to the work at her neighbour’s property and her health was suffering. As she did not receive a response, Mrs X attended the Council’s offices and asked it to consider her letter as a complaint.
23. The Council responded to Mrs X in April 2023. It explained planning permission had been granted at the neighbouring property and, following Mrs X’s report of a breach of planning control, a subsequent retrospective application was also approved. It explained the permission included a drainage scheme which was deemed to be appropriate in planning terms and would be confirmed by a building control inspector. It explained any damage that occurred during or after construction would be a civil matter for Mrs X to resolve with her neighbour directly.
24. Mrs X responded to the Council to disagree with its response to her complaint. Mrs X said she did not believe any drainage had been installed. Mrs X said her property was now damaged and suffering with damp as a result of the work. Mrs X also complained her neighbour had removed trees from their land without permission and the work had taken too long overall.
25. The Council responded to Mrs X’s complaint in May 2023. It explained building control had confirmed the drainage had been installed and was satisfactory but was awaiting a final sign off as some work was still in the process of being completed. The Council confirmed this was being overseen by building control to ensure compliance, but there were temporary drainage measures in place in the meantime. The Council explained there were no protected trees on the neighbour’s land so removal of trees would not be a breach of planning control and there was no specific timeline for when building work needed to be completed.
26. Mrs X disagreed with the Council’s response to her complaint. Mrs X said no drainage works had been completed and her home was suffering from rising damp. Mrs X also reiterated her concerns that trees had been removed and said the Council had failed to understand the importance of this.
27. The Council responded to Mrs X’s complaint in June 2023. The Council said it had been informed by building control that the drainage that had been installed so far was satisfactory. It reiterated that further work was still being completed and was being overseen but there were temporary drainage measures in place in the meantime. The Council also said that any damage caused by the work would be a civil matter and repeated that there were no protected trees removed so it had no control over this. The Council told Mrs X she could bring her complaint to the Ombudsman if she remained unhappy.
28. Mrs X raised a new enforcement complaint with the Council in September 2023, stating no drainage had been installed and temporary measures were unsuitable. The Council opened a new enforcement case, but closed this after repeating the outcome of its previous investigation to Mrs X.
29. In response to our enquiries the Council confirmed it had not found any breaches of planning control and had explained this to Mrs X. The Council explained it was satisfied the development would be appropriately drained and this would be overseen and signed off by building control. The Council confirmed building control was happy with the current temporary drainage arrangement and so the Council did not feel there was a reason to intervene.
30. In response to a draft of this decision, Mrs X said:
• The events around her complaint have been slow-moving and have evolved over a number of years so needs to be considered in full to get the context of the issues.
• While the removal of trees on her neighbour’s land are not a planning issue, it is significant as these used to soak up water which helped to prevent damp and flooding.
• The temporary arrangements in place for moving water are curious and do not comply with building regulations, with no timescale as to when permanent arrangements will be completed.
• The Council has ignored her reports of damage, so she has now had to contact her insurer.

Analysis

31. 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.
32. Mrs X has said she feels the Council ought to carry out more rigorous inspections. It is not for the Ombudsman to say what action the Council should take.
33. 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 Mrs X’s reports.
34. The Council promptly acknowledged Mrs X’s reports and inspected the neighbouring development to ensure compliance with the approved planning permission. Where it identified further permission was needed, the Council invited Mrs X’s neighbour to apply for this, in line with its usual process. I find no fault with the Council here.
35. While the drainage from the approved plans has not yet been completed, the Council received assurances from building control that the temporary measures were acceptable and decided it did not need to take further action here. I do not find fault with the process the Council followed to reach this decision.

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Final decision

36. I do not find fault with how the Council has considered Mrs X’s enforcement complaints and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman