Summary: Mr C complained the Council failed to take timely and effective action in response to reports about a neighbouring outbuilding which has resulted in an overbearing development and loss of privacy. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains on behalf of his mother Ms X the Council has failed to take timely and effective action in response to his reports about an outbuilding erected by his neighbour. Mr C says the Council has taken too long and provided inconsistent information about whether it would take enforcement action.
2. Mr C says because of the Council’s fault, his mother suffers from an overbearing development that causes overlooking and is visually intrusive which means she cannot enjoy her home or garden and is affecting her health.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. 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

7. I read the papers provided by Mr C and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. 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.
9. 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.
10. 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)
11. 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 decided 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.

12. 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.
13. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant. This may happen where:

• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

Key events

14. The Council received a report about the erection of an outbuilding in August 2020. This report was from a third party.
15. The Council visited the site in early September. The case officer’s records from this visit noted the property was a semi-detached dwelling with a split level rear garden and that an outbuilding had been built on both levels. The front element on the higher level was measured at 2.34 metres high with the eaves from the bottom of the steps being 2.9 metres high and the remaining element on the lower level as 1.8 metres high. The case officer also took photographs. Following the visit the Council investigated the land levels and corresponded with both the party that had reported the outbuilding and the developer. The Council issued a planning contravention notice (PCN) to the developer in early November.
16. The Council decided a further site visit was required but this was delayed due to COVID-19 restrictions at the time. The further site visit was completed in early June 2021. The case officer recorded a deck area from the rear elevation which was at a higher level to the garden where steps led down to a grassed area. It was noted the ground was raised and then dropped to a lower level.
17. The Council wrote to the developer following this visit and again in August with options relating to the outbuilding and in particular what was described as the ‘tower element’. The developer’s solicitor responded to the Council towards the end of August.
18. The Council sought an application for a certificate of lawfulness from the developer in early December. The Council received this application in mid-December. The Council provided an update to the local councillor in January 2022. The Council refused the application for a certificate of lawfulness in May and provided a further update to the Councillor in June.
19. The Council made a further site visit in June and took additional photographs. The Council also met with residents in July. The case officer recorded visits to three neighbouring properties to view the development from their property and take photographs from ground and first floor windows. It was noted the higher element of the outbuilding appeared slightly incongruous in terms of design and that land had been raised and squared out although it was difficult to substantiate much harm. It was also noted other properties had raised land levels.
20. The Council wrote to the developer in early August to seek a retrospective planning application and provided an update to neighbours. The Council also provided a written response to Mr C.
21. The Council received a planning application in mid-August. The Council notified neighbours and complainants of the application. The Council received a second application in early October and was also advised the applicant was to remove the tower element of the structure. The Council provided an update to complainants in October and wrote to Mr C in November. Both applications were withdrawn by the applicant before determination.
22. The Council completed a monitoring visit to the site in November. The case officer noted that the tower element of the outbuilding had been removed and took photographs. The Council provided further information to Mr C in December.
23. The Council provided details of its planning enforcement investigation to its Planning Committee in December. The Council explained to Mr C that the matter was now considered permitted development due to the reduction of the tower element of the structure and so the report would be for information only rather than seeking formal enforcement action.
24. The report noted that although the single storey outbuilding was incidental to the main dwelling it did not benefit from permitted development under the relevant Class as there was a small section between the upper and lower parts of the building that exceeded 2.5 metres due to land level changes. This meant the entire structure required planning permission. A plan and photographs were included to demonstrate the position. The report set out the enforcement and planning history and concluded the outbuilding due to its size and position did not result in harm to the amenities of adjacent residential properties in terms of overshadowing or loss of light. It was also considered that given the position of the windows and door with the distance to the boundary and screening in place that opportunities for overlooking and loss of privacy were not provided. Therefore, it was considered enforcement action was not expedient, proportionate or in the public interest. It was explained that despite this assessment, case officers had continued to discuss the matter with the developer who subsequently agreed to remove the tower element of the outbuilding. A site visit at the end of November confirmed the tower element had been reduced in height and provided photographs to show this change. This change meant there was no part of the outbuilding that exceeded 2.5 metres of the natural ground level and so was considered to be in permitted development. The Council closed the case in mid-December and advised neighbours and complainants accordingly.
25. The Council has confirmed it now considers the outbuilding to be permitted development. The Council has also considered the alteration in levels and acknowledges this constitutes an engineering operation but does not consider it causes harm sufficient to warrant enforcement action and so does not consider it would be expedient or in the public interest to pursue. The Council provided this information to Mr C in its complaint correspondence.

My consideration

26. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
27. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding not to pursue formal enforcement action.
28. The Council visited both the site and neighbouring properties, sought information from the developer and initially sought to regularise the development. The developer subsequently took action which satisfied the Council the outbuilding was permitted development and the alteration in land levels did not warrant formal action. The Council has provided cogent reasons for this assessment. There were periods of delay during the investigation but I do not consider these amounted to fault in the particular circumstances and note the Council was in regular contact with residents.
29. There is no fault in how the Council took the decision and I therefore cannot question whether that decision was right or wrong.

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Final decision

30. I have completed my investigation as I have found no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman