Summary: Mr X complains about structures erected near his property that he considered were unsafe and erected without the appropriate planning permission. Mr X complained the structures were causing significant light glare into his property resulting in a loss of amenity. I have concluded my investigation having not made a finding of fault. Whilst I acknowledge that Mr X was subjected to light glare, I have not found evidence of fault by the Council in how it resolved the matter. Further, the evidence demonstrates that the Council visited the site where Mr X raised concerns about the safety of the structures and did not observe the structures to be dangerous.

The complaint

1. Mr X complains about structures fitted near his property. Mr X says the structures were originally fitted without planning permission and has since been partially approved contrary to planning law. Mr X says the Council have failed to take enforcement action when it should have and that he has been impacted by light glare that has affected his health and use of rooms in his home.

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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 a council’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. If we are satisfied with a council’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

5. I liaised with Mr X and considered the information he provided. I also made enquiries with the Council and considered the information it provided in response. I produced an initial draft decision and reissued a revised draft decision following comments from Mr X and the Council. Mr X and the Council both had an opportunity to comment on my draft decisions and I considered any comments submitted before making a final decision.

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What I found

Planning enforcement

6. 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.
7. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. 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.
8. 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 July 2021, paragraph 59)

Planning process

9. The statutory time limits for applications for planning permission are set out in article 34 of the Town and Country Planning (Development Management Procedure (England) Order 2015 (as amended). They are 13 weeks for applications for major development, 10 weeks for applications for technical details consent, and (from 1 August 2021) applications for public service infrastructure development, and 8 weeks for all other types of development (unless an application is subject to an to an Environmental Impact Assessment, in which case a 16 week limit applies).

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What happened

10. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
11. The Council says it received a complaint from Mr X in January 2022 pertaining to Structure A being erected close to his property.
12. The Council opened Case 1 to look into alleged breaches by Structure A, and conducted a site visit shortly after. The Council sent the developer an initial challenge later that month.
13. In February 2022, Structure A was no longer present. The Council contacted Mr X to inform him it would close Case 1 as the reported breach had ceased due to Structure A being removed. It is noted that Mr X says Structure A was not removed, but rather that it fell down.
14. In March 2022, Mr X contacted the Council to inform it that further works were taking place on site, and so the Council reopened Case 1. The Council also advised Mr X how he could report dangerous structures to its Building Control service.
15. In March 2022, the Council contacted the developer to request information on the developments that were taking place on site. In April 2022, the Council requested a planning application.
16. In early April 2022, the Council visited the site where Mr X had reported that the structures had been re-erected and were dangerous. The Council wrote to Mr X informing him that it did not observe that the structure was dangerous.
17. Later in April 2022, Mr X wrote to the Council regarding light glare that was impacting his property from Structure B. The Council followed up to request an update from the developer. In mid-April 2022, Mr X made a further complaint, and so the Council opened Case 2 to look into the newly erected structures.
18. In May 2022, the Council conducted a site visit, following up with the developer shortly after. The developer confirmed it would consider mitigation for light glare that Structure B was causing.
19. In June 2022, the developer submitted a planning application. In July 2022, Mr X again contacted the Council about light-glare from Structure B.
20. In June 2023, the Council determined the application with split approval. It did not approve Structure A, but approved Structure B. Stipulated as a condition within the decision, was that in one month, Structure B be ‘wholly finished or painted in an anti-glare paint or coating, which shall thereafter be retained and maintained for the lifetime of the development’. Later in June 2023, the Council contacted Mr X to provide him with an update about the Council’s decision.
21. In August 2023, the Council conducted a site visit. It observed that Structures A had been removed, but that the anti-glare paint had not been completed. Later in August 2023, the Council requested an update from the developer who advised that the weather had prevented it from completing the work, but that it had been scheduled to take place.
22. The Council undertook another inspection in September 2023, again observing that the work had not been completed. Later in September 2023, the Council submitted a report to its legal department.
23. In December 2023, The Council’s legal department sent a final warning to the developer, giving it 14 days to complete the work. Later in December 2023, the work was completed. This was confirmed by a third inspection to the site by the Council.

Response to my enquiries

24. As part of my investigation, I made enquiries to the Council.
25. I asked it to confirm the status of the anti-glare paint that had been applied. In response the Council confirmed the anti-glare paint had been applied in December 2023. It also said the matter remained under review, as it had yet to determine whether the application of anti-glare paint was sufficient, but that the weather had not been sunny/bright enough to make a decision.
26. I asked it to confirm the status of any enforcement investigations. In response the Council confirmed that Case 2 remained opened in regard to completion of the anti-glare paint. The Council also said it has not received any direct complaint pertaining to the re-erection of Structure A, and that its site inspection in December 2023 confirmed that they had been removed.
27. I asked it to confirm what consideration it gave to Mr X’s comments about the structures being dangerous. The Council said the case was reported to building control to inspect, however, the structures were not present during the building control inspection.

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Analysis

Action by the Council

January 2022 - March 2022

28. Mr X first raised concerns to the Council in January 2022. From the chronology above, I can see the Council opened an enforcement case, and conducted a site-visit almost immediately. The Council followed up with a challenge letter to the developer. Shortly after, the Council closed its enforcement case as the reported breach was no longer present.
29. As described in paragraph 5, planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The Council utilised an informal approach to contact the developer, and closed its enforcement case as the breach was no longer present. I have not found fault in action taken by the Council to resolve the matter, nor is there evidence of inaction by the Council that demonstrate it allowed matters to drift.

March 2022 – June 2022

30. Following further reports from Mr X about newly erected structures, the Council visited the site and did not observe that the structures were dangerous. The Council contacted the developer, shortly after requesting it submit a planning application for the structures. The Council paused its enforcement investigation whilst it considered the application.
31. As described in paragraph 5, planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Paragraph 5 also sets out that informal measures available to the Council include requesting submission of a planning application so they can formally consider the issues. The Council utilised this measure, and I have not found fault in action taken by the Council to resolve the matter, nor is there evidence of inaction by the Council that demonstrate it allowed matters to drift.

June 2022 – June 2023

32. The developer’s application was submitted in June 2022 and validated in July 2022. I have reviewed the actions up to when the Council determined the application and note that consultations, inspections, assessments, and review of evidence took place during this period. There is no evidence of significant delay nor that the Council allowed matters to drift, and the application was determined properly.
33. Whilst this application remained under consideration, there was no ability for the Council to take formal enforcement action at the time, and in any event, I recognise it would not be productive to do so whilst it is in the process of determining an active application. It is also noted that there is nothing in the legislation to cover the impact of reflected sunlight, and the Council’s condition in the approved application was made to help alleviate the light glare that Mr X was experiencing from the signage rather than an enforcement measure that remained available to the Council at any point.
34. I therefore find no fault with the Council’s actions, and whilst I recognise that Mr X was subjected to light glare from the signage, I cannot criticise the Council, nor make any recommendations when it has not acted with fault.

June 2023 – December 2023

35. Once the application was decided, the Council visited within two months of the decision to inspect whether the developer had applied the anti-glare paint as stipulated. The Council observed that it had not completed the work, and the developer advised the Council that the weather had prevented it from doing so.
36. The Council visited again a month later, and after it observed that matters remained as before, it submitted a report to its legal team. The Council’s legal department sent a final warning letter to the developer in December 2023, who completed the work within the deadline of 14 days.
37. As described in paragraph 5, planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The Council utilised informal measures to assess whether the work had been completed before escalating to a more formal approach. I have not found fault in action taken by the Council to resolve the matter, nor is there evidence of inaction by the Council that demonstrate it allowed matters to drift.

Did the Council take proportionate action to Mr X’s complaints about the structures being dangerous?

38. I note from the Council’s response to my enquiries that its building control service visited the site and that the structures were no longer present at the time of its inspection. It is not clear when building control first visited the site, however, I take this to be after the Council informed Mr X to contact its building control service in March 2022, and before Mr X alleged the structures were re-erected in later March 2022.
39. The evidence I have seen demonstrates that the Council visited the site again in early April 2022, and reached a view that the structures were not dangerous. Whilst I accept that Mr X had concerns with the safety of the structures, it is not for our service to question the findings and observations of the Council. It visited the site when the structures were in situ, observing that the structures were not dangerous and took no further action. We cannot criticise decisions made properly.

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Final decision

40. I have concluded my investigation having not made a finding of fault. Whilst I acknowledge that Mr X was subjected to light glare, I have not found evidence of fault by the Council in how it resolved the matter. Further, the evidence demonstrates that the Council visited the site where Mr X raised concerns about the safety of the structures and did not observe the structures to be dangerous.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman