Summary: Mr B complained about how the Council advertised a planning application, matters which were not considered when the Council granted planning permission and about its failure to take enforcement action. There is no evidence fault by the Council affected either the decision to grant planning permission or the decision not to take enforcement action.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to ensure the publicity for a planning application made clear it included replacement doors which prevented residents commenting;
• failed to consider the impact on the highway of two doors which now open across it;
• failed to consider the impact of the design of the new windows on the highway; and
• wrongly failed to take enforcement action when the applicant installed a new door and steps without planning permission and which encroach on the highway.
2. Mr B says the Council’s actions have created a safety hazard on the road.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation 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

What should have happened

7. A material consideration is a matter that should be taken into account in deciding a planning application. Material considerations can include highway safety.
8. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
9. Section 137 of the Highways Act 1980 sets out a council’s powers when a highway is obstructed. It says:
• If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks or a fine or both.
10. Councils can take enforcement action if they find planning rules have been breached. However, councils do not have to take enforcement action just because there has been a breach of planning control. 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 2012, paragraph 207)

What happened

11. The Council received a planning application for replacement of windows and doors in a building close to Mr B’s property. The application form completed by the applicant only referred to replacement windows and that is how the Council advertised the application. Mr B objected to the application on various grounds, including issues related to highway safety. The Council granted planning permission.
12. Mr B contacted the Council to report the development had not been built in accordance with the planning permission as windowsills protruded across the narrow highway. Mr B said that hindered vehicles driving into and out of the road. The Council opened an enforcement investigation.
13. The Council carried out a site visit and confirmed the windows had been installed in accordance with the planning permission. The Council told Mr B that.
14. Mr B put in a complaint and raised concerns about a fire escape door and steps built on the public highway. The Council told Mr B it would not take enforcement action as it did not have a policy objection to the placement of the steps. The Council closed the enforcement case.
15. Mr B continued to raise concerns about the windows and the steps to the fire escape. The Council explained it considered the fire door a lawfully present doorway and said it would be wrong for it to prevent the building having access steps to allow the door to be used safely. The Council explained even if that was not the case it would not consider it in the public interest to take action as the steps did not materially obstruct the passage on the highway. The Council acknowledged it had previously taken action to have the steps removed but said it did not consider there was a current reason in the public interest to seek removal of the replacement steps.

Analysis

16. Mr B says the Council did not advertise the planning application included replacement of doors. Mr B says as a result residents did not have an opportunity to comment on the proposals to change the doors.
17. The evidence I have seen satisfies me the Council’s description of the development was taken from the planning application form. That description did not mention replacement of doors. The Council would normally advertise a planning application based on the description provided by the applicant. I do not consider it fault for the Council to do so in this case. I am satisfied though if residents checked the planning documentation held on the Council’s website they would have seen the proposal included replacement of doors as this is referred to in the design and access statement.
18. Mr B says the Council failed to consider the impact of doors opening across the highway rather than inwards. Having considered the plans for the application it is not clear whether the doors Mr B is concerned about were intended to open outwards or inwards. Nor does the report for the planning application refer to the direction in which the doors will open. I appreciate the Council’s point that planning permission does not normally comment on the direction in which a door can open. However, I note for this planning application the Council imposed a condition requiring inward opening windows on a different elevation due to concerns about the impact on the highway. So, if the Council had concerns about the impact of the doors opening on the highway I am satisfied it could have imposed a condition requiring them to open inwards.
19. I consider it likely though the Council understood the doors on the elevation Mr B is concerned about would open outwards given they are emergency exit doors. They are therefore expected to open in the direction of escape. As the highway is narrow I would have expected the Council to record whether it had any concerns about the opening of the replacement doors across the highway. That is especially the case as the Council had referred to concerns about the safety of windows opening across a different highway. Failure to record the Council’s view in the report for the planning application is therefore fault.
20. I do not consider it likely though, on the balance of probability, the Council would have either refused the planning application or required the applicant to have inward opening doors only had it considered the matter at application stage. That is because, as I said in the previous paragraph, emergency exit doors will normally open outwards in the direction of escape. I therefore consider it likely when granting planning permission the Council understood that. As I do not consider the fault referred to in the previous paragraph affected the decision on the planning application I do not consider Mr B has suffered an injustice which would warrant a remedy.
21. I do not consider the issue of windows opening over the highway is the same as an emergency exit door opening onto the highway. That is because windows can be left open for a long period of time. An emergency exit door is likely to be opened relatively infrequently and is unlikely to be open for any length of time. In those circumstances I do not consider fault by the Council affected the decision on the planning application.
22. Mr B says the Council failed to consider the impact the design of the new windows would have on the highway. Mr B says the new windows incorporate sills which protrude from the side of the building and render reduces the width of the roadway. Mr B says the Council failed to consider those issues.
23. Having considered the report for the planning application I am satisfied the issue of windows opening over the highway and the effect windowsills would have on the highway were considered when the Council granted planning permission. I say that because I note the report for the planning application records neighbour’s objections about the impact of windowsills. I am also satisfied the report set out the officer’s view that opening windows and windowsills on the development would not block emergency services vehicles or the passage. I recognise Mr B strongly disagrees with that view. However, it is not my role to comment on the merits of a decision reached without fault. In this case I have found no fault in the Council’s reasoning.
24. I am also satisfied when Mr B raised concerns about the Council’s decision it made contact with the emergency services in the area to check whether they had concerns. It is clear from those communications the emergency services do not have any concerns about access given the road is already too narrow to allow access for emergency vehicles. I appreciate Mr B believes the use of windowsills is unacceptable and creates a danger on the highway. However, the Council takes a different view. As it has reached that view properly there are no grounds for me to criticise it.
25. The remaining issue is the use of render on the building. That is not a matter referred to in the report for the planning application. However, having considered photographs of the existing building it is clear there was originally render in place covering part of the building. The applicant has now replaced that render. I have seen no evidence to suggest this formed part of the original planning application. As the Council has pointed out though, replacing render would not normally require planning permission. As I cannot see replacing existing render with new render has any material impact I cannot criticise the Council for not taking action.
26. Mr B says the Council was wrong not to take enforcement action when the building owner built a new fire door and steps without planning permission. Mr B says the fire door did not previously exist and the steps encroach on the public highway. Mr B therefore believes the Council should take enforcement action.
27. As I said in paragraph 3, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. In this case I am satisfied the Council considered Mr B’s representations, visited the site, considered photographs and the various planning permissions in place and considered the history of the site. After considering all that evidence the Council decided it was not necessary to take enforcement action.
28. That was partly based on the Council’s view the fire exit door was lawful and therefore it would not be appropriate to prevent steps to allow safe access to the door. I am also satisfied the Council made clear its view that even if the door was not lawful it did not consider it necessary to take enforcement action. That was on the basis that although the Council accepted the steps encroached onto the public highway they did not obstruct it which meant the Council had no power to act under the Highways Act. The Council also recorded its view that there would be no public benefit in taking enforcement action to reclaim land which was of little public value.
29. I recognise Mr B is likely to strongly disagree with the Council’s decision not to take enforcement action. However, there is no requirement for the Council to take enforcement action even if there is a clear breach of planning control. Instead, in each case the Council has to decide whether it is expedient and in the public interest to do so. In this case the Council has decided it is not in the public interest to take action and it has explained its reasoning for reaching that decision. As the Council has reached its decision properly there are no grounds on which I could criticise it.

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Final decision

30. I have completed my investigation and found fault by the Council in part of the complaint which did not cause Mr B an injustice as it did not affect the Council’s decisions.

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Investigator's decision on behalf of the Ombudsman