Summary: X complained about the Council’s decisions relating to development behind X’s home. X said that their amenity is affected by some parts of the development. We did not investigate this complaint further as enforcement action is ongoing and we were unlikely to find fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s planning decisions relating to development behind X’s home.
3. X said their amenity is affected by raised ground levels and a high wall on the boundary.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

5. 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)

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How I considered this complaint

6. I read the complaint and invited X’s representative to discuss it with me. 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.
7. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Developers can appeal to the Planning Inspectorate against refusals of permission or the terms and provisions of planning conditions, but the right of appeal is subject to time limits. Developers can also apply to vary obligations set out in planning approvals.

Planning enforcement powers

13. 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.
14. 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.
15. 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

16. Several years ago, X’s neighbour received planning permission to develop land behind X’s home. The land was higher than X’s.
17. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours and one other consultee;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of development, the impact on residential amenity, layout, design and materials, flooding and drainage, trees and landscaping, ground conditions and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions. The conditions included controls relating to site levels and drainage.
18. Following commencement of the development, the Council investigated X’s allegations that conditions relating to levels were in breach. X also complained about a boundary wall that was built higher than shown on the plans.
19. A Council planning enforcement officer told me:
• a planning enforcement officer has visited the site and found breaches relating to levels and the boundary wall;
• the Council recommended that the slope of land behind X’s home was regraded and that the boundary wall lowered to match approved plans;
• the materials of the wall did not match plans;
• the developer had since regraded the slope and lowered the wall, but the materials did not match plans;
• the Council advised the developer to comply with controls relating to materials or to submit an application to vary the obligation of the condition; and
• the enforcement file was open and the investigation was ongoing.

My findings

20. 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.
21. 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?
22. 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.
23. 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.
24. I should not investigate this complaint further, and my reasons are as follows:
• The original planning decision was made more than 12 months from the date the complaint was brought to our attention, but in any event there was no evidence to suggest it likely we would find fault here. This is because before the Council made its planning decision, it considered the application plans and took account of the material planning issues, including relevant policy, objections and comments, and the planning history of the site. This is the decision-making process we would expect.
• The planning enforcement process is ongoing, so even if there was evidence of fault, we would not be able to determine whether or not it caused an injustice. This is because we do not know what the settled planning situation will be until the process and any subsequent appeal opportunity has ended.
• There was no evidence to suggest fault in what has happened so far during the enforcement process. The Council has considered the allegation, its enforcement powers and what it found on site. It found a breach of planning control and advised the developer what might be done to resolve it. This is the planning enforcement process we would expect.

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Final decision

25. I ended my investigation because it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman