Summary: Mrs B complained that the Council had failed to take enforcement action against development next door to her property and failed to notice that the certificates of ownership submitted with the original applications were wrong and the building work had encroached on her land. We have not found fault with the actions of the Council.

The complaint

1. Mrs B complained that Elmbridge Borough Council (the Council) in respect of building work next door to her property:
• failed to take action to ensure the work done was in accordance with the planning permissions granted in 2018; and
• only recently noticed that the certificate of ownership submitted with the planning applications was wrong and encroached on her land.
2. This has caused Mrs B significant and ongoing distress since she moved out of her property in January 2022.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. Mrs B complained about planning applications approved by the Council in 2018. I have not investigated these decision-making processes because they are too old to look at now and I do not consider there are good reasons why Mrs B could not have complained to us sooner. Officers and councillors who were involved are no longer employed by, or involved with, the Council. While records may exist, the people who took those actions will not be able to provide any explanations or evidence for them.
7. I also note Mrs B made a complaint to the Council about these issues in 2021 and the Council advised her at the end of that process to complain to the Ombudsman. Her MP also advised her to complain to us around that time. So, she was aware of our existence and the fact she could complain to us. Mrs B says she was too exhausted and stressed by the building work and the impact on her property to complain to us. In January 2022 she moved out of the property.
8. I understand that her situation was very difficult, but Mrs B did not complain to us until April 2024, three years later, following advice from a planning agent. I have limited my investigation to events from January 2023, 12 months before she complained to the Council for the second time.

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How I considered this complaint

9. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B 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

Enforcement

10. 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.
11. 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.
12. 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. 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)

What happened

14. Mrs B lived in a listed building. In 2018 the owner of the neighbouring property applied for planning permission and listed building consent for various extensions and other work to the property. The applicant submitted a Certificate A with the applications declaring they owned all the land subject to development. Mrs B objected to the plans but planning permission was granted and work started.
15. Following an enforcement investigation into alleged breaches of the planning permissions, the Council in January 2023 approved a retrospective application for works to the listed building and a variation of a condition attached to the original permission. The Council noted all the works appeared to take place within the red-line boundary (ie on land the applicant had declared they owned) and works were ongoing but not complete. The officer report noted that part of the works deviated from the original plans and a further application would be required in relation to this.
16. At the same time Mrs B complained to the Council that part of the works were not in accordance with the planning permission and impacted adversely on her. Part of her complaint was that the neighbour had encroached on her land when they demolished a boundary wall in 2015 and built a new fence. The Council opened an enforcement investigation.
17. In March 2023 the Council received two planning applications to address the outstanding irregularities. It informed Mrs B that the enforcement investigation was on hold while it considered the applications. The Council then decided that the application was invalid and requested a new application. This was received and validated in June 2023. The Council sent out neighbour notification letters.
18. In July 2023 the Council concluded the demolition of the wall was unauthorised work to a listed building but it did not consider the wall was of significant historic interest and it was not expedient to take any enforcement action. It advised Mrs B that it could not adjudicate on land ownership issues or damage to property as those were matters for the courts.
19. In August 2023 the Council visited the application site. It noted that some of the development as built was not in accordance with the plans and requested new plans from the applicant. It received revised plans in September 2023 and reconsulted neighbours including Mrs B. She raised concerns about the red line boundary believing that the plans included development on her land.
20. The Council visited her property and took some measurements. It then visited the application site with the applicant’s agents who agreed that part of the development was over the boundary line. The Council sent measurements to the agents querying how they related to the submitted plans. It also requested they submit a Certificate B declaring that a third party owned some of the land.
21. The Council communicated with the agent over the next few months in respect of the correct certificate of ownership. In January 2024 the agent submitted an unsigned Certificate B. The Council noted that the issue with the application was a boundary dispute. It advised the agent they needed to submit a new application due to the change in ownership certificate.
22. The agent submitted a further retrospective application to vary the previous application. The Council took legal advice and informed the agent they needed to submit a full application not a variation one. After taking their own legal advice the agent said in July 2024 that they no longer agreed the development encroached on Mrs B’s land and that only a Certificate A was required. The Council advised the agent to confirm that all the works were inside the red boundary line and repeated that it could not get involved in boundary disputes. It is still waiting for confirmation of ownership from the agent. It says it has informed Mrs B that if the applications are refused it will serve an enforcement notice.
23. The Council has said in response to my enquiries that the boundary dispute is a civil matter which needs to be resolved before any further applications can be progressed.

Analysis

24. I understand Mrs B has experienced a significant amount of stress from the development taking place next door to her property. However, I have not identified fault in the way the Council has dealt with the enforcement issues.
25. Planning permission was granted in 2018 for the development on land entirely owned by the applicant. Since then, Mrs B has alleged the building work has encroached on her land. The Council has investigated and agreed that the development as built is not in accordance with the approved plans. It has requested new planning applications with a Certificate B (indicating shared ownership of land) but these have not yet been supplied due to disagreements over the land ownership. The agent, until recently, has engaged with the process by submitting applications. Although these are not the correct type of applications and do not contain the required information, it would not be reasonable for the Council take formal enforcement action while the applicant and their agent are willing to try and regularise the development.
26. While I understand this is frustrating for Mrs B, the Council cannot resolve the boundary dispute: it cannot decide whether the applicant has built on Mrs B’s land. That is a matter for the courts to decide and Mrs B should seek legal advice.
27. While this issue remains unresolved the Council is unable to progress retrospective planning applications or decide whether the development as built is acceptable in planning terms. Consequently, it is unable to decide whether to take formal enforcement action.

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Final decision

28. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman