Summary: We found no fault on Mrs D’s complaint about the Council failing to consider and assess a planning application and later, an application to vary it. Nor was there fault on her complaint about it failing to consider and act against the developer for breaches of consent. While there was fault in the notification process, this caused her no injustice as she accepted the site notice had been in place, and there had been an advert in the local press.

The complaint

1. Mrs D complains about the way the Council failed, on a neighbour’s planning application for the refurbishment of a business, to properly:
1. provide notification of it;
2. consider and assess the application and its impact on her amenities;
3. consider and act against the business when it breached planning consent; and
4. consider and assess an application to vary planning consent.
2. As result, her amenities have been affected as her garden and upstairs bedroom windows are overlooked, the development is dominant and overbearing, and she is disturbed from noise and light from it. This has caused her a great amount of stress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.

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What I have and have not investigated

6. I have investigated this complaint:

• from November 2022. Usually, we would only investigate from September 2023 because Mrs D complained to us in September 2024, The law says 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) I exercised discretion to investigate from the date the Council accepted the application as Mrs D was unaware of the first application until works started on site.
• to September 2024. This was because this was the date the Council told her she could complain to us after she completed its complaints procedure.

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How I considered this complaint

7. I considered evidence provided by Mrs D, the notes I made of our telephone conversation, and the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.

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What I found

8. Regulations set out the minimum requirements for how councils publicise planning applications. (Article 15 of the Town and Country Planning (Development Management Procedure) Order 2015)
9. For major development applications, councils must publicise the application by:

• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.

10. For all other applications, including minor developments, councils must publicise either by:

• a site notice; or
• serving notice on adjoining owners or occupiers.

11. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions. In their SCI policy, councils may commit to do more than the minimum legal requirements. This could include, for example, putting up a site notice and serving notice on adjoining owners or occupiers.

Council’s Statement of Community Involvement (August 2015)

12. A valid application is publicised in the local newspaper along with a site notice. All applications are advertised on its webpages.
13. Neighbouring properties will only be notified as required by the appropriate regulations.

Planning enforcement

14. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there has been a breach of planning control.
15. 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.
16. 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.
17. 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)

Council’s planning enforcement strategy (May 2023)

18. Planning enforcement is a regime to manage inappropriate unauthorised development that causes planning harm. It is not a regime to simply regularise unauthorised development.
19. Planning enforcement is a discretionary power, and each case is considered on its merits. Enforcement action must always be proportionate to the severity of the planning harm caused. It should not be taken solely to ‘regularise’ development which is acceptable on its planning merits but for which planning consent has not been obtained.
20. When it investigates, it checks the planning history, legislation and guidance, considers third party evidence, visits the site, and meets with the owner/occupier. When deciding whether to take enforcement action, it will consider its Development Plan and any other material planning considerations, which includes overlooking, loss of privacy, and overshadowing, for example.
21. The Council will always try to resolve the situation informally and in an appropriate and proportionate way. This means the situation could be regularised with a planning application, remedial works negotiated, or the removal of unauthorised work. If none are appropriate, it will move to the next step in the process, which would be formal action.
22. It will consider whether it is ‘expedient to pursue’ enforcement. Expediency is a planning decision and considers the advantages and disadvantages of a proposed course of action. The degree of harm caused by the breach is considered.

Applications to amend existing planning approval

23. Where planning permission is granted, developers sometimes find it necessary to make changes. Sometimes this happens during the planning application process.
24. If the council decides the changes are ‘material’, it may require the whole process begins again with a fresh application. If the changes are considered ‘non-material’ the council may allow changes without re-starting the process.
25. There is no statutory definition of what is, or is not, a minor-material amendment. The question is one of fact and degree and a matter for the council to decide given the circumstances of each case.

What happened

26. Mrs D lives to the rear of a hotel and part of her boundary is shared with it. Her property is not directly behind the site but to one side of it. The Council received a planning application for refurbishment works from a developer (application 1).
27. As works progressed, the Council received reports about works not being carried out according to two planning conditions attached to consent for application 1. These were:

• Condition A: The development shall be done according to seven submitted listed plans; and
• Condition B: The first-floor terrace area shall not be used until details of the screening needed to protect neighbours’ privacy was sent to the Council and approved in writing. It could not be used until a screen was installed according to the approved drawings. The reason for this condition was the interests of the privacy and amenities of the adjoining property, and the Council’s Core Strategy.

Complaint a): notification of application 1

28. Mrs D complained she was not told about planning application 1 and so lost the opportunity to make representations. In response to my draft decision, Mrs D changed her belief of where the site notice was posted. Instead of at the entrance of the road to the site, she now said it was on a telegraph post opposite the site itself. Although she sent a photograph of this post, it did not show the site notice attached to it.
29. The Council said it advertised the application according to Article 15 of the Town and Country Planning (Development Management Procedure) Order 2015. It placed a site notice on a telegraph pole to the entrance of the road and advertised the application in a local newspaper.
30. As the officer who placed the site notice has left, it was unable to provide evidence of placing it where it claimed.

My findings

31. As this was a minor planning application, the Council had to advertise it by way of a site notice or individual notification letter to Mrs D. This was because her property shared a boundary with the development site.
32. The Council claimed it placed a site notice at the entrance to the road to the site but failed to provide any evidence of doing so. Mrs D accepted there was a site notice on this road initially. This was a no through road and did not connect to her road which runs parallel to it. Her road runs infront of those houses to the rear of the application site.
33. She now said the site notice was not at the entrance to the road but opposite the site. She claimed neighbours on both sides of the site told confirmed it. One neighbour apparently told her it was attached to the pole with ‘ineffective weak string’.
34. I am satisfied there was fault on this complaint because the Council was unable to provide evidence to support its claim about placing the site notice at the entrance to the road to the site.
35. Despite the Council failing to provide evidence of the site notice, I am satisfied it placed one for this site. I reached this conclusion because of Mrs D’s accounts from neighbours which, on balance, suggest one was either at the entrance to the road or, directly opposite the site. Either way, a site notice was in place. This means I am not satisfied the fault caused Mrs D an injustice. This was because she accepted one was in place, although the exact location is unclear. In addition to this, I have seen evidence of the Council advertising the application in the local press.

Complaint b): assessment of application 1

36. The planning officer’s report for this application considered the impact on the character of the area. It noted the hotel was a long established business with the road having a mix of holiday and residential properties. It considered the increase of the overall mass of the building, which would significantly alter its appearance, but would not be out of keeping with others on the road.
37. The report referred to the screening on the terrace as directing views in a southerly direction with views of neighbouring gardens being at an oblique angle no greater than that already visible from the existing rear windows. It concluded, with suitable conditions, the proposed development would not have a detrimental impact on the amenity of neighbouring properties and would comply with its Core Strategy.
38. The Council confirmed the report set out the potential impact on properties within close proximity to the development. Consideration to its impact on Mrs D’s property was given but, noted the separation distance to her window to the terrace was about 32 metres. This was why it was not specifically referred to in the report.

My findings

39. I found no fault on this complaint because I am satisfied proper consideration was given to the potential impact on neighbouring properties, including that of Mrs D. From plans and photographs I have seen, Mrs D’s property is at an oblique angle to the terrace area. It is not directly facing but to one side.

Complaint c): enforcement

40. The two conditions relevant to this complaint were Conditions A and B of application 1.
41. As works progressed on site, the Council received reports of the developer not following either planning condition. Reports included claims of:

• the developer failing to send details of the screening as required;
• the terrace being too wide, was closer to a neighbouring property than shown on approved plans, and was also higher by 0.25 metres;
• views across neighbouring gardens from it; and
• inadequate privacy screening. Two dividers shown on approved plans along it were missing and those present were too low.

42. Mrs D complained despite these reports, the Council took no action against the developer other than suggesting they make a retrospective planning application.
43. The evidence I have seen shows the following:

• Officers visited the site in September 2023 and took photographs, which I have seen:
• Officers again visited the site in December and took photos. These showed timber screening between the roof terrace not on the approved plans. The outside edges of the terrace were slightly under the approved measurement but within acceptable tolerances. They also showed a glazed door and sidelight (small window) installed instead of a window on the rear of the property. There were folding doors at ground level instead of three sash sliding doors.
• The Council met the site manager and measured the roof terrace which found its depth complied with approved plans. Officers could not establish the floor level height. They found timber panels at the ends of the roof terrace which were not approved.
• An officer asked the developer to address these alterations and additions by way of an application to vary Conditions A and B.
• Over the following months, the Council found errors on the submitted plans which it asked the developer to correct.
• In March 2024, the developer confirmed various measurements and changes included the floor deck to the top of the terrace and the height of two glazed screens. The 0.12 metre overhang was not shown on the approved plan. The developer was advised to stop work until satisfied the changes would be allowed.
• The Council received photographs, measurements, and revised drawings. There was another site visit shortly after, with the developer and architect. This found additional raised flooring was laid on top of the roof terrace which increased the height. The Council asked the developer to carry out various actions which included submitting strong supporting documentation to justify the omission of screen dividers, for example, the installation of a Julliet balcony, and other changes.
• In June, the Council received application 2. This sought consent to regularise alterations which included: increased height of the flat roof/balcony area; raised flooring; the overhang detail; changes to the side glazed screening design; addition of timber paneling; omission of glass screen dividers. The developer wanted consent for these changes by asking the Council to vary Conditions A and B of application 1.
• In August, there was a potential breach of Condition B due to the use of the terrace before completing the privacy screening. The developer was told not to use or occupy the terrace. The developer said workmen had accessed it to carry out works. No guests had occupied the property.
• The Council approved application 2.

44. The Council confirmed the terrace height was different because of updated Building Regulation requirements for insulation between floors. This meant the terrace floors were slightly higher than approved.

My findings

45. I found no fault on this complaint for the following reasons:
1. Enforcement action is discretionary, and any action needed to be proportionate to the breaches.
2. When deciding whether to enforce, the Council had to consider the likely impact of harm to the public by the breaches and whether it might grant consent if it received an application for the development with these changes.
3. The Council decided to take informal action as a first step. The evidence showed officers visited the site on several occasions, took photographs, assessed breaches, assessed their impact, entered discussions with the developer, and decided it did not need to go on to take formal enforcement action.
4. Instead, it decided the breaches could be resolved by a further planning application to regularise them. At a couple of points in time, the developer was told to stop works until it could be satisfied alterations would be allowed and was warned about the possibility of formal action.
5. I am satisfied the Council took the reports of breaches seriously and considered whether it was appropriate to try and resolve issues informally. It was not fault for it to ask the developer to apply for retrospective planning consent. Officers spent some considerable time communicating with the developer about correcting drawings to match what had been built for application 2.

Complaint d): assessment of application 2

46. Mrs D made representations to the Council about application 2 which sought retrospective consent to vary conditions A and B on application 1.
47. Mrs D said the site was at a higher level than her property, one of the balcony’s was raised, there was loss of privacy to her property, with overlooking of her garden and rooms. She was also concerned about possible noise nuisance from the site.
48. The planning officer’s report listed all the relevant points raised in the representations received. It considered the impact the revisions would have on neighbouring properties. Any increased impact was considered against the original use of the building and the scheme given consent under application 1.
49. The dividers shown on application 1 were removed. The report considered there had been no detail about them, in terms of height and appearance for example. It considered the concern about guests gathering in a more communal way without them but, decided this would cause no greater harm to neighbours’ amenities than had they been in place as groups could still gather there. The dividers would not have reduced overlooking.
50. Concerns about the installation of a door accessing a roof area were addressed by a Juliette style balcony across it which would restrict access. The report also noted surrounding properties had good sized gardens which would allow them to continue to enjoy outdoor amenity spaces. There was a degree of mutual overlooking anyway because the area was fairly built up and application 1 had allowed fairly substantial alterations.

My findings

51. I found no fault on this complaint because I am satisfied the Council properly considered the potential impact of the alterations on application 2 on neighbouring properties. I reach this conclusion having read the planning officer report which considered the alterations and potential impact.

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Decision

52. I found the following on Mrs D’s complaint against the Council:

• Complaint a): fault causing no injustice;
• Complaint b): no fault;
• Complaint c): no fault; and
• Complaint d): no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman