Summary: We found no fault on Mr Y’s complaint about the Council failing to properly consider a planning application to vary consent conditions for works to a neighbouring business. Nor was there fault on his reports about it failing to properly consider his reports about breaches of planning consent.

The complaint

1. Mr Y complains about the way the Council failed to properly consider:
1. a planning application to vary planning conditions for the refurbishment of a neighbouring business; and
2. his reports about breaches of planning conditions for the development.
2. As result, his amenities have been affected through loss of privacy, he experienced financial loss and also suffered 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)

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What I have and have not investigated

5. I have investigated this complaint:

• from October 2023. This was because Mr Y complained to us in October 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 have seen no good reason to exercise discretion to investigate the Council’s actions before this date.
• to October 2024. This was because this was the date the Council told him he could complain to us after he completed its complaints procedure.

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How I considered this complaint

6. I considered all the evidence Mr Y sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I also considered relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

Planning enforcement

7. 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.
8. 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.
9. 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.
10. 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)

11. Planning enforcement is a regime to manage inappropriate unauthorised development that causes planning harm. It is not a regime to simply regularise unauthorised development.
12. 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 sole to ‘regularise’ development which is acceptable on its planning merits but for which planning consent has not been obtained.
13. 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.
14. 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.
15. 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

16. Where planning permission is granted, developers sometimes find it necessary to make changes. Sometimes this happens during the planning application process.
17. 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.
18. 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.

Council Code of Practice for Members and Officers Dealing with Planning Matters

19. The majority of applications will be dealt with by officers under delegated powers.
20. The purpose of the planning committee is to: decide issues which have a genuine Island wide significance due to their size or impact; raise marginal and difficult policy issues (including inconsistency between policies or those classed and advertised as a departure); decide applications which are made for commercial or potentially contentious purposes by elected councillors or staff members or are contentious among the wider island communities.
21. For non-major applications:

• If, within the 21-day consultation period of the application, no letters of representations were received which are contrary to the officer recommendation, officers may decide the application under delegated powers.
• If, within the 21-day consultation period of the application, representations were received which were contrary to the officer recommendation, the local councillor may request a decision by the planning committee (a Call-In). Officers may seek to overcome such a request through dialogue with the local member and provision of further advice. If, following dialogue, agreement cannot be reached, officers will consult with the chair of the planning committee. The chair shall consider whether the reasons for the request are relevant and material to the consideration of the application, with regard to the purpose of the committee. Where the chair disagrees with the request, officers can decide the application using delegated powers.

What happened

22. Mr Y lives next door to a hotel. He was notified of a planning application the Council received from the developer to do refurbishment works to it (application 1).
23. He made representations and the Council granted consent subject to certain planning conditions. The two conditions relevant to this complaint 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 its Core Strategy.

24. As works progressed, Mr Y told the Council the developer was not following either planning condition. He reported:

• the developer failed to send details of the screening as required;
• the terrace was too wide, was one metre closer to his property than shown on approved plans, and was also higher by 0.25 metres;
• there were 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.

25. Despite reporting these, Mr Y claimed the Council took no action against the developer other than suggesting they make a retrospective planning application.
26. The records show:

• Officers visited the site in September 2023 and took photographs, which I have seen:
• About two weeks later, an officer emailed Mr Y with his findings:
• 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.
• The Council notified Mr Y of application 2 who sent representations. A local councillor asked for the ‘Call-In’ of application 2. This is a process for an application to be decided by the planning committee rather than an officer using delegated authority. The request was refused as the Chair of the committee said it did not qualify.
• 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.

27. The planning officer’s report for application 2 noted concerns raised including a change of use from Class C1 to a private dwelling and the impact on privacy and neighbours’ amenities. The report noted the developer saying the building would continue to operate as a hotel (C1 use). It considered whether the alterations would result in a change of use and decided it would not. It noted application 1 considered while the alterations would increase the overall mass of the building, and significantly alter its appearance, the development would not appear out of keeping with others in the area. It concluded the external alterations were considered visually acceptable and appropriate causing no harm to the street scene.
28. The report took account of the impact on loss of privacy, outlook, overshadowing, and residential amenity. Again, it noted under application 1, the views from the terrace would be to the south, with some partial views to the east and west. There was the potential for guests to sit or stand on the terrace and lean over it if they wished. While there was some form of dividers shown on the approved drawings, these did not show their height or appearance.
29. The report accepted while the terrace may be marginally closer to the boundary, the separation distance was considered acceptable given the building’s historic use. It accepted guests could gather in a more communal way, but this was not considered to cause greater harm to neighbours’ amenity. Had the dividers been in place, a group renting a number of rooms could still have gathered there at any one time. While dividers were shown on application 1, the obscured glazed privacy screens at the end of the terrace, along with timber screening closer to the building, would be enough to protect against any increase in overlooking and loss of privacy. This was because they would direct views southwards. The view of the garden to the east would be oblique, unless guests leaned over. It noted the good sized gardens of the neighbours, and the site was in a fairly built up area with existing mutual overlooking.
30. 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

Complaint a): planning application variation

31. The starting point with application 2, was to note the Council was only considering the alterations proposed from the consent that had been given in application 1. The principle of the development already had consent under application 1.
32. I found no fault on this complaint for the following reasons:
1. Having read the planning officer’s report, I am satisfied the evidence showed the Council properly considered application 2. This was because it was clear the application, and the impact of the alterations on neighbouring amenities, was carefully considered. The evidence satisfies me officers visited the site on several occasions, took photographs, considered concerns raised, as well as the consent already granted under application 1.
2. While Mr Y argued the Council failed to properly consider the impact of application 2 on him, I am satisfied it properly took the impact on him into account. The planning officer’s report showed the officer took account of the oblique view from the terrace towards his property, the impact it had on being slightly closer to his boundary than originally approved, and its increased height. Its potential impact on his privacy, for example, was considered when deciding this application.
3. The Chair of the planning committee decided the request to Call-In the application. I have read the Chair’s decision and reasons for that decision. I have also read the Council’s Code of Practice for Members and Officers Dealing with Planning Matters. Having done so, I found no fault with the Chair’s decision. The reasons for the request did not fall within the purpose of the planning committee as set out by the Code.

Complaint b): enforcement

33. 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 into 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.

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Decision

34. I found no fault on Mr Y’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman