Summary: Mr C complains about the way the Council responded to his reports of unauthorised development at a neighbouring property. Mr C says he suffers from unacceptable development which has a harmful impact on his residential amenity and the Green Belt and he has spent unnecessary time and trouble. We have found fault by the Council but consider the agreed action of an apology, £400 and timely enforcement action provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly respond and take effective action in response to his reports of unauthorised development at a neighbouring property.
2. Mr C says because of the Council’s fault, he suffers from unacceptable development next to his property which has a harmful impact on his residential amenity and the Green Belt and he has spent unnecessary time and trouble in trying to resolve the issues.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details.
7. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

9. 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. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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 July 2021, paragraph 59)
11. 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.

12. 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.
13. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

14. Some areas of land designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open. Government guidance sets out exceptions to development in the green belt, which include:

• Buildings for agriculture and forestry;
• Facilities for sport and recreation;
• Alterations to or replacements of existing buildings;
• Limited infilling or redevelopment of previously used sites (brownfield sites).

Key events

15. Mr C reported to the Council in May 2017 that his neighbour had converted a previously empty and incomplete detached garage to living accommodation. Mr C also noted some obscure glazing and landscaping had been removed which may have been conditions attached to the original planning application for the development. Mr C explained that additional external lighting had been added to the development and another outbuilding had also been significantly extended. Mr C also said there had been a change of use of five acres of land to the rear of the property from agricultural to residential purposes in contravention of relevant Green Belt policy. Mr C referred to possible civil matters in terms of restrictions on the land which he was seeking legal advice about but sought a site visit in response to his reports of possible breaches of planning control.
16. The Council wrote to Mr C to confirm that it would complete a planning history check and site inspection. The Council advised that investigations were taking longer than usual due to high levels of demand but it would contact him again in due course.
17. Mr C sought an update from the Council in June. The Council wrote to Mr C to provide an update and apologise for the delay. The case officer confirmed they had written to the occupants of the property seeking a meeting. The case officer also sought an update from Mr C on the development progress and further details relating to its use.
18. Mr C provided further clarification about the three issues that he was asking the Council to investigate in June.
1. Mr C confirmed the removal of obscure glazing and roller shutter door of the detached garage was completed in April 2016 and had been used as living accommodation from July/August 2016. The additional lighting was dusk until dawn. Mr C stated the change of use was not permitted development and may require planning permission. Mr C also explained he had been advised to make the formal report to the Council to ensure the dwelling remained ancillary to the main house rather than allow it to become a separate dwelling due to a covenant restricting development on the land.
2. Mr C reported a new 5 to 6 bay garage build had started in May 2017 and he was not aware of any planning permission for this development which may infringe on the Green Belt and did not meet tests for permitted development. Mr C also noted there was an ongoing dispute about the boundary in this location which he appreciated was a civil matter.
3. Mr C reported that the residential or domestic curtilage of the property had been recently extended into a hay meadow adjoining agricultural land with the provision of fencing, hard standing and large shed. Mr C considered this use contravened Green Belt policy.
19. Mr C also raised additional issues which he described as minor. These included:

• A large blue storage container that had been on site for over 12 months had been moved next to the new garage in June 2017
• A building to the rear had been extended with new openings, roof and lighting which was being used daily (Mr C advised there was also a covenant that restricted any use of this building to office facilities although he considered it would be argued the alterations were permitted development)
• The entrance to the neighbouring property had been significantly widened and caused damage to the highway

20. The Council provided an update to Mr C towards the end of June to say it had arranged to visit the site in early July.
21. Mr C contacted the Council towards the end of June to say work had started on the new garage and it was likely to be completed before the Council visited. Mr C advised he had met his solicitor about the boundary dispute. The Council responded to Mr C to confirm it could not become involved in boundary disputes and asked if the dispute affected his previous reports. Mr C confirmed he was aware the boundary dispute was a civil matter but the matters he had reported were possible breaches of planning control.
22. The Council visited the site in July. The Council has provided photographs from this site visit in early July which include the wider site, inside the converted building, fencing, blue storage container and area of land with hardstanding. chicken coop and summerhouse.
23. Mr C contacted the Council in mid-August for an update following the above visit as his neighbour had started to build an additional extension to the existing garage. Mr C provided a photograph of the new work. The case officer confirmed the matter was being prioritised following a period of leave. Mr C sought a further update in early September and at the beginning of October.
24. The Council wrote to the developer in early October to say:

• the completion of the garage as residential accommodation required planning permission
• the carport which had almost been completed at the site visit and the second the developer had in contemplation would also require planning permission
• any fencing between the properties must not exceed 2 metres in height or would require planning permission
• the extension of garden into a field was a change of use and required planning permission

25. The Council wrote to Mr C in mid-October to confirm it had written to the developer to set out their findings and awaited a response. The Council also confirmed the boundary dispute was not a matter for the Council
26. The Council wrote to Mr C in mid-December to confirm it had spoken to his neighbour’s planning agent and expected a planning application shortly. The Council asked Mr C if the height of the fence had been reduced and the storage container removed as advised by the planning agent. Mr C confirmed the height of the fence he had originally complained about had not been reduced but he could no longer see the area where the storage container had been to say whether it had been removed.
27. The Council subsequently confirmed the expected application would be retrospective for work already undertaken rather than for any new development. Mr C sought information about how any such application would be considered. The case officer provided details of where the relevant planning policies could be found and that once validated the application would be available on the website to view.
28. Mr C sought an update on whether the application had been submitted towards the end of January 2018. Mr C also sought confirmation the converted garage required planning permission for the purposes of the restrictive covenant and that the fence would also require planning permission as it was over 2 meters high.
29. The Council confirmed it was due to provide some information to the planning agent before the application could be submitted but this information would take time as it was archived. The Council noted Google Earth information suggested the structure may have been in place from 1999 and asked Mr C if he had any information. The Council explained the issue was likely to be about change of use rather than the actual construction. The case officer explained he had not measured the fence height as he was not aware the height was a specific issue but would do so at a future visit.
30. Mr C confirmed at the end of January that he understood the garage had been built lawfully and had plans and elevations from 1999. The Council explained it would confirm the position once an application was received.
31. The Council confirmed it would visit the site about the fence height in early February. The Council has provided photographs and site visit note from a site visit in early February that show various areas of fencing. The measurements taken found the fence height varied between 1.88 metres and 2.4 metres in height. The Council sought comments from its Highways team about the expediency of taking enforcement action on highway grounds but did not receive a response. The Council has not provided an outcome on this issue.
32. The Council received a retrospective planning application for the conversion of the garage to ancillary living accommodation in mid-February. The Council granted planning permission in mid-April.
33. Mr C sought an update about the garage and the infilling of the large outbuilding and area of hardstanding. The Council confirmed that an application had been received in February and approved in April and provided a copy of the permission. The Council had expected further applications for the remaining issues but these had not been received and would be pursued with the developer.
34. Mr C contacted the Council in June for an update and advised the issues of trespass relating to the fence and garage were being progressed via his solicitor to the Land Tribunal.
35. The Council contacted the developer about the remaining outstanding issues in June. This included two garages and part of a field being used as garden space and part of the fencing which was over 2 metres. The Council sought planning applications for these issues or in the case of the field that it be returned to its former use and fence height reduced.
36. The Council wrote to Mr C at the end of June to check that one of the garages had been removed, the fence reduced in height and the part of the field being used as a garden had been reverted to a field as advised by the applicant’s agent. Mr C confirmed in early July that one of the newly built garages had been removed but his neighbour had increased the size of the remaining garage and the fence had been lowered in part but not at the bottom of the garden. Mr C also advised that the agricultural land was still be used as amenity space and his neighbour was creating a new access to the highway and had removed a section of hedgerow in possible contravention of the relevant legislation.
37. The Council visited the site to view the new access in early July and referred the matter to its Highways team for consideration. The Council has provided photographs from this site visit which include the entranceway area and wider site. The Council says it decided the works to the entrance were a highways matter and not a breach of planning control but accepts it failed to inform Mr C of this outcome at the time. The Council has also explained that works to an existing private road access do not require planning permission and do not form a breach of planning control.
38. The Council received an application for a single storey extension and roof lights and a detached garage and workshop (part retrospective) towards the end of July 2018. Mr C contacted the Council in early August about this application and how he could view historical documents. Mr C also noted the application made no reference to the infilling of the outbuilding that had been extended to create office space. Mr C also questioned the boundary location separating the domestic curtilage from the agricultural land being incorrectly shown. The Council confirmed towards the end of August that the comments had been passed to the case officer and the particular documents were only available to view at the office as they were not held electronically.
39. Mr C sought an update about the agricultural field at the end of October. The Council confirmed that following site visits to assess the entrance it appeared there had previously been an entrance but it had been widened with possibly some verge removed. Mr C wrote to the Council in early November to provide further details about the field access. Mr C also confirmed the boundary and encroachment issues were being dealt with by his solicitor.
40. Mr C contacting the Council in early February 2019 to say he was taking legal action against his neighbour about a breach of covenant relating to the conversion and infilling of the outbuildings which did not form part of the current planning application. Mr C also noted the encroachment into the agricultural land did not form part of the application under consideration. Mr C asked about the Council’s proposed enforcement action on these two issues.
41. The Council confirmed in February the planning application related to the new garage and house extension and no action would be taken until the application was determined. The Council confirmed it had been advised the playhouse on the agricultural land would be removed but would follow this up. The Council stated Mr C’s initial complaint did not include the outbuilding issue and so this had not been addressed. The Council apologised the same day that it had wrongly stated Mr C’s initial report did not include this issue. The Council sought further details on the impact of this issue.
42. Mr C provided additional details at the end of May including before and after photographs of the building showing the changes and infilling that had taken place even though permitted development rights had been removed. Mr C also asked for a timescale on the current planning application.
43. The part retrospective application was decided by the Council in June and this allowed the single storey extension and roof lights but refused the detached garage and workshop.
44. Mr C asked for an update at the end of August following the determination of the application. The Council explained the time limit for an appeal had not expired and such an appeal was expected. The Council also sought further information on the harm arising from the garage putting aside the private boundary issue.
45. Mr C contacted the Council about his neighbour changing their business address to their residential property which was also a breach of a restrictive covenant. The Council replied at the end of September to explain what may constitute a change of use in planning terms and asked Mr C to advise if there were notable changes as a result of any business use.
46. The Council contacted the developer in September seeking the removal of the garage and advising the possibility of an enforcement notice. The Council also confirmed the alterations to the outbuilding required planning permission and it had been agreed a playhouse and area of hardstanding would be removed and the area reverted to a field or an application for a change of use.
47. The Council wrote to Mr C at the end of September to confirm it had received an appeal in respect of the retrospective application and this process may take some time. The documents would be available on the website in due course.
48. The Planning Inspectorate dismissed the appeal in March 2020 in terms of the garage and workshop but allowed part relating to extending the house and formation of roof lights to allow use as living accommodation.
49. Mr C contacted the Council after the outcome of the appeal in April to ask about enforcement action. Mr C highlighted the following issues:

• Removal of the garage
• Hardstanding area
• Infilling of building and encroachment into hay meadow
• Access track

50. The Council explained it was considering enforcement proceedings but officers had been told to work from home and this would delay matters.
51. The Council received an application in mid-April for a garage to replace one approved but never built as part of an implemented permission from 2004. The Council approved this application in February 2021 subject to condition and a section 106 agreement.
52. Mr C complained to the Council in October. The Council responded in early November and apologised for what was a breakdown in communication by the service. The Council explained there was a new case officer and they would be in touch with an update. Mr C remained unhappy and escalated his complaint in November.
53. The Council wrote to the developer in early November about alleged breaches of planning control. The Council also wrote to Mr C in mid-November to confirm the three elements being investigated:

• unauthorised erection of three bay garage
• alleged unauthorised change of use of part of a field from agricultural use to domestic garden
• alleged unauthorised development by infilling and roofing section of outbuilding

54. The Council confirmed it was to serve two planning contravention notices to seek information and an enforcement notice had been served the previous day requiring the demolition of the unauthorised three bay garage. The Council explained the enforcement notice would come into effect on 16 December unless an appeal was lodged within 28 days. The period for compliance with the notice was 6 months. The Council has provided a copy of the planning contravention notices which were served at the end of January 2021 and the previously served enforcement notice.
55. The Council wrote to Mr C in August 2021 to confirm the enforcement notice had not been appealed and the time allowed to demolish the garage had ended in July. However, the Council understood there had been a change in property ownership and was due to write to the new owners about their obligation. The Council confirmed it would consider legal action against the new owners.
56. Mr C wrote to the Council in early October 2021 about the boundary dispute with his neighbour and asked when the three bay garage would be demolished given it was 4 months since the original deadline. The Council confirmed it was pursuing compliance with the enforcement notice and other issues including the summerhouse, infill and use of outbuilding and the hardstanding. The case officer confirmed they had visited the site and discussed the issues with the new owner and could not provide any further information at that stage.
57. At the time of writing the Council has advised it was seeking legal advice but no further substantive action had been taken.

My consideration

58. I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mr C’s reports.
59. Mr C reported several alleged breaches of planning control to the Council in May and June 2017. The Council contacted the developer and visited the site. The conversion of the garage to ancillary living accommodation was regularised through a retrospective planning application in April 2018. I consider there was some avoidable delay between the site visit in July and seeking the submission of a retrospective planning application and ensuring this was received in a timely manner. However, given the outcome I do not consider this delay caused Mr C an injustice requiring a remedy.
60. The Council also sought planning applications for the new garages, change of land use and for any fencing over 2 metres in June 2018 (or for the field to be returned to its former use and fence height reduced). The Council received an application for a single storey extension and roof lights and a detached garage and workshop (part retrospective) towards the end of July 2018. There was also some avoidable delay here. I note this was the subject of a subsequent appeal to the Planning Inspectorate and there was not an outcome until March 2020. The Council is not responsible for this further delay. However, this application did not address Mr C’s report about the infilling and extension of the outbuilding or other matters.
61. The Council’s response from this date was adversely impacted by COVID-19 restrictions. The Council wrote to Mr C in November 2020 to confirm it was still investigating three remaining elements. In relation to the unauthorised erection of a three bay garage, the Council confirmed it had served an enforcement notice requiring its demolition by mid-June 2021. The Council confirmed in October that it was pursuing compliance with this enforcement notice and other issues with the new owner.
62. It is not clear how the change of ownership may impact the Council’s ability to take further enforcement action. Certainly, it has introduced further delay into the process. On balance I consider this situation could have been avoided but for the Council’s delay. I am satisfied this has caused Mr C frustration and time and trouble in pursuing the matter as well as uncertainty about what will now happen. It is also clear that the Council failed to keep Mr C informed of progress, provide an outcome to some of his reports or explain its decisions regarding his highways reports.

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Agreed action

63. The Council will take the following action to provide a suitable remedy to Mr C within one month of my final decision:
1. write to Mr C to apologise for the delay in dealing with his reports of breaches of planning control and poor communication;
2. pay Mr C £400 in recognition of his frustration, time and trouble and uncertainty;
3. provide a comprehensive update to Mr C on the current situation in relation to each of the outstanding issues he has reported with the expected timescales for any actions;
4. decide what enforcement action is warranted and ensure that action is taken within a reasonable period of time; and
5. within three months of my final decision review its procedures to ensure cases are not allowed to drift and complainants are kept informed of progress on a regular basis.

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Final decision

64. I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman