Summary: Mr X complained about the Council’s failure to take enforcement action to remove a structure built without planning permission. We have found the Council to be at fault because it failed to keep Mr X informed of progress being made to take enforcement action, despite its promise to do so. The Council has agreed to apologise and make a symbolic payment to acknowledge Mr X’s frustration. We also found fault because the Council took too long to determine a retrospective planning application. However, we cannot say the overall outcome would have been different had the correct procedures been followed because the decision to take enforcement action was discretionary.

The complaint

1. Mr X complains the Council took too long to investigate a breach of planning control relating to an overbearing lift shaft at a neighbouring development. By the time the Council refused an application to regularise the breach, it said it was not possible to take enforcement action.
2. Mr X says he lift shaft is not in keeping with the conservation area and has had a significant impact on the visual amenity of his home. He is also frustrated by the Council’s inability to take action against a clear breach of the planning process.

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What I have investigated

3. Paragraph 4 (below) relates to this complaint. I have investigated events from 2019 onwards. This is when the Council invited the Developer to make a retrospective planning application. The decision about this was not made until February 2021, and Mr X complained about it soon after. The time taken to determine this planning application is a significant part of Mr X’s complaint and I am satisfied Mr X could not have complained sooner than he did. For this reason, I have decided to exercise my discretion to investigate events from 2019 onwards.

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The Ombudsman’s role and powers

4. 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)

5. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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)
6. 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)
7. 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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How I considered this complaint

8. I read the information provided by Mr X and discussed the complaint with him.
9. I made written enquiries of the Council and I considered its response and any supporting documents it provided.
10. Mr X 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

Planning enforcement

11. 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. 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 2018, paragraph 58)

12. Councils do not have to take enforcement action if a development does not comply with the approved plans, it is discretionary.
13. In most cases, development becomes immune from enforcement if no action is taken within four years of substantial completion for a breach of planning control consisting of operational development (section 171B of the Town and Country Planning Act 1990)
14. A developer has the right to apply for planning permission, including retrospective permission. Where such an application is made, the Council has to put on hold enforcement action relating to breaches that may be regularised by the application.
15. The law says a Council should take a maximum of 13 weeks to provide its decision on a major planning application. (The Town and Country Planning (Development Management Procedure) Order 2015, section 34)

Overview of key events

Context of the complaint

16. Mr X lives in a property in close proximity to a large, multi-story building (the Development). Over several years this building has been the subject of several planning applications submitted by the developer (the Developer). As a result, the building has been converted to include additional floors, office spaces, a gym and several flats. The accommodation is a mix of residential, commercial and community usages.

The original planning permission

17. In 2014, the Council granted planning permission for the extension of the Development, including two additional floors.
18. The Developer significantly breached this permission. The breaches included unauthorised extensions and alterations to the internal layout. Mr X, and other affected neighbours, reported this to the Council in 2017.
19. The breach relevant to this complaint was an unauthorised lift shaft extension. The Council says this was constructed in 2016. The lift shaft raised the total height of the development from 14.6 metres to 17.1 meters.

The retrospective planning application

20. The Council investigated and invited the Developer to submit a further, retrospective application. The purpose of this was to regularise the numerous breaches. This was submitted in June 2019. This application was refused in February 2021.

21. During this time the Council had several discussions with the Developer to address the aspects of the Development that did not have planning permission, including the lift shaft. Mr X says was told no action could be taken until the retrospective planning application had been decided.
22. Once the application was refused, Mr X expected the Council to take swift enforcement action to ensure the lift shaft was removed. Mr X says he did not receive any information from the Council about this, and it remained in situ. He says the lift shaft is overbearing and affects his outlook. He also says it demonstrates how the Council has failed to properly monitor and control the site.

Mr X’s complaint

23. Disappointed by lack of progress, Mr X made a formal complaint in June 2021.
24. The Council responded in August 2021. It explained it was continuing to work with the Developer to resolve the outstanding breaches. While the Developer had agreed to remove an additional floor, removal of the lift shaft was more complex because of the internal works that would be required. However, it said “it was pursuing removal of the lift shaft”. It committed to provide Mr X and other affected neighbours with a compliance plan. This would set out what elements of unauthorised development would be removed and when.
25. The Council did not do so. Mr X made a further complaint.
26. The Council responded in December 2021. It explained it was now unable to take enforcement action because the lift shaft had been in situ for over four years.
27. Disappointed by this outcome, Mr X brought his complaint to the Ombudsman. He says the Council’s delay in dealing with the retrospective planning application had led to the disappointing outcome.

Analysis

28. It is important to note 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 X’s reports of breaches. It is clear from the records I have seen that he Developer significantly breached the original planning permissions, including building an additional floor and allowing the property to be used for unauthorised purposes. The Council has spent considerable time and resources, trying to resolve these issues. The specific area of complaint, the lift shaft, was only one aspect of the development the Council was dealing with.
29. I will consider the two specific areas of potential fault below:

Time taken to decide the retrospective planning application

30. The records show Mr X and others complained about several breaches of planning permission, including the lift shaft, in 2019, although I understand concerns about the Development were raised before. The Council investigated and confirmed numerous breaches had occurred. In response, the Developer was invited to submit a retrospective planning application. This is not unusual practice and there was no fault by the Council taking this approach and for not taking enforcement action at this time.
31. The planning application took 20 months to be decided. The law says that planning applications should take no more than 13 weeks to be decided.
32. The Council has not explained the reason for this delay. I have been provided with copies of the Council’s case records. They show negotiations were taking place with the Developer between June 2019 and April 2020. I acknowledge, due to the number of issues at the site, this was not a straightforward case for the Council to resolve. I have also presumed some delay in progress was due to lockdown restrictions, and I do not hold the Council responsible for any delay that occurred between March and September 2020.
33. Even taking the complexity of the site and lockdown restrictions, the application took far longer than the maximum 13 weeks allowed for. This is fault.
34. I must now consider what personal injustice to Mr X, if any, arose from this fault.
35. Having reviewed the relevant chronology, I cannot say whether the outcome would have been any different had the application been decided more quickly. Even if the application had been completed within 13 weeks, it is possible the lift shaft may well have been in situ for four years by the time the Council was able to make its decision about enforcement. This is based on the lift shaft being completed sometime in 2016.
36. I must also take account of the fact enforcement action is discretionary. There is no certainty the Council would have taken such action even if the lift shaft was not immune due to the passage of time. The records confirm removal of the lift shaft was not a straightforward matter from a from a practical perspective. This uncertainty has been raised by the Council in response to my written enquiries. For this reason, I do not find the delay in processing the retrospective application caused Mr X a significant personal injustice. This is because I cannot be certain the outcome would have been different, had this fault not occurred.

Decision not to take enforcement action

37. The Council then took a further 10 months to tell Mr X the lift shaft was immune from enforcement action, despite saying in its stage one complaint response that it was still “pursuing its removal”.
38. We are not a planning appeal body. Our role is to review the process by which planning decisions are made.
39. Because of this, I am unable to comment on the merits of the decision that the lift shaft was immune from enforcement action. This was a decision the Council was entitled to make. I am also unable to say whether the Council was able to make this decision sooner than it did, mainly due to the complexity of the Development and other breaches on site.
40. However, I acknowledge Mr X’s frustration from having to wait so long for the Council to advise him of the outcome. The Council was aware of the time the matter had been ongoing for several years already up to that point. It had also given Mr X a commitment to providing him, and others, a compliance plan. The Council failed to honour this obligation to do so. I consider this to be fault, and this caused Mr X significant frustration. This injustice requires a remedy.

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Agreed action

41. The Council should take the following action within four weeks from the date of this final decision.
1. Apologise in writing to Mr X for its failure to keep him informed of the progress of its enforcement investigation as it promised to do.
2. Pay Mr X £250 to acknowledge his frustration, time and trouble caused by this failure.
3. Remind relevant staff of the statutory time limits involved with planning applications and the needs to keep affected parties informed when there are delays in both the planning and enforcement processes.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have found fault and the Council has agreed with my recommendations to remedy the injustice caused. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman