Summary: Mr X complained that the Council failed to take appropriate action in respect of a planning enforcement report he made. We found the Council’s decision was one it was entitled to take but there was unreasonable delay in the process and the Council should apologise to Mr X for this.

The complaint

1. Mr X complains that the Council failed to take appropriate action in a reasonable timescale when he reported that his neighbour’s building works constituted a breach of planning control. Mr X says the resulting delay and uncertainty about the works affected his health.

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The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

4. I spoke to Mr X and considered his complaint. I asked the Council for information and considered its comments and response to the complaint.
5. 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

National Planning Policy Framework (NPPF)

6. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

What Happened

7. In Spring 2021 Mr X’s neighbour obtained planning permission to build a rear extension to his property. The plans included a raised patio.
8. In November 2021 Mr X reported a planning breach to the Council. He stated his neighbour had built the patio and the extension higher than the approved plans.
9. In November a council officer contacted Mr X’s neighbour and visited the site. The officer took measurements and found the extension was the correct height, but the patio was around 16cm higher than shown on the plans.
10. As there was a breach of planning control, the Council asked Mr X’s neighbour to submit a retrospective planning application. The Council reminded the neighbour to submit a retrospective application in February 2022, July 2022 and again in October 2022. In October the Council told the neighbour he had until January 2023 to put in a retrospective application.
11. In December 2022 Mr X complained to the Council about the lack of action to resolve the matter. He expressed some concern that by not taking action the Council was effectively supporting his neighbour to evade the planning rules. He suggested something untoward was happening. In December, the Council’s response stated it was quite common that planning enforcement matters took time to resolve. It stated there was nothing untoward and it considered that allowing his neighbour more time to respond was appropriate. The Council stated if they took action a lack of flexibility may count against them in any court action that was needed. The Council assured Mr X the file was open and the case would not be dropped or forgotten.
12. The Council met the neighbour on site in January 2023. The Council says it was agreed the neighbour would submit the required application.
13. Mr X complained to us in January 2023 that the Council had failed to take action.
14. No application was submitted by Mr X’s neighbour. In February 2023 the Council considered enforcement action and decided it should issue an enforcement notice requiring a reduction in the height of the patio. It told Mr X of this.
15. We asked the Council for information about the matter in early February. This was provided at the end of March. In the meantime, the Council had considered the matter further. On 30 March the Council told Mr X that the Council had reviewed the plans again. It decided the plans showed the finished floor level of the extension and patio were in accordance with the approved plans. It stated it was unfortunate that the plans had not shown that the garden sloped away.
16. The Council told us that the Council no longer considered it was expedient to take planning enforcement action. It stated no further action was being considered. This was because the Council was content that the patio is shown on the plan at the correct height. The level of the garden was not shown on the plans but because the floor level was the same inside and outside, as shown on the plans, the patio area complied with the plans.

Was there fault by the Council

17. Councils are not under a duty to take formal enforcement action whenever they identify a breach of planning control. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system while also and acting proportionately.
18. It will generally be regarded as unreasonable for the council to issue an enforcement notice solely to remedy the absence of a valid planning permission. It is obliged to assess whether what has been built is inherently acceptable, and to take into account the impact on caused to amenity.
19. In this case the Council identified there was a breach of planning control. It asked Mr X’s neighbour for a retrospective planning application to apply for the development ‘as built’. This is common practice. An application allows the Council to consider if what has been built is inherently acceptable. If it is, it can be approved. If it is not, the Council would go on to consider what (if any) planning enforcement action it should take.
20. While it was an appropriate action to take, the Council allowed the neighbour over a year to provide an application. I recognise the Council chased the neighbour, on a few occasions within this time, and it is not unreasonable to allow some additional time if it is requested. However, a request for an application should not frustrate the planning system. The length of time the matter went unresolved was too great in this case. The delay in the Council reviewing its position and deciding what further action it should take represents fault.
21. Although the Council took too long to decide what further action to take, it was not fault that the Council reconsidered its position in March 2023. The Council is entitled to review its position. It can reconsider whether the circumstances are such that enforcement action is warranted. Councils are not obliged to take action when a breach is discovered. They must act proportionately.
22. After reviewing the plans, the Council decided the extension and patio as built, did not constitute a breach of planning. What had been built was correct and as per the plans. The issue was that the slope of the garden had not been taken account. The Council reached a decision that it should not take enforcement action as a result. This was a decision it was entitled to take. I do not have grounds to question it. However, it is likely to have come to the decision sooner, had it not allowed the matter to drift.

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Agreed action

23. The Council should apologise in writing to Mr X for the delay in reaching its decision on the enforcement report that Mr X raised. Our online remedy guidance provides some guidance about making effective apologies. The Council’s apology should take account of this guidance.
24. The Council should provide us with evidence it has complied with the above actions within four weeks of our final decision.

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Final decision

25. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman