Summary: Mr X complained that the Council failed to properly investigate his concerns about breaches of planning permission at a neighbouring development. We found no fault in the way the Council dealt with these concerns. However, it failed to keep a note of all telephone conversations on the case record, causing uncertainty. It also failed to respond to Mr X’s queries causing uncertainty and frustration and putting him to the inconvenience of having to chase for updates. The Council has provided a satisfactory remedy for the injustice caused.

The complaint

1. Mr X complains that the Council failed to properly investigate his concerns about breaches of planning permission at a neighbouring development. He says his neighbour’s extension has not been built in accordance with the approved plans and is closer to his home than it should be resulting in an overbearing effect. He also says the neighbour has increased ground levels on the site causing loss of privacy.
2. Mr X also says the Council has failed to keep him informed about the progress of the investigation, causing frustration.

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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 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)
5. 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

6. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided. I have also considered documents available on the Council’s website.
7. 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

Legal and administrative background

8. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 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 there has been a breach of planning control. However, enforcement is discretionary and formal action should only be taken 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 statutory powers available to them to seek information and remedy matters. But, 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.
12. Government guidance is clear that the person reporting the alleged breaches of planning control should be kept informed of the enforcement investigation and its conclusions. The Council’s enforcement plan states that updates will be given when there has been significant progress on the case.

Key facts

13. Mr X’s neighbour, Mr Y, obtained planning permission to build a part two storey and part single storey extension to his house.
14. On 18 May 2022 Mr X raised concerns with the Council that Mr Y was raising ground levels and erecting a wall. The Council acknowledged receipt the following day and opened an enforcement case.
15. On 25 May Mr X contacted the Council again saying the plans showed that the two storey extension should be in line with the corner of his house but it was being built in front of that line. The Council confirmed this issue would be added to the existing case and investigated in accordance with the timescales outlined in its previous letter.
16. On 31 May the enforcement officer, Officer A, visited the site.
17. On 14 June Officer A wrote to Mr X. The letter was headed “Compliance check: plans under approval [planning permission reference number], additional alterations to garden levels and erection of wall”. It went on to state that the development had been checked against the approved plans and conditions attached to the planning permission and was being carried out in accordance with the approved details. It also stated that a wall had been erected at the boundary of the rear garden and the land levelled. It concluded that those works did not require planning permission. The letter stated, “As no breach of planning control has occurred there is no further action that we can take concerning your complaint”.
18. On 21 June the enforcement case was closed.
19. On 22 June Mr X telephoned Officer A in response to his letter of 14 June. He says the officer had not considered his complaint that the two-storey extension was not being built in accordance with the plans as raised in his email of 25 May. Mr X’s notes of the conversation state “about plan breach-he has found email-on the ground measurements don’t match plan etc… He will look… Have to see what he says formally”. Mr X then noted “wait for his final response on plan breach”.
20. Following a complaint by another neighbour the Council opened a second enforcement file and wrote to Mr Y saying the window/door openings and flat roof did not appear to conform to the approved plans and conditions attached to the planning permission. It said he should comply with the approved plans and conditions or submit a planning application for the development as built. Mr Y confirmed he had submitted a retrospective planning application for a part two-storey and part single storey extension with a balcony to the rear of the property. The application did not include alterations to ground levels which remained subject to an enforcement investigation.
21. Mr X sent an email to the planning enforcement team on 29 July headed “re-the positioning of the double storey extension… We have had no response on the issue below which I mentioned in a conversation with [Officer A] on 22nd June”.
22. On 4 August the Council wrote to Mr Y raising concerns about alterations to the ground level of the rear garden. It asked what works were proposed so it could decide whether they were permitted development or whether they required planning permission.
23. On 16 August Mr X wrote to the enforcement team raising a new issue in relation to significant work in the rear garden. He also asked the team to confirm the status of the issue he had raised in relation to the two-storey extension. He said he had had no response on this point.
24. Officer A wrote to Mr Y explaining that altering the rear boundary was a breach of planning condition, so he needed to submit a planning application for alterations to the rear garden.
25. On 9 September Mr X sent a further email to the planning enforcement team saying he was concerned that he had not heard anything. He said he was unclear which of the issues the team was currently investigating.
26. On 15 September Officer A wrote to Mr X saying Mr Y had agreed to submit a planning application for the alterations to the rear garden. He confirmed Mr X would have an opportunity to make representations and apologised for not writing to him sooner.
27. On 23 September Mr X again raised his concerns about the position of the extension and asked for an update.
28. On 22 October Mr X sent an email to the planning enforcement team stating, “I am very concerned about the lack of updates”. He said it was over five months since he had raised the issue about the extension and he was none the wiser.
29. On 24 October Officer A responded saying the Council was actively engaging with Mr Y on the points that had been raised and would continue to do so. He confirmed the current planning application was still being considered but the enforcement file would remain open until the Council had reached a satisfactory conclusion.
30. In November the Council considered Mr Y’s retrospective planning application for the extension and balcony. The planning officer, Officer B, prepared a report for the delegated decision-maker. He considered the comments made by neighbours in some detail. He specifically considered comments that the two-storey side extension had been built further forward of the corner of Mr X’s property. The report stated that the planning enforcement investigation had not found any evidence to support this allegation but that the enforcement team was continuing to monitor the site.
31. Officer B’s report stated that the size and scale of the extensions were broadly similar to those previously approved and the alterations did not add a significant volume to the building over that which was approved previously. In fact, the volume had been reduced in some instances. The officer concluded that the proposed development would not lead to any significant additional overshadowing/loss of light or dominance/loss of outlook. He considered the proposal was acceptable in terms of impact on neighbouring residential amenity.
32. The Council granted planning permission.
33. On 21 November Mr X sent an email saying he was confused about the two-storey extension. He submitted further evidence in support of his argument that it had been built further forward than it should have been. He asked, “is this issue still open with enforcement as I have had no update e.g. to say it is closed and why?”
34. Officer A responded on 24 November saying “I informed you by letter dated 14 June 2022 that the development had been checked for compliance with the approved plans and confirmed that the development was being carried out in accordance with the approved details. It is my opinion that the discrepancy did not deviate materially from the approved or cause a significant degree of harm to warrant enforcement action”. He went on to say that planning permission had since been granted for a similar scheme which also included the two-storey extension. He confirmed the planning officer had visited the site to assess the development against the submitted drawings for the retrospective application.
35. Mr X replied saying the officer’s response on 14 June 2022 did not answer his point about the two-storey extension. He said he telephoned the officer on 22 June to discuss his response of 14 June and “we discussed the rear garden point and I asked about the missing double story extension response. You were surprised and unaware of this issue until I told you. You had not even seen the email until that point. You said that, “we can investigate that for you” i.e. it was still an issue to be investigated on that date.” Mr X went on to say that he had chased the Council many times on this point over a five-month period. Many of his emails were not acknowledged and he did not receive any response until 24 October 2022.
36. Mr X complained to the Council about how the issue had been handled and the failure of the enforcement team to communicate within appropriate timescales.
37. Mr Y later submitted a planning application to raise ground levels to the rear garden and erect a boundary wall and fence.

Analysis

Position of the two-storey extension

38. I am satisfied the Council responded appropriately to Mr X’s reports of a breach of planning control. Having visited the site, the enforcement officer’s professional opinion was that the development was being carried out in accordance with the planning permission. Mr Y subsequently made a retrospective application for planning permission having altered the roof of the single storey extension and some window/door openings.
39. Officer B’s report clearly set out the relevant policy considerations together with the objections to the application. So, the decision-maker was aware of all the material planning considerations when making his decision on the application.
40. The evidence is that officers properly considered the impact of the development on Mr X’s amenity but concluded that any domination/loss of outlook was not so detrimental as to warrant a refusal of planning permission. This is a judgement they were entitled to make. In the absence of administrative fault in the way the decision was reached, there are no grounds to question it.
41. Mr X says the enforcement officer misled the planning officer in stating that the development was being built in accordance with the previous planning permission. He says Officer B said in his report that the planning enforcement investigation had not found any evidence to support the allegation that the extension was not being built in accordance with the plans, whereas Officer A told him the discrepancy did not deviate materially from the approved plans or cause a significant degree of harm to warrant enforcement action.
42. Officer A told Mr X, “…the development had been checked for compliance with the approved plans and … was being carried out in accordance with the approved details. It is my opinion that the discrepancy did not deviate materially from the approved or cause a significant degree of harm to warrant enforcement action”. I do not therefore consider that Officer B was misled as this is essentially what Officer B said in his report. In any event, a planning officer can only consider the application as submitted. So, it was for Officer B to decide whether the proposed development as shown on the new plans was acceptable in planning terms. Whether the development had been built in accordance with the previous plans was not relevant to that consideration.
43. I am satisfied that the Council properly considered Mr X’s concerns about the development both in terms of its enforcement investigation and its consideration of the new planning application. However, in light of Mr X’s notes of the telephone conversation with Officer X on 22 June 2022, I find on the balance of probabilities, that the Council had not yet considered his concerns about the extension. It is not clear at what point it did so, but Officer A subsequently explained to both Mr X and Officer his view that there was not a material deviation from the approved plans. This is a matter for his professional judgement and a decision he was entitled to take. I am satisfied that, even if the Council had considered the matter properly at the outset, it would not have altered the outcome.

Failure to keep Mr X informed

44. Mr X says the Council failed to update him about the extension. He says the first time he was aware that the enforcement team had dismissed the issue was when he saw the planning officer’s report in November 2022. Mr X raised this issue in his email to Officer A on 24 November 2022.
45. Officer A responded saying “I informed you by letter dated 14 June 2022 that the development had been checked for compliance with the approved plans and confirmed that the development was being carried out in accordance with the approved details”.
46. Mr X says the letter sent by Officer A on 14 June referred only to the garden wall, so he telephoned him on 22 June to ask about the two storey extension. He says Officer A was unaware of the issue and agreed to investigate it. However, he later claimed to have addressed the issue in his letter of 14 June 2022. Mr says the Council has not provided a proper response regarding this telephone conversation.
47. The Council has explained that not all telephone conversations were recorded on the case file.
48. I find the Council was at fault in failing to keep a record of the telephone conversation. The Council apologised for this in its stage 2 response and said enforcement team leaders would be asked to remind their staff of the importance of noting telephone calls and their outcomes on the electronic case file. I consider this to be a satisfactory remedy for the injustice caused.
49. Mr X repeatedly chased the Council for an update. He says he did not receive a substantive response until 24 November 2022 and was becoming increasingly unclear which issues were being investigated due to intermittent acknowledgements and lack of updates. He says that, if Officer A had addressed his concerns about the extension in his letter of 14 June or clarified the issue in their conversation on 22 June, he would not have been put to the time and trouble of repeatedly raising this issue over the next five months.
50. It is clear from emails sent by Mr X between July and October that he was confused about the situation with the extension. Officer A responded to some of his emails but did not specifically address the concerns he raised about this. This failure to clarify the position caused Mr X frustration and uncertainty and he was put to the inconvenience of repeatedly chasing the Council for an update on the extension. This could have been avoided if the officer had responded to Mr X’s specific queries and clarified the position sooner.
51. At stage 2 of its complaints process, the Council accepted there was a delay in providing significant updates in compliance with its enforcement plan and apologised to Mr X. I consider the Council’s apology to be a satisfactory remedy for the injustice caused.

Increase in ground levels

52. I am satisfied the Council acted appropriately by requiring Mr Y to submit a further planning application for a new boundary wall and landscaping works to the garden including changes to ground levels. This application is currently being considered by the Council’s planning team. The enforcement file remains open but is suspended pending the outcome of the planning application.
53. When making a decision, the Ombudsman must determine whether any alleged fault caused an injustice. We also need to consider the level of any injustice to recommend a meaningful remedy. While the enforcement case remains open and the planning application remains undetermined, it is not possible for me to determine any injustice caused by the alleged fault. This is because, until the Council has decided the planning application and the outcome of the enforcement investigation, any injustice would be speculative. I do not therefore intend to pursue this issue further. It is open to Mr X to make a further complaint when the Council has reached a decision on the planning application and concluded its enforcement investigation if he is unhappy with the outcome.

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Final decision

54. I find no fault in the way the Council handled Mr X’s concerns about breaches of planning permission by his neighbour.
55. I find the Council was at fault in failing to respond to Mr X’s queries about the extension and failing to keep a note of all telephone conversations on the case record. However, I am satisfied it has provided a satisfactory remedy for the injustice caused.
56. Accordingly, I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman