Summary: We found fault on Mr J’s complaint against the Council about its failure to take enforcement action against a neighbour who did not comply with planning consent. While there was some delay, this caused no significant injustice.

The complaint

1. Mr J complains about the Council’s inconsistent and long running failure to take enforcement action against a neighbour who did not brick up a bathroom window as required by planning consent; as a result, his privacy is affected to his garden, and he had his expectations raised that it would serve an enforcement notice.

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What I have and have not investigated

2. Mr J complained to us in March 2023. Usually, this would mean we would only investigate the Council’s actions back to March 2022. This is because the law says we cannot investigate late complaints. A late complaint is where someone takes more than 12 months to complain to us.
3. In the circumstances, due to the long running nature of the report evidenced by the correspondence from Mr J’s MP about his prior involvement, I exercised discretion to investigate its actions from July 2021, which is when the Council does have a record of his report.
4. Any reference to events before July 2021 is for background purposes only to put current events into perspective.

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The Ombudsman’s role and powers

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)
6. 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)
7. 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)

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Council Planning Enforcement Prioritisation Strategy

8. The Council has a two-tier prioritisation strategy when considering whether to use its enforcement powers.
9. The first stage is to use a check list at the initial stage of investigation to decide whether any further investigation or negotiation is needed or whether the case should be closed. It awards points for each of the three questions officers need to ask. A development causing significant harm is awarded three points, for example. To move to investigation, a score of 3 is needed. Below that score, the case is closed, and no further action is taken.
10. The second stage is used later in the process where negotiation fails. The officer ranks the harm to decide if a development causes sufficient harm to justify additional, formal action. This ensures efficiency and fairness.
11. At the second stage, significant harm is awarded where there is a serious impact on the built environment or a serious impact on public health or amenity. It is also considered planning consent would not be granted. A score of 3 means the case goes to formal enforcement action.

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National Planning Policy Framework

12. Effective enforcement is important to maintain confidence in the planning system. Enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control. (paragraph 59)

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How I considered this complaint

13. I considered all the information Mr J provided, as well as the Council’s response to my enquiries. I have been unable to refer directly to all the evidence I have seen. This is because some of it contains personal information about third parties and needs to remain confidential. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

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What I found

14. Mr J is unhappy with the way the Council responded to his reports of his neighbour breaching planning consent. He first reported his neighbour breaching planning consent in 2015. I have seen copy correspondence between Mr J, his MP, and the Council for this period.
15. He made the report because the neighbour failed to brick up a bathroom window as required by planning consent. The window is on a side wall at first floor which faces across the rear of his property.
16. Mr J complains he can see into the bathroom when the window is open and see the occupants. The neighbours do not use a blind. He claims this interferes with his and his family’s enjoyment of their garden.
17. The Council found no reference to an earlier report from Mr J when he contacted it again in July 2021. His MP confirmed he contacted the Council about it back in 2015 after Mr J wrote about the neighbouring property. The Council replied to the MP at the time saying the neighbour had until July to comply after which officers would visit to review the case. I have seen a copy of the letter the Council sent to the MP.
18. An officer tried to visit the site twice in July 2021 but could not gain entry. The officer wrote to the neighbour about the alleged breach, a copy of which I have seen. The neighbour did not reply. The MP says the Council wrote to explain it would write to the neighbour and ask for the bricking up of the window. If this was not done by the time of a site visit 28 days later, it would serve an enforcement notice. I have not seen a copy of the letter to the MP.
19. In October, a further site visit was unsuccessful, and a further letter was sent. Again, it received no response. The Council told the MP the breach continued, the neighbour was sent another letter, and if there was no compliance after 28 days, it would send an enforcement notice. I have seen a copy of the letter sent to the neighbour. It warned non-compliance may lead to it serving an enforcement notice.
20. In December, the MP says the Council confirmed it was preparing evidence to serve an enforcement notice, but another site visit was needed and would be done the following month. I have not seen a copy of this letter.
21. In January 2022, the Council told the MP once the site visit takes place this month, if there was still no compliance, the officer would visit and warn the neighbour it would serve an enforcement notice if officers could not gain entry. The neighbour responded and a site visit took place the same month.
22. Having carried out the visit, the officer did an assessment. As a result of this, the officer closed the case. The MP was told this decision the following month.
23. I have seen a copy of the closure report which noted limited internal access to the window, the opening being in a high position and not easy to view out of, with views across neighbouring roofs, not gardens. The glass is opaque. There was no overlooking issue.
24. When reaching its decision, the Council explained to Mr J that its enforcement powers are discretionary. It noted when it granted planning consent to the neighbour, it included a condition for the bricking up of the existing window. The Council did not consider it should have been included as a condition in the first place. This was because it added it only to appease neighbours’ concerns who objected to the works. It considers it was not attached for valid planning reasons.
25. While the neighbour complied with the rest of the planning consent, the window was not bricked up. It explained it took officers some time to gain entry to the premises which allowed them to make an ‘expediency assessment’. This is an assessment where it gathers evidence of the nature and scale of the breach and whether it unacceptably affects public amenity and/or the built or historic environment. It is a matter of judgement for the Council.
26. Officers decided the window did not cause harm to any neighbour which means it did not justify enforcement action. The Council decided taking enforcement action would be disproportionate and unreasonable. It also took account of the likelihood of the neighbour successfully defending such action with the risk to the Council of paying the neighbour’s costs.
27. In its response to our enquiries, the Council provided copies of photographs taken showing the high opening window facing towards Mr J’s property. It contains obscured glass. Only roofs on neighbouring rear extensions could be seen from it. Mr J’s garden was not visible. It explained it took account of its adopted prioritisation strategy along with the National Planning Policy Framework.

My findings

28. I make the following findings on this complaint:
1. Mr J reported the breach to the Council in July 2021. The same month, an officer tried to gain access to the site on two occasions without success. An officer sent a warning letter to the neighbours. I am satisfied the Council acted promptly on this report.
2. There is no evidence of what else was happening between July and October when officers again tried to gain access. While this is a period of 2 months, I note the Council gave the neighbour 28 days to comply and respond to the letter. This means there was a period of one month when there is no evidence of action by the Council. While fault, I am not satisfied this caused Mr J a significant injustice. This is because officers tried to visit again in October anyway. In addition, the eventual decision was not to take enforcement action anyway.
3. There is no evidence of what the Council was doing between October and January 2022 when it finally managed to visit the neighbouring property. This is another period of two months but again, the Council gave the neighbour 28 days to comply. This reduces the period of delay to one month. While fault, I am not satisfied this caused a significant injustice to Mr J. This is because officers visited in January and reached a decision not to take formal enforcement action.
4. Having read the closure report, and seen the photographs taken, I am satisfied the Council took account of relevant factors when it decided not to take enforcement action. It was under no duty to take enforcement action. It followed its own policy. As there is no fault in the way it reached its decision, we cannot question the merits of its decision.

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Final decision

29. I found fault on Mr J’s complaint against the Council, but this caused him no injustice.

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Investigator's decision on behalf of the Ombudsman