Summary: There was no fault in how the Council decided not to enforce an alleged breach of planning control. It recorded Miss X’s allegation and considered the evidence and options available to it, before deciding not to take formal action. There was fault in how it told Miss X it had closed the case and it has already apologised for this fault. That is an appropriate remedy for Miss X’s injustice here.

The complaint

1. Miss X complained about the way the Council investigated a breach of an approved planning application. Miss X said the Council did not carry out a thorough investigation, gave her misleading information about its intentions and came to the wrong decision by not taking enforcement action.
2. Miss X also said the Council’s communication about this matter was poor as she felt the Council did not give her views the same weight as the property developer and she was constantly chasing the Council to check on progress.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information Miss X provided.
6. I considered the Council’s comments and the documents it provided.
7. I considered relevant law and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

9. The government’s current guidance on planning enforcement is contained in the National Planning Policy Framework (NPPF)(2021). It says when considering enforcement action, the Council have discretion to decide whether to take enforcement action and should consider the NPPF.
10. 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.
11. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what public harm there is before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act. Councils should keep adequate records of their decisions, including the details and background documents they relied on to make them.
12. The Council provided me with a copy of its local planning enforcement plan which details its response to allegations of this nature. It says it will;
• look at the site and planning history;
• visit the site if necessary;
• try and settle any disputes by coming to an agreement without formal enforcement.
13. Finally, its plan says the decision to proceed with enforcement action is one for the Council to take.

What happened

14. In 2021, the Council approved planning permission for an extension to a residential property.
15. In March 2022, Miss X contacted the planning enforcement team at the Council. She reported a breach of planning conditions relating to the colour of the bricks in the extension building. Miss X followed this up in April and then again in May and sent pictures of the building.
16. In early May, a planning enforcement officer at the Council initially considered Miss X’s allegation. The case notes show they considered the original planning application and the planning conditions. The notes also show they considered the bricks were not in line with the intended colour, written into the initial planning application.
17. The notes also show the enforcement officer had identified the ‘design and access’ (DAS) statement, submitted with the planning application, and which specified the colour of bricks, was not part of the planning conditions.
18. The evidence shows at this point, the Council contacted the owner and said it believed the brick colour was not in line with the original permission. The owner wrote back, saying the planning permission did not specify an exact colour match. The evidence shows the owner sent the enforcement officer photographs of the building, including catalogue photographs of bricks it had purchased.
19. In early June, the Council wrote to Miss X and said it intended to recommend the case for closure, because the colour of the bricks was ‘sufficiently similar’, meaning enforcement action was unnecessary.
20. Miss X responded saying she was unhappy the Council had taken the owners viewpoint without inspecting the site. In mid-June the Council agreed to do a site visit.
21. Alongside this message, the Council explained it did not believe the bricks were exactly like those used in the application and did not believe it would be ‘expedient’ to take action. The evidence shows Miss X argued the colour was very different from that which the applicant had said in their planning application.
22. In late July, the enforcement officer visited the site, and the case notes show they made a note there was a difference in colour. The notes also show they intended to ask the owner of anything they could do to ‘lighten’ the surface.
23. In late October, the enforcement officer wrote to the owner saying they did not believe the bricks were the approved colour. The evidence suggests the enforcement officer was referring to the colour specified in the planning application. The enforcement officer asked the owner to consider what options there were for lightening the colour.
24. The enforcement officer also told the owner, they believed there was a breach of planning conditions.
25. In late November, the enforcement officer discussed the matter with the building architect. The case notes completed after this conversation said the following;
• the brick colour highlighted in the DAS was not part of the planning conditions;
• this would have meant the building bricks should have matched the buildings existing colour and the enforcement officer believed this was not the intention of the planning application.
26. In early December, the enforcement officer made a note on the case notes saying they believed there was a breach of planning control, but they did not believe enforcement was appropriate. They said;
• the colour of bricks used were not in line with the intended colour in the DAS but were not different enough to warrant enforcement action;
• the alternative planning condition (to use the buildings existing brick colour) was a generic condition which did not apply in this case.
27. The enforcement officer sent this note to their manager who agreed to close the case.
28. Miss X sent messages to the Council in November and then again in January asking for an update.
29. In January, the Council wrote back to Miss X with an update, following which Miss X made a formal complaint.
30. In response to my enquiries, the Council provided me with information which said the enforcement officer said they decided not to enforce for two reasons. First because of their interpretation of the planning decision and second because the difference in the colour of the bricks, in line with this interpretation, was limited.
31. During the complaint procedure, the Council apologised to Miss X, for the delay in telling her it had closed the case. In response to my enquiries, it said it was taking steps to ensure this would not happen in the future.

My findings

32. We are not a planning appeal body. Our role is to review the process by which the Council makes its planning enforcement decisions. We look for evidence of fault in the decision-making process, and then consider whether any fault caused a significant injustice to the individual complainant.
33. The Council considered Miss X’s allegation of a breach of planning control and carried out an investigation. This included looking at the application history of the site Miss X complained about. The enforcement officer believed there was a breach of planning control and initially tried to resolve the matter informally.
34. The evidence shows when this approach failed, they considered formal enforcement but decided not to proceed with formal measures. It acted in line with its policy when it made those decisions, and I cannot criticise the way it made its decision.
35. Miss X said she was unhappy the Council did not consult with her after it spoke to the architect, and there was no fault it did not. The decision is one for the Council to take and it properly considered Miss X’s allegations.
36. There was fault in the way the Council communicated its closure of this case with Miss X. I note the Council have already apologised for this and this is a sufficient remedy for Miss X’s injustice here.

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Final decision

37. There was no fault in the substantive decision, but fault in how the Council communicated the closure of Miss X’s report of a breach of planning control. The Council have already remedied the injustice caused by this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman