Summary: Mrs B says the Council failed to take appropriate enforcement action, wrongly granted retrospective planning permission, failed to identify issues with the paperwork the applicant submitted and failed to address all her concerns when responding to her complaint. There is no evidence of fault in how the Council dealt with enforcement issues or the planning applications. The Council gave Mrs B some wrong information and failed to respond to some of the issues mentioned in her complaint. An apology is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• failed to take appropriate enforcement action despite numerous breaches on site;
• wrongly granted retrospective planning permission without considering her objections or the impact on her;
• when considering the retrospective planning applications, failed to look at the bigger picture of the developments on site;
• failed to identify the applicant had not provided a full name when completing planning applications;
• failed to identify the applicant had completed the wrong ownership certificate for the planning applications; and
• when responding to her complaint, failed to address all her concerns.
2. Mrs B says the situation has caused her significant distress and she is left feeling her concerns have been overridden.

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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. 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)
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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation 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

What should have happened

9. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant's personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. Councils can take enforcement action if they find planning rules have been breached. However councils do not have to 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 2012, paragraph 207)

What happened

14. The Council had granted planning permission for extensions to a property next to Mrs B. However, the owner of the property did not implement the permission and instead demolished the existing dwelling and laid hardstanding which appeared to be intended as a base for an outbuilding. That did not have planning permission.
15. The Council issued a temporary stop notice to prevent construction of an outbuilding on the land, followed by an enforcement notice, requiring the owner of the land to break up the hardstanding and remove it by 13 June 2023. The Council then issued a stop notice to prevent construction of an outbuilding on the land. The Council updated residents and told them it would not take further enforcement action if, as expected, the applicant put in a retrospective planning application to retain the concrete hardstanding to place a shed on it.
16. The Council received a retrospective application for demolition of the existing building and erection of a replacement dwelling. The Council granted planning permission for that. That included conditions and the Council told the owner the conditions had to be discharged before any above ground development took place.
17. The Council also received a planning application for retention of the hardstanding to allow a shed and decking to be erected.
18. The Council met with residents, including Mrs B in April 2023. The Council explained it had raised concerns with the owner of the property about ongoing works undertaken without permission. That included some elements of the approved development built outside the terms of the planning permission. The Council explained it had raised concerns with the owner about him ignoring clear officer guidance and instructions. The Council served a further temporary stop notice to prevent further works above ground before it had discharged conditions.
19. The Council later granted planning permission for the erection of a shed on the hardstanding. The Council explained to residents this superseded the enforcement and stop notices. The Council explained the condition imposed on the permission prevented the erection of any other outbuilding unless the applicant sought prior planning permission. The Council said this would prevent hypothetical future developments. The Council said it would keep the enforcement case open.
20. In August 2023 Mrs B asked the Council to clarify whether the plans showed a window or a doorway for the ground floor utility room. The Council told Mrs B it was a door. However, the applicant subsequently put in a planning application to vary one of the conditions which included changing that opening from a window to a door and to add additional windows. The Council told residents it did not consider it appropriate to take enforcement action or require the work to stop. That is because it considered there was a reasonable likelihood of it deciding the windows were acceptable. The Council explained it had told the applicant if he continued work it was at his own risk.
21. In October 2023 the Council refused an application to infill the cutout area of the rear extension.
22. The Council provided an update to residents, including Mrs B, in November 2023. The Council said it did not consider the outstanding issues with the development harmful. The Council said there was therefore a reasonable likelihood it would grant planning permission once it had received accurate plans.
23. The Council reiterated that view after carrying out a further site visit in December 2023. The Council noted, in particular, the applicant had bricked up one of the windows the Council had raised concerns about.
24. In December 2023 the Council granted retrospective planning permission to vary a condition which allowed changes to the utility room window to a door and the addition of two windows on the ground floor north side elevation.
25. The Council contacted residents, including Mrs B, later in December to tell them about the decision. The Council said it now considered there were minor discrepancies left which it considered could be regularised by a nonmaterial amendment. The Council said though it would continue to monitor the height of the development to ensure it matched the planning permission.
26. Since then the Council has carried out a further site visit which has identified some developments for which the applicant does not have planning permission. The Council considers some of those acceptable and others are now part of a retrospective planning application which the Council is to consider.

Analysis

27. Mrs B says the Council failed to take enforcement action despite numerous breaches on the site next to her property. Having considered the documentary evidence it is clear the owner of the site next to Mrs B’s property has planning permissions in place but has nevertheless not carried out various parts of the development in accordance with the approved planning permissions. It is also clear the owner of the property has laid hardstanding without planning permission. In those circumstances I can understand Mrs B’s concern as her neighbour has repeatedly failed to comply with the planning permissions in place.
28. The evidence I have seen though satisfies me the Council shares Mrs B’s concerns about the amount of times it has had to contact the owner of the site about breaches. The evidence I have seen satisfies me the Council has repeatedly told the owner of the site about the need to comply with planning permissions. I am satisfied the Council has advised him if he continues to build without planning approval it is at his own risk. The Council though does not have any control over the owner of the site. The Council can advise the owner but if the owner then chooses not to act on that advice this is not the Council’s responsibility.
29. I appreciate from Mrs B’s point of view she believes the Council should take enforcement action when there has been a breach. However, as I say in paragraph 13, enforcement action is a discretionary power. What this means is the Council does not have a duty to enforce even if there has been a clear breach. Instead, in each case the Council has to decide whether the breach is such that enforcement action is necessary. It is clear to me from the documentary evidence that, with a couple of exceptions, the Council does not consider the breaches that have occurred on site warrant enforcement action. It has therefore instead invited the owner to put in a retrospective planning application to regularise the development.
30. I understand Mrs B is not happy with that decision. However, as I am satisfied the Council reached its decision after visiting the site there are no grounds on which I could criticise it. The fact there are multiple breaches on the site does not mean the Council has to take enforcement action if it does not consider it expedient to do so.
31. I am satisfied though where the Council has identified breaches which require action, such as the laying of hardstanding, it has acted promptly to issue temporary stop notices and an enforcement notice. It seems to be Mrs B’s view that because the Council issued those notices it is then required to follow through with more formal enforcement action. However, in this case the owner of the site put in a retrospective planning application to regularise the development for which he did not have planning permission. I appreciate Mrs B is frustrated by that process but that is part of the normal process. The Council is then required to consider the planning application before deciding whether enforcement action is appropriate. Only if the Council refused the planning application would it then be expected to consider taking further enforcement action.
32. In this case the Council granted retrospective planning permission for decking and the shed which allowed Mrs B’s neighbour to keep the hardstanding. In those circumstances I cannot criticise the Council for not taking further enforcement action to require Mrs B’s neighbour to remove the hardstanding.
33. I am aware though there have since been further breaches of planning on the site. The evidence I have seen satisfies me the Council is dealing with those breaches, at least some of which are now part of a new retrospective planning application. As they are new issues which have occurred since I began my investigation they are not matters I can comment on other than to note the Council is continuing to investigate further breaches on the site as I would expect it to, as well as considering the recent submitted planning application.
34. Mrs B says the Council told her neighbour he could continue building on the site even though it knew he had added windows and changed one of the windows to a door without seeking planning permission. I have found no evidence to support that allegation. Instead, the documentary evidence shows the Council has told Mrs B’s neighbour at various stages that if he continues to carry out unauthorised work he does so at his own risk. As I said earlier, where the Council has not issued a stop notice I am satisfied that is because it did not consider the breaches so significant as to warrant formal enforcement action. While I appreciate Mrs B strongly disagrees with that decision as it is a decision the Council has reached properly it is not one I could criticise.
35. I recognise Mrs B has significant concerns about what the hardstanding will be used for in future. However, the Council has only granted planning permission for a decking area and shed on the hardstanding. The report for the planning application made clear if the applicant wanted to create an additional dwelling on that land he would need to seek planning permission. The Council could not refuse the application for a shed and decking area though on the basis it might be used for a separate dwelling at some future date. That would be a matter the Council would need to consider enforcement action on if, as Mrs B fears, the owner uses the land for a different purpose. I am satisfied in granting permission for retention of the hardstanding and erection of decking and the shed the Council considered the representations neighbours made. As I have made clear, it is not my role to comment on the merits of a decision reached without fault, as is the case here.
36. Mrs B says the Council should not have allowed the owner to change a window to a door in the elevation next to her property as she had objected to it. Mrs B says use of that opening as a door rather than a window will increase noise disturbance to her. Mrs B also says the applicant did not need a door in that position as there is another door close by.
37. I have considered the report for the planning application. I am satisfied that report set out the concerns Mrs B raised about loss of privacy, light pollution and noise pollution from the proposed changes. I am satisfied the report addressed those issues and recorded the officer’s view that the impact on Mrs B would be acceptable in planning terms, referring to the fact the additional windows would be obscure glazed and the door would have a similar relationship to Mrs B’s property as other arrangements in an urban environment.
38. I appreciate Mrs B is likely to strongly disagree with the Council’s decision. However, as I said in paragraph 4, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. As the Council assessed the impact the proposed changes would have on Mrs B before granting planning permission and imposed a condition to require the windows facing her property to be obscure glazed I could not say the Council failed to take into account the impact the development would have on her. There are therefore no grounds on which I could criticise the Council.
39. I recognise part of Mrs B’s concern here is about what the owner of the property intends to do with the building long term. However, as the Council has explained to her, it cannot anticipate what might be proposed for the building at a later date. Instead, the Council has to consider the application in front of it and whether that application is acceptable in planning terms. I appreciate from Mrs B’s point of view she does not understand why the applicant needs a door in this position given that there is a door close by. That is not a consideration for the Council though. The Council’s role was to decide whether the changes, including the change from a window to a door, were acceptable in planning terms. The Council has decided they are. As it has reached that decision properly there are no grounds on which I could criticise it.
40. Mrs B says the Council failed to identify the applicant had submitted paperwork with inaccurate names. The Council accepts the early applications from the owner of the property did not include a first name. The Council says it has since ensured his planning applications include his full name.
41. Given the history of issues with the site I understand why Mrs B would be concerned about full names not being given on the planning application. However, from a processing point of view the Council’s consideration of an application is not affected by the name of the person on the application form. Nor does the lack of a full name on an application form affect the Council’s ability to take enforcement action if a planning permission is not complied with. That is because the planning permission runs with the land rather than the applicant. So, while it would have been good practice for the Council to ensure a full name was provided with a planning application I do not consider that has caused an injustice to Mrs B. Nor do I consider it warrants a finding of fault.
42. Mrs B says the Council failed to identify the applicant had completed the wrong ownership certificate for the various planning applications. It is now clear the applicant has a rolling licence to use the area to the rear of the property as a garden but does not own that land. That land is instead owned by the Council. Mrs B is therefore right when she says the applicant completed the wrong ownership certificate as he completed the certificate to say he owned all the land affected by the development.
43. The purpose of an ownership certificate though is to ensure all owners of the land proposed for a development are aware of the application. In this case the second owner was the Council. As the Council was processing the planning application it clearly knew about the application. As a result, I do not consider failure to complete the right ownership certificate resulted in any injustice. The Council knew about the applications. Whether the right ownership certificate was completed does not affect the Council’s consideration of the application itself.
44. Mrs B says the Council misled her about whether the full size opening next to her fence was a window or door. The evidence I have seen satisfies me when Mrs B asked the Council about that in August 2023 it told her the opening was a door rather than window. That does not appear accurate given the applicant later submitted a planning application to change that opening from a window to a door. I am not satisfied this means the Council deliberately misled Mrs B though. Instead I consider it likely the officer misinterpreted the plans.
45. Mrs B’s view is that if the Council had interpreted the plans properly it would have identified the owner of the property should not have been installing a door in that position and the Council should have issued a stop notice to prevent further development. However, as I have made clear, enforcement action is a discretionary power and the Council is not required to take formal enforcement action unless it considers it expedient to do so. The Council’s documentary records show it did not have any concerns about the new openings next to Mrs B’s property. The Council also later granted planning permission for those changes. In those circumstances I do not consider it likely, on the balance of probability, if the Council had identified the opening next to Mrs B’s property should have been a window rather than a door it would have taken different action.
46. Mrs B says the Council failed to address all her concerns when responding to her complaint. In particular, Mrs B says the Council did not respond to the points she raised about the officer telling her the large window was a door rather than a window. As I said in the previous paragraph, I am satisfied when Mrs B asked the Council about the opening next to her property it made clear it considered this was a door rather than window. While I recognise Mrs B referred to that issue in her complaint it was included in brackets in a sentence referring to a different complaint. I therefore do not criticise the Council for not responding to that specific point in its complaint response as I do not consider it is clear this formed part of the complaint.
47. The complaint response did not address the concern she had raised though about an officer telling the developer he could continue working on the site. That is fault. I consider an apology satisfactory remedy for that.

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Agreed action

48. Within one month of my decision the Council should apologise to Mrs B for the frustration she experienced due to the fault identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet.

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Final decision

49. I have completed my investigation and found fault by the Council in part of the complaint, causing an injustice to Mrs B. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman