Summary: There was no fault in the way the Council has handled a planning enforcement matter. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs J.
2. Mrs J complains the Council has not used its planning enforcement powers to require the removal of decking her neighbour has installed in their garden, which she says causes a significant loss of privacy to her property.

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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. 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 reviewed Mrs J’s correspondence with the Council, the information available through the Council’s planning portal, and sought an update from the Council on the progress of its decision-making.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mrs J lives in one of a row of houses in a hilly area. Each property has a garden at the rear, which slopes steeply away from the houses.
7. Mrs J’s immediate neighbour built decking extending out several metres at the rear of their property. Because of the steepness of the garden, to provide a level surface the decking is approximately 1.8 metres (6 feet) above ground level at its highest point. The neighbour did not seek planning permission for the decking when they built it.
8. Mrs J reported the matter to the Council in June 2023, which confirmed the decking required planning permission. The Council invited the neighbour to submit a retrospective planning application, which they did in July. Mrs J objected to the application because it allowed the neighbour an uninterrupted view into her garden and the rear of her home.
9. In September the Council refused the application because of the loss of privacy it caused to Mrs J and other neighbouring properties. The neighbour then had 12 weeks to appeal against this decision to the Planning Inspectorate.
10. In January Mrs J submitted a stage 1 complaint to the Council. She complained the Council had permitted the neighbour to submit a retrospective planning application, and that despite it being refused and the appeal deadline expiring, she had not received any update from the Council. As part of her complaint, Mrs J submitted a ‘subject access request’ (SAR) for the Council to disclose correspondence between the relevant parties.
11. The Council responded in February. It explained it had not been in touch with Mrs J for a period of time because it had been waiting for the neighbour to submit an appeal. The Council explained it had now agreed a deadline for the neighbour to submit a second retrospective application, with the aim of addressing the reasons for refusal.
12. Mrs J submitted a stage 2 complaint a few days later. She criticised the Council for allowing the neighbour a further opportunity to apply for planning permission, and not taking enforcement action. She also said the emails disclosed under her SAR showed the Council case officer being overfamiliar with the neighbour’s planning agent, and implied this suggested a conflict of interest.
13. The Council replied in March. It explained it was a normal part of the planning enforcement process to allow the submission of retrospective planning applications, and that there is no fixed deadline for the Council to take enforcement action. However, it noted the neighbour had not met the agreed deadline to submit the second application and said enforcement would now commence. The Council accepted it should have kept Mrs J better updated, for which it apologised.
14. The Council also said the relationship between the case officer and planning agent was entirely professional and did not agree there was any conflict of interest.
15. Mrs J then referred her complaint to the Ombudsman.
16. In April, the neighbour submitted a second planning application, proposing to install screening around the decking to provide privacy to Mrs J’s property. The Council rejected this application in June, as it did not agree the proposal was adequate to restore Mrs J’s privacy.
17. I made enquiries with the Council in September, in which it explained the neighbour had until 16 September to submit an appeal about the second refusal. In October, the Council confirmed the neighbour had lodged an appeal.

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Legislative background

18. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
19. 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.
20. 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.
21. 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 September 2023, paragraph 59)

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Analysis

22. The law gives councils wide discretion in their approach to enforcing breaches of planning legislation. The fact development may have occurred without, or not in accordance with, planning permission does not mean a council must automatically take enforcement against it.
23. In this case, although the Council quickly decided Mrs J’s neighbour’s decking required planning permission, rather than taking immediate enforcement action it invited them to submit a retrospective planning application. This was to allow the Council to give proper consideration to whether it could allow the decking to remain. While I appreciate Mrs J wished the decking simply to be removed, this is a common part of the enforcement process and not evidence of fault.
24. Similarly, after the Council’s initial refusal to give permission, it gave Mrs J’s neighbour the opportunity to submit a second application, proposing amendments to help overcome the Council’s objections. Again, this is a normal part of the planning process.
25. While the Council refused the second application as well, Mrs J’s neighbour has a statutory right to submit an appeal to the Planning Inspectorate, and the Council has confirmed they have now exercised that right. This means the Council cannot take any further enforcement action until and unless the neighbour’s appeal is dismissed.
26. There is, therefore, no evidence of fault in the way the Council has handled this matter to date.
27. If Mrs J’s neighbour does not win their appeal, it will then be for the Council to decide whether to continue taking enforcement action. If so, and Mrs J is dissatisfied with the way the Council makes this decision, she may make a further complaint at that point.
28. I should note, however, that if the neighbour wins their appeal, we will not be able to investigate any further complaint about this. This is because the decision to allow the decking to remain will have been made by the Planning Inspectorate, not the Council, and we have no jurisdiction over the Planning Inspectorate.

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Final decision

29. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman