Summary: Ms X complained the Council has failed to take enforcement action against a neighbour for breaching planning permission and building a rear extension too high. The Council is at fault for the severe delay in deciding whether to take enforcement action. This has caused Ms X distress, time and trouble. The Council has agreed to apologise and make a payment to Ms X. It will also decide whether to continue with enforcement action and carry out a review of its planning enforcement service.

The complaint

1. Ms X complained the Council has failed to take enforcement action against a neighbour for breaching planning permission and building a rear extension too high. Ms X says the extension overshadows her garden and living area and the Council’s failure to act has impacted her mental health. She wants the Council to take enforcement action.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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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What I have and have not investigated

5. I have exercised discretion to investigate events back to April 2019. Ms X has consistently complained to the Council and Ombudsman since this time and been told enforcement action was ongoing. I consider it reasonable to now investigate these matters because of the cumulative injustice of the ongoing delay.

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How I considered this complaint

6. I have discussed the complaint with Ms X and considered the information she provided. I have also considered information provided by the council.
7. Ms X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

8. Councils can take enforcement action if they find a breach of planning control. Planning enforcement is discretionary, and formal action should happen only when it would be a proportionate response to the breach. Councils have several choices for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

However, 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.

9. A Planning Enforcement Notice may be served on the owner and the occupier of the land to which it relates to.
10. To enable councils to take enforcement action they may serve a notice under Section 330 of the Town and Country Planning Act 1990. This asks for information about a person’s interests in land, including ownership and occupation details. Failure to respond is an offence.

What happened

11. The following is not intended to be a full account of everything that happened in this period, nor does it refer to all the records I have considered. It is a summary of the key events and facts relevant to this complaint.
12. Ms X owns a terraced house which she rents out. Over seven years ago the Council granted planning permission for a rear extension next to Ms X’s property and specified a maximum height. Around two years later Ms X’s neighbour, Mr Y, started construction on the rear extension above the allowed height. Ms X complained to the Council. She said the extension overshadowed her living space and garden.
13. The Council decided the extension breached planning permission and served a planning enforcement notice with a three-month deadline to demolish the extension. The Council took no action following the deadline.
14. Just over a year later, Ms X asked the Council for an update. The Council accepted there had been significant delay but said it was continuing to investigate the case and decide on the likelihood of a successful prosecution. Ms X waited six months but received no further updates and complained to the Council. The Council said it was continuing to work on the case. Ms X complained to the Ombudsman. We decided we could not investigate the complaint because of the continuing enforcement action.
15. Following the Ombudsman’s decision, the Council carried out a site inspection and recorded the single storey extension as nearly a metre higher than approved. It decided this was still too high. It noted Mr Y had since added a second storey on the other side of the property, and a raised terrace. Both did not have planning permission.
16. The Council told Ms X it planned to serve a second enforcement notice and would keep her updated. At the same time, it sent Mr Y a section 330 notice. The Council then decided it had served the original enforcement notice correctly and decided against withdrawing the notice and serving a new notice. Three years after serving the original enforcement notice, its choices remained to decide whether to proceed with a prosecution or take remedial action itself.
17. The Council took no action for another 10 months. Ms X contacted the Council again. It said it had not taken more action because the case officer had left the Council. Ms complained again to the Council. The Council did not respond but says it continued to progress the case. Ms X returned to the Ombudsman.
18. The Council issued a stage one complaint response to Ms X seven months after her complaint. It apologised for the long delay and said it was still investigating the matter. Ms X escalated her complaint to stage two. At the same time, it sent Mr Y a new section 330 notice. The Council responded at stage two of its complaint process. It fully upheld Ms X’s complaint. It said the delays were due to operational and resource issues in its enforcement team. It assured Ms X it had now prioritised the case.
19. The Council reviewed the case and decided its enforcement notice remained valid for the original planning breach. In response to our enquiries the Council said it would carry out a new site visit to decide on next steps. It added it had developed an improvement plan for its planning service to resolve delays and resourcing issues.

My findings

20. The Council started enforcement action and issued an enforcement notice shortly after learning of the planning breach. Since then, there have been long periods of inaction, totalling nearly three years. The Council accepts there have been severe delays in progressing this case. It says this was because its case officer left, and the complexity of the case. However, the Council decided its original planning enforcement notice was valid over two years ago and has been aware of all the information needed to decide on the likelihood of a successful prosecution. Despite this the Council has still not decided whether to take further action. While the decision over what action to take is for the Council, the delay in deciding what to do is fault. This has caused Ms X a prolonged period of distress.
21. In addition, the Council took over seven months to respond to Ms X’s complaint. This is fault and caused Ms X added distress, time and trouble.

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Agreed action

22. Within one month of my final decision the Council has agreed to:
1. Apologise to Ms X for the severe delay in this case. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £200 to recognise the avoidable distress, time and trouble she has faced.
3. Commit to a timescale for deciding whether to take enforcement action without undue delay. It should share this with Ms X and the Ombudsman.
4. Appoint a senior officer to oversee the Council’s progress against the timescale and any enforcement action and keep Ms X updated every month.
23. Within three months of my final decision the Council has agreed to:
1. Carry out a lessons learned exercise from Ms X’s complaint to identify the reasons behind the severe delay. The Council will then incorporate the findings into its existing improvement plan for Planning Enforcement and Development Management.
2. Share the Council’s progress against its improvement plan with the Ombudsman.
3. Share this decision with the relevant overview and scrutiny committee as part of its existing improvement plan reporting and share the record of the meeting with the Ombudsman.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation, finding fault causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman