Summary: Mr X complained the Council unreasonably delayed investigating a neighbouring breach of planning control. There was no fault in the Council’s classification of the planning breach, or in its decision to prioritise investigation of the most serious breaches.

The complaint

1. Mr X complained the Council unreasonably delayed investigating a neighbouring breach of planning control.
2. Mr X believed the Council classed the breach as Category C to avoid investigating it. He also said its communication was poor.
3. Mr X said the neighbouring development was built without planning permission, is out of character for the area, and is overbearing. This resulted in a loss of privacy and amenity.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council 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

Planning enforcement

9. 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.
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.
11. 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.
12. 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)

Time limits for enforcement

13. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

The Council’s planning enforcement policy

14. In considering enforcement action, the main issue for the Council is whether the breach unacceptably affects public amenity or existing use of land or buildings which merits protection.
15. The emphasis of the Council’s enforcement policy is on persuasion. The Council will try to resolve the breach by negotiation, giving the opportunity to apply for retrospective planning permission.
16. The Council’s planning enforcement team will decide the priority of a case and aim to inform the complainant within 10 working days.
17. The Council gives each case a priority rating, with highest priority going to breaches causing unacceptable harm to public amenity or buildings.
18. Level A breaches may include unauthorised works to a listed building, or works potentially causing serious risk to public health. The Council aims to form an action plan within two working days.
19. Level B breaches typically include unauthorised development in a conservation area, breaches of planning conditions, and works seriously contrary to Council policy. The Council aims to form a course of action within seven working days.
20. Level C breaches usually include works to a building adversely affecting nearby properties. The Council aims to form a course of action within fifteen working days, and to complete an investigation within nine months of the first report.
21. Level D breaches are low priority cases where the breach is unlikely to cause any harm to neighbouring properties. The Council will close such cases without further action.
22. Officers will only contact complainants when they need more information, or if they have significant news to pass on.

What happened

23. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
24. Mr X’s wife, Mrs X, emailed their local councillor in June 2023 with photographs of the neighbouring development. They said the building was 5 metres high and two storeys, which breached planning rules, and they wanted an enforcement officer to visit.
25. The councillor copied in the planning department, which then confirmed it registered the case as priority level C and said it would assign the case to an officer. It said officers were only investigating priority level A and B cases, as it was dealing with high demand and had limited resources. It said it could not give a timescale or updates.
26. Mrs X asked the Council to reclass the breach as level A or B and visit the site. They said the development impacts the character of the area, and the building does not have proper foundations. They also said building materials were causing a hazard.
27. Mrs X then emailed the case officer following a telephone call. They understood the Council would write to the owner about the breach, but did not think this would have any impact. Mrs X said the building overlooks all rooms at the back of their house and was causing them anxiety. They asked if they could appeal the classification or escalate matters.
28. The case officer said there were no exceptional circumstances to speed up or reclassify the breach. They referred to significant staffing pressures in the department, meaning the Council introduced a strict priority. Officers were only investigating the highest priority cases.
29. Mr and Mrs X’s local MP contacted the Council on their behalf in July 2023, asking for an investigation.
30. The case officer confirmed the Council registered the breach as level C and was only doing visits for level A and B cases, due to staff shortages. They said the Council was contacting owners telling them about the allegation and the need for them to contact the Council with further information.
31. Mr and Mrs X’s local councillor then wrote to the case officer about the breach in August 2023. They considered there were exceptional circumstances due to the potential impact on the safety and wellbeing of nearby residents.
32. The case officer said they did not consider there were grounds for treating the breach as exceptional and urgent, because the development does not immediately prejudice day to day occupation of nearby homes. They said they agreed this approach with their manager.
33. Another local councillor told Mr and Mrs X the neighbour suggested they would apply for retrospective planning permission.
34. Mrs X asked the case officer the timescales for the neighbour to make a planning application, and the consequences if they fail to.
35. The case officer said they asked the owner to make a planning application within 28 days. However, as the Council had not assigned the case yet there would not be immediate consequences if the owner failed to do so. They said they advised the owner to stop construction, but the owner may continue at their own risk and the Council cannot stop them.
36. Mrs X emailed the Council’s chief executive in October 2023, asking the planning department to act.
37. The case officer told Mrs X they considered their request to treat the breach as high priority, but do not consider it is immediately prejudicing day to day occupation of nearby homes. However, they do not consider the development is permitted development. The owner intended to put in a retrospective planning application, which will allow the Council to consider the merits of the scheme.
38. Mr X complained on 30 October 2023. He said the Council took no action in the five months since they reported the breach. He wanted the Council to reclassify it from Level C to Level B.
39. The Council sent its stage one complaint response on 20 November 2023. It said officers did not consider the nature of the development prejudiced day-to-day occupation of nearby homes, so there was no basis to speed up enforcement action. It said it told the neighbour their outbuilding is not permitted development, and they intended to make a retrospective planning application.
40. Mr X was dissatisfied with the Council’s response, and made a stage two complaint on 12 December 2023.
41. The Council sent its final response on 15 February 2024. It said the neighbour made a retrospective planning application on 19 October 2023, but the Council did not accept it due to inadequate documentation.
42. The Council confirmed it considered Level C correctly encompassed the nature of the breach Mr X reported.
43. Mr X asked the Council for an update in August 2024. He said the owner ignored the Council’s advice to stop the work.
44. The case officer recognised the owner continued with construction work. They said the enforcement process can be long, but this did not mean the Council would not act. They said there was a recruitment drive, and the Council hoped to have new enforcement officers in the coming months.

My investigation

45. Mr X told me the Council accepts a breach of planning control exists, but it has not looked at any Level C breaches in the last sixteen months. It told Mr X it was recruiting new staff, but nothing came of it. Mr X considers the Council is classing as many breaches as it can as Level C to avoid taking enforcement action. Mr X is concerned the four-year timeframe for enforcement action will expire before the Council acts.
46. Mr X considers the neighbour is using the development for business use, creating noise. However, he said the main issues are privacy and the appearance, size, and scale of the development.
47. Mr X said the Council’s communication has been poor throughout. The neighbour applied to regularise the breach in October 2023, but the Council did not tell him or update him. He had to complain to find out what was happening.
48. The Council told me it correctly classed the breach as Level C. It does not consider it meets the criteria for Level B. Under normal circumstances it may take nine months to start enforcement action for a Level C breach. It said legislation allows it up to four years to pursue enforcement action, and it is well within this period.
49. Due to staff shortages and restructuring, the Council could not assign resources to Level C cases. It completed restructuring in July 2024, allowing it to start recruiting more staff. Before then, it relied on agency staff.
50. The Council said it typically updates people when it progresses a case, not at each procedural step. It did not tell Mr X about the neighbour’s planning application because it was invalid, so this was not a progression in the case. It will update Mr X when there is movement on the case.
51. The Council notes Mr X’s concerns about privacy and overlooking, but this does not alter its view on the classification of the planning breach. That is because there may still be overlooking if Mr X’s neighbour reduced the size of the building to bring it in line with permitted development rules.

Analysis

52. The Council classed the breach as Level C under its policy. Mr and Mrs X dispute this, but the decision was a matter of professional judgment which the Council was entitled to reach.
53. Level C under the Council’s policy refers to works which adversely affect the amenity of nearby properties, which is relevant in this instance.
54. Mr and Mrs X consider the Council should reclassify the breach because it affects the character of the area. Level B breaches under the Council’s policy does mention the potential to seriously affect the amenity of the area, but this relates to non-compliance with planning conditions, which does not apply here. The only mention of impact on character of the area relates to cases where the Council has refused planning permission for that reason. The Council has not refused planning permission in this case, and there is not enough evidence to say it would refuse permission based on the development’s impact on local character. That is yet to be determined.
55. The case officer considered Mr and Mrs X’s request to reclass the breach. They also considered a request from a local councillor to treat the breach as an exceptional case. They did not consider there were grounds to reclassify or speed up the matter. This was a professional judgment the officer was entitled to reach, and I saw no evidence of fault or lack of proper consideration.
56. Under its policy, the Council aims to form a course of action for Level C breaches within 15 days, and complete investigations within nine months. However, this is not a strict deadline or statutory duty, and enforcement action is discretionary. The Council took the decision to suspend Level C investigations until it has the resources to deal with them. That was an operational decision which the Council was entitled to make, and which the Ombudsman cannot criticise. The only statutory timescale for enforcement action of this type is four years, which the Council still has time to meet.
57. While I appreciate it was frustrating for Mr and Mrs X to have to chase the Council for updates, or involve local councillors, the Council’s policy confirms it will only contact complainants if officers need more information or have significant news to share. I also found the case officer did respond to Mr and Mrs X, and to councillors, in a timely manner.

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Final decision

58. I completed my investigation. I found no fault in the Council’s classification of the planning breach, or in its decision to prioritise investigation of the most serious breaches.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman