Summary: The Council failed to identify a breach of planning permission during its initial enforcement visit to a development site, and it took a further visit before it recognised this error. This is fault. However, the Council was entitled to approve a retrospective application to regularise the breach, as it did. So there is no reason to believe the Council’s fault made a difference to the outcome, and consequently no significant injustice for it to address. For this reason, the Ombudsman has completed his investigation.

The complaint

1. The complainant, whom I refer to as Mrs B, says the Council delayed in identifying a discrepancy between the approved position of a terrace of new dwellings and what was actually built.
2. Although the Council has apologised, Mrs B thinks it should pay compensation, as she believes the situation could have been avoided if it had properly investigated and taken action sooner.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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 have considered:
• Mrs B’s complaint to the Ombudsman;
• the Stage 1, 2 and 3 complaint correspondence between Mrs B and the Council; and
• information from the Council’s website about the planning applications, including the Committee reports.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Outline planning permission was granted for seven dwellings, including a terrace of three dwellings to the rear of Mrs B’s property. Reserved matters relating to layout, scale, appearance and landscaping were subsequently approved.
8. The developer commenced building works in relation to the outline and reserved matters permissions.
9. However, following the submission of a further application to add an eighth dwelling to the development, Mrs B informed the Council in August 2018 that she thought the terrace was being built closer to her boundary than provided for in the approved plans. She asked what the approved distance should be, and asked the Council to check and confirm what had been built.
10. A Council officer visited the site on 25 September 2018 and took measurements. She concluded there was only a marginal difference between the approved plans and what was being built. On 9 October 2018, the Council informed Mrs B there was no breach of planning control.
11. During October 2018, Mrs B sought further clarification on the approved distance and what had actually been built.
12. The Council visited the site again on 21 November 2018. At this visit, the Council established the terrace had been built approximately 1.2m closer to the boundary than what had been shown on the approved plans. The Council later established the developer’s original topographical survey had been flawed, leading to the discrepancy between the plans and the reality on the ground.
13. The Council invited the developer to submit amended plans showing the ‘as built’ position of the terrace. The Council told Mrs B it was awaiting the submission of the amended plans, and that it would notify neighbours upon receipt of the plans.
14. The Council says it continually chased the developer for the revised plans, which it eventually submitted in March 2019. The Council re‑notified neighbours. Mrs B submitted objections, and I understand the case officer visited Mrs B’s property.
15. The application was considered by the Planning Committee. Mrs B’s earlier objections were summarised in the report to the Committee, and those received after the report publication were presented at the meeting.
16. The report went on to compare the approved separation distance (between each dwelling in the terrace and the boundary with Mrs B) and the ‘as built’ separation distance. The terrace dwellings were 1.5m-1.7m closer to the boundary than the Council had originally approved.
17. However, the report noted the back-to-back distance between the rear elevations of the terrace dwellings and Mrs B’s property was just under 40m; well in excess of the normal 21m rule-of-thumb distance which is generally considered to be acceptable.
18. The report also noted the whole of the boundary was partly shielded by existing vegetation, and outbuildings belonging to adjoining properties. Therefore, while there would be some overlooking from first floor windows, it concluded an objection could not be sustained.
19. Mrs B complained to the Council. It apologised for its failure to establish the developer’s error during its first visit, and that Mrs B had had to bring the matter to the Council’s attention more than once. The Council said it would discuss what happened with the Planning Team, to ensure such inconsistent enforcement decisions did not happen in the future.

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Legislative background

20. 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.
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 July 2018, paragraph 58)

and

“Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case.

In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:

• there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.”

(www.gov.uk/guidance/ensuring-effective-enforcement#planning-enforcement--overview)

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Analysis

22. There is no question the development was built closer to Mrs B’s property than the Council had originally approved. Mrs B considers she should receive compensation for this.
23. Although the Council was not responsible for the developer’s error, it has accepted it should have identified it during its first visit to the site in September. This is fault.
24. However, I am not persuaded there is any significant injustice arising from this fault. This is because, although the Council should reasonably have identified the discrepancy earlier, I do not consider it likely the outcome here would have been any different.
25. The simple fact the development was closer to Mrs B’s boundary than it should have been does not, in itself, mean the Council was bound to take enforcement action. Planning enforcement is a power, not a duty, and it is for the relevant local authority to decide what is the appropriate response to a breach of planning permission.
26. As the case officer’s report noted, the general rule in planning is that there should be a 21m separation distance between directly-facing habitable rooms in different properties. In this case, the separation distance between Mrs B’s property and the new development is approximately 40m, even accepting the developer’s error.
27. This being the case, I have no grounds to question the Council’s decision to invite a retrospective application from the developer; nor its reasons for then approving it. There is no evidence of administrative fault in this decision, and the Ombudsman may therefore not criticise it. It is not for the Ombudsman to make his own decision on the merits of a planning application.
28. Consequently, the only substantive difference, arising from the Council’s fault, is that it took approximately two months longer than it should for it to invite the retrospective application. I do not consider this represents a significant injustice which warrants a remedy. I note, also, the Council has already apologised for this.
29. If Mrs B considers the developer’s error means she should receive compensation, this is private matter for her to pursue with the developer. But the Council was not responsible for this.

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Final decision

30. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman