Summary: Mr X complained about the Council’s response to his reports of breaches of planning control at a neighbouring property which he says has resulted in a loss of light, privacy and amenity. We find the Council at fault for delays in its investigation and for not keeping Mr X updated. The Council has agreed to apologise, make a payment to reflect the injustice to Mr X, finalise its investigation and act to prevent recurrence.

The complaint

1. Mr X complains the Council has failed to take effective enforcement action in relation to a development at a neighbouring property. Mr X also complains the Council has taken too long to decide on a planning application for this development. As a consequence, Mr X says his home is suffering from a loss of light, privacy and amenity, and damage has been caused to its foundations.

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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 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)
4. 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)
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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What I have and have not investigated

6. We cannot usually investigate complaints about events that took place more than 12 months before a complainant contacted the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
7. The events Mr X complains about stem back to August 2019, which is more than 12 months before he referred his complaint to the Ombudsman in November 2023. While Mr X’s complaint has been brought to us late, I have exercised discretion to investigate from August 2019.
8. This is because Mr X was engaged with the Council constantly until he contacted the Ombudsman. Mr X was under the impression the Council was progressing his enforcement complaint so it is not until recently he would have been aware he had cause to complain about the delays.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
10. 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

11. The Town and Country Planning Act 1990 defines breaches of planning control as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
12. 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.

National Planning Policy Framework

13. The National Planning Policy Framework sets out the government’s planning policies for England and how to apply these.
14. The Framework says effective enforcement is important to maintain 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.

The Council’s planning enforcement

15. The Council publishes information about planning enforcement on its website. This says:
• The Council initially attempts to resolve breaches through negotiation and giving landowners a reasonable opportunity to right the situation. If negotiation fails, it will then consider if formal action is needed. The Council’s power to take formal enforcement action is discretionary and it will only use this if it can demonstrate that the breach causes serious harm to public services.
• Where a breach of planning control is identified, usually the Council will give owners of the property an opportunity to put the situation right and advise them what steps are needed to do this. If it identifies a development may have been considered acceptable in planning terms, the landowner may be given an opportunity to submit a pre-application.
• The Council can serve an enforcement notice if something requiring permission has been built before permission is granted. This is an instruction to put things back how they were before work started. The Council will take this action if the work done is not acceptable, is harmful to the environment, or if the work is not in the public interest.
• There are powers of entry on to land to enable a fuller understanding of a breach of control.

What happened

16. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
17. Mr X lives next to a property that received conditional planning permission for a new development.
18. Mr X reported a planning breach to the Council in August 2019. He explained the neighbouring development was not in keeping with the approved plans and did not comply with several of the conditions attached to the planning permission.
19. An enforcement officer at the Council spoke to Mr X in October 2019. Mr X explained the development appeared to be closer to his own property than set out in the plans and the developer had not complied with privacy screening conditions. The enforcement officer visited the site to assess this and get the developers contact details.
20. The enforcement officer called Mr X in December 2019 to update him. Mr X explained the developer had not installed obscure glazed windows as per the approved plans.
21. The enforcement officer visited the site again in January 2020 and identified the installed windows were not obscured. They spoke to the site manager who explained they had received and installed the wrong windows but were in the process of rectifying this and would let the Council know when the correct windows were in place.
22. In February 2020 the enforcement officer called the developer to ask for an update and was told the correct windows had now been installed.
23. Mr X then contacted the Council again in April 2020 to explain there were outstanding issues with the development and he did not believe it was being constructed to the agreed dimensions.
24. The enforcement officer visited the site that month and again in May 2020 to check the dimensions of the property. The enforcement officer then emailed the developer to explain the development did not comply with the agreed plans. The enforcement officer said the developer would need to submit a new application for the Council to assess and make a decision on whether to approve the changes.
25. The developer then submitted a new application seeking approval for the variations that had been identified by the enforcement agent.
26. Mr X emailed the Council in July 2020 and asked for an update on the new application.
27. The enforcement officer and a planning officer carried out a site visit in August 2020 to inspect the property and instruct the developer on what steps they would need to take to rectify the breaches.
28. Mr X contacted the Council again in September 2020 to ask for an update on the current planning application. The Council explained it had visited the site to make note of the discrepancies and requested amended plans to cover these before it could decide on the application.
29. Mr X contacted the Council again in January 2021 to provide his objections to the planning application. As he did not receive a response acknowledging these, Mr X continued to chase the Council.
30. In October 2021, the Council’s enforcement officer told Mr X they were awaiting the outcome of the new planning application before they could decide how to proceed. Progress on this application had slowed down as the developer had not been forthcoming with additional information and plans the Council needed to make a decision.
31. Through 2022, the Council engaged the developer and other consultees on the development and carried out several site visits, including to Mr X’s home. Throughout this time, the Council obtained further plans and drawings from the developer in an attempt to address the concerns it had about the development.
32. By the end of 2022, the original developer had gone into liquidation and the land was subsequently sold to another developer.
33. The enforcement officer carried out another site visit in January 2023.
34. In April 2023 Mr X complained to the Council saying it had failed to keep him updated, and had not responded to his enforcement complaints.
35. The Council responded to Mr X’s complaint in June 2023. The Council apologised for the length of time it had taken to respond and explained the planning application at the neighbouring property had not yet been determined. The Council explained the applicant was no longer engaging with its planning or enforcement officers, but it was now in the final stages of gathering information to make a decision.
36. In June 2023 the enforcement officer carried out another site visit to assess the layout of the properties within the development.
37. In July 2023, Mr X asked the Council to reconsider his complaint. The Council responded to explain the development Mr X complained about was still the subject of an ongoing enforcement case which lay outside of the remit of its complaint process.
38. Mr X responded to say he felt the Council had taken too long to decide on the planning application and questioned if it could still be considered valid. Mr X said the development in its existing state was unlawful and would either require a full retrospective planning application or formal enforcement action.
39. In September 2023, the Council served a planning contravention notice to the developer of the property.
40. In December 2023 the Council’s enforcement officer carried out another site visit.
41. The enforcement officer attempted to carry out further site inspections in March 2024 and April 2024 but could not gain access to the property.
42. In July 2024, the enforcement officer accessed the property for a site inspection to take measurements so these could be considered against the plans.
43. In response to our enquiries on this complaint the Council said a large part of the delay in this case was down to the Covid 19 lockdowns. Its enforcement officers continued to work and carry out site visits during this period, but it was not always possible to enter properties, and there was a significant increase in complaints received. There are still some areas of the development it has not been able to enter but once it has, it should be able to decide whether and what formal action is to be taken within three months.

Analysis

44. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
45. Mr X has said the Council ought to either take enforcement action or require the developer to submit a new application. It is not for the Ombudsman to say what action the Council should take so I do not find fault here.
46. That said, we expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decisions to any complainants. We would expect the council to do so without unnecessary delay.
47. After the Council received Mr X’s complaint in August 2019, it visited the site and identified breaches. It engaged with the developer to ensure some breaches, such as the installation of incorrect windows were rectified promptly. It also asked the developer to submit an application so it could consider if it would have approved other deviations from the original plans. I find no fault with the action the Council took here as it appeared to assess the situation and enter negotiation with the developer in line with its usual process.
48. However, throughout the timeline I have investigated, there are periods of months where the Council failed to update Mr X and he had to constantly chase to find out what action it was taking. This is fault and caused Mr X significant uncertainty which is injustice.
49. The Council has explained there were a number of reasons for the delay, including the Covid pandemic, a change in ownership of the development and an inability to gain access to the property. I appreciate there have been issues beyond the Council’s control and timescales to resolve enforcement complaints, being complex in nature, are unpredictable. However, the records I have seen show long gaps in activity, and this has allowed the case to drift. Mr X has now been waiting more than five years for complaint closure, which is a significant undue delay, and this is fault. This caused considerable uncertainty and distress for Mr X, which is injustice.

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Agreed action

50. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
51. Within one month:
• Provide a written apology to Mr X for the delay identified in the planning enforcement investigation and for the lack of communication; and
• Pay Mr X £500 to recognise the avoidable uncertainty, distress and frustration caused by the delays.
52. Within three months:
• Decide if and what planning enforcement action is warranted and write to Mr X with the outcome of this. If the Council decides to take enforcement action, it should also let Mr X know when and how it will update him throughout the process; and
• Review its case management process for its planning enforcement services, ensuring it has sufficient alerts after periods of inactivity, and sufficient management oversight of case progression.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I find the Council at fault for delays in the process of its enforcement investigation and for not keeping Mr X updated throughout. The Council has agreed to the recommendations set out above and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman