The Ombudsman's final decision
Summary: We have found no fault with how the Council handled a planning enforcement case. It considered the information available and took proportionate action.
The complaint
Mr X complained the Council failed to take enforcement action against his neighbour who has breached a planning condition. He said the neighbour’s new windows overlook his house and garden and there is a lack of privacy.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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)
How I considered this complaint
I have considered Mr X’s complaint and have spoken to him about it.
I have considered the Council’s response to Mr X and the planning documents.
Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation Planning enforcement 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.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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 2021, paragraph 59) Councils have a range of options 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 determined 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.
Non-material amendment Following a grant of planning permission, it may be necessary to make amendments to the proposals that were originally approved. A non-material amendment may be applied for to approve a minor change to the planning permission and does not breach any conditions originally placed on the consent.
There is no need to consult on these applications but where the case officer considers it to be helpful to seek the view of neighbours, they may decide that it is necessary and will write to potentially affected neighbours.
What happened In 2017, the Council approved a planning application for a household extension submitted by Mr X’s neighbour. The permission was subject to conditions including one that required the proposed roof lights on the west elevation to be set at 1.7m above the floor of the room. This was to ensure there would be no overlooking of Mr X’s property.
In December 2020, Mr X’s neighbour applied for a non-material amendment for an additional rooflight to the extension. The Council approved this in January 2021. Mr X complained the Council did not notify him and other neighbours, so he had no opportunity to object to the application.
The officer’s report stated the changes were not significant and would not impact on the residential amenity of neighbouring properties. Specifically, it stated the roof light would not have direct views into the private area of habitable rooms of Mr X’s property.
Mr X said the neighbours installed a full height opening window instead of a roof light. Mr X reported the alleged breach to the Council. Over the following two weeks, Mr X chased a response from the Council. The Council visited the site and told Mr X the window was a roof light given it was in the roof and not a vertical pane. The Council concluded there was no breach with regards to the non-material amendment.
The Council said there was planning breach in relation to the obscurity of the windows and confirmed the neighbour was required to install obscure glazing within 3 weeks. It said if this was not done, the Council would consider taking formal enforcement action.
Mr X contacted the Council to say he disagreed with the Council’s actions. He followed this up over the following weeks for an update. Mr X then submitted a complaint about the lack of action and lack of timely responses to his correspondence.
Mr X contacted his local councillor for assistance with the matter. The councillor met with the enforcement officer who considered that obscuring the windows would be sufficient mitigation. Mr X said the obscure film could be removed and the windows still opened so this was not a satisfactory outcome.
In December 2021, Mr X requested that his complaint was escalated to stage 2. Mr X chased the Council for updates over the following 4 months. In April, the Council apologised for the delayed response and explained that changes in staff was the reason for this. It upheld the Council’s initial response. The Council had identified a breach and was satisfied the neighbour had delivered the Council’s proposal to mitigate the breach.
My findings
The Council has discretion whether or not to take formal enforcement action. The Council investigated the alleged breach of planning control reported by Mr X. Officers visited the site, considered the information available including photographs provided by Mr X and reached a decision.
The Council said it was not expedient to take action over the positioning of the rooflights but that obscuring the glazing would mitigate the impact. It asked the neighbour to apply obscure glazing film to the windows. The neighbour did this and the Council closed the case.
The Council took all the information into account when reaching its decision. I cannot question a Council’s decision if it was reached correctly. I have found no fault with the Council regarding the action it took in response to Mr X’s report of a planning breach.
Final decision
I have completed my investigation. I have found no fault with how the Council reached its decision to close the enforcement investigation.
Investigator's decision on behalf of the Ombudsman