The Ombudsman's final decision
Summary: Mr X complained the Council has failed to properly investigate or take appropriate action in relation to breaches of planning control at a neighbouring property which has led to significant overlooking of his property. We found there was no evidence of fault in the way the Council has responded to the breaches of planning control. However there have been periods of delay and poor communication with Mr X which amount to fault. This fault has caused Mr X an injustice.
The complaint
Mr X complained the Council has failed to properly investigate or take appropriate action in relation to breaches of planning control at a neighbouring property which has led to significant overlooking of his property.
The Ombudsman’s role and powers
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) 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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(1), as amended)
What I have and have not investigated As set out above we expect people to come to us within 12 months of them thinking the Council has done something wrong. As Mr X contacted us in April 2025 we would generally on consider events since April 2024.
We have discretion to consider events outside this 12 month timeframe if there are good reasons for doing so. We may exercise discretion to consider a longer period if the complainant did not come to us because they believed the Council was taking action and they have not allowed the matter to rest for more than a few months.
In this instance we have exercised discretion to consider events since Mr X raised concerns with the Council in 2023 as he has continually pursued this matter since that time.
My investigation will therefore focus on events between April 2023 and April 2025 when Mr X complained to us.
How I considered this complaint
I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
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.
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.
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) What happened here The following is a summary of events outlining key facts and it does not cover everything that has happened in this case.
Several years ago the Council granted Mr X’s neighbour, Mr Y planning permission to demolish an existing dwelling and build a new dwelling, subject to conditions. This included a condition requiring the Council to approve any alterations to the ground levels within the site. Mr Y began work but did not apply to discharge this condition.
Mr X contacted the Council in the Spring of 2023 to raise concerns about an increase in the rear garden levels and the hours of working at the site. A planning enforcement officer contacted Mr Y’s agents reminding them of the approved operating hours and asked for details of Mr Y’s intentions regarding the garden. The agent confirmed the works were in line with the approved site plan.
Enforcement officers visited the site in June 2023 then asked the agents for more information regarding the levels and garden heights. In July 2023 the Council advised the agents that works continued at the owner’s risks and they should stop work until the matter was resolved. It noted the difference in height between the gardens was significant and this should have been made clear on the levels drawing required by a condition of the original planning permission. The Council considered the garden level should be reduced to prevent any loss of privacy for Mr X.
Mr Y submitted a planning application to vary the original planning permission so that changes in the property design could be retained.
The Council’s records show Mr Y told officers in September 2023 that the garden was not due to be developed further at that stage. The Council again advised that any work was at the owner’s risk.
Mr X made a formal complaint in October 2023. He complained the Council had not followed its own policies and that he had received poor communication and engagement from the planning enforcement service. Mr X was disappointed the Council had not required his neighbour to stop the work and was concerned his neighbour had raised the garden levels to such an extent there was significant overlooking of his own garden. Mr X also complained his neighbour continued to work outside permitted hours and had caused damage to his property.
Mr X asked for a face to face meeting to discuss the works at his neighbour’s property. He was disappointed with the lack of transparency and failure to provide any information or updates.
An officer visited Mr X to discuss his complaint and then responded substantively in late November 2023. The Council reiterated the continuation of works was at Mr X’s neighbour’s own risk and would not affect the outcome of the planning application. Although the Council had strongly advised Mr Y the works should cease, the Council said it was not an offence to carry out works in advance of the decision.
The Council said officers were discussing the garden levels with Mr Y’s architect and the Council’s legal team and would ensure the matter was moved forward as quickly as possible. It asked Mr X to alert the Council if the out of hours working continued.
In addition the Council agreed it could have kept Mr X more informed over recent months and provided an earlier and fuller explanation of the process.
In November 2023 Mr X told the Council work had started again in the garden. The Council contacted Mr Y reminding him the garden levels had not been agreed and asking him to clarify his intentions. It then served a Temporary Stop Notice (TSN) in relation to all works to the rear garden area in December 2023. This notice expired 28 days later.
Mr X contacted the Council in January 2024 as works had started again in the back garden. He was concerned Mr Y would make substantial progress before the planning committee meeting to determine his application and that this work would be taken into consideration. Mr X questioned why the Council could not stop the works again until the garden levels were returned to the correct levels.
Mr X also asked the Council to escalate his complaint to the next stage of the complaint process as he did not consider the Council had addressed his concerns. The Council responded in early February 2024. It said it rarely served stop notices and the fact it had demonstrated that the Council took Mr X’s concerns seriously.
It noted that following the stop notice Mr Y had submitted a further planning application for the rear garden works. This would be considered by the planning committee.
The Council also confirmed it has sought to check whether work was being undertaken outside the approved hours but did not have sufficient evidence to serve a breach of condition notice. It acknowledged the builders were living on site and noted this was permitted.
The Council apologised to Mr X for the delay in telling him what action the Council was taking.
The planning committee considered Mr Y’s application and deferred making a decision. They asked officers to investigate further whether the ground levels were in accordance with those shown on the approved plans.
The Council commissioned a site survey and took legal advice on the interpretation of the condition relating to ground levels in the original planning permission. Shortly before the application then went back to the planning committee for further consideration, Mr Y submitted amended plans lowering the garden levels. Members again deferred a decision to allow consultation on these amended plans.
When the application was considered again a couple of months later, the planning committee refused planning permission. Mr Y then submitted an application to discharge a planning condition relating to a reduction in ground levels. The Council refused this application in late 2024. Following this refusal the Council told Mr X it would proceed with enforcement action.
The Council issued an enforcement notice in early 2025 requiring Mr Y to reduce the ground levels in two specific areas of the back garden within two months. Mr Y did not appeal the notice. When the compliance period expired the Council arranged a site visit to assess the situation.
The notes of this visit show that Mr Y had not taken the required action but had dug two holes. He asked the officers to consider whether they were of sufficient depth to overcome the concerns. Mr Y told the Council they could not reduce levels any further due to the drainage and provided a letter from his surveyor. The officers told Mr Y they would consider the matter and seek legal advice on how to proceed.
The Council’s legal advisor was unavailable for a period which led to a delay in obtaining advice on the Council’s option and how to proceed. Mr X was unhappy with the delay and in early April 2025 asked the Ombudsman to investigate his concerns. Mr X says the whole process has been very stressful, and emotionally and financially draining for his family. They have not been able to socialise in their garden for over two years and have spent a significant sum in legal fees.
Since Mr X’s complaint to the Ombudsman Mr Y has submitted documentation to suggest there are practical reasons why he could not comply with the enforcement notice. The Council has also commissioned an independent surveyor to assess Mr Y’s surveyor’s report. And has considered Mr Y’s proposed solutions to overcome the amenity issues caused by the raised land levels.
The planning committee has also considered the options available to resolve the matter. Events since Mr X’s complaint to us in April 2025 are outside the scope of this investigation.
Analysis The Ombudsman is not an appeal body. It is not our role to determine whether there has been a breach of planning control or whether enforcement action should be taken. That is the Council’s role. Our role is to look at the way these decisions are made, and to consider if any fault in the process is likely to have affected the outcome.
Mr X’s frustration and distress at the situation is understandable. Mr Y breached planning rules and then seemingly ignored the Council’s advice that works should cease. He also subsequently failed to comply with the enforcement notice.
However, that was not the fault of the Council. The Council responded to the breach and took appropriate action including visiting the site, issuing a temporary stop notice, inviting planning applications and then issuing an enforcement notice.
While the Council’s action were appropriate, it is clear, and the Council acknowledges in its complaint responses, that there have been periods of delay and poor communication with Mr X.
The delays, lack of regular updates, and of full and timely explanations of the process amount to fault and caused Mr X unnecessary distress and uncertainty.
Action
The Council has agreed to: apologise to Mr X for the frustration and uncertainty caused by delays and poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
pay Mr X £300 to recognise the avoidable distress the delays and poor communication caused.
update Mr X at regular intervals on the progress of any enforcement action; The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council should agree actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman