The Ombudsman's final decision
Summary: There is no fault in how the Council dealt with the planning matters at the house next to Mr B. It took the impact on him into account, and properly considered its response to breaches of planning control.
The complaint
Mr B complains that that the Council has failed to deal properly with planning matters on his neighbour’s first-floor side extension and single-storey rear extension. In particular, he says the Council: did not properly establish that the development started within three years of the 2018 planning permission; failed to determine the planning permissions in 2018 and 2021 in accordance with its planning guidance; has not taken action when the development is not in accordance with the approved plans; failed to consult him on changes to the plans in 2018; was not transparent in how it uploaded late and sometimes changed planning documents on its website and failed to deal with his complaint to it properly.
Mr B says he has found his dealings with the Council frustrating and the two extensions have impacted negatively on his home.
What I have investigated I have investigated Mr B’s complaints about the Council’s response to the breach of planning control, its failure to consult him on the changed plans in 2018, and the 2021 application. I have not investigated Mr B’s complaints about how the Council determined the 2018 planning application for the reasons set out below.
Mr B’s neighbour submitted a further retrospective application for unauthorised changes to the rear extension. The Council determined this during the course of my investigation. Mr B is not satisfied that the Council handled this application properly. I have not investigated this however, because the main events happened after my investigation had progressed. Mr B can make a formal complaint to the Council about this, and then to the Ombudsman if he remains dissatisfied.
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 cannot question whether an organisation’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) 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 considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered comments received before issuing this final decision statement.
What I found
The law and government guidance 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. 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.
The Borough Design Guide This is the Council’s own planning policy. It sets out the design considerations for development. It says that alterations and extension should be subservient to the main building. In terms of a rear extension, the Guide says: the primary consideration is the impact on neighbours; side extensions should maintain a gap of one metre between the extension and the site boundary; rear extensions should not project more than four metres where they are close to the side boundary; and the eaves and ridge height should be no more than the existing building, and on single storey extensions that are within two metres of a side boundary, the height should not exceed three metres; and the side elevations must not have windows.
In terms of residential development generally, the Guide says the minimum acceptable garden length should be 11 metres and that there should be one metre from the boundary to the flank wall of a single storey building.
What happened Mr B lives in a residential area. In 2018, the Council granted planning permission for Mr B’s neighbour to build a first-floor on an existing side extension. During the application process, the neighbour changed the plans to alter the roof line of the first-floor extension. The Council did not reconsult Mr B on that change. It considered the revised plans and granted permission on that basis.
Did the Council do enough to decide whether the development started within three years?
The 2018 decision notice said that the neighbour must start the development within three years. Mr B says the work did not start until at least one month after that three-year deadline had passed. The Council initially agreed that it appeared that the work had started too late and it told Mr B that the neighbour would need to apply for planning permission or a certificate to say that the work had started in time. However, on further investigation, the Council established that it had received notification of the work starting in the month before the deadline, and an independent inspector had visited the site and found work had started before three years had passed.
It is possible that the initial works may not have been visible to Mr B, or that he does not consider that those initial works meant the development had properly started. However, it is for the Council to decide whether the initial works meant the development had started. It took account of the neighbour’s notice and the report in deciding that they had done so. There was no fault by the Council in deciding the development had commenced in time.
Did the Council determine the 2021 planning application in accordance with its planning guidance?
In June 2021, the Council received reports that the neighbour had demolished the rear conservatory and started some work in its place. The Council investigated the reports and inspected the site. It told the neighbour he needed to apply for planning permission for the demolition and for any building in its place.
The neighbour applied for planning permission to demolish the conservatory and to erect a rear extension in its place. Mr B objected to the planning application. He said that it was clear from the work already done that the neighbour was going to build higher than that shown on the application plans. The Council granted this planning permission in November 2021. In doing so, it considered the impact of the rear extension on Mr B.
Its planning report says the new extension increases the height of the wall by only 35cm and at 2.6 metres, it is still lower than the three metres stipulated by the Council’s planning policy. The garden is still 15 metres long and so exceeds the minimum length expected by the policy.
The flank wall is less than one metre from Mr B’s boundary and again this does not meet the Council’s planning policy requirements. However, the planning report shows that the Council understood and considered this. It decided that it was acceptable because the new extension would project no closer to the boundary than the existing side extension. The Council concluded that being single storey, the rear extension would not impact on him in terms of loss of light.
The Council’s planning policy says that a rear extension should not protrude more than six metres beyond the original dwelling. The Council accepted that this rear extension would exceed, but concluded this would be acceptable because it would not be a significant increase on the conservatory it replaces.
Overall, there was no fault in how the Council decided the 2021 application. It considered the dimensions of the new rear extension and its impact on Mr B specifically. It did depart from its planning policy in terms of the length of the rear extension and the distance from Mr B’s boundary. It is allowed to do this provided that it has considered the impact of doing so. In both cases, it has made clear its assessment that the new extension would not impact significantly greater than the existing buildings.
Mr B makes the point that the building on the western boundary has changed however, because the new rear extension is wider than the demolished conservatory, taking in an existing storage structure. Again, this was clear from the plans and the Council took this into account. Mr B also says the existing storage structure was unauthorised, but it is open to the Council to take this into account.
Did the Council take sufficient action to address the breaches of planning control?
Government guidance says enforcement action is discretionary. The Council should assess the harm caused by unauthorised development and only take action that is proportionate.
It was proportionate for the Council to invite the neighbour to submit a retrospective planning application to determine whether the demolition of the conservatory was acceptable in planning terms and to assess the impact of the proposed extension to replace it.
However in December 2021, Mr B told the Council that, as he had warned, his neighbour had built the rear extension higher than the approved plans and that the guttering trespassed over Mr B’s boundary. The Council told Mr B that the boundary issue was a private matter between him and his neighbour.
The Council visited the site and established that the extension was 30cm too tall and the neighbour had also added a rooflight window. The Council told the neighbour that he needed to lower the roof height and remove the window. The neighbour said this would be difficult due to the constraints of the site and so the Council said that he needed to apply for planning permission so it could consider the planning merits of the new height and window in detail. The Council updated Mr B with this.
The neighbour applied for permission for the increased height of the extension and the additional window. Mr B objected to the Council. He said the applicant had deliberately concealed that the extension would be higher as the steel supports had been in place for some time. Mr B said he had warned the Council but it had ignored this. He said that the Council’s guidance said that the neighbour should only have one opportunity to get planning permission to rectify a breach, but this was the second retrospective application for this extension. Mr B said that the plans were not accurate and still showed the roof to be lower than it is on the ground.
I appreciate that it was frustrating for Mr B that the neighbour again breached planning control, but again there was no fault in the Council’s approach. Mr B had warned the Council that the extension would be higher than approved, but it could only assess the planning merits of the design applied for. It could not consider a design the neighbour had not yet applied for or built. This also means that the neighbour had not made two applications to rectify that he demolished the conservatory without permission. The first application was for demolition of the conservatory and erection of a 2.6-metre-high rear extension. The second application was for a three-metre extension.
In March 2022, the Council decided that the neighbour had not built the side extension in accordance with the specified drawings attached to the 2018 planning permission. However, this was because the Council had mistakenly specified in its decision notice the earlier superseded plans rather than the revised plans.
The Council decided that whilst this was technically a breach of planning control, it would not take formal enforcement action because the extension is built in accordance with the plans that the Council had intended to approve. The Council’s action here is proportionate and based on the circumstances of this breach. There was no fault by the Council.
Did the Council fail to consult Mr B on changes to the plans in 2018?
Mr B became aware of the changed plans only in 2021 when he queried if the neighbour was building the side extension in the correct place. However, the Council does not have to consult on a revised plan where the change is not significant. The new plans altered the roof line and design of the first-floor side extension. The Council assessed the application on this basis including the impact on Mr B, and so even without informing him of the changed plans, the Council did consider the significance and impact of the changes.
The Council’s handling of documents and Mr B’s complaint The Council has acknowledged that it did not upload planning documents to its website in good time. Mr B has also raised concerns that some documents were created later than the dates shown in the documents. This is not necessarily fault and in some cases the Council explained that this was due to how its software systems operate. I can see that this Mr B distrusts some of the Council’s statements but I have not investigated this matter further. This is because it does not alter the planning decisions, and ultimately it is these that have had the greatest impact on Mr B.
Mr B found the Council’s complaint handling confusing and says it did not explain it to him for some time and he had to seek clarification. Mr B made an initial complaint to the Council about the planning matters. It responded in two days and Mr B asked the Council some further questions about its response. He received no direct reply to these and around three weeks later he asked the Council whether it was considering his complaint. The Council registered this at stage one of its process.
Mr B queried why this had not been escalated to a stage two complaint. The Council explained that it has a three stage complaints process. Its initial response was intended to be an early resolution. The next stage is the Council’s formal complaint process at stage one, and if Mr B remained dissatisfied with the Council’s stage one response, he could progress this to stage two.
The Council’s complaints procedure is available on its website. This sets out the three stages. It is not clear whether the Council pointed Mr B to this publication, which would have been helpful. It would also have been helpful for the Council to signpost Mr B to stage one of its formal stage in its initial response to him. The Council may want to consider this, but as it has followed its policy I cannot say that it is fault for the Council not to do so.
Final decision
I have completed my investigation. There was no fault by the Council.
Parts of the complaint that I did not investigate 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) I have not investigated how the Council determined the planning application in 2018. The Ombudsman usually will only investigate events brought to him within 12 months. I appreciate the building work did not start until 2021, but the Council determined the application in 2018 and there are no reasons why Mr B did not bring his complaint about this to the Ombudsman sooner
Investigator's decision on behalf of the Ombudsman