Birmingham City Council (19 019 766)
Category : Planning > Enforcement
Decision : Closed after initial enquiries
Decision date : 27 Mar 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about how the Council dealt with a breach of planning control. This is because he is unlikely to find fault by the Council.
The complaint
- The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision not to take enforcement action against his neighbour for a breach of planning control.
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision and have considered his comments in response.
What I found
- Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission or not complied with a planning condition. However, it is for the Council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation. If the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.
- Parliament has given blanket planning permission for some minor works. These are known as permitted development rights. Where permitted development rights exist, there is no need to apply for planning permission to carry out the work.
What happened
- Mr X contacted the Council to complain as his neighbour built a summer house in their garden without permission. The Council looked into Mr X’s concerns but decided not to take enforcement action as it said the building was only slightly higher than allowed under permitted development rights.
- Mr X is unhappy with the Council’s decision. He disputes its measurements and says the summer house is significantly higher than permitted development rights allow. Mr X says the structure has an overbearing impact on his home and he argues the Council should take formal action as his neighbour has broken planning rules.
Assessment
- I will not investigate Mr X’s complaint about how the Council dealt with a breach of planning control. This is because I am unlikely to find fault by the Council.
- Councils can only take formal enforcement action for a breach of planning control if it is expedient to do so. In this case, I am satisfied the Council properly considered the matter before deciding it would not take enforcement action. The case officer visited the site, took measurements and found that the summer house was only slightly higher than allowed using permitted development rights. Therefore, the Council decided it would not be proportionate to take formal action. This was a decision the Council was entitled to make. I understand Mr X disagrees and says the structure is much higher than the Council suggests and questions how it can properly assess the situation without visiting his property. The Council has provided photographs from the enforcement officer’s site visit and I have no reason to question the officer’s measurements. There is also no requirement for the Council to visit neighboring properties. As the Council properly considered the issue before deciding it would not be expedient to take enforcement action it is unlikely I could find fault.
Final decision
- The Ombudsman will not investigate this complaint. This is because it is unlikely he would find fault.
Investigator's decision on behalf of the Ombudsman