Summary: Mr C complained about the Council’s response to alleged breaches of planning control by his neighbour. We did not find fault with the Council for the way it investigated the alleged breaches. We found some fault with the way the Council communicated with Mr C about his complaint. The Council agreed actions to remedy the injustice this caused Mr C.

The complaint

1. Mr C complained the Council failed to take enforcement in relation to planning breaches he reported. He also complained the Council:

• Failed to respond to his earlier communication about these matters.
• Failed to carry out a proper investigation.
• Was dishonest in its complaint responses.

2. Mr C said the issues caused by the planning breaches have damaged his property and decreased its value. He also said he has suffered years of stress and frustration trying to resolve the issues and get the Council to take action.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’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)
5. If we are satisfied with a council’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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How I considered this complaint

6. I spoke to Mr C and considered the information he provided with his complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
7. Mr C and the Council had the opportunity to comment on my draft decision. I carefully considered any comments I received before making my final decision.

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What I found

Planning permission

8. Planning permission is required for the development of land (including its material change of use).
9. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.
10. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.
14. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

Enforcement

15. 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.
16. 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.
17. 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.

What happened

18. What follows is a brief chronology. It does not contain all the information I reviewed during my investigation.
19. Mr C’s neighbour carried out development at their property. This included an extension to the property and driveway.
20. In May 2020 Mr C received a letter from the Council about work a neighbour wanted to carry out. Mr C emailed the Council. He did not object to the proposed development, but he raised concerns. He told the Council he thought earlier work his neighbour carried out had caused damage to his property.
21. In December 2020 Mr C complained to the Council. He said:

• The new extension crossed the boundary onto his property.
• The work his neighbour carried out diverted water to Mr C’s property.
• The drainage issues from the property and the driveway caused flooding on Mr C’s driveway and into his garage.

22. Mr C did not receive a response from the Council. He wrote again in May 2021 and repeated his concerns.
23. The Council responded in June 2021. Mr C was not happy with the Councils response and asked for his complaint to be escalated.
24. In August 2021 the Council wrote to Mr C about the outcome of its planning enforcement investigation. This was in relation to both the property and driveway extensions.
25. Mr C was not satisfied with response. He said the Council failed to address his complaints about the boundary issues, flooding and damage to his property.
26. In August 2021 the Council sent a further complaint response. It said:

• There was no record of correspondence from Mr C before May 2021.
• The minor discrepancies between the approved plans and what was built were not of a nature that would make it expedient to take enforcement action.
• There was no breach of planning control established in relation to the driveway extension.
• The boundary and flooding/ drainage issues were outside the Council’s jurisdiction. It suggested Mr C seek independent legal advice about these issues.

27. Mr C remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

Communication with Mr C

28. This covers two parts of Mr C’s complaint. Mr C said he contacted the Council several times before his complaint in May 2021. The Councils said it does not have any record of any correspondence from Mr C before this date.
29. Mr C also said the Council was dishonest in its complaint responses because it said it did not have any record of the earlier correspondence.
30. The evidence showed Mr C did contact the Council before May 2021.
31. In May 2020 Mr C raised concerns about damage to his property he said was caused by building work at a neighbours property:

“The damage to my property may be coincidental but equally, it may also have been caused by the additional weight on the clay bed.

Having received the copy of the latest planning application, I do have concerns in respect of this proposed work which is also in very close proximity to the other side of my house”.

32. Mr C emailed again in December 2020 about boundary and drainage issues.
33. Mr C also provided evidence of phone calls to the Council planning and building control in May, October and December 2020.
34. Mr C did not get a response from the Council until he complained in May 2021.
35. In its final complaint response the Council said:

“I understand that you are frustrated that correspondence you previously sent to the Council has not been located on its systems. However, I do not agree that there is an insinuation that you have lied about this, rather that the Council does not have a record of this correspondence”.

36. I found fault with the way the Council communicated with Mr C when he raised concerns about the building work at his neighbours property. It failed to respond to his concerns.
37. This caused Mr C an injustice. He was put to unnecessary time and trouble following up his complaint.
38. However, this is the extent of the injustice this fault caused. It is unlikely that earlier contact and action by the Council would have led to a different outcome in relation to the main complaint issues.

Planning enforcement

39. I did not find fault with the way the Council investigated the alleged breaches of planning control.
40. The Council investigated the alleged planning breaches in relation to the property and drive extension.
41. A planning officer carried out a site visit. Their report explained the findings and decision in relation to the property extension.
42. They found discrepancies between the work that had been approved and what had been built. The Council decided it was not expedient to take enforcement action because there was no adverse impact on the character of the property or the amenity of neighbouring properties.
43. I asked the Council for further information about its decision making in relation to the driveway extension. It said:

“The gravelled hardstanding area has been constructed of a permeable surface thereby compliant with the conditions of Class F of the Town and Country Planning (General Permitted Development) (England) Order 2015, as such there is little more that the planning enforcement team can assist”.

44. Mr C said his neighbour converted his garage to a habitable room without the appropriate planning permission. In response to our enquiries the Council explained:

“In this case, it is understood that alterations to the garage only affect the interior of the building. Furthermore, on the basis that the internal alterations do not materially affect the external appearance of the building, any alteration to the garage at property X would not constitute development and planning permission would not be required”.

45. Where there does not appear to be fault with the way the Council made its decision, we would not question the professional judgement of the decision maker.

Other matters

46. Mr C complained his neighbours extension and gutters/ drainage encroached onto his property.
47. He also said the building work and driveway extension created flooding issues on his driveway and into his garage.
48. The Council explained these were not matters it could consider and told Mr C to seek legal advice.
49. It remains open to Mr C to seek independent legal advice about these issues.

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Agreed action

50. Within one month of my final decision the Council agrees to:

• Pay Mr C £100 in recognition of the avoidable time and trouble he experienced.

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Final decision

51. I found fault with the Council causing injustice. I completed my investigation.

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Parts of the complaint that I did not investigate

52. The Council were not responsible for building control at the site. Therefore, I did not investigate this matter as it was out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman