Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to enforce against a neighbour’s garden works involving a planning breach, and how it dealt with her complaint. There is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant an investigation. We do not investigate councils’ complaint-handling where we are not investigating the core issue which gave rise to the complaint. We also cannot achieve outcomes Mrs X seeks from the complaint.

The complaint

1. Mrs X’s garden is near another property whose owners developed their garden without planning permission. The neighbour raised the level of the garden and built a retaining wall. Mrs X complains the Council:
1. has failed to take planning enforcement action against the neighbouring property’s owner;
2. delayed in dealing with her complaint and did not consider it properly.
2. Mrs X says her garden is now overlooked by people in the neighbouring garden. She says this makes her feel uncomfortable when she and her children are in their garden. Mrs X says the complaint process has caused her great stress and she has had to chase responses. She wants the Council to enforce against the neighbour, place a condition on the development requiring a screening fence to stop the overlooking, apologise to her and review its complaints process and learn lessons from it.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if:
• we decide there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information from Mrs X, relevant online maps, the Ombudsman’s Assessment Code.

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My assessment

6. Planning authorities may take enforcement action where they identify or receive a report they decide is a planning control breach. They are required to investigate claimed breaches, but any enforcement is discretionary. It is for the authority to decide whether it is expedient to use its enforcement powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.’ Councils acting as planning authorities have different options to respond to planning control breaches, from taking no formal action, through inviting a retrospective planning application to regularise a breach, to issuing an Enforcement Notice.
7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
8. In response to Mrs X’s reports about the site, the Council considered the location and the information she provided, applying its policy on prioritising enforcement matters. The Council officers’ initial assessment concluded the development did not cause such significant harm to justify them taking enforcement action. Mrs X pursued the matter and the Council visited the site the month after her initial report. Officers took photographs and measurements of the neighbour’s work. The Council concluded the raised ground levels amounted to an engineering operation which required planning permission, so officers identified it as a planning breach. They determined the retaining wall was not a breach because it is below two metres from the original ground level.
9. The Council accepts it should have invited the neighbour to submit a retrospective planning application for the ground levels breach sooner. It did this during the complaint process but the neighbour has chosen not to submit one. The Council advised Mrs X that if the neighbour did not make an application, the situation would not be one where they would consider it expedient and in the public interest to take enforcement action.
10. The Council has followed its policy, which aligns with national government guidance on enforcement. It has sought compliance from the property’s owner by inviting a planning application, albeit later than it could have done. Officers investigated and gathered relevant information to inform their decision to take that approach, and in making the decision that if the identified breach is not regularised there would be insufficient planning harm grounds to enforce. There is not enough evidence of fault in the Council’s enforcement decision-making process which would have affected the planning outcome to warrant us investigating. We recognise Mrs X disagrees with the Council’s decision, including its assessment of the levels of harm caused by the works. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Mrs X raises concerns about the Council’s handling of her complaint. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
12. As an alternative to the enforcement action the Council has decided not to take, Mrs X wants the Council to place a condition on the development requiring a screening fence. There is no planning permission in place for the works so the Council cannot impose a planning condition. Officers have invited the neighbour to submit a planning application. An application would make the addition of a planning condition possible. But it is not within the Council’s powers to order the neighbour to submit an application. We cannot order the Council to in turn order the neighbour to put in a planning application. That we cannot achieve this outcome from the complaint is a further reason why we will not investigate.

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Final decision

13. We will not investigate Mrs X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant an investigation; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issue giving rise to the complaint; and
• we cannot achieve outcomes she seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman