The Ombudsman's final decision:
Summary: The Council’s failure to properly document how it considered an extension to Mr and Mrs Y’s property and determined it does not breach of planning control amounts to fault.
- The complainants, whom I shall refer to as Mr and Mrs X complain the Council has failed to properly investigate and take appropriate enforcement action in relation to an unauthorised and unsafe extension to his neighbour’s property. Mr and Mrs X also complain the Council failed to have oversight during construction
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr X and Mrs X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mr X;
- sent a statement setting out my draft decision to Mr and Mrs X and the Council and invited their comments. I have considered Mr and Mrs X’s response and further information provided by the Council.
What I found
- Mr and Mrs X have contacted the Council’s building control and planning department on since late 2013 to report concerns about his neighbours’ (Mr and Mrs Y) extension. Mr and Mrs X are concerned the extension is unsafe and does not meet the requirements of the building regulations. They are also concerned it is bigger than would be allowed as permitted development.
- Officers from both departments have visited the site several times over the last few years. The extension has yet to be completed.
- Most development needs planning permission from the local council. But, the law allows some, usually minor, changes to houses without council approval. This is ‘permitted development’. Each type of permitted development right has certain conditions and limitations, and if a development does not meet all the relevant criteria then a planning application will be required.
- Planning enforcement officers inspected the extension being built and confirmed there was no breach of planning control. The Council’s records show there was some discussion over where the measurements for permitted development should be taken from.
- Mr and Mrs X asserted the measurements should be taken from the original rear wall of the property in accordance with technical guidance on permitted development rights for householders. As the original property was L shaped at the rear they assert the Council should have measured the extension from each stepped section. The extension does not span the full width of the rear of the property, but does continue past the protruding toilet, along the rear wall. Mr and Mrs X state the extension extends three metres from the toilet, but extends over four metres from the rear wall for the remaining width of the property. This means the extension does not meet the criteria for permitted development.
- Mr and Mrs X were also concerned Mr and Mrs Y had built over a sewer. Officers inspected the property deeds and determined the previous single storey toilet area that existed would be the rear wall of the property. On this basis the Council was satisfied the works complied with the permitted development limits.
- Mr X states that building work on the development has stopped and restarted over several years. In October 2016 he advised the Council a large amount building materials had been delivered and work restarted. Mr X asked the Council to review the work now being carried out.
- Planning officers last visited the site in July 2015. The Council has confirmed it did not consider it necessary to revisit the site as the information Mr X provided did not indicate the works were any different. The Council was also mindful of Mr and Mrs Y’s health and did not want to cause them undue stress.
- Mr and Mrs X dispute that the information provided did not show the works were any different.
- Local authorities have a general duty to enforce the building regulations in their area and will seek to do so by informal means wherever possible. If informal enforcement does not resolve the matter local authorities have two formal enforcement powers which they may use in appropriate cases:
- the local authority may prosecute the person carrying out the work in the Magistrates' Court where an unlimited fine may be imposed. Prosecution is possible up to two years after the completion of the offending work.
- the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes the regulations. If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner.
- Mr and Mrs Y complained to the Council about antagonistic and harassing comments by Mr and Mrs X to their builder. An anti-social behaviour (ASB) officer visited Mr and Mrs Y and Mr X in October 2015 to discuss the matter and offered mediation to find a way forward. Mr and Mrs X were unhappy with the officer’s involvement and considered it inappropriate.
- Mr and Mrs X subsequently learned that prior to visiting Mr and Mrs X the ASB officer spoke to the planning department and was advised Mr X had previously made abusive comments to enforcement officers. Mr and Mrs X dispute this and are distressed that such a comment could be recorded on the Council’s files. Mr and Mrs X’s MP raised these concerns with the Council. The Council confirmed the planning enforcement department did not keep files on individuals. Its records related to specific properties. The reference to Mr X on his neighbour’s property’s file recorded only that he was the complainant about development at the property.
- The ASB officer contacted Mr and Mrs X again in June 2016 following a further complaint from Mr and Mrs Y. Mr and Mrs X was again unhappy with the Council’s contact and did not want the officer to visit his property or be involved in the dispute over the party wall. Mr and Mrs X and Mr and Mrs Y disagree about whether works have been carried out to the party wall and have each obtained surveyors’ reports. This is a civil matter which the Council would have no role in. Mr and Mrs X complain the ASB officer acted beyond the scope of his role by commenting on the party wall dispute and planning issues. They also consider it was inappropriate for the ASB officer to offer to act as a mediator.
- As Mr and Mrs X are unhappy with the Council’s response to their complaint they have asked the Ombudsman to investigate.
- In response to my enquiries the Council has repeated its contention that the extension does not extend further than three metres from the original rear wall of Mr and Mrs Y’s property and adheres to all other conditions. The Council states it has reviewed ordinance survey maps, its records and the plan attached to the title deeds. These indicate that on the balance of probabilities the rear protrusion of the property was part of the original design and general pattern of development of the area.
- Mr and Mrs X dispute the Council’s view that the adheres to all other conditions. The materials used are not of similar appearance to the original property.
- Although the extension would not need planning permission, the Council has confirmed it would need building regulation approval. The Council states it must take account of Mr and Mrs Y’s personal circumstances when considering enforcement action.
- The Council has also reiterated that while the building work is unsightly and of poor quality, the extension is not in danger of collapse.
- In response to my further enquiries the Council states officers took all relevant measurements and specifically referred to the boundary with Mr and Mrs X’s property. The Council has not provided records of its measurements or confirmed it considered each stepped section separately.
- The Council has also now suggested the extension could have been considered a larger home extension and it would not therefore be expedient to take enforcement action.
- When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made.
- The Council has determined there is no breach of planning control, but it has not provided a proper record of how this decision was reached. The records of site visits refer to the partially constructed extension not exceeding three metres in depth. But there is no record of any precise measurements or details of where they taken from, or what consideration was given to the stepped rear wall.
- The Council’s correspondence appears to suggest it has accepted the wall of the toilet as rear wall of the property and has considered the depth of the extension as a whole from this point only.
- This would be contrary to Government’s technical guidance on permitted development rights, which states:
“Where the original rear wall of a house is stepped, then each of these walls will form ‘the rear wall of the original dwellinghouse’. In such cases, the limits on extensions apply to any of the rear walls being extended beyond.”
- It is also a concern that officers have based their decision on a partially completed extension and have not revisited the site following Mr X’s reports of work restarting.
- The Council has also now referred to the temporary provisions for the permitted development of larger extensions and states it would not be expedient to take enforcement action. It has not referred to these provisions, in its correspondence with Mr and Mrs X or previously suggested that they were a relevant consideration. The temporary increase in size for single storey rear extensions would allow for an extension of up to six metres in depth. But the increased limits are subject to the prior notification of the proposal to the Council and a neighbour consultation scheme. Mr and Mrs Y did not comply with these requirements, and there is no suggestion the Council asked them to.
- It is open to local authorities to determine it is not expedient to take enforcement action in relation to a breach of planning control. But we would expect this decision to be taken as part of an enforcement investigation following consideration of all the facts. There is no evidence that is the case here. I am not persuaded that the possibility of Mr and Mrs Y building a larger extension under the permitted development provisions was a factor in the Council’s assessment of the works.
- I consider the Council’s failure to properly document how it considered Mr and Mrs Y’s extension and determined it does not breach of planning control amounts to fault.
- The Council accepts the extension needs building regulation approval. As Mr and Mrs Y have not applied for approval it is open to the Council take enforcement action, but it is not required to. In this instance building control officers have visited the property and recorded the illegal works, but have decided not to take formal enforcement action. This is a decision the Council is entitled to take.
- Although Mr X disagrees, the Council is satisfied that whilst unsightly and of poor quality, the extension is not unsafe. This is a matter of officers’ professional judgment which we would not question.
- In view of the faults identified above, I recommended the Council reconsider whether there has been a breach of planning control, at Mr and Mrs Y’s property. The Council should properly evidence any decision it makes and fully explain the position to Mr and Mrs X. This should be carried out within one month of my final decision.
- I also recommended the Council apologise to Mr and Mrs X and pay them £200 in recognition of the unnecessary time and trouble, and anxiety they have been put to in pursuing this matter. This should also be done within one month of my final decision.
- The Council has agreed to my recommendations.
- The Council’s failure to properly document how it considered an extension to Mr and Mrs Y’s property and determined it does not breach of planning control amounts to fault.
Investigator's decision on behalf of the Ombudsman