Summary: The complainant says the Council has failed to take enforcement action to remove a dangerous structure built by his neighbour which he says has damaged his property. We are unlikely to find fault in the way the Council decided not to take planning enforcement action. Or decided it cannot act under the Building Act 1984. Also, we cannot achieve the outcome Mr X is seeking.

The complaint

1. The complaint, who I shall call Mr X, says the Council has failed to act on his reports that his neighbour has built a roof extension without planning permission. He is concerned the structure is unsafe and says it has damaged his property.
2. Mr X wants the roof extension removed, roof tiles replaced to match his property and the Council to inspect the work to ensure it is satisfactory.

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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’. 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
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), 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)

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How I considered this complaint

5. I considered:
• the information provided by Mr X in his complaint form
• Mr X’s complaints to the Council
• the Council’s responses to Mr X
• relevant building control and planning enforcement legislation

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What I found

6. Mr X’s adjoining neighbour is building a roof extension on his home. Mr X complained to the Council that:
• the structure is dangerous because it does not meet building regulations
• it has damaged his home; and
• is a breach of planning enforcement because it does not have planning permission.
7. The Council has advised planning officers have visited the site. It says that when built, the roof extension is likely to be permitted development. In any case, it is satisfied that so far it has not identified any significant planning harm which warrants taking enforcement action.
8. Local planning authorities can take enforcement action if they find development has taken place without the required planning permission. However, authorities should not take enforcement action just because there has been a breach of planning control. 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 2018, paragraph 58)

9. In deciding whether it is expedient to take enforcement action, the Council as Local Planning Authority, must take account of national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.
10. In this case the Council says it has visited the site and not identified any significant planning harm which warrants enforcement action being taken. It is unlikely we would find fault in the way the Council has considered not to take enforcement action against Mr X’s neighbour.
11. Mr X also complains the work on his neighbour’s property is unsafe. Again, the Council has visited the site. It confirms it does not consider the works to be of immediate danger and therefore it cannot take action to remove the structure under section 77 of the Building Act 1984. The Ombudsman cannot substitute his opinion for that of professional officers who do not consider the structure is dangerous.
12. The Council has also confirmed the neighbour has engaged a private company to carry out the building control role for the project. Therefore the Ombudsman cannot investigate any concerns about adherence to building control regulations. The building control company his neighbour is using is a private company and does not act for the Council in monitoring compliance with the building regulations. The Council has no role in this matter and has advised Mr X to raise his concerns with the company direct.
13. Lastly, I understand Mr X believes the work being carried out by his neighbour has damaged his property. This is a civil matter between his and his neighbour and not a matter for the Council.

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Final decision

14. Subject to any comments Mr X might make, my view is the Ombudsman should not investigate this complaint. We are unlikely to find fault in the way the Council:
• decided not to take enforcement action against his neighbour for constructing a roof extension without planning permission; or
• decided the construction is not dangerous and it cannot act under the Building Act 1984
15. Also, any damage caused to Mr X’s property is a civil matter between him and his neighbour.
16. Finally, we cannot achieve the outcome Mr X is seeking.

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Investigator's decision on behalf of the Ombudsman