The Ombudsman's final decision:
Summary: Mrs X complained about the way the Council dealt with her concerns about a neighbour’s development and her subsequent complaint. The Ombudsman does not find fault with the way the Council handled her concerns.
- Mrs X complained about:
- the Council's refusal to take enforcement action against a neighbour's back garden development that affects her privacy; and
- the way the Council has dealt with her complaints about the lack of enforcement action.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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
- I have considered information from:
- Mrs X’s complaint, documents and photographs she has provided and from a telephone conversation with her; and
- the Council’s response to my enquiries.
What I found
- Planning permission is required for the development of land. The term ‘development’ includes engineering operations such as moving earth and changing land levels.
- Councils may take enforcement action if they find a breach of planning control.. However councils do not have to 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 2012, paragraph 207, Enforcement principles)
- An engineering operation which has been in place for over four years is immune from enforcement action.
- Mrs X lives on a sloping road. Her neighbour’s house is built on higher land than hers. Her rear garden and her neighbour’s rear garden both slope upwards from their houses.
- Mrs X’s neighbour had planning permission to build a rear extension to his house. He built the extension but also made changes to an outbuilding and to the levels of his rear garden. Mrs X complained to the Council that the work to the ground levels raised part of the neighbour’s garden. She said this let the neighbour see over her two metre fence on to her patio, and into her patio doors and back bedroom windows. She also complained to the Council about work to the outbuilding but that is not part of her complaint to the Ombudsman.
- A Council officer visited the site to investigate what Mrs X said and then wrote to the neighbour. The Council officer then met the neighbour and considered the history of the site. The history showed the Council had considered enforcement in relation to raised land levels next to Mrs X’s house in 2010. The Council has provided photographs from 2010 which show a raised patio area next to the boundary fence. In 2010 the Council had decided the level change was permitted development so took no enforcement action.
- Within three weeks of Mrs X’s complaint the Council officer concluded:
- the previous land levels could not be confirmed so taking enforcement action against the increase of land would be ‘ambiguous’;
- the land level next to Mrs X’s garden was immune from enforcement action because it had been that high for over four years; and
- although there may have been a slight change of land level, it was not enough to cause a significant increase of harm to the neighbouring properties compared with the previous level of the land.
Mr Y visited Mrs X and the neighbour. Mr Y accepted the land level in the neighbour’s rear garden had been built up. He said the neighbour’s fence now appears higher probably because it is on top of the new level in the garden. However, he considered there was no satisfactory proof showing where and to what extent the changes to the neighbour’s garden have changed the levels within the garden.
The enforcement process
- The Council investigated Mrs X’s concerns about a potential breach of planning control. The case officer visited the site, spoke to Mrs X and the neighbour and considered the previous history of the site. The Council considered its enforcement powers. It decided it had insufficient information to justify taking enforcement action. The Council followed the correct procedures so, even though Mrs X disagreed with its decision, I cannot say there was fault.
The Council’s complaints process
- I cannot know exactly what was said when Mrs X spoke to Council staff about her unhappiness with the decision not to take enforcement action. It would have been better had Council staff been clear with her that, even though no planning appeal was available to her, the Council’s complaints procedure was. However, I do not see that Mrs X was significantly disadvantaged by any lack of clarity on the issue. She did access the complaints procedure and I do not find fault with the way the Council carried out the procedure.
- I have now completed my investigation because I have not found fault with the way the Council dealt with Mrs X’s concerns.
Investigator's decision on behalf of the Ombudsman