Summary: There was delay by the Council in investigating a complaint about non-matching materials on the wall of a house extension. The Council has apologised and now properly decided not to take enforcement action after visiting the site and considering all the facts.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council’s decision not to take enforcement action over a neighbours unfinished wall is unreasonable.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I read the papers put in by Miss X and discussed the complaint with her.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. I gave the Council and Miss X the opportunity to comment on my draft decision.

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What I found

7. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority.
8. Each type of permitted development right has certain conditions and limitations. If a development does not meet all the relevant criteria then a planning application is needed.

Key facts

9. Miss X’s neighbour, whose house is attached to hers, made an application to the Council for a lawful development certificate for a 3 metre rear extension. In the application they said the materials would be matching. The plans show the extension built in brick but the wall on the boundary of Miss X’s garden was not on the plans.
10. Miss X complained to the Council in June 2017. The Council told her the extension had lawful development approval, so if built as shown on the plans it would not need planning permission. The Council said it would open an enforcement investigation to ensure the development did not exceed permitted development limits.
11. The Council emailed the neighbour and planning agent to try to get access in June, July, September and November 2017. Miss X told the Council in November 2017 that officers could visit her garden to look at the extension.
12. The enforcement officers visited Miss X in May 2018. The notes of the visit record the extension was not in accordance with the plans but the height of the development was within permitted development limits. The officer noted the west elevation, on the boundary of Miss X’s garden was concrete blocks and questioned whether this was ‘matching materials’.
13. The senior enforcement officer emailed Miss X in December 2018, apologising for the delay in responding. The officer confirmed the extension was within the height and depth limits for permitted development. However, the side of the extension facing Miss X’s garden was of block work, rather than matching red brick. This was a breach of planning control. The officer said that in order to remedy the breach the neighbour would need to demolish and rebuild the wall, which would need extensive remedial works.
14. The senior enforcement officer said the neighbour had not responded to the Council’s emails and was not willing to undertake works to remedy the breach of planning control. So, the Council had to decide whether to take enforcement action.
15. The officer said the Council recognised the use of block work was unsightly but considered that alternative methods, such as the planting and trellis put up by Miss X, could improve the walls appearance. Miss X has said that planting is deciduous so the wall is visible in winter. So, the Council did not consider the use of formal enforcement action, to seek the demolition and rebuilding of the wall to be a proportionate response. The Council closed the enforcement case in December 2018.
16. The Council has confirmed in response to my further enquires that the extension is not permitted development, as it has not been completed in matching materials. So, all the extension is unauthorised. However, the Council does not consider it could defend an enforcement notice to demolish and rebuild the whole extension because of the one wall.
17. The Council has confirmed the extension has building regulation approval and the fully pointed blocks are a satisfactory masonry finish. Miss X disagrees that the wall has a satisfactory finish.

My analysis

18. The planning enforcement officer was slow to investigate Miss X’s complaints. It took 18 months to complete the investigation. This delay is fault and the Council has apologised to Miss X.
19. The neighbours extension is not permitted development, as it does not use matching materials. However, it is of a size that the Council would approve under permitted development regulations.
20. The Council has accepted the neighbour is in breach of planning control. Its officers have visited the site and tried to contact the neighbour, who is not willing to undertake any work to remedy the breach of planning control. It is clear the only two choices available to the Council were to take formal enforcement action or to decide it was not expedient to take further action.
21. Officers have visited the site, tried to resolve the matter informally and have reached a decision, after taking account of all the facts not to take further action. In doing so I can see that officers have considered whether such action is in the public interest and the cost and disruption of demolishing and rebuilding the extension compared to the harm caused by the non-matching materials on one wall. I can understand that Miss X disagrees with the Council’s decision, but I can see that it is one that officers have made without fault.

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Final decision

22. I have completed my investigation of the complaint. This complaint is partially upheld. There was fault by the Council, as there was delay in investigating but the Council’s apology is sufficient remedy for her injustice. But, there is no fault in the decision making process which decided no enforcement action should be taken.

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Investigator's decision on behalf of the Ombudsman