Thurrock Council (18 006 529)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 11 Jan 2019

The Ombudsman's final decision:

Summary: The Ombudsman does not find fault in the way the Council carried out planning enforcement action on an alleged breach of planning control for a building next to the complainant’s property.

The complaint

  1. Mrs X complained the Council failed to take appropriate enforcement action against a neighbouring structure, which she said had not been present for four years and so could have been enforced against.
  2. Mrs X said the structure could potentially be altered into a separate dwelling from the main property next door to her, and then would have an adverse impact on her amenity through overlooking of her home and garden.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have spoken to Mrs X and considered information from her, including photographs of her garden and the structure taken from her property.
  2. I have considered information provided by the Council, including photographs from its enforcement site visit.
  3. I have considered:
    • the Town and Country Planning (General Permitted Development) (England) Order 2015
    • s171B of the Town and Country Planning Act 1990; and
    • the National Panning Policy Framework (2012) relating to enforcement.
  4. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. Mrs X reported to the Council that her neighbour had built a large outbuilding at the end of his garden, next to her boundary fence. She alleged the neighbour had removed a smaller building and his intention was to increase the value of his property, as the larger structure could be converted into a separate dwelling once the property was sold.
  2. The Council investigated the alleged breach of planning control. It found the structure was larger than that allowed under permitted development legislation. However, the Council reached the view that the structure had been in place in substantially the same format for over four years, therefore it said it was exempt from enforcement action.
  3. Mrs X complained about this decision and the Council provided a response. She remained dissatisfied and brought the matter to the Ombudsman.

The legal background

  1. The National Planning Policy Framework (NPPF) 2012 at paragraph 207 sets out the position on enforcement of planning control. “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.”
  2. The Town and Country Planning Act 1990 sets out certain time limits for enforcement action at s171B. In most cases, development becomes immune from enforcement if no action is taken within 4 years of substantial completion for a breach of planning control consisting of ‘operational development’ (which includes building work).
  3. The time-limits set out above do not prevent enforcement action after the relevant dates in certain circumstances, including where there has been deliberate concealment of a breach of planning control. Local planning authorities may apply for a planning enforcement order to allow them to take action after the time limits in section 171B have expired.
  4. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out what may be built under a general planning permission granted not by the local authority but by Parliament.
  5. Schedule 2 Class E provides details on what may be built as buildings ’incidental to the enjoyment of a dwellinghouse’. Section E.1 says such development will not be permitted if the building has more than one storey and its height would exceed 4 meters (with a dual pitched roof, 2.5 metres if within 2 metres of the boundary or 3 meters in any other case.

What the Council did

  1. Mrs X contacted the Council in January 2018 about the building that had been constructed by her neighbour. She sent the Council pictures to show the building.
  2. The Council investigated her concerns. It looked on historical aerial maps to consider whether a building had been present in its current or similar form and for how long. The images it considered from 2012 and 2014, when magnified on screen show from above a structure with a footprint of similar dimensions.
  3. The Council visited the site and assessed the size and use of the building. It found the building was higher than permitted development as it was higher than 2.5 metres next to the boundary with Mrs X. It was being used as a garage and workshop. The windows in the building did not face Mrs X’s property and so did not overlook her house or garden or affect her privacy.
  4. The Council reached the view that, on balance, the building had existed in some similar form for over four years; that would mean it was exempt from enforcement action against its height as a breach of permitted development regulations.

Analysis

  1. Mrs X provided the Council with pictures of the structure in January 2018. Her pictures are not dated and show her garden previously without the building next to her boundary fence. Mrs X’s pictures therefore do not conclusively show the building had been recently built, as she claimed. Mrs X has confirmed to me she does not have evidence of the construction in progress.
  2. Without conclusive evidence of when the building was put up, the Council had to rely on the evidence available to it. It consulted historic aerial images of the site that could be magnified on screen. These showed a structure with a similar footprint in size to the one in place. I have also looked at these images and further at older images from Google Earth, which also show a structure in that location of a similar size footprint since 2004.
  3. The Council further investigated the alleged breach by visiting the site. It checked the use of the building and found it was a garage, with an associated workshop. On looking at the sales literature currently available for the property, I have seen images of the garage and workshop internally, which support the officer’s findings.
  4. I therefore consider the Council took appropriate action to reach its view that the building in largely its present form had been present for more than four years.
  5. While the structure may be in excess of permitted development height limits, the Council still has discretion on what action to take, if it had not been there for four years or more. This means that it might still not have taken any action depending on any harm caused to Mrs X’s amenity by the building. Enforcement action must be proportionate to any harm caused by a breach of planning control.
  6. I have therefore considered whether the building caused Mrs X any harm, in terms of overlooking, loss of light to her house or loss of privacy. The building is being used as a garage and workshop. As the windows in the buildings do not face her property, there is no harm caused to her in that respect. The building is at the end of her garden boundary, away from her house, and is partly screened by trees and shrubs on her border when in leaf. I therefore see no harm to her from the building and therefore, on balance, consider the Council would not have taken further action had it been able to.
  7. Mrs X has concerns about what might happen in the future. The Council and the Ombudsman cannot comment on that as it is purely speculative. If the owner of property in future wants to convert the building into anything different than its current use, they would have to make a planning application. That would then go through due process, and Mrs X would have an opportunity to comment on the application. Any design would be considered on its specific details by the Council against its local planning design guidance at that time.

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Final decision

  1. There was no fault in the way the Council carried out its enforcement actions in this case.
  2. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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