London Borough of Redbridge (18 008 571)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 04 Jan 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council refused to take planning enforcement action against his neighbour. The Council found a breach of planning control, but there was no fault in the Council’s decision not to take further action, because it decided the breach did not cause significant harm to the public.

The complaint

  1. Mr X complains the Council has refused to take planning enforcement action against his neighbour, whose extension and outbuilding is in breach of planning control. Mr X says the breach causes harm to his outlook and privacy.

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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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

  1. Mr X’s neighbour had planning permission to build a rear extension. The extension was not built in accordance with plans and the neighbour also built an outbuilding that was not on the plans.
  2. Mr X complained to the Council and an enforcement officer visited the site. The enforcement officer agreed there was a breach of planning control and asked the neighbour to submit a fresh planning application. This did not happen.
  3. The Council then served an enforcement notice, which it withdrew because it was defective. This was because the notice did not accurately describe what was built.
  4. The Council then considered what to do. One option would have been to correct the enforcement notice and reissue it, but it did not do this.
  5. Instead, it reassessed what was built and decided not to take further enforcement action. The reason it gave was because it did not consider the breach of planning control caused sufficient harm to the public.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which decisions are made, and where we find fault in process, to determine whether it caused a significant injustice.
  2. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  3. As the enforcement notice did not accurately reflect what had been built, it is possible we might find fault with this aspect of the complaint. However, the more important issue is whether the eventual decision is flawed. This is because the council is entitled to change its view before a final decision is eventually made.
  4. From the papers, I can see that before it made its decision, the Council:
    • was aware of the allegation;
    • had investigated the allegation and found a breach of planning control; and
    • decided the breach did not cause sufficient harm to justify further action.
  5. The Council has followed the process we expect and so I find no fault in the decision it eventually made.

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Final decision

  1. I have completed my investigation as I found no fault in the way the Council decided not to take further enforcement action.

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Investigator's decision on behalf of the Ombudsman

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