Summary: Mr X complains about the Council’s handling of planning and building control on a neighbour’s extension, resulting in damage to his property and frustration. The Ombudsman will not investigate the complaint about building control because it has already issued a decision on this. The Ombudsman finds no fault in how the Council decided on the planning application. The Ombudsman finds the Council delayed in dealing with a planning enforcement complaint and recommends an apology and action to remedy this.

The complaint

1. Mr X complains about the Council’s handling of planning matters and building control on his neighbour’s extension. He complains the Council:
• failed to consider how the extension could be built without access to his own property;
• failed to properly supervise the build;
• allowed his neighbour to erect a 2.3-2.5m high fence.
2. Mr X says builders trespassed onto his land causing damage to his property and the development caused drainage problems. He says he also suffered frustration due to the Council’s lack of action.

Back to top

What I have investigated

3. I have investigated how the Council decided on the planning application and how it dealt with the planning enforcement complaint. At the end of this decision I have set out why I have not investigated Mr X’s complaint about building control.

Back to top

The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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)

Back to top

How I considered this complaint

7. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

Back to top

What I found

8. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on residential amenities, such as loss of privacy. They do not include private rights, such as rights of access over private land. A council must be able to show that it has considered material planning considerations.

Law; planning enforcement

9. Planning enforcement action is discretionary. A council may serve an enforcement notice if it considers it is expedient to do so, which can be appealed, or a breach of condition notice which may be prosecuted in the Magistrates Court. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.

Council policy

10. The Council publishes its planning enforcement policy on its website. This says it will assess and prioritise complaints. For low priority complaints it will carry out a site visit within seven days.

What happened

11. In 2017 Mr X’s neighbour applied for planning permission to build an extension to the rear of his property.
12. I note the Council has published the planning application, supporting documents, case officer report and planning decision on its website.
13. The case officer’s report sets out his consideration of the planning application with regard to the local development plan and material considerations. The case officer recommended the Council approve the planning application. The Council then granted planning permission.
14. In August 2018 Mr X complained the Council approved the planning application without considering how the extension could be built without access to his own property. He said builders had accessed his property without permission and caused damage. Mr X also complained the Council had allowed his neighbour to erect a fence above 2m in height.
15. The Council acknowledged Mr X’s complaint in September 2018. At the end of September the Council told Mr X his concerns about access were not a planning matter and he should refer his complaint to the police or civil courts. It also agreed to let him know whether it would take enforcement action regarding the fence.
16. In February 2019 the Council told the Ombudsman it should have passed Mr X’s complaint about the fence to its enforcement team, and it would now do so.
17. At the end of March 2019 the Council told the Ombudsman it had logged Mr X’s complaint about the fence as an enforcement case for further investigation when resources become available.

Findings

18. The Council had to decide on the planning application in accordance with the local development plan and taking account of material considerations, including any impact on Mr X’s amenity. Having reviewed the case officer’s report, I am satisfied the Council considered relevant matters and decided the application in accordance with the law.
19. The Council did not have to consider private access issues when considering the planning application. The dispute about access is a private matter between Mr X and his neighbour. I therefore find no fault by the Council.
20. Mr X’s complaints of trespass and damage are private disputes that he may wish to refer to the police or the civil courts.
21. Mr X complained about his neighbour’s fence in August 2018, however the Council did not pass this onto its enforcement team until February 2019. I find this is a significant delay that amounts to fault. I note the Council has still not informed Mr X of the outcome of its enforcement investigation. I am satisfied Mr X has suffered frustration as a result.

Agreed action

22. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• provide Mr X with a written apology for its delay in progressing his enforcement complaint;
• tell Mr X the outcome of its enforcement investigation.
23. The Council has accepted my recommendations.

Back to top

Final decision

24. I find the Council delayed in dealing with Mr X’s planning enforcement complaint. The Council has accepted my recommendations and therefore I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

25. I have not investigated Mr X’s complaint that the Council failed to supervise the building of his neighbour’s extension. This is because the Ombudsman considered this complaint and issued a decision in August 2018. There is no new information or evidence that affects that decision.

Back to top

Investigator's decision on behalf of the Ombudsman