Summary: Mr B has complained about a series of alleged breaches of planning control by his next-door neighbour and a neighbour to the rear of his property. The Ombudsman has found no fault in the way that the Council has undertaken the enforcement investigations it has completed. The investigation into the recently built outbuilding remains ongoing, so there is not yet a decision for the Ombudsman to consider.

The complaint

1. Mr B complains that the Council has failed to take enforcement action in respect of a series of alleged breaches of planning control by his next-door neighbour. He says his neighbour has:
• built an outbuilding in his garden with wider windows than approved, resulting in his house being overlooked, and installed a different roof to that approved;
• used the outbuilding for religious services attended by up to 100 people;
• linked the new outbuilding to the existing garage and constructed a kitchen inside without planning permission; and
• built a single-storey outbuilding in breach of permitted development rules and too close to a protected tree in his back garden.
2. He says he has also been treated inconsistently with the neighbour to the rear of his garden who was allowed to build an extension close to a protected tree in his back garden, while he was prevented from building close to the same tree.

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What I have investigated

3. I have investigated Mr B’s complaints about the way that the Council responded to alleged breaches of planning control by his next-door neighbour. For the reasons set out below, I have not investigated other parts of his complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

8. I have considered Mr B’s written complaint and supporting papers and spoken with him. I have made enquiries of the Council and considered its response. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

9. Planning permission is required for the development of land (including its material change of use). However, Parliament has given a blanket planning permission (“permitted development”) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
10. Councils can take enforcement action if they find that planning rules have been breached. However, councils should not 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 July 2018, paragraph 58)

What happened

11. Mr B owns and lives in a semi-detached house. He and the neighbour in the adjoining house have long back gardens. Mr B’s back garden is close to twice the width of his neighbour’s.
12. In 2014, Mr B applied for permission to fell and replace two mature trees in his back garden. The Council refused permission. The following year, Mr B applied for planning permission to build a detached house in his back garden. The Council refused permission because it considered that this would harm a protected tree. Mr B appealed but the Planning Inspector refused his appeal on the same grounds.
13. Mr B’s neighbour has carried out a series of works to his property. Around ten years ago, he built a two-storey side and rear extension, for which planning permission was granted. He has constructed a large outbuilding in his back garden under a planning permission granted in 2017. He has also recently built a single-storey outbuilding at the back of the garden.
14. Mr B has complained to the Council that the large outbuilding was not built in accordance with the plans and is not being used for the purpose described. He has also raised concerns about other alleged breaches of planning control and feels that he has not been treated fairly compared with his neighbour.

My assessment

Neighbour’s outbuilding not built in accordance with the plans

15. Mr B has complained that his neighbour’s outbuilding has wider windows than those approved. He says this has resulted in his house and garden being overlooked and in a greater loss of privacy. He also complains that the outbuilding has a pitched roof rather than the sloping flat roof approved. He considers that the Council should take enforcement action.
16. The Council has investigated Mr B’s concerns. It notes that the individual windows are wider than those approved, but they are set back from the boundary and at an oblique angle to the house. Given that the original planning permission was for a considerably greater number of windows facing the boundary, the Council does not consider that the building, as constructed, will have a greater impact on Mr B’s privacy than what was approved. It does not therefore consider it expedient to take further action.
17. As to the roof, the Council accepts that this is not a sloping flat as shown in the plans. However, it considers this to be an improvement on what was approved and that it does not affect Mr B’s amenity. It considers it is therefore acceptable in planning terms, and there are therefore no any grounds to take action.
18. I see no fault here. The Council has considered the breaches of planning control and determined that these do not warrant further action. That is for the Council to decide.

Neighbour’s use of outbuilding for religious services

19. Mr B has complained that the outbuilding is used for religious worship by up to 100 people. He says this happens every couple of months, the use extends into the early hours and food is provided. He also says that the entryphone causes noise nuisance.
20. The Council has carried out planning enforcement investigation. It has visited, viewed inside the outbuilding and discussed its use with the owners. Mr B has not provided corroborative evidence of the use for religious purposes, and there have been no noise complaints received by the Council’s Environmental Health Team.
21. The Council has found no evidence of an unauthorised change of use for religious ceremonies, so it has decided that there are no grounds to take enforcement action. However, it has asked its Environmental Health Team to contact Mr B about his concerns about noise from the entryphone.
22. I see no fault in the way the Council has investigated the use of the outbuilding and, given its findings, its decision not to take further action.

Neighbour’s construction of link between the outbuilding and garage

23. Mr B has complained that his neighbour has constructed a link, containing a kitchen, between the existing garage and the new outbuilding without planning permission.
24. The Council has investigated and does not consider that the link has any adverse effect on the neighbouring property in terms of overlooking or causes harm to either the main house or the area as a whole. It has therefore decided that, in planning terms there are no grounds to take action.
25. I see no fault here. The Council has investigated, and it is for the Council to decide whether there are any grounds to take action.

Neighbour’s construction of single storey outbuilding

26. Mr B has complained that his neighbour has built a new single-storey outbuilding close to a protected tree in his back garden, while he was prevented from building close to the same tree. He also considers that the outbuilding cannot be classed as permitted development because his neighbour has now built on more than half the original curtilage of the property.
27. The Council has investigated and found that the addition of the outbuilding means that the developed area of the 550 square metre original curtilage is now around 16 square metres more than half the original curtilage of 275 square metres. Technically, the outbuilding is not permitted development and requires planning permission. It is also continuing to investigate the impact of the outbuilding on the protected tree. It has stated that this will likely result in further action.
28. I see no fault here. The Council is still considering what action to take in respect of the outbuilding, and it is not for the Ombudsman to intervene in that process. Once the Council has decided what action, if any, to take it will be open to Mr B to raise any concerns that he may have with the Council directly.

Neighbour to the rear’s extension near protected tree

29. Mr B has complained that his neighbour to the rear was allowed to build close to the protected tree in his garden.
30. The Council has explained that the extension is 13 metres from the tree and exceeds the five-metre separation distance required by the Council. It is not therefore considered to present any risk to the tree. Besides, the extension was built more than four years ago and so is immune from enforcement action.
31. I see no fault here on the part of the Council.

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Final decision

32. I have closed my investigation into Mr B’s complaint because I have found no fault in the way the Council has investigated his complaints about breaches of planning control.

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Parts of the complaint that I did not investigate

Inconsistent approach to building near the protected tree in his back garden

33. Mr B has complained that he was not allowed to build close to a protected tree in his garden.
34. I have not investigated this complaint because the Ombudsman has no jurisdiction to consider this matter and no discretion to do so. This is because Mr B appealed to the Planning Inspector (acting on behalf of the Secretary of State) against the refusal of planning permission.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman