The Ombudsman's final decision:
Summary: Mr and Mrs D complain the Council incorrectly decided not to take enforcement action for a planning breach by their neighbour in 2018. The Ombudsman has not found any evidence of fault by the Council and has completed the investigation and not upheld the complaint.
- The complainants (whom I refer to as Mr and Mrs D) say the Council incorrectly decided not to take formal enforcement action for a planning breach by their neighbour in 2018.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(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)
How I considered this complaint
- I have carefully considered the information provided by Mr and Mrs D along with evidence submitted by the Council including its Local Enforcement Plan and case papers.
- I have shared the draft decision with both parties and considered their replies.
What I found
- On 17 July 2018, the Council received a complaint from a Councillor on behalf of residents who wished to remain anonymous (this was Mr and Mrs D). She said their neighbour had erected a storage structure in the front of the property. On 23 July, a Planning Enforcement Officer (Planning Officer) emailed the Councillor. He said structures at the front of a property usually required planning permission. However, in line with the Local Enforcement Plan the Council had to consider whether a structure was “fairly small” or “large and obtrusive”. In the latter, the Council could ask the owner to submit a planning application. He said he would visit the site and consider the surrounding context to assess the impact of the structure. The Planning Officer visited the street on 14 August and took photographs. He then wrote to the Councillor the next day stating the structure would have required planning permission, however he considered the structure did not warrant formal enforcement action. He had written to the owner inviting them to make a planning application but no further action would be taken. The case was subsequently closed.
- On 18 September Mr and Mrs D wrote to the Council expressing their dissatisfaction with the Council’s decision. The Council replied two days later. It explained it is not an offence to carry out a development in the absence of planning permission. The Council had to decide if there was demonstrable harm caused by an unauthorised structure. In this case the Council did not find formal enforcement was required. At the end of October Mr and Mrs D submitted a further complaint stating they had been denied a chance to object to the structure and had lost some of their view of the street and some light. The Council replied on 19 November reiterating there was no fault in how the Planning Enforcement Team had handled the case.
What should have happened
- The Council’s Bristol Local Enforcement Plan (Plan) takes account of the National Planning Policy Framework (NPPF). It sets out that, in line with the NPPF, planning enforcement is discretionary and the Council must “act proportionately in responding to suspected breaches of planning control”. The Plan also sets out the investigation process. When a complaint is received it is logged and allocated to a Planning Officer to investigate. An Officer may carry out a site visit and take photographs. They will assess the evidence and notify the complainant with a decision.
- Where a Planning Officer identifies a planning breach the Council has to decide if it should take formal enforcement action. Such formal action is discretionary and the Council has to take account of various factors including:
- Material planning considerations (this does not include loss of light or view)
- Whether the Council would have likely granted planning permission had an application been made;
- Whether the breach unacceptably affects public amenity;
- If formal enforcement action would be proportionate and in the wider public interest.
Was there fault by the Council
- Mr and Mrs D disagree with the Council’s decision in their case. I do not see any evidence of fault by the Council. It acted in line with its policy and procedures when investigating this matter. A Planning Officer visited the site and took photographs. He wrote to the Councillor who submitted the initial complaint the next day explaining the reasons for his decision. The Officer found the structure was not causing demonstrable harm that would warrant formal enforcement action. In line with procedures he invited the neighbour to submit a planning application but there was no duty on the Council to do anything more. Its policy clearly states that in such cases it will not pursue an investigation if a planning application is not submitted. Whilst I appreciate that Mr and Mrs D strongly contest the Council’s decision it is one the Council was entitled to make. There is no duty on the Council to start formal enforcement action in all cases where it finds a planning breach. It used its discretionary powers and followed procedures in this case. The Ombudsman cannot question the validity of such decision making in the absence of procedural fault.
- I have completed the investigation and not upheld the complaint.
Investigator's decision on behalf of the Ombudsman