Summary: Mr X complained the Council did not take enforcement action against a breach of planning control which he says caused him to lose part of his garden. There was some fault in the way the Council made its enforcement decision, but it did not cause Mr X a significant injustice.

The complaint

1. Mr X complained the Council did not take planning enforcement action against his neighbour’s breach of planning control.
2. Mr X says because the extension is bigger, it is now encroaching on his land.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. 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.
6. I have written to the Council and Mr X and considered their comments before I made a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in its local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
9. Planning considerations do not include things like:
• Views over another’s land;
• The impact of development on property value; and
• Private rights and interests in land.
10. 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.

Background

11. The Council approved a planning application for Mr X’s neighbour to build a single storey side extension to their house.
12. Mr X complained to the Council because he felt the extension was built over the boundary between their properties. He was also unhappy that his neighbour had taken down a fence panel to build into his garden.
13. Mr X said the Council initially dismissed his complaint as a neighbour dispute before deciding to visit the site.
14. A Council planning enforcement officer visited in November 2018 and was unable to gain access to Mr X’s neighbour’s property to measure the extension. However, Mr X allowed the enforcement officer to lean across his side of the boundary to measure the extension. The enforcement officer found the extension was slightly larger than shown on the approved plans. The Council informed the neighbour of this and gave them 48 days to reduce the size of the extension.
15. The planning enforcement officer visted again in January 2019 to measure the extension. On this occasion, the planning officer was able to gain access to Mr X’s neighbour’s property. The planning officer found the extension was slightly shorter than the approved plans, but also slightly wider.
16. Another site inspection took place on February 2019. This time, the Council found the extension was built in accordance with the plans. The Council wrote to Mr X to apologise for its error in having measured the extension several times before it had recorded the correct measurements. It said that, while there was a very slight discrepancy, the difference was so small it could not justify planning enforcement action.
17. Mr X was unhappy with the Council’s response as he felt the extension was encroaching on his land. He said that if he had been aware his neighbour would build the extension even slightly wider, he would have objected to it. Mr X was also unhappy, as he had paid for the services of a surveyor and solicitor to advise him.
18. Mr X then complained to us.

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
20. 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.
21. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
22. It took the Council several visits to establish the correct measurements. This is fault.
23. When we find fault, we need to decide whether it caused an injustice to the individual complainant.
24. Mr X says that, because of the fault, the extension is built on his land. He also says, he would have objected to the original application if he had known what would have happened.
25. Private rights over land are not planning considerations. The Council’s planning decisions cannot affect Mr X’s ownership rights. If he believes his neighbour’s extension has encroached on his land, he may seek a remedy in the civil courts.
26. Planning decisions must be based on material planning considerations, such as planning policy and government guidance.
27. While there is a small discrepancy between what the Council approved and what was built, I have seen no evidence to show Mr X was caused a significant injustice that could be affected by a decision of a planning authority.
28. So, while there was some fault in the way the Council dealt with Mr X’s enforcement complaint, I cannot show it made any difference to the outcome.
29. Mr X also complains he would have objected to the application, if he had known the extension’s exact size and location.
30. I read the Council case officer’s report and can see the Council considered the impact on Mr X’s amenity before it made its decision. In these circumstances, I cannot say it is likely that an objection from Mr X would have made any difference to the outcome.

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Final decision

31. There was fault in the way the Council made its decision, but this did not cause Mr X a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman