Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s decision not to take formal planning enforcement action against her neighbour. This is because it is unlikely we would find fault by the Council and the injustice Mrs X claims stems from the actions of her neighbour, rather than the Council.

The complaint

1. The complainant, Mrs X, complains the Council has decided not to take enforcement action against her neighbour for a breach of planning control resulting in encroachment onto her property.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

3. 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)

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How I considered this complaint

4. I reviewed Mrs X’s complaint and the Council’s responses. I shared my draft decision with Mrs X’s representative, Mr Y, and considered his comments.

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What I found

5. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) allows certain development without the need for planning permission. This is known as ‘permitted development’. Permitted development rights are subject to limitations and exclusions, but when a proposal falls within the parameters of development allowed by the Order it will not require planning permission; the Council therefore has no basis to refuse it.
6. Although permitted development does not require planning permission a person may apply to the local planning authority for a certificate of lawful development (CLD) for their proposal. An application for a CLD determines whether the development proposed is permitted or whether it requires planning permission. If the proposal is permitted development, and if the applicant carries out the development in accordance with the approved plans, the Council cannot stop it. If an applicant submits plans which suggest the proposal is permitted development but then carries out work which is not allowed, the Council could investigate as a possible breach of planning control.
7. Mrs X’s neighbour, Mr Y, applied to the Council for a CLD which it granted. This was because the proposal, based on the plans Mr Y submitted, amounted to permitted development. But Mrs X later reported that the development had not been built in accordance with the plans and encroached onto her property.
8. The Council investigated and confirmed the development was not identical to the approved plans. It also confirmed the development as-built exceeded the parameters of permitted development by a small amount. However it did not consider the breach caused significant material planning harm so it decided it would not be expedient to take formal enforcement action. Mrs X disagrees with its decision.
9. The Ombudsman will not investigate this complaint. The Council confirms there is a technical breach of planning control but it has decided it would not be expedient to take formal action. This is a decision it is entitled to make and I have seen no evidence of fault in the way it was reached. Mrs X disagrees with the decision but this in itself is not evidence of fault.
10. The Council has explained the development as-built is acceptable in planning terms and it cannot reasonably take formal action in these circumstances. While the building work may have encroached onto Mrs X’s property this is a private civil matter between the two parties and any costs resulting from this are the result of Mr Y’s actions rather than fault by the Council. Mrs X may therefore apply for costs if she pursues legal action through the courts. The planning process is not intended to deal with issues such as these.
11. Mrs X is also unhappy with the way the Council has dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault by the Council causing Mrs X injustice.

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Investigator's decision on behalf of the Ombudsman