Summary: Ms X complains the Council has failed to resolve a breach of planning control by her neighbour. The Ombudsman finds no fault causing significant injustice in how the Council dealt with the breach. However, the Ombudsman has found fault in how the Council handled the complaint.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council has failed to resolve a breach of planning control by her neighbour, Ms Y. Ms X says the Council should take enforcement action against the neighbour in relation to the summerhouse they have built.

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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’. 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)
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)
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. As part of this investigation:
• I considered the complaint made by Ms X and the responses from the Council.
• I considered the information provided by Ms X.
• I made enquiries to the Council and considered the responses provided.
• I sent a draft of this decision to Ms X and the Council and considered the comments received.

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What I found

Law and guidance

6. Councils can take enforcement action if they find an individual has breached planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. National Planning Policy Framework July 2018, paragraph 58 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.”
7. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) considers outbuildings to fall under permitted development rights. However, where the outbuilding is within 2 metres of the property boundary the whole building should not exceed 2.5 metres in height. This also says verandas, balconies and raised platforms are not permitted development under Class E if they are more than 0.3 meters in height.
8. The Council’s enforcement policy says where it established a breach of planning control, the first step is to consider whether it would be expedient to take formal enforcement action. Expediency is a test of whether the unauthorised activities are causing serious harm.
9. There are circumstances where it would not be expedient for the Council to take enforcement action however, each case is judged on its individual merits.
10. The policy says any action must be proportionate to the breach and the Council investigates many technical breaches of planning control. In these cases, it may not be proportionate to require the removal of an entire building or fence where a slightly lower structure could be constructed without permission. As such the expediency test for acting would not be met. The Council says it will work with owners to regularise or remedy the works but ultimately it is highly unlikely that formal action could be warranted in the case of a technical breach of planning control.

Background

11. On 14 February 2019 Ms X contacted the Council to report works carried out at a nearby property by Ms Y. These included installing a summer house in the garden and installing a conservatory to the rear of the property. The conservatory contained a fuel burner and built in barbeque.
12. Ms X said the wood burner was blowing toxic fumes into neighbouring properties and the summer house required planning permission due to its height and balcony on the front. Ms X also said the summerhouse was located less than two meters from neighbouring boundaries.
13. The Council did not respond to Ms X’s email as it considered this an anonymous report. As Ms Y was a tenant of the property it passed the complaint to the housing team. The Council carried out an inspection of Ms Y’s property and found Ms Y had installed a conservatory with a solid fuel burner and built in barbeque. The Council also found Ms Y had installed a summerhouse in the garden. The Council told Ms Y to remove the solid fuel burner and barbeque and submit a tenant alternation form to the Council so it could decide whether to approve the other works Ms Y had carried out.
14. Ms X contacted the Council again as she had not received a response to her complaint on 14 February 2019. She asked to Council to update her with what action it was taking about the building Ms Y had installed.
15. The Council approved the development of the conservatory and summer house following Ms Y’s application.
16. In early March 2019 Ms X raised a formal complaint with the Council.
17. On 2 April 2019 the Council wrote to Ms X to tell her Ms Y had removed the fuel burner and barbeque however, the conservatory and summerhouse met the Council’s requirements.
18. Ms X responded to say the summerhouse is too high for permitted development and contains a balcony or raised platform so would need planning permission. She also said the summerhouse was within two meters of a neighbouring property. Ms X told the Council the fuel burner and built in barbecue are still in place at the property.
19. On 24 April 2019 the Council provided its response to Ms X’s complaint at stage one of its complaints process. The Council said:
• It has seen evidence which shows the summerhouse was constructed prior to 2013. Due to the amount of time which has elapsed the Council could not take enforcement action even if there were breaches of planning control.
• It inspected the property after Ms X raised concerns and told Ms Y to remove the fuel burner.
• It carried out a further inspection and found the fuel burner disconnected and the flue hole bricked up. Ms Y also had removed the barbeque but intended to install it in the back garden.
• It required Ms Y to submit retrospective approval for the summerhouse and conservatory and granted this on the condition the chimney pot on the conservatory roof is lowered or removed.
20. Ms X, on 30 April 2019, contacted the Council raising the following points:
• Ms Y had the summerhouse constructed in 2017. Ms X said the satellite images she sent the Council show this.
• The stairs leading up to the summer house contain a balcony at the top. The height of this platform exceeds the height required for permitted development so planning permission is needed.
21. The Council responded to say it realised the photos did not match the date of the last survey of the property so it could not rely on these. The Council told Ms X it would ask the planning enforcement team to look into her concerns.
22. Ms X also made further contact with the Council where said she would like Ms Y to apply for planning permission for the summerhouse, so herself and other neighbours could have their say on the development. She also said the residents of Ms Y’s property stand and sit out on the raised platform, meaning they can see into neighbouring gardens.
23. In May 2019, a Council planning enforcement officer visited the site and found the summerhouse was 100mm in height above permitted development levels. The Council officer considered the steps up to the summerhouse and the platform at the top not to meet the definition of a balcony. The planning officer did note a breach in planning due to the height of the summerhouse. They did not consider enforcement action necessary as reducing the height of the building would not reduce the concerns about overlooking Ms X raised.
24. On 2 July 2019 the Council provided its final response to Ms X’s complaint. The Council said:
• The planning enforcement officer visited the site and found the height of the summerhouse 100mm over the required height for permitted development.
• It decided it would not be expedient to take enforcement action as the building was only 100mm above the required height for permitted development.
• It assessed whether the breach caused significant harm to the amenities in the area and neighbours but did not think taking enforcement action would be proportionate.
• The platform leading to the summerhouse did not meet the definition of a balcony or veranda and was only a way to access the summerhouse. Therefore the structure did not require planning permission.
25. Ms X remained dissatisfied so complained to the Ombudsman.

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Analysis

The Council’s decision not to take enforcement action

26. Ms X disagrees with the Council’s decision not to take enforcement action and would like the Council to require Ms Y to put in a planning application for the summerhouse.
27. I do not see evidence of fault by the Council. The Council acted in line with its policy and procedure when investigating the breach by passing the matter to a planning enforcement officer who visited the site to consider the alleged breaches. The officer decided while there had been a breach of planning as the height of the summerhouse was over 2.5 metres it was not proportionate to take enforcement action. The officer considered that reducing the height of the building would not make a difference to the overlooking concerns Ms X raised in her complaint.
28. The officer also considered the platform at the front entrance of the summerhouse did not constitute a balcony or veranda as its sole purpose was to provide stairs up to the entrance of the summerhouse. In response to my enquiries the Council said the platform only slightly exceeded the width of the entrance door to the summerhouse so would only be expected to be used as an access point. If the platform had been extended it could be considered a place for neighbours to linger and overlook neighbouring gardens.
29. The Council’s enforcement policy says it will only take formal action where it is expedient to do so. While I appreciate Ms X strongly contests the Council’s decision, it is one the Council was entitled to make. The law allows the Council to take planning enforcement action to deal with a breach of planning control where it considers it expedient to do so. It does not require the Council to enforce against each and every breach it identifies.
30. There is no duty on the Council to start enforcement action in all cases where it finds a planning breach. The Ombudsman cannot question the validity of such decision making in the absence of procedural fault.

Complaint handling

31. The Council’s complaints policy says at stage one the Council will provide a full response to the complaint within 10 working days. At stage two the Council will provide its response within 15 working days.
32. From the evidence I have seen, the Council did not meet its timescales in providing a formal response to Ms X's complaint at both stage one and two. In particular, the delay at stage two was 43 working days. I appreciate as part of the stage two investigation the Council referred the matter to a planning enforcement officer who had to carry out a site visit. However, the enforcement investigation was concluded in early June 2019, yet Ms X did not receive a stage two response until 2 July 2019. By delaying in providing a response the Council did not provide Ms X with clarification on its position.
33. The Council has told the Ombudsman it has reminded staff of the target timescales for responding to complaint. Whilst this is appropriate the Council should make a payment to Ms X to remedy the injustice caused.

Agreed action

34. Within one month of my final decision, the Council has agreed to pay Ms X £150 for the delays in complaint handling and provide evidence to the Ombudsman it has done so. I have considered the Ombudsman’s guidance on remedies when coming to this figure.

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Final decision

35. I have completed my investigation and found no fault causing significant injustice in how the Council dealt with the breach. There was fault in how the Council handled the complaint and the Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman