Aylesbury Vale District Council (19 008 387)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 14 Apr 2020

The Ombudsman's final decision:

Summary: There was fault in the way the Council inspected Mrs X’s neighbour’s property for breaches of planning control. The Council apologised for this. There is no fault in the Council’s decision not to take enforcement action. The Council properly considered the impact of the extensions on Mrs X’s property and the surrounding area.

The complaint

  1. Mrs X complains the Council failed to identify that her neighbour’s extension had not been built in accordance with approved plans. Mrs X says as a result there have been delays in the Council investigating her concerns. Mrs X also says the extension is in breach of building regulations as fire prevention measures have not been installed.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. 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

  1. I have spoken to Mr X about the complaint and considered information Mr and Mrs X have provided to the Ombudsman.
  2. I have considered information about the planning application available on the Council’s website as well as the Council’s response to my enquiries.
  3. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Planning law

  1. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
  2. Statutory guidance issued by the government (National Planning Policy Framework) says that where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’. This means planning permission should be given unless any adverse impacts would outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
  3. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
  4. Councils will notify local people when a planning application is received and give them an opportunity to comment. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.
  5. Councils can take enforcement action if they find 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

  1. The Council granted Mrs X’s neighbour planning permission to extend their home in 2018. This involved a part two storey extension and single storey side and rear extension. The side extension would extend the house to include the garage which had previously been separate from the rest of the house.
  2. The Council produced a case officer report which considered the application against local and national planning policies as well as the potential impact on mrs X’s home. It said:
  3. “[Mrs X’s home is] positioned at an outward chamfer and therefore the proposal extension would not be visible when viewed from their nearest front aspects. The neighbouring windows to the rear elevation face towards the bottom of the applicants rear garden and as the proposed extensions would not protrude beyond the rear wall of the original dwelling and would maintain a separation of 1m from the side boundary at first floor level for its entire length, it would not breach a 45 degree angle taken from their nearest rear habitable windows. The single storey element would comprise of a similar footprint as the existing garage and given the neighbouring rear window to their converted garage serves a utility room any impact to this part would be considered negligible. No other properties would be affected by the proposal and with all new windows facing the front and rear gardens would not result in a loss of privacy and overlooking.”
  4. When Mrs X’s neighbours began work Mrs X complained to the Council as she did not believe the extensions were being built in line with planning permission. The Council visited the site to inspect and found that building work was in the early stages so it would not possible to say whether planning permission had been breached.
  5. Mrs X complained to the Council again in May 2019. The Council visited the site and found:
    • That the front wall of the side extension had been moved forward by 45cm.
    • The distance between Mrs X’s boundary and the two storey extension was 90cm and not 1 metre as stated in the case officer report.
    • The Council was not responsible for adjudicating on any boundary disputes.
  6. The Council said there was only a minor breach of planning control and it did not intend on taking action against Mrs X’s neighbour.
  7. Following a further complaint from Mrs X the Council reviewed its response. It wrote to her again and said it had identified issues with its previous response. The Council said that in addition to the single storey extension being 45 cm further forward than it should be it had identified other breaches of planning control:
    • There was no dummy pitched roof to the front of the single storey extension.
    • The front façade of the garage was not in line with approved plans.
    • The wall adjacent to Mrs X’s property had not been built out of brick as indicated.
  8. The Council said it there were “actually several planning breaches in respect of the ground floor extension” and it would review the case again about what action, if any, would be appropriate.
  9. The Council wrote to Mrs X following this to say it would not be taking enforcement action against her neighbour. The Council said “it is considered that the changes have not caused any harm to the appearance of [the property] or to the street scene in general, and are neither assertive of discordant”.
  10. The Council went on to say that “variations to the approved details do no cause any material harm to either the visual or residential amenities of the locality”.
  11. Mrs X says the single storey extension next to their home is used as a store room for a motorbike. She says she is concerned about the risk of fire as well as noise disturbance. Mrs X says her neighbour has used their external wall as the internal wall of the new extension. The Council said the external wall provides sufficient protection against fire but further work is required to the roof. No completion certificate has been provided for works to the extension.

My findings

  1. The Council has accepted it did not properly consider the position of the new extensions in relation to Mrs X’s home. However, there is a difference of 10cm which is a very marginal difference, especially considering the Council would be looking at scale plans of the development. Therefore, I do not consider this to be at a level which would constitute fault.
  2. The Council considered the impact of the proposed development on Mrs X’s home in line with its policies and material considerations. It’s reasoning is set out in the case officer report. Therefore, I find no fault in the way the Council considered the planning application.
  3. The Council accepted it did not identify all the breaches of planning control when it visited the site in May 2019. This is fault. However, the Council subsequently considered the breaches raised by Mrs X and found there was no good reason for it to take action against her neighbour.
  4. There is no fault in way the Council reached it’s decision not to take enforcement action against Mrs X’s neighbour. The Council has considered the impact of the extensions, as built, on the surrounding area and Mrs X’s home and found it cannot justify taking action. That is a decision the Council is entitled to take and there is no fault in the way the Council reached that decision.
  5. The Council has apologised to Mrs X for failing to identify all the breaches of planning control when it first visited the site. That is a suitable remedy for any injustice caused to her.
  6. Mrs X’s neighbour’s use of her external wall as part of the extension is a private matter between Mrs X and her neighbour. If she is unhappy with work carried out she should seek legal advice. The Council is not responsible for resolving boundary or land ownership disputes.

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The Council has already taken action to resolve this.

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Investigator's decision on behalf of the Ombudsman

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