Summary: The Ombudsman found no fault by the Council on Mr H’s complaint about it wrongly refusing to take planning enforcement action against a neighbour who installed children’s climbing and play equipment close to the joint boundary. The Council visited the site, took photographs, and considered the courts’ approach to assessing whether this was a development for planning control purposes.

The complaint

1. Mr H complains the Council wrongly refused to take planning enforcement action against a neighbour who installed a children’s climbing structure next to his boundary; as a result, he lost privacy to his garden and conservatory.

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The Ombudsman’s role and powers

2. 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)
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. 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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Town and Country Planning Act 1990

5. Development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land. (section 55 (1))
6. It also includes: the demolition of buildings; rebuilding; structural alterations of, or additions to, a building; and other operations normally done by a person carrying on business as a builder. (section 55 (1A))

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How I considered this complaint

7. I considered all the information Mr H sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr H and the Council. I considered their responses.

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What I found

8. Mr H contacted the Council when his neighbour erected children’s play equipment in their garden close to the boundary with his garden. The equipment included 2 swings, a small slide, and a climbing frame with accessible ladder. It has a small platform about 1.22 metres off the ground. Mr H complained because of its impact on his privacy to his garden and conservatory. He is unhappy children can look over the 1.8-metre-high fence when standing on the platform.
9. The Council promptly carried out a site visit when it received Mr H’s report. The Council later wrote to the neighbour saying the equipment did not need planning permission as it was not development. The officer who visited noted the equipment was not anchored to the ground. The Council told Mr H about its decision and explained the equipment was more like a ‘chattel’ under case law as it has no degree of permanence. A chattel is movable personal property. The Council was satisfied this structure was not a building.
10. When reaching this conclusion, the Council considered the decision of the courts in the case of Skerritts of Nottingham Ltd v Secretary of State for Environment, Transport and Regions (2000) EWCA 55569. This confirmed there are 3 main tests for assessing what amounts to any structure or erection. These are: the degree of permanence; the size; and the physical attachment. Officers decided the equipment did not meet any of the 3 tests.
11. Nor were officers satisfied the structure came within any category of permitted development under the Town and Country Planning (General Permitted Development) Order 1995. This was because it was not development.
12. Mr H is unhappy with the Council’s decision the equipment was not development for planning control purposes and its decision it could take no enforcement action against his neighbour.

Analysis

13. I found no fault when the Council decided the structure was not development which in turn meant it could take no enforcement action against his neighbours about it. In reaching this decision, I took the following in to account:
1. In the Skerritt case, the issue before the court was whether a marquee in the grounds of a hotel needed planning consent. In Mr H’s complaint, the Council, when considering whether the play equipment structure was ‘development’ for planning control purposes, took account of the tests the court set out in that case.
2. While it did not specifically mention the size of the equipment, the evidence shows it considered the degree of permanence and any physical attachment to the ground. The Council noted it was not permanently fixed or anchored. This meant it did not have enough permanence to amount to a permanent structure. It could easily be moved.
3. The photographs I have seen of the equipment shows its size as a complete structure. The photographs, taken during a site visit, mean officers were aware of its size when reaching this decision.
4. I also considered the case of R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council (2012) EWHC 2161 (Admin). This involved the question of whether large mobile chicken sheds were development. The court noted the question of whether the sheds were or were not development was one for the council to assess, which involved exercising its judgement.
5. I am satisfied the Council properly considered whether the play equipment amounted to development under planning law. This is because officers visited the site, took photographs, and considered the structure using the 3 tests set out by the courts. In the absence of fault, we cannot question the merits of a properly made decision.
6. As it decided it was not development, the Council also correctly decided the structure did not come within permitted development under the Town and Country Planning (General Permitted Development) Order 1995.
7. I am not satisfied Mr H would have had significant injustice even if I had found fault. This is because the equipment is clearly intended to be used by children. They will usually only use it during good weather, so any overlooking from the small platform will not be constant throughout the year. Nor will it be constantly in use when the weather is good.

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Final decision

14. The Ombudsman found no fault on Mr H’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman