Summary: Mrs X complained the Council failed to protect her amenity when it allowed a structure to be built higher than was shown in approved plans. There was no evidence of fault in the way the Council made its planning enforcement decision.

The complaint

1. Mrs X complained the Council has failed to protect her amenity when it allowed a structure to be built, which was higher than shown in ‘prior approval’ planning application plans.
2. Mrs X says the outlook from her home is affected.

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The Ombudsman’s role and powers

3. 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)
4. We can decide whether to start or discontinue an investigation into a complaint o part of a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. 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

6. I read the complaint. I read the Council’s response to the complaint and considered documents from its planning files, including the application plans and the planning enforcement officer’s report.
7. I gave the Council and Mrs X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

8. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
9. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and material issues or access to the highway. These applications are known as ‘prior notification’ applications.
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.
11. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

12. Mrs X’s house backs on to land which is used by a business. The owner submitted a prior-notification application to build a structure near the boundary of Mrs X’s property. The application was approved.
13. The Council received a complaint that the structure was not built in accordance with plans. A planning enforcement officer visited the site and took photos.
14. The planning enforcement officer found a breach of planning control, because the structure had not been built in accordance with approved plans. The planning enforcement officer wrote a report. In the report, the officer sets out their view that the Council should not take enforcement action. In reaching the recommendation, the officer considers:
• the planning status of the site;
• relevant planning history;
• enforcement powers under the Town and Country Planning Act 1990; and
• the breach of planning control found and its consequences, including an assessment of harm to the public.
15. Mrs X says the Council has failed to protect her amenity and the original case officer failed to identify problems that later arose, and failed to impose planning conditions that might have protected her.

My findings

16. We are not a planning appeal body. Our role is to review the process by which planning decisions are made.
17. 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.
18. In this case, the enforcement records show that, before it made its enforcement decision, the Council:
• was aware of Mrs X’s concerns about the structure;
• considered its powers under the Town and Country Planning Act 1990;
• decided there was a breach of planning control; but
• decided enforcement action would not be in the public interest.
19. The Council followed the planning enforcement decision-making process we would expect, and so I find no fault.
20. Mrs X’s complaint included details of her concerns about the original prior‑notification planning decision. Because the developer did not build in accordance with plans, this removed the relevance of the original decision to approve the application. The Council then considered the matter under its planning enforcement powers. The planning enforcement decision, which concluded that there was fault, but formal action should not be taken, superseded the original planning decision. Even if we found fault in the original approval process, we could not show it caused an injustice to Mrs X, as that structure was not built.
21. We cannot now speculate on what might have happened if the original planning case officer had acted differently. Once the developer departed from the plan, this became a planning enforcement matter and for the reasons given above, the Council was entitled to reach the decision it has.

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Final decision

22. I have completed my investigation, because there was no fault in the way the Council made its planning enforcement decision.

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Investigator's decision on behalf of the Ombudsman