Summary: Mr X complains the Council refuses to make his neighbour lower the height of decking in his garden. The Ombudsman does not intend to investigate this complaint as we have not seen evidence of fault in process the Council followed before making its decision.

The complaint

1. Mr X says the Council refuses to take enforcement action over the height of his neighbour’s decking. He says the deck allows overlooking and has an adverse impact on his privacy.

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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
• it is unlikely further investigation will lead to a different outcome
• 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. Mr X’s neighbour erected decking in his garden. Mr X complained to the Council the decking was too high and is therefore a breach of planning control.
5. The Council visit Mr X’s neighbour. It says it measured the deck and found it to be 2cms higher than the highest adjacent land level. The maximum height for decking under permitted development rights is 30cms. The Council wrote to Mr X explaining that while the decking height exceeded that allowed under permitted development rights (PD rights), it considered it not expedient to take enforcement action.
6. Mr X disputed the measurement, stating by his measurements the decking was 43cms above ground level. The Council told Mr X where it had taken its measurements. He says he measured at the same spot and found the decking exceeds the maximum permitted height by 11cms.

Assessment

7. Local planning authorities have no duty to oversee development but, if they receive a complaint about unauthorised building, they have a duty to investigate. If there has been a breach of planning control, the authority’s next duty is to consider what, if anything it should do.
8. The Council has investigated Mr X’s complaints. Its statutory duty is to consider the matter. It has powers to act, but it has no duty to do so. Its duty is to consider whether further action is appropriate. The statutory test it must apply is set out in The Town and Country Planning Act 1990, section 172. This says the local planning authority may issue an enforcement notice where it appears there has been a breach of planning control and “it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.”
9. The National Planning Policy Framework offers further guidance. It 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.”
10. The Council has considered if it should take enforcement action about the breach of planning control. It must follow the government guidance set out above. This means any action it takes should be proportionate to the breach of control to which it relates.
11. So, enforcement action by a local planning authority is always at the discretion of the authority. The Ombudsman could not criticise an authority in the exercise of its discretion unless there was administrative fault in the way it reached its decision on the use of its discretion.
12. I understand that Mr X disagrees with the Council’s measurement of the height of his neighbour’s decking and says this is a failure to follow procedure. However, the correct process is for the Council to investigate a report of a breach of planning control. It has done this and agrees the decking exceeds the height permitted under PD rights. I understand there is a difference between the Council’s measurement and those taken by Mr X. But the Council has visited the site and is aware of the position and height of the deck in relation to Mr X’s home. It is satisfied that it is not expedient to require the neighbour to reduce the height of the deck.
13. Without fault in the administrative process, the Ombudsman has no powers to criticise this decision.

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Final decision

14. I will not investigate this complaint. We have not seen evidence of fault in the process leading to the decision not to take enforcement action.

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Investigator's decision on behalf of the Ombudsman