Summary: The complainant says the Council refuses to take enforcement action against his neighbour for a breach of planning control and unsafe porch. The Ombudsman will not investigate this complaint as we have not seen any evidence of fault in the way the Council made its decision.

The complaint

1. The complainant, who I will call Mr X, complains the Council:
• has decided not to take enforcement action against his neighbour to remove their porch which Mr X says partially encroaches on his property. He says this means he cannot fulfil his planning permission as the porch prevents him from creating a parking space which was part of his planning application.
• The Council refuses to ensure the porch complies with building regulations. He says the wall is dangerous and the Council will not act because it told him as the porch does not have planning permission then it does not have to follow building regulations.
• The Council has failed to record the neighbour’s breach of planning control on the local land charges register

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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
• the fault has not caused injustice to the person who complained
• the injustice is not significant enough to justify our involvement

(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. I considered the information provided by Mr X and discussed his concerns with him, including his comments on the draft version of this decision.

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What I found

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action.
6. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. The council may also seek a retrospective application to regularise the breach. However, if the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.
7. Mr X complained to the Council that his neighbour’s porch partially encroaches on his property and is a dangerous structure.
8. The Council says its planning enforcement officer visited the site. They decided the porch slightly exceeds the maximum size for permitted development. The Council asked Mr X’s neighbours to put in a retrospective planning application for the porch.
9. The neighbours have not applied for retrospective planning permission. Officers decided the harm caused by the unauthorised porch to the character of the area and neighbouring properties is not severe enough to justify taking further action.
10. The Council also confirms its building control officer has visited the site. It confirms the porch is not dangerous and does not require a Building Regulations application.

Assessment

11. I appreciate Mr X disagrees with the decision not to act against his neighbour for the breach of planning control. But the Ombudsman cannot question that judgement unless there is evidence of administrative fault in the way it was made.
12. In my view, and considering paragraph 3 above, there is insufficient evidence of fault in the way the Council dealt with this enforcement case, to warrant the Ombudsman investigating the complaint. In reaching my view, I am mindful the Council is entitled to reach its own professional judgement that further enforcement action is not justified.
13. Mr X told me he does not believe the Council’s building control officer inspected the site while the porch was being built. However, in its written response to his complaint the Council says:

“The Council’s Building Control Officer has checked the neighbour’s porch. They say it is not dangerous and does not require a Building Regulations application. Even if the porch was dangerous, they would be unable to intervene as the porch is on private land and not dangerous to the general public.”

14. Mr X says building control did not visit the site while the porch was being built and officers cannot tell from looking at the finished structure whether it is safe. He says I am believing the Council instead of him. It is not a question of disbelieving Mr X. Rather I cannot question the opinion of a professional officer, if that decision is properly made. In the case of the porch, having been reported to the Council by Mr X, we would expect to see the Council inspect the structure and come to a decision. That is what has happened. The Council says an officer has inspected the site and is satisfied the structure is not dangerous. I cannot criticise the Council on this point.
15. The Council says its Land Charges team were not notified of the breach of planning control because no enforcement notices were issued.
16. The decision not to take enforcement action against Mr X’s neighbour was made under delegated authority. The Openness of Local Government Bodies Regulations 2014 regulations 7 and 8, require the Council to make a written record of decisions made under delegated authority. The written record, with any background papers, must be available for inspection by members of the public.
17. So, the failure to record the breach of planning control in a way that it can be inspected by the public is fault. However, I must also consider whether that fault causes significant personal injustice to Mr X.
18. Mr X says if his neighbour sold their property, the breach would be revealed if it was on the land charges register. He says this makes it more likely the neighbours would resolve the breach. However, we cannot know whether the neighbours will sell their property, or whether they would rectify the breach. The injustice claimed on this point is therefore speculative. The Ombudsman cannot investigate or remedy possible future injustice because the law does not allow us to consider something that has not yet happened.

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Final decision

19. I will not investigate this complaint. I have not seen evidence of fault in the way the Council decided not to act against his neighbour for a breach of planning control. Nor have I seen evidence of fault in the way it came to its decision that the porch is not dangerous.
20. Mr X claims his neighbour would be more likely to resolve the planning breach before selling the property if the breach were recorded on a public register. I consider this injustice is speculative as we cannot know whether the neighbour will sell the property, or whether they would rectify the breach to do so.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman