Summary: The Ombudsman will not investigate Mr and Mrs X’s complaint that the Council failed to notify them of a planning application and has refused to take enforcement action to reposition an external staircase which overhangs their back garden. There is no fault in the planning approval and insufficient injustice to investigate the enforcement decision.

The complaint

1. Mr and Mrs X complain the Council failed to notify them of a proposed development at the rear of their property. They say the first floor extension has external steps with a platform which overhangs their garden by about a foot, the entrance door has views over their property, and there is a light which illuminates their home at night. Mr and Mrs X say the Council’s enforcement officer told them that she was discussing with the developer taking remedial action to correct the position. However, nothing has happened and the Council now says there is no breach of planning control.

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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, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered Mr and Mrs X’s information and comments and discussed the complaint with them by telephone. I have considered Mr and Mrs X’s reply to the draft decision statement which includes a development plan and photographs. I have considered the Council’s reply to the complaint and the case information on its website.

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What I found

4. In 2017 the Council received an application for a roof extension/office with access at the rear via external steps. The Council’s website says it published the proposal via a site notice, advertisement in the local paper, and 20 neighbour notifications. Mr X tells me that people up and down the street received a notification but no one living in his block.
5. The officer report considered the amenity of neighbours and decided the proposal was acceptable. It says the development is not a dominant extension and there is no direct overlooking due to the angle. The report says: ‘the staircase with a small landing which would be located adjacent to a walkway, would receive transient use and as such there would be no unreasonable overlooking’. The Council applied a planning condition requiring the first floor entrance door to have obscure glazed window.
6. The photographs show there are no first floor windows at the back of the building. The door has two long panel windows. Mr X tells me the windows have obscured glass. The office is used during the week and the steps are in frequent use. They are not used at weekends. There is a light above the door which the Council says does not require planning permission. Mr X says it is operated by a switch within the building and users forget to turn it off. He says this is annoying at night.
7. Mr X tells me his garden is 80 feet long. He has provided photographs of the development which show the access steps partly overhang a shared residential walkway and the edge of their garden. Mr X says the platform overhangs his garden/gate by about one foot. He says the installation work has caused some damage to the wall. Mr X tells me he has reported the situation to his landlord who has not taken action.
8. On 18 February 2020, the Council’s enforcement officer wrote to Mr and Mrs X to say she had contacted the owner of the development to action remedial work. The owner stated he will do: ‘remedial works to draw the development in line with the permission granted’. Mr and Mrs X have provided a plan which shows the steps within the boundary of the neighbouring property.
9. The Council’s complaint reply, September 2020, says that the first enforcement officer has left the Council. It says the team re-inspected the site and has decided there is no breach of planning control. It says the external staircase overlapping the boundary is a civil matter. It says planning permission is not required for the external light.

Analysis

10. I will not investigate this complaint for the following reasons:
11. The Ombudsman investigates fault causing injustice. There is insufficient evidence of fault regarding the decision to grant planning approval for the first floor extension. The Council properly considered the planning application including neighbour amenity and privacy. It applied a condition on the first floor door windows, to avoid unreasonable overlooking, and the required obscure glazing of the windows is in place. It is clear some notifications were sent out but the issue does not affect the decision to grant planning permission.
12. There is insufficient injustice. The slight overhanging of Mr and Mrs X’s garden, which Mr X says is a foot, does not significantly affect their amenity. Although the enforcement officer’s communication raised expectations of remedial work there was no guarantee that the owner would do the work.
13. I do not consider investigation will achieve the outcome Mr and Mrs X want which is the removal or repositioning of the external staircase. Although the Council’s position, that there is no breach of planning control, could be questioned it would be very unlikely to take enforcement action in such circumstances.
14. Mr and Mrs X or their landlord may take up with the neighbour the question of the light. The owner may have a legal remedy because the staircase overhangs his property (walkway and garden). The developer, not the Council, is responsible for what is built and potentially for damage to the boundary wall.

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Final decision

15. The Ombudsman will not investigate Mr and Mrs X’s complaint that the Council failed to notify them of a planning application and has refused to take enforcement action to reposition an external staircase which overhangs their back garden. There is no fault in the planning approval and insufficient injustice to investigate the enforcement decision.

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Investigator's decision on behalf of the Ombudsman