Summary: Ms X complained the Council ignored her objections to her neighbour building a large outbuilding on his property. Ms X also complained the Council failed to take enforcement action against her neighbour over a breach of permitted development rules. Ms X says the building affects the amenity of her garden. The Ombudsman does not find fault with the actions of the Council.

The complaint

1. Ms X complained the Council ignored her objections to her neighbour, Mr Y, building a large outbuilding on his property.
2. Ms X also complained the Council failed to take enforcement action against her neighbour over a breach of permitted development rules.
3. Ms X says the building affects the amenity of her garden by looming over the garden.

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The Ombudsman’s role and powers

4. 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)
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 have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. The Council provided comment on my draft decision, Ms X did not respond. I have considered the Council’s comments before making my final decision.

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What I found

Legislation and guidance

8. Most new buildings and changes to existing buildings need a grant of planning permission from the Council. But some developments benefit from a grant of planning permission from central government. Such permission, called permitted development, does not need a full planning application to the Council for approval.
9. Each class of permitted development has certain conditions and limits. If a development does not meet the relevant criteria, a person must make a planning application.
10. The different types of permitted development are set out in the Town and Country Planning (General permitted development) Order 2015.
11. Class E concerns buildings or enclosures separate to the main dwelling-house for incidental enjoyment, such as for domestic needs or personal enjoyment of the occupants of the dwelling-house. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, E and E.4)
12. Development is not permitted under Class E if the total area of ground covered by buildings would exceed 50% of the total area of the curtilage (excluding the original dwelling-house). (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, E(b))
13. The “curtilage” is the area of a land a person owns on a particular site excluding the size of the original dwelling-house. A detached garage or extension to the original dwelling-house do not form part of the original dwelling-house. (Permitted development rights for householders: technical guidance 2019)
14. Development is also not permitted if the height of the building exceeds 2.5 metres when it is within 2 metres of the boundary of the curtilage of the dwelling-house. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, E(e and f))

Council’s planning services local enforcement plan 2018

15. The Council’s policy outlines it has a duty to investigate alleged breaches of planning control. The Council’s enforcement team will act to ensure developments take place in line with legislation for planning conditions.
16. When a person complains to the Council about breaches of planning control the Council will:
• Log the complaint on its computer system under a unique reference number.
• Carry out an unannounced visit within 14 days (for less urgent complaints) and decide how to continue with the investigation.
• Carry out further investigation when it cannot decide a breach of planning control on the first visit.
• Close a complaint if it finds no breach of planning control.
• Only tell the person the who reported the breach of planning control the result if it finds a breach but decides it will not take formal action.

What happened

17. Mr Y began construction of an outbuilding on his land. Ms X contacted the Council on 26 September 2019 to ask it to investigate the outbuilding to decide if this was lawful development.
18. The Council opened an enforcement case to investigate Ms X’s concerns. The Council attended Mr Y’s property on 3 October 2019 and 15 October 2019 but no one was home. The Council left a card asking Mr Y to contact it.
19. Mr Y contacted the Council on 17 October 2019. The Council advised Mr Y he could not build the outbuilding higher than 2.5metres tall when it is closer than 2metres to a neighbour’s boundary. The Council arranged to visit the property on 1 November 2019. The Council officer who attended on 1 November 2019 confirmed Mr Y had not completed construction of the outbuilding and noted to return on completion to decide if this met permitted development.
20. Ms X complained to the Council on 22 November 2019 and objected to the outbuilding. Ms X said two of her neighbours also objected to the outbuilding.
21. The Council officer attended the site again on 3 December 2019. Mr Y had not completed construction so the Council officer noted to return on completion.
22. Ms X complained to her MP on 28 January 2020. Ms X’s MP passed the complaint to the Council. The Council advised Ms X’s MP it had a live enforcement case and it would measure the outbuilding once Mr Y finished construction.
23. Ms X complained to the Council on 21 May 2020 about building works inside the outbuilding. The Council said it was still investigating the outbuilding and it was waiting for Mr Y to put the roof on before measuring the height. The Council directed Ms X to the noise nuisance team for noise caused by construction works.
24. The Council contacted Mr Y for evidence of:
• The height of the outbuilding at the highest point.
• The measurements for the walls of the outbuilding.
• The measurements of the remaining front, rear and side outside space at the property.
25. Mr Y provided the measurements. The Council calculated the outbuilding took up less than 50% of the curtilage and was 2.47metres tall. The Council said the outbuilding was within permitted development rights. The Council confirmed this with Ms X’s MP.
26. Ms X asked for an update on 8 July 2020. The Council responded on the same date to confirm the outbuilding was within permitted developments rights and it had closed the enforcement case.
27. Ms X complained to the Council on 31 July 2020. Ms X said:
• Her neighbour built an outbuilding without planning permission which impacts on neighbouring amenity.
• The building does not meet permitted development rights as it exceeds 50% of the garden and is too close to the boundary fence.
• The Council officer did not consider her, and other neighbours, opposition to the development.
• The Council has not considered damage to neighbouring properties or water run-off from the outbuilding.
28. The Council sent its Stage 1 response on 5 August 2020. The Council said:
• Ms X’s neighbour did not need planning permission because this fell within permitted development rights.
• The Council confirmed the outbuilding met the standards for permitted development.
• Legislation does not allow for consultation on permitted development.
• Damage to neighbouring buildings is a civil matter and water run-off does not fall under Council control.
29. Ms X asked the Council to consider her complaint under Stage 2 of the complaint process on 19 August 2020.
30. The Council sent its Stage 2 response on 18 September 2020. The Council said the Stage 2 complaint did not raise any issues and reiterated its stance from the Stage 1 complaint response the outbuilding was within permitted development rights.
31. Ms X complained to the Local Government and Social Care Ombudsman in October 2020.

Analysis

Planning permission or permitted development

32. Ms X complained her neighbour, Mr Y, built an outbuilding on his property without planning permission.
33. The Council said Mr Y’s outbuilding was in line with permitted development rights.
34. A person can build on their property without a planning application if the proposed build falls in line with permitted development rights.
35. Mr Y began construction of an outbuilding without consultation with the Council. Mr Y had no duty to contact or consult with the Council if he believed his outbuilding fell within permitted development rights.
36. The Council got evidence of the height and size of the outbuilding from Mr Y. The measurements of the outbuilding show the highest point to be below 2.5metres tall and the outbuilding took up less than 15% of the total curtilage of the site. Given that Mr Y was already using about 10% of the curtilage for his extension this still keeps the total use below 50%.
37. The size of the outbuilding fell within the rules for a Class E building under permitted development rights. Mr Y also intended to use the outbuilding for incidental enjoyment, storage of tools and completion of DIY projects which falls in line with a Class E building.
38. I do not find fault with the Council deciding the outbuilding is permitted development.

Ms X’s objections

39. Ms X complained the Council ignored her objections, and those of several other neighbours, to Mr Y building a large outbuilding on his property.
40. A resident is entitled to provide comments or objections to a development when a person registers a formal planning application with the Council. A council must consider any comments or representations provided in response to a planning application.
41. However, as outlined in paragraph 38, the outbuilding falls under permitted development rights and not a planning application.
42. No other person, whether a neighbour or council, can object to construction of a building if a person builds this in line with permitted development rights. While Ms X objected to the outbuilding, the Council had no powers to consider Ms X’s objections as reason to prevent Mr Y erecting the outbuilding. I do not find fault with the Council telling Ms X legislation did not allow for consultation on permitted developments.
43. The Council opened a planning control enforcement case because of Ms X’s objection to the outbuilding. The Council recorded Ms X’s objections to the outbuilding as part of its enforcement case. Since the outbuilding met permitted development rights, Ms X’s objections held no weight. The Council registered Ms X’s objections through the enforcement case and I do not consider it ignored her objections. I do not find fault with the Council.

Council enforcement action

44. Ms X complained the Council did not take enforcement action against Mr Y’s outbuilding.
45. The Council has a duty to investigate alleged breaches of planning control. Should the Council discover breaches of planning control it should take suitable enforcement action as it sees fit.
46. The Council opened an enforcement case when Ms X contacted to allege a breach of planning control. The Council enforcement team attended Mr Y’s property within 14 days of opening the enforcement case. As Mr Y was not home the Council left a card advising of the visit and attended again a few days later. This action is acceptable in line with the Council’s policy.
47. The Council attended the site on 1 November 2019 following contact from Mr Y. The Council acted in line with its policy and decided it needed to complete further investigation after this site visit as Mr Y had not finished construction. The Council enforcement team attended the site again in December 2019 and remained in contact with Mr Y until he finished construction of the outbuilding.
48. When Mr Y finished construction, the Council got objective evidence of the size and scope of the outbuilding through photographs taken by Mr Y. As outlined in paragraphs 36 and 37, these photographs showed the outbuilding met permitted development rights.
49. Given the concerns of the Covid-19 pandemic it was fitting for the Council to get objective evidence of the height and scale of Mr Y’s outbuilding rather than completing a site visit in May 2019.
50. Since the Council’s investigation showed no breach of planning controls it closed the enforcement case. The council acted in line with its policy when investigating the enforcement case and I do not find fault.
51. The Council told Ms X’s MP about the outcome of the enforcement case but not Ms X until 8 July 2020, following Ms X’s chasing for an update. The Council has no duty to tell a person about the outcome of an enforcement case unless there is a technical breach, but it does not take enforcement action. Since Mr Y had not breached planning controls, the Council was entitled to close the case without telling Ms X. I do not find fault with the Council.

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Final decision

52. I have completed my investigation as there was no fault in the Council’s decision.

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Investigator's decision on behalf of the Ombudsman