Summary: Mr and Mrs X complain about the way the Council decided not to take action against railings installed on a flat roof section of their neighbour’s house. There is not enough evidence of fault by the Council in how it made its decision not to enforce to warrant an Ombudsman investigation.

The complaint

1. Mr and Mrs X say their neighbours installed a railing around a flat roof part of their property. They complain the Council:
1. has failed to take action to prevent or reduce the impact of the neighbours’ development on their privacy;
2. failed to visit the site when assessing the matter.
2. Mr and Mrs X say the railing allows neighbours or their visitors to use the roof to see them in their garden, and for the neighbour’s grandchildren to taunt their dog. They want the Council to visit the site to see the problem, and to take action to resolve it.

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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 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
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr and Mrs X;
• issued a draft decision, inviting Mr and Mrs X to reply.

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What I found

6. In response to Mr and Mrs X’s complaint about the railing, the Council investigated and determined it had been installed in March 2009. Officers decided this meant the development was immune from enforcement, because Section 171B (1) of the Town and Country Planning Act 1990 prevents planning authorities from taking enforcement action once a development has been ‘substantially completed’ for over four years.
7. Officers gathered the relevant evidence to make their decision in line with the law which grants them their enforcement role. There is not enough evidence of fault in the way the Council reached this decision on the enforcement situation to warrant an Ombudsman investigation.
8. It may have been preferable for the Council to have visited Mr and Mrs X during their considerations. But a site visit would have no bearing on the Council’s enforcement decision or its enforcement powers. Such a visit, or any other action by the Council here, would not change its position that the development is several years too old for the Council to enforce against. The Council’s decision not to visit the site would not have altered its enforcement decision.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council in how it decided not to enforce against the development to justify an Ombudsman investigation;
• the Council’s decision not to visit the site had no bearing on the Council’s enforcement decision or powers.

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Investigator's decision on behalf of the Ombudsman