Summary: Mrs Z, a planning representative, complained the Council failed to take enforcement action against breaches of planning and building control by a developer. The Council was not at fault in how it handled the planning control matter. This is because it properly investigated the alleged breach and used its discretion to decide not to take formal enforcement action. However, the Council has acknowledged it did not investigate the alleged breach of building control. Nor did it respond to Mrs Z’s complaint on this matter. This is fault. To remedy this the Council agreed to apologise to Mrs Z and provide a response regarding this matter.

The complaint

1. The complainants Mr & Mrs X and Mr and Mrs Y, whom I shall refer to as the complainants, are represented by a planning representative, Mrs Z.
2. Mrs Z complains about the Council’s lack of planning and building enforcement action on a development of a flat roof single storey extension next to the complainants’ homes (the development). She says the Council:

• wrongly refused to accept the development as a balcony or a raised platform requiring planning permission;
• failed to take action under building control regulations due to the risk of harm from the development; and
• failed to respond properly to her complaint and comment on her legal view.

3. Mrs Z said as a result of this the complainants have experienced a loss of privacy and amenity.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. As part of my investigation, I have considered:
• Mrs Z’s complaint and the information she provided;
• documents supplied by the Council and the planning documents available on the Council’s website;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
8. I gave Mrs Z and the Council the opportunity to comment on a draft version of this decision and I have considered their comments.

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What I found

Legislation and Guidance

9. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
10. The Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO), schedule 2(A) & (B) defines when a development is permitted without planning permission. It also defines circumstances where a development is not permitted and requires planning permission. It says a development is not allowed if:
• It extends beyond the rear wall of the original house by more than 4 meters,
• If within 2 meters of the boundary of the property, the height of the eaves are more than 3 meters,
• If it includes the construction or provision of a veranda, balcony or raised platform
11. Further guidance on the definition of a veranda, balcony or a raised planform is set out in the ‘Permitted development rights for householders – Technical Guidance’ (the guidance), which says:
• A veranda is understood to be a gallery, platform, or balcony, usually roofed and often partly enclosed, extending along the outside of a building at ground level.
• A balcony is understood to be a platform with a rail, balustrade or parapet projecting outside an upper storey of a building.
• A ‘Juliet’ balcony, where there is no platform and therefore no external access, would normally be permitted development.
• A raised platform is any platform with a height greater than 0.3 metres and will include roof terraces.
12. When an allegation is made to the Council, it must decide whether there is a breach of planning control and the degree of harm which may be resulting.
13. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58 which says.

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

14. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.

The Council’s policies

15. The Council’s ’Better Regulation and Enforcement Policy’ outlines the approach the Council will take when undertaking enforcement and how it determines if action is deemed necessary. This includes that it will:
• take a proportionate response to allegations of planning control breaches;
• prioritise enforcement towards matters with the greatest risk; and
• listen to representations made.
16. The Policy also says there are circumstances where contraventions of the law may not warrant any action being taken.

What happened

Background

17. In 2019, the complainants neighbour (the developer) applied for planning permission for a single storey rear extension with a roof terrace. The Council’s planning officer recommended for planning permission to be granted, but the Council’s planning committee refused the application. However, it said it found the proposed extension without the roof terrace to be permitted development.
18. The developer appealed to the Planning Inspector, but the appeal was refused. It said it agreed with the Council’s decision that the proposed extension with a roof terrace would be harmful to the neighbouring properties’ amenity and privacy.
19. Despite of this, the developer started to build the extension. And so, the Council considered if enforcement action was needed.
20. The Council’s enforcement review found that the development was within permitted development rights in that:
• The extension was not exceeding three meters in height of the eaves;
• The materials used for the roof would make it unsuitable to use as a roof terrace;
• There would be no railings or screens on the edges of the roof; and
• There would be bi-fold doors on the first floor leading out to the roof, but a Juliet balcony would be attached preventing access to the roof.

It recommended further investigation if allegations of use of the roof were made after the development was completed.

21. In March 2020, the complainants’ planning representative, Mrs Z, told the Council that the development breached both planning and building control. She provided photos to show the works carried out on the development and asked the Council to take action.

Planning control

22. Mrs Z told the Council the development was in breach of planning control because it needed planning permission. She said this was because the GDPO requires planning permission for the construction or provision of a veranda, balcony or a raised platform.
23. Mrs Z told the Council the development was not a veranda, but that it should be considered either a balcony or a raised platform in accordance with the GDPO because:
• It had a parapet projecting outside the upper storey of the building and it is a platform with a height greater than 0.3 meters.
• It was not a Juliet balcony because it had it had no railings to prevent access to the roof. Therefore, it was not a permitted development and required planning permission;
• Three French-doors had been installed on the first floor leading out to the roof, thereby giving access to the roof;
• the structural design of the development has sufficient load bearing properties to be used as a roof terrace;
• Light fixing and external power points had been installed.
24. In addition, Mrs Z said the Council had recently refused the developers planning application for a very similar development with a balcony. She said because of this and how it was built, there was a clear intention by the developer to it as a balcony or roof terrace.
25. Mrs Z acknowledged the Council’s view that until the development was used as a roof terrace or balcony no action would be taken. However, she said the GDPO and guidance does not specify that it had to be used for this purpose, but the provision or construction of this in itself requires planning permission.
26. In response, the Council did not agree with Mrs Z’s view. It said it did not consider planning permission was required because:
• although, the development had a small protrusion on the edges of the roof, this was not a fortification. It therefore did not find this to be a parapet;
• It did not find the roof to be a balcony due to the potential access to the roof. It said otherwise all other flat roofs would then be considered a balcony as they could be accessed by a ladder;
27. The Council also told Mrs Z it had at no point said it would not take enforcement action, but it was not considered appropriate at the time. It said if the developer uses the roof or there is further development, its view may change.

Building regulation

28. Mrs Z told the Council the development must comply with the Building Regulations, regardless of whether express planning permission was required. She said the development did not meet the Building Regulation 2010 (Part K2, schedule 1) requirements because it requires:
• Any balconies and any roof to which people have access shall be provided with barriers to a height of 600mm where it is necessary to protect people in or about the building from falling; or
• Guarding at a height of 1100mm, where it is reasonably necessary for safety to guard the edges of a balcony, roof or any other place to which people have access. Including Juliette balconies and the edges of roofs in single family dwellings.
29. Mrs Z acknowledged the developer had a screen of some form placed inside the first-floor room. She told the Council it is not apparent that those screens would impede access onto the roof enough to satisfy the Building Regulations. And so, Mrs Z asked the Council to do further investigations to ensure the development complied with the Building Regulations.

The complaint

30. Mrs Z was unhappy with the Council’s response. She said it had failed to respond properly, comment on her legal view and found the Council’s behaviour unacceptable.
31. In response, the Council told Mrs Z it must look into complaints about planning enforcement matters and provided its enforcement report her. It told Mrs Z it has discretion as to whether any enforcement action is taken but had decided not to do so at this stage. It also said it is not required to justify its opinion and said it did not consider the complainants had any harm from the development on their personal amenity or privacy. The Council did not find it had been unreasonable in its behaviour but acknowledged its delay in responding to Mrs Z and apologised for this.
32. Mrs Z remained unhappy with the Council’s response and lack of enforcement action. And so, she escalated her complaint with the Council.
33. The Council expedited its response due to the delay in its first complaint response, but it did not change its decision. And so, Mrs Z complained to the Ombudsman.

Analysis

34. The complainants find the development has the potential to impact on their amenity and privacy. I therefore recognise the strength and depth of their dissatisfaction with the Council’s decision not to take enforcement action.
35. The Council and complainant’s representative, Mrs Z, may hold different views about the legal definition of the development’s roof and whether taking enforcement action is warranted. I have no role in resolving such differing views. And, as the law gives the Council the power to enforce planning breaches, I cannot replace the Council’s decision with my own. My role is to consider whether the Council acted with ‘fault’ in reaching its decision.
36. Based on the evidence available, I am satisfied the Council have acted within the discretion available to it and properly considered whether there was a breach of planning control. In doing so it:
• visited the site and spoke with the developer;
• completed an enforcement report;
• considered Mrs Z’s representations and view; and
• considered the relevant law and guidance.
37. The Council decided the development did not breach planning control based on its current usage. Nor did it cause any harm to the complainants’ amenity or privacy. However, the Council was clear that any change in the use of the roof or further development works may change its view. It also said even if it agreed with Mrs Z, it is the Council’s decision whether enforcement action is warranted. There is no fault in the way the Council considered the matter, I cannot therefore criticise its decision.
38. Mrs Z also said the development breached Building Regulations and the Council failed to take action to ensure safety. The Council’s responses and enforcement report does not address this point of concern.
39. The Council’s enforcement report refers to the possibility the developer would install a Juliet balcony. However, the evidence provided shows this has not happened. Instead, an unknown type of screen has been placed on the inside of the bi-fold doors. Although, the Building Regulations 2010, Part 2, sections 8 & 11 entitles the Council to exercise discretion to relax such requirements, I have seen no evidence the Council considered this. Nor that it has responded to Mrs Z’s concerns on this matter. This is fault.
40. However, the complainants have not suffered any injustice from any risk in building control, as they do not have access to the development property. And so, the only injustice caused is the Council’s failure to respond properly to Mrs Z’s concerns about this matter. I have seen no unreasonable behaviour in the Council’s communications with Mrs Z, and so therefore I find a suitable remedy on this matter to be an apology by the Council.

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Agreed action

41. To remedy the injustice the Council caused to Mrs X and Y, the Council has agreed to, within one month of the final decision:
1. apologise to Mrs Z in writing for its failure to respond to all the relevant matters in her complaint; and
2. Respond to Mrs Z’s Building Regulations concerns, as it sees fit.

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Final decision

42. There was fault leading to some injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman