Summary: We will not investigate Mr X’s complaint, made on behalf of his daughter Miss X, about the Council’s decision not to enforce against an extension built by Miss X’s neighbour. There is not enough evidence of fault by the Council in how it reached its discretionary enforcement decision to warrant an investigation.

The complaint

1. Mr X is Miss X’s father. Miss X lives in a property where the neighbour built an extension, intended to be built under the General Permitted Development Rights (GPDR). Mr X complained on behalf of Miss X that the Council:
1. has not accepted the extension breaches three GPDR conditions;
2. has decided not to take enforcement action against the extension;
3. delayed in responding to the complaint.
2. Mr X says Miss X has not had the opportunity to object to the extension as built. He says the extension’s roof is not dealing with rainwater as it should. Mr X says he has spent a great deal of time and been caused significant trouble pursuing the complaint. Miss X and Mr X want the Council to take enforcement action against the development because it breaches GPDR conditions.

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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)

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How I considered this complaint

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

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What I found

5. Miss X’s neighbour proposed an extension to the Council, to be built in compliance with GPDR conditions. The Council issued a certificate of lawfulness to regularise the proposed development and the neighbour started to build.
6. Mr X and Miss X reported to the Council that the extension had not been built in compliance with GPDR. The Council inspected the extension and noted GPDR rights would only apply if the extension had been built using materials matching the host property. The neighbour had not done this, so the Council withdrew the neighbour’s certificate of lawfulness for the extension.
7. The Council investigated the complainants’ reports and took the action its officers considered was required where an extension intended to be built under GPDR does not comply with applicable conditions. I have not seen evidence of fault by the Council in this part of the process. I note Mr X wants the Council to agree the extension breaches three GPDR conditions, not just the one regarding building materials. But the Council has determined the extension does not comply with GPDR and rescinded the neighbour’s certificate regularising the work. So in respect of the Council’s position on the development’s non-compliance with GPDR, it is not relevant whether the extension breaches one or more conditions. The number of GPDR conditions breached would not determine whether a council would take planning enforcement action against an unauthorised development.
8. Once the Council decided the works are not authorised, it was for officers to decide how to proceed. The Council invited the neighbour to make a planning application to regularise the extension as built. The neighbour has not replied to the Council’s requests to submit a planning application. Councils cannot force someone to make a planning application.
9. If a developer does not submit an application, councils then decide whether to take further action, including whether to use their enforcement powers.
10. Councils’ enforcement powers are discretionary. There is no duty on officers to enforce against every planning breach they identify. They have to determine if a decision to take formal enforcement action is an appropriate and proportionate response, and whether it would be defensible if the owner appealed against it.
11. We can only go behind the professional judgement decision of a council if there is evidence of fault in the process it has followed which, had the fault not happened, the council would have made a different decision.
12. National government guidance on planning enforcement tells councils to avoid taking formal enforcement action where the development is acceptable on its planning merits and formal enforcement action would only serve to regularise it. Officers assessed the extension as built and reached the view that they would recommend granting it planning permission if they received an application, and so it was not appropriate to enforce. I have not seen enough evidence of fault to justify our investigation. I realise Mr X and Ms X disagree with the officers’ decision. But it is not fault for a council to properly make a decision with which someone disagrees.
13. Mr X mentions an issue with the extension’s roof and how it may be dealing with rainwater. If Miss X believes the extension is causing damage to her property, that would be a private civil matter between her and her neighbour. It would not be a planning or enforcement issue involving the Council. Miss X may wish to seek independent legal advice on this issue.
14. Mr X says the Council delayed responding to his complaint and in giving its final response. We consider it is not a good use of public resources to investigate complaints about complaint procedures, if we are not investigating the substantive issue. That limitation applies here because we will not investigate the core planning enforcement issue, so we will not investigate the Council’s internal complaint procedure in isolation.

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Final decision

15. We will not investigate this complaint. This is because:
• there is not enough evidence of fault in the way the officers have made their professional judgement decision not to take enforcement action to warrant an investigation;
• we will not investigate complaints about a council’s complaints procedure in isolation where we do not intend to investigate the core issue giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman