Summary: Mr B complained the Council failed to take enforcement action against his neighbours for breach of planning control and a control of pollution notice. He also complained the Council did not evidence that his neighbour’s development complied with building regulations. Mr B said this has impacted his and his wife’s health because they are worried the outbuilding is a fire risk. We did not find fault with the Council.

The complaint

1. Mr B complained the Council failed to take enforcement action against his neighbours, property 1, for breach of planning control and a control of pollution notice. He also complained the Council did not evidence that his neighbour’s development complied with building regulations. In addition, Mr B raised concerns with the Council’s response to his freedom of information requests.
2. Mr B said this has impacted his and his wife’s health because they are worried the outbuilding is a fire risk.

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What I have investigated

3. I investigated whether the Council’s decision not to take enforcement action against Mr B’s neighbours, property 1, for breach of planning control and a control of pollution notice. I also investigated its decision that his neighbour’s development complied with building regulations.
4. I did not investigate Mr B’s complaint about the Council’s response to his freedom of information requests. This is a matter for the Information Commissioner’s Office.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. 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

10. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
11. Mr B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and guidance

Planning

12. Some developments benefit from planning permission from central government. Such permission, permitted development, does not need a full planning application to the council for approval. The Town and Country Planning (General permitted development) Order 2015 sets out the different types of permitted development.
13. Class E developments are 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). The development is 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))
14. Section 171A of the Town and Country Planning Act 1990 defines a breach of planning control 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.
15. When investigating an alleged or apparent breach of planning control, the council must decide whether:
• there is a breach of planning control and the degree of harm caused.
• those responsible for any breach are receptive to taking action to remedy the breach. (Ministry of Housing, Communities & Local Government, 2014, Enforcement and post-permission matters)
16. Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. (Ministry of Housing, Communities & Local Government, 2019, National Planning Policy Framework)

Building regulations

17. Most building work requires building regulation approval. The legislative framework of the building regulations is principally made up of The Building Regulations 2010 and The Building (Approved Inspectors etc.) Regulations 2010.
18. There are two options for getting building regulations approval:
• from a Council Building Control Inspector.
• from a private sector Approved Inspector.
19. If a person carrying out building work contravenes building regulations, the council may serve an enforcement notice on the building owner. The order can require alteration or removal of work which contravenes the regulations under section 36 of the Building Act 1984.

Environmental health

20. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. Noise and fumes can be statutory nuisances. To be a statutory nuisance, they must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and/ or
• injure health or be likely to injure health.
21. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
22. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.
23. When the nuisance is created by construction works, section 60 of Control of Pollution Act gives councils the power to serve a notice imposing requirements about the way construction works are carried out. The notice can specify any of the following:
• a noise level;
• the plant or machinery used;
• the hours when work can be done;
• steps that need to be taken to minimise noise.
24. Those failing to comply with the notice can be prosecuted and fined.
25. The legislation summarised in this section did not change in response to the COVID-19 pandemic. From March to May 2020, England was in a national lockdown. People could only leave their home for limited purposes including travelling to and from work, but only where this was absolutely necessary. In May 2020, the Government said people who could not work from home should return to the workplace.

What happened

26. Property 1’s garden sits alongside the side of Mr B’s property. Property 1 started to erect an outbuilding at the end of their garden in March 2020. The building was situated next to the boundary fence. The outbuilding was completed in July 2020.

Planning

27. In April 2020, Mr B raised concerns with the Council about the outbuilding being erected in his neighbour’s garden.
28. The Council’s development control service visited property 1 in April 2020. The planning enforcement investigating officer found there was a breach of planning regulations. The outbuilding was over the height for permitted development by 0.07 meters.
29. The officer wrote a report based on her findings. She recommended it was not expedient for the Council to take enforcement action because the extra height did not create significant additional harm to the amenity of neighbouring properties. The officer noted the outbuilding complied with local and national policies. She surmised the Council would have granted planning permission for the build if an application had been made.
30. The Council updated Mr B. It explained the outbuilding was permitted development and did not need planning permission. It advised although the outbuilding was higher than permitted development rights, it would not take enforcement action because the breach was not significant in planning terms.

Building regulations

31. The Council’s Building Control services are provided by Hertfordshire Building Control Limited (HBC).
32. In April 2020, Mr B told the Council and HBC the building being erected in his neighbour’s garden did not meet building regulations.
33. In May 2020, HBC told Mr B the owners of property 1 had made a regularisation application for retrospective building regulations approval for the new outbuilding.
34. Mr B sent HBC a report in June 2020 outlining his concerns about the construction of the outbuilding. These included concerns about fire safety.
35. HBC wrote to the owners of property of 1 with a schedule of matters that required their attention. It asked the owners to provide details of the materials used, fire safety measures, and for confirmation from their structural engineer that the outbuilding was structurally sound. HBC updated Mr B.
36. In September 2020, Mr B made a formal complaint. He said HBC had not told him the outcome of his neighbour’s retrospective application for building regulations approval. HBC responded to Mr B and summarised the action it had taken. It explained the build was still in progress and a completion certificate would not be issued until it was satisfied the outbuilding complied with building regulations. It confirmed the fire safety aspects of the build had been addressed by his neighbours. HBC signposted Mr B to the Council if he was dissatisfied with its complaint response.
37. The agent for the owners of property 1 provided HBC with the requested information in October 2020.
38. HBC issued a regularisation certificate confirming the outbuilding was compliant with building regulations in November 2020.

Environmental health

39. In April 2020, Mr B complained to the Council about the noise and dust emitted by the building work undertaken by his neighbour, property 1. The Council told Mr B it would serve a Control of Pollution Act (COPA) notice on his neighbours.
40. The Council served a COPA notice to restrict the hours builders could undertake construction work at property 1 to between 8am and 5pm Monday to Friday. It also prohibited the builders from using amplified sound systems.
41. The Council asked Mr B if he could install a noise app on his phone or a tablet. It told him this would allow him to make recordings of any noise. It advised him to note the date, time and location of any noise. Mr B told the Council he did not have a smartphone or a tablet.
42. The Council advised Mr B a breach of the COPA notice was a criminal offence and must be proven to the criminal standard, beyond all reasonable doubt. It invited Mr B to submit witness statements so it could decide whether there was enough evidence to consider prosecution.
43. Mr B made a noise nuisance complaint to the Council in May 2020. The Council issued a reminder to the owners of property 1 about the requirements of the COPA notice and updated Mr B.
44. In June 2020, Mr B sent the Council a report about the works to property 1. The report included details of noise nuisances caused by the work.
45. In July 2020, the Council told Mr B it was going to invite his neighbours to attend an interview under caution for the alleged breach of the COPA notice. The interview took place in September 2020. The Council decided not to continue the enforcement case noting construction stopped when the outbuilding was completed in July 2020.
46. The Council updated Mr B in March 2021 and told him it was going to close his case. The Council recorded its delay closing the case was because of the third COVID-19 lockdown and other cases taking priority.

Council’s complaint procedure

47. Mr B complained to the Council in October 2020 that HBC had not taken enforcement action against his neighbours at property 1 or responded to his complaint.
48. The Council responded in November 2020. It explained the outbuilding was slightly higher than permitted development rights, but it was not expedient for it to take enforcement action. It told him HBC had decided the outbuilding satisfied building regulations.
49. Mr B asked for an independent review of the Council’s stage 1 response. He said he remained dissatisfied with HBC. He said HBC delayed responding to him and did not provide details of the materials his neighbours used to build the outbuilding.
50. The Council responded at stage 2 in December 2020. The Council apologised for any delays in HBC responding to his correspondence. It confirmed HBC was satisfied the outbuilding complied with building regulations and had issued a regularisation certificate. The Council explained it was not appropriate to share details of the materials used to construct the outbuilding. One of the reasons it gave was that it was third-party information. The Council advised it did not intend to take any further action. The Council signposted Mr B to the Ombudsman.
51. In January 2021, Mr B sent the Council a report. He complained the Council had not evidenced the statements it made in its complaint responses. He also complained the Council had not accepted his invitation to review his evidence.
52. The Council told Mr B he had been through both stages of its complaint procedure and signposted him to the Ombudsman.

Analysis

Planning

53. The Council investigated Mr B’s concerns about the legality of the outbuilding erected in property 1’s garden. The Council visited property 1 and found the height of the building breached permitted development rights. The Council considered the impact of this on neighbouring properties and decided it was not expedient to take enforcement action. This was a decision the Council was entitled to make. I did not find any evidence of fault in how the Council carried out its investigation nor did I find any fault with how the Council decided it was not expedient to take enforcement action. I cannot question the merits of a decision properly made.

Building regulations

54. HBC investigated Mr B’s concerns about whether the building met building regulations. HBC sought information from the owners of property 1 including the materials used for construction and fire safety measures. The owners of property 1 supplied this information. The Council gave me a copy of the information and I confirm all HBC’s questions were answered. HBC’s professional judgement was the building was compliant with building regulations. I did not find fault with HBC’s decision making and therefore I cannot question its merits.

Environmental health

55. The Council took prompt action to address Mr B’s complaint about potential statutory nuisances. It issued a COPA notice to the owners of property 1 and sent them a reminder letter when Mr B reported further noise disturbances. In response to further noise nuisance reports, the Council invited Mr B’s neighbours for interview under caution for breaching the COPA. The Council decided not to continue the enforcement case noting the complaint was resolved because the outbuilding was finished. This was a decision the Council was entitled to make, and I found no fault in its decision making.

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Final decision

56. I have completed my investigation and do not uphold Mr B’s complaint.

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Parts of the complaint that I did not investigate

57. I did not investigate Mr B’s complaint about the Council’s response to his freedom of information requests. This is a matter for the Information Commissioner’s Office.

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Investigator's decision on behalf of the Ombudsman