Summary: We will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action against his neighbour’s summerhouse and platform. There is not enough evidence of fault by the Council in the process it followed to consider and make its discretionary decision on the matter to warrant our investigation.

The complaint

1. Mr X lives next to a property where the owner has installed a platform and summerhouse in their garden, 1.6m from the boundary with Mr X’s property. Mr X reported the matter to the Council. Officers determined the structure was not compliant with General Permitted Development Rights (GPDR), but decided not to take enforcement action.
2. Mr X complained the Council:
1. failed to take enforcement action against the neighbour;
2. failed to take into account his concerns about the development.
3. Mr X says his dining room and garden are overlooked by users of the summerhouse and light shines from its windows towards his property. He has concerns about noise from next door and about the impact of the structure when he comes to sell his house. Mr X says he and his family have been caused distress and stress by the matter. He is upset the Council ignored his concerns.
4. Mr X wants an independent person to measure the development again. He wants an increase in the height of the neighbour’s fence to stop the overlooking, reduce noise, and block light from the summerhouse.

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The Ombudsman’s role and powers

5. 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)
6. 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 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

7. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• considered the Council’s ‘Expediency Report’ and emails between officers and Mr X;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

8. Local Planning Authorities (LPAs) such as this Council may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Section 171A of the Town and Country Planning Act 1990 (‘the Act’) says a breach of planning control is:
• 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.
9. LPAs may serve an Enforcement Notice under section 172 of the Act where the breach involves carrying out development without permission, if it is expedient to do so. It is for the LPA to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate for the person served with the Notice.
10. The LPA may invite a retrospective application to regularise development which has already been undertaken. Such an application must be considered in the normal way.
11. We cannot criticise an LPA’s enforcement decision unless there is evidence of fault in the process officers followed to make that decision which, but for that fault, they would have made a different decision.
12. On receiving Mr X’s report about his neighbour’s development, an officer visited the site and determined, due to the height and location of the summerhouse and its platform, the neighbour could not rely on the structure complying with GPDR. Officers sought mitigation measures for the overlooking and loss of privacy. They asked the neighbour to install opaque film on the two windows most likely to allow overlooking from the summerhouse, and the neighbour did this. The Council also invited the neighbour to submit a retrospective planning application. The neighbour did not make an application, so it fell to officers to decide whether to use their discretionary enforcement powers.
13. Officers produced an ‘Expediency Report’, signed off by the senior officer, confirming that it was not expedient to enforce. The Council agreed with Mr X that the neighbour’s development breached planning control. But a property being built without permission and subsequently unregularised is not in itself sufficient grounds for a council to enforce. Officers needed to determine if the structure as now built had been the subject of a planning application, whether it would have been granted permission. Officers decided it would, so it was not expedient for them to enforce.
14. In reaching their decision, officers considered comments and photographs submitted Mr X. While the Council did not make the decision Mr X wanted, the information I have seen shows officers took account of Mr X’s evidence and concerns when reaching that decision. I realise Mr X disagrees with their decision. But it is not itself fault for a council to properly make a decision with which someone disagrees.
15. The Council reached its professional judgement decision not to use its discretionary enforcement powers to enforce against Mr X’s neighbour after following the proper process. I do not consider there are grounds for us to go behind the officers’ enforcement decision here. There is not enough evidence of fault in the way officers followed and applied the appropriate processes to make their professional judgement decision not to use their discretionary enforcement powers.
16. Mr X notes the plastic film the neighbour has put on one of the summerhouse windows overlooking his patio windows and garden could easily be removed. If the neighbour were to change the summerhouse by, for example, removing that obscuring film, Mr X may wish to report this to the Council. If the neighbour refused to replace the film, it would be for the Council to decide whether it means they should enforce, because its earlier decision not to enforce was in part based on the presence of the film. That would be a matter for officers to determine, to make a new decision, should this situation arise in the future.
17. I note Mr X is concerned about excessive noise and light spillage caused by the neighbour using the summerhouse. Should those issues arise, they would be matters for Environmental Health officers. On receipt of any reports, they would need to determine whether the frequency, level and duration of any claimed disturbances were causing a statutory nuisance to Mr X. That would be a decision for those officers to make.

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Final decision

18. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council in the way it decided not to enforce against Mr X’s neighbour’s development to warrant our investigation.

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Investigator's decision on behalf of the Ombudsman