Summary: Mr and Mrs X complain about the Council’s decision not to take enforcement action against a planning breach by their neighbour. We will not investigate the complaint because it is unlikely we will find evidence of fault and an investigation is unlikely to lead to a different outcome.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, complain that while the Council has confirmed the installation of a new window in their next-door neighbour’s extension is a planning breach, it has told them it will not be taking enforcement action. The complainants say their privacy has been significantly impacted and their property is now overlooked.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. 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, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr and Mrs X and the Council. I gave the complainants the opportunity to comment on my draft decision and considered what they said.

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What I found

5. Unhappy that a new fully opening window had been installed by their neighbour to the side of Mr and Mrs X’s property which now overlooks their kitchen and toilet, Mr and Mrs X wrote to their MP.
6. The MP then wrote to the Council which advised Mr and Mrs X to submit a formal complaint about the matter so it could be investigated by the Council.
7. A Planning Enforcement Officer visited the site and confirmed that the new window installed in the side elevation of the neighbour’s property did not match the approved plans and so was a planning breach. In accordance with normal procedures, the officer invited the neighbour to either remove the window or make a planning application to seek approval for the changes.
8. While the Council took this action, and the neighbour has submitted a retrospective application to retain the changes made, the Council closed its enforcement case. It told Mr and Mrs X that even without the submitted application, it would be taking no further action against the breach because it was not expedient to do so. It explained it used a scoring system to assess harm caused by planning breaches and that in this case it did not consider significant harm had been caused sufficient to warrant further action.
9. In coming to this view the Council took account of the fact that the rooms/areas involved in both the neighbour’s and Mr and Mrs X’s properties were non-habitable and that in its view the impact on Mr and Mrs X was limited.
10. Dissatisfied with the Council’s decision and considering the impact on their privacy to be significant, Mr and Mrs X complained to us.

Assessment

11. I understand the complainants are frustrated because it has been acknowledged by the Council that a planning breach has occurred. However, councils are not obliged to take enforcement action against every planning breach which occurs and instead will decide whether it is expedient to do so in each case.
12. In this case the Council investigated the breach but decided it was not expedient to take enforcement action. This is a decision the Council is entitled to make even though the complainants may strongly disagree with it. We cannot question a decision the Council has made if it followed the right steps and considered the relevant evidence and information. The Council’s decision is clearly disappointing for Mr and Mrs X but it is unlikely an investigation by the Ombudsman will find evidence of fault or lead to a different outcome.
13. In responding to my draft decision, Mr and Mrs X have referred to comments made to them about permitted development rights and advice they have received to report the window to the Council’s Planning Enforcement Team. However, the Council has explained that the Permitted Development regulations have been superseded by the planning permission granted to the neighbour and it has already investigated and decided that it is not expedient to take enforcement action in this case.

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Final decision

14. We will not investigate this complaint. This is because it is unlikely we will find evidence of fault and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman