Summary: Mrs X complains the Council failed to take enforcement action against a neighbour who she says breached building control regulations. She also complains about the poor standard of service the Council provided to her. Mrs X said the matter has caused her significant distress, financial loss and has led to damage to her property. There is no evidence of fault in the way the Council dealt with and made its decision not to take any enforcement action.

The complaint

1. Mrs X complains the Council failed to take enforcement action against a neighbour who she says breached building control regulations.
2. Mrs X also complains about the poor standard of service the Council provided to her. This includes delays and fabrication in the Council’s communications with her.
3. Mrs X says the Council’s failings have caused her significant distress, damage to her property, financial loss and time and trouble pursuing her complaint with the Council.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. (Local Government Act 1974, section 26(6)(c), 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. I have discussed the complaint with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
8. I sent Mrs X and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

9. Planning authorities may take enforcement action where there has been a breach of planning control.
10. Effective enforcement is important as a means of maintaining 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. (National Planning Policy Framework July 2018, paragraph 58)
11. Section 171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined 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.

12. Not all building work requires planning permission. The Town and Country Planning Act 1990 states planning permission is required for ‘development’. It defines development as “the carrying out of building, mining, engineering or other operations in, on, under or over land, or the making of any material change in the use of any buildings or other land”.
13. In deciding whether it is expedient to start enforcement action, the Local Planning Authorities will wish to take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between protecting amenity and permitting development which is acceptable.
14. Permitted development rights allow households to improve and extend their homes without the need to apply for planning permission. Subject to the specific nature of the works, councils have no control over these matters.
15. The ‘curtilage’ is the area of a land a person owns on a particular site excluding the size of the original dwelling-house.

Council’s Enforcement Policy

16. “The council are responsible for investigating alleged breaches of planning control. A breach of planning control is development carried out without any requisite express permission.”
17. “Some building works or changes of use, benefit from being permitted development….. and are not breaches of planning control. To benefit from this status the development must be conducted in accordance with specified size limits / criteria detailed in the planning schedule. If this is the case it does not need the permission of the council.”
18. “The Council Enforcement Team investigates breaches of planning control. If necessary by conducting a site visit…….”
19. Acknowledgement and Progress Update - “Complaints will receive a written acknowledgement of their request for service within 3 days of the complaint receipt…..”. “Within 28 days of the complaint, the council will update the complainant on the progress of the investigation.”
20. Initial Assessment - “The first stage of any investigation is to determine whether or not there may be a breach of planning control. Where it can be easily confirmed there is no breach, for example if works are permitted development the complainant will be advised without the need for an enforcement investigation case to be opened, otherwise an investigation will be commenced.”
21. Permitted Development – “….if it is confirmed as permitted development any enforcement case will be closed with no further action being necessary.”

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. In July 2020, Mrs X first raised her concerns with the Council about an alleged breach of planning control by her neighbour. The work carried out was an excavation of soil and block work development in her neighbour’s rear garden. Mrs X said the work carried out on her neighbour’s property caused flooding to her garden.
24. The Council replied to Mrs X’s correspondence. It asked her to take photos of the area she complained about. This was so the Council could better understand her complaint. The Council told Mrs X it would carry out an initial investigation and would inform Mrs X of any progress within 28 days.
25. Mrs X provided the Council with some photographic evidence to support her complaint.
26. In early August 2020, Mrs X asked why the Council had not inspected her neighbour’s site. She questioned why planning permission and building control approval were not requested for such an extensive drainage project. Mrs X explained her neighbour’s intention for the building project was to alter the direction and quantity of water flow from the neighbour’s property. She said the effect on existing properties and drains were not considered. Mrs X said since the drainage project started, she noticed considerable flooding in her garden particularly after heavy rainfall which had never happened before.
27. Mrs X requested an immediate site visit and a written assurance from the Council confirming the safety of her property and its foundations. She said if these could not be done, she wanted her neighbour to reinstate the work to its original condition until approvals had been given by the relevant authorities.
28. The Council contacted Mrs X. It informed Mrs X that her neighbour’s land drainage project was not a breach of planning control. It confirmed the work was permitted development, so it required no planning permission. This was because the work was conducted within her neighbour’s garden curtilage to the dwelling. The Council explained to Mrs X that the flooding issue and damage to her garden were civil matters between her and her neighbour. It advised Mrs X to seek legal advice and consider contacting a building specialist who may be able to advise her on how to reduce the flooding at her property.
29. In late August 2020, the Building Control Team conducted a site inspection.
30. Mrs X made a formal complaint to the Council. She said the Council failed to update her of any progress within the 28-day period it promised when she initially raised her concerns in July 2020. Mrs X alleged the Council failed to handle her concerns sensitively or efficiently which caused her significant distress. She said her brother contacted the Building Control team on her behalf and it arranged a site inspection. Mrs X said the inspection confirmed her garden was being flooded. She asked the Council to fully address the issues she raised.
31. On 27 August 2020 the Council sent an email to Mrs X. The Council explained it registered Mrs X’s case at the end of July 2020. It said it contacted Mrs X in early August 2020 and informed her that the drainage work did not require planning permission. The Council copied its Building Regulations team into the email to consider the case further. It sought internal advice from its legal department.
32. The Council issued its stage 1 response to Mrs X in September 2020. It explained the 28-day progress update Mrs X referred to was contained in its standard acknowledgement response to her concerns which it received in July 2020.
33. The Council said it had considered all available information and completed a site inspection. It said the inspector discussed his findings with Mrs X and her brother. The inspector also informed them the Council was unable to take formal action against Mrs X’s neighbour under the Building Regulations. The Council explained it had sought internal legal advice and advice from its Building Regulations Team on the matter. It maintained the land drainage work carried out by her neighbour was considered permitted development for planning purposes. And the flooding issue Mrs X raised was a civil matter and it had no powers to intervene in such matters. The Council confirmed nothing persuaded it to advise Mrs X differently on the matter. The Council said despite its inability to take formal action, it would approach Mrs X’s neighbour. This was to discuss further possible works her neighbour could do to improve the situation. The Council advised Mrs X of her right to escalate her complaint if she remained dissatisfied.
34. Mrs X disagreed with and alleged the Council’s stage 1 response was a fabrication of the truth. She disputed the fact the Council said it contacted its Building Control team for a site inspection. She maintained it was her brother who contacted the team on her behalf after which an inspection was completed. She said the inspector told her he was going to liaise with the Council and would give her an update the following day. She said this never happened. Mrs X also disputed the Council sent her an email on 27 August 2020. She said the Council failed to help her with issues she raised with it. Mrs X asked the Council to escalate her complaint to stage 2.
35. In October 2020, the Council wrote to Mrs X’s neighbour. It explained it was unable to formally intervene in the matter Mrs X raised with it about the drainage work. The Council offered to visit the neighbour’s property and offer any possible assistance. It advised the neighbour to consider making alterations to their land drainage arrangement to help rectify the problem to Mrs X’s property.
36. In the Council’s stage 2 response to Mrs X’s complaint, it apologised to Mrs X if she had found its interactions with her disappointing. The Council restated the contents of its previous correspondence with Mrs X. It explained it sent an email on 27 August 2020 but noted Mrs X did not receive the email. The Council attached a copy of the email as proof it had sent it to the Building Control Team to consider if building regulations could have been applied. It confirmed it had contacted Mrs X’s neighbour to consider any remedial actions about the situation. The Council explained it had offered both advice and assistance to Mrs X on this matter. It maintained the Council had no powers to intervene as it was a civil matter between Mrs X and her neighbour. The Council advised Mrs X to complain to the Ombudsman if she remained unhappy with its final response.
37. Mrs X remained dissatisfied with the Council’s response to her complaint. Mrs X made a complaint to the Ombudsman.

Analysis

38. There is no doubt Mrs X has found the situation with her neighbour’s land drainage work extremely worrying and distressing. My role is to decide whether the Council followed the correct process and considered relevant information in how it reached its decision.
39. The Council considered Mrs X’s concerns about her neighbour’s drainage work and its effect on her property. It conducted a site visit, considered relevant policy and guidance, sought internal legal advice and advice from its Building Control team. The Council explained to Mrs X on several occasions why it had no powers to take any enforcement actions against her neighbour. The Council confirmed the drainage work fell under permitted development and was not in breach of planning permission or building control regulations. Therefore, it was outside the Council’s remit to intervene in the matter. The Council’s decision was based on its professional judgement. This was not fault.
40. Mrs X disagrees with the Council’s position, but these are decisions the Council is entitled to make. The Council followed the process we would expect and the Ombudsman cannot question the merits of the Council’s view where there is no evidence of procedural fault.
41. Despite the Council’s lack of jurisdiction on this matter, it contacted Mrs X’s neighbour. It asked her neighbour to consider making alterations to their land drainage arrangements to rectify the problems to Mrs X’s property.
42. The issues Mrs X raised about the damage to her property are not matters councils are responsible for. The Council advised Mrs X to seek legal advice and consider civil action against her neighbour. Like most property damage claims, it would be for the courts rather than for the Ombudsman to decide if the neighbour should be liable to pay damages. It remains open to Mrs X to take civil action if she wishes to do so against her neighbour for any damages to her property.
43. Mrs X alleged there were delays and fabrication in the Council’s communication with her. The Council acknowledged Mrs X’s concerns two days after she contacted the Council. And in early August 2020, the Council contacted and informed Mrs X the matter she complained about appeared to be a civil matter and out of its jurisdiction. These contacts were made by the Council few days after Mrs X initially informed it about her concerns in late July 2020. Based on the evidence provided I am satisfied the Council responded to Mrs X reports of a possible planning breach in a timely manner and took appropriate action.
44. As regards the Council’s email dated 27 August 2020, the email was addressed to Mrs X and the Building Control team was copied into the email. However, the Council did not include Mrs X’s email address which explains why she did not receive the email. While the omission was due to human error, I do not consider any significant injustice was caused to Mrs X by not receiving the email. This is because the Council had previously explained its contents to Mrs X in early August 2020. The Council also restated the contents and attached a copy of the email in its subsequent correspondence to Mrs X.
45. I appreciate Mrs X may have preferred the Council to take different action, but I have seen no evidence of undue delay or other fault in the way the Council has considered the matters that would allow me to question its decisions.

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Final decision

46. I find no evidence of fault by the Council in how it considered Mrs X’s concerns.

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Investigator's decision on behalf of the Ombudsman