Summary: Mr X complained the Council refused to take enforcement action about a house extension near his home. There was no fault in how the Council decided not to take enforcement action about the breach of planning permission.

The complaint

1. Mr X complained the Council refused to take enforcement action about a house extension near his home. He said the extension was larger than the approved plans, was built too close to the boundary and did not have the correct finish. As a result, he said his home is overshadowed by the extension, the extension can only be maintained from his property and his home has lost value. He wanted the Council to make the owner rebuild the extension to match the plans.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. 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. I considered the information Mr X provided and discussed the complaint with him.
5. I considered the Council’s comments on the complaint and the supporting information it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Planning enforcement

7. Planning permission is required to develop land (including its material change of use). Councils can grant planning permission subject to conditions about the development and use of land.
8. Councils must decide planning applications in line with the development plan, unless material considerations suggest otherwise.
9. Material considerations are about the use and development of land in the public interest, and not about private considerations such as the applicant’s personal conduct, covenants or decrease in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
10. Councils can take enforcement action if they find someone has breached planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“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)

What happened

11. The Council granted planning permission for an extension near Mr X’s home in 2017. A condition of the permission was that the extension was built following the approved plans.
12. When built, the extension was deeper and taller than the approved plans. The surface finish was also not as stated in the plans.
13. Mr X complained to the Council that the extension was larger and did not have the approved finish. He also told the Council:
• the extension was closer to the property boundary than it should have been;
• access to a shared drain was only now available through his property; and
• his garden now flooded in heavy rain.
14. The Council made a site visit to the property and took measurements and photographs of the extension. The Council also visited Mr X to discuss his complaint with him and to take photographs and measurements from his property.
15. The Council agreed the extension was:
1. higher and deeper than the approved plans;
2. built closer to the boundary than on the plans;
3. built with a different finish than in the approved plans; and
4. left unfinished on the side wall facing Mr X’s property.
16. The Council asked the original planning officer and its planning team for advice. Based on that advice the Council decided that, if the owner applied for the permission for the extension as it had been built, the Council would likely grant permission for points a) to c). However, it decided the finish on the wall facing Mr X’s property was not acceptable and the owner needed to improve it.
17. The Council agreed with the property owner that they would change the finish on the side wall and paint it to match the front of the extension. The Council decided that, if the owner did this, it would not be appropriate to take enforcement action.
18. Mr X confirmed to me that the owner has now completed the work to improve the finish on the wall.
19. The Council also decided that access to the extension for maintenance, access to the drain or any flooding of Mr X’s garden were private issues between him and the property owner, not planning issues.

My findings

20. It is not our role to decide if developments are acceptable or whether the Council should take enforcement action; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
21. The evidence shows the Council made site visits to the property to assess the extent of the planning breach, discussed the issue with the property owner and with Mr X. It sought professional advice from its planning officers before considering what enforcement action to take.
22. I appreciate Mr X does not agree with the Council’s decision not to make the owner rebuild the extension or take further action. However, the records show the Council sought and considered relevant evidence and advice before making its decision. It took action to remedy what the Council considered to be unacceptable breaches of the planning conditions.
23. Since the Council investigated the breach of planning control as we would expect, there was no fault in how the Council made its decision and we cannot question the professional judgement of the Council’s planning officers where the decision was made without fault.

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Final decision

24. I have completed my investigation. There was no fault in how the Council decided not to take enforcement action about the breach of planning permission.

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Investigator's decision on behalf of the Ombudsman