Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to take enforcement action against works done by her neighbour in their garden. There is not enough evidence of fault by the Council in its planning enforcement process to justify us investigating. We cannot rule on an allegation of Council negligence, which is a matter for the courts to determine.

The complaint

1. Mrs X complains about a back garden development by her neighbour. The neighbour has raised the level of a terrace next to their extension, and similarly raised a large proportion of their remaining garden.
2. Mrs X complains the Council:
1. has refused to take enforcement action against the neighbour for the works raising the garden ground levels;
2. was negligent in their assessment of the development.

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The Ombudsman’s role and powers

3. 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)
4. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. As part of my assessment I have:
• considered information provided by Mrs X;
• considered the Ombudsman’s Assessment Code;
• issued a draft decision inviting Mrs X to respond, and considered her reply.

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My assessment

6. We can only go behind a council’s professional judgement decision where there has been fault in the process followed which, but for that fault, the council would have made a different decision.
7. I have considered the process the Council followed here. After receiving Mrs X’s reports of the neighbour’s works, the Council sent a planning officer to visit the site twice. The officer took measurements of the works. They subsequently took the view, on applying the relevant General Permitted Development Regulations (GPDR) tests and guidance, that the raised platform was not higher than the 300mm permitted under GPDR. They decided that part of the works was not in breach of GPDR, so the Council had no grounds to take enforcement action. The officer noted the rest of the garden due to be grassed had been levelled where it had previously sloped lower than the ground level at the rear of the house. They took the view that the levelling work did not amount to development, so it was outside the scope of the planning system. This meant the Council’s planning enforcement powers were not engaged by the levelling works.
8. The Council’s officers responded to Mrs X’s concerns, visited the site twice and measured it, then applied the relevant tests and guidance on GPDR to reach their professional judgement decisions. There is not enough evidence of fault in the Council’s decision‑making process here to warrant us investigating. I realise Mrs X disagrees with the officers’ decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Mrs X considers the Council was negligent in the way its officer assessed her neighbour’s works. Negligence is a legal issue which can only be determined by a court. We cannot make a ruling on such legal matters. If Mrs X wants a finding that the Council has been in some way negligent, she would need to pursue that through the courts. She may wish to seek independent legal advice on the matter before taking that route.
10. Mrs X says the neighbouring development is not finished, so work is continuing. We cannot intervene in ongoing matters. If Mrs X believes future work on the site amounts to a planning breach, she may wish to make further reports to the Council. It would be for officers to respond to and act on such reports as they consider appropriate. If Mrs X is then dissatisfied with any future actions by officers in response to her new reports, this would require her to make a fresh complaint to the Council about those new actions.

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Final decision

11. We will not investigate this complaint because:
• there is not enough evidence of fault by the Council in its planning enforcement process to warrant us investigating;
• we cannot make a ruling on the allegation of Council negligence, which is a matter only the courts could determine.

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Investigator's decision on behalf of the Ombudsman