Summary: We will not investigate Miss X’s complaint about the Council’s decision to take no enforcement action against works done by her neighbour in their back garden. There is not enough evidence of fault by the Council in making its decision to justify us investigating. We also cannot achieve the outcome Miss X seeks from the complaint.

The complaint

1. Miss X lives next door to a property where the owner has tiered their back garden, installed decking and a shed. She complains the Council has:
1. failed to take action against the neighbour’s decking and shed;
2. not taken into consideration the impact of the development on her privacy.
2. Miss X wants the Council to take action against the works. She considers she should not suffer loss of privacy, even if the works comply with the relevant law.

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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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I considered:

• information provided by Miss X and the Council;
• the Ombudsman’s Assessment Code;
• Miss X’s reply to my draft decision.

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My assessment

6. Miss X reported her neighbour’s rear garden works to the Council in summer 2020. Officers wrote to the neighbour but could not gain access to the garden. They initially visited the two neighbouring gardens, including Miss X’s, to assess the development. During the complaints process, the Council’s officers got access to the neighbour’s garden.
7. Officers took measurements and determined the decking installed was below the 30cm height allowed under General Permitted Development Rights (GPDR). They assessed that the shed also complied with the 2.5m GPDR maximum height. They considered that even if it did not, its actual finished height and location did not require permission or the use of the Council’s discretionary enforcement powers. The officers’ measurements and assessments confirmed the works fell under GPDR, did not require planning permission, and that they had no grounds to take any enforcement action.
8. We can only go behind a professional judgement decision by a council if there has been fault in the process officers followed to make their decision and if, but for that fault, they would have made a different decision. I have not seen enough evidence of such fault by the Council here. Officers responded to Miss X’s concerns and followed an appropriate assessment process to reach their planning and enforcement decision regarding the neighbour’s works. I realise Miss X may disagree with the Council’s decision. But it is not fault by a council to properly make a decision with which someone disagrees.
9. Miss X says the neighbour has made matters much worse by tinting his shed window so he can see out but others cannot see in. The Council has determined the neighbour’s development is not subject to planning control or enforcement which is a decision we cannot go behind, for the reasons given above. The decision means there is no action the Council can take against the shed, including the type of window used. While I understand Miss X’s concern, the window does not alter the Council decision that the shed is not subject to its planning control or enforcement powers.
10. I note Miss X wants the Council to take action even if the neighbour’s works comply with GPDR. She says the development still has an impact on her privacy, even if it is compliant. I understand Miss X’s frustration, but where a development complies with GPDR criteria, a council cannot take action, even if there is some impact on an existing property. Councils may only decide to take discretionary enforcement action where they identify a planning breach. We could not recommend a council to act outside its powers in the way Miss X seeks so could not achieve the outcome she wants. This is another reason why we should not investigate the complaint.
11. Miss X mentions that the neighbour has installed decking over an inspection cover in their garden. That would not be a planning or enforcement matter for the Council. If any incident in future requires the neighbour or another party to have access to that inspection cover, that access would be a private matter between the neighbour and the other party.

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Final decision

12. We will not investigate this complaint because:
• there is not enough evidence of fault by the Council in its decision-making processes to warrant us investigating;
• we cannot achieve the outcome Miss X seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman