Summary: Mr X complained about the Council’s consideration of works done to the house next to his. He considered work was carried out which did not have planning approval and the Council did not take enforcement action. He considered the change to a window increased overlooking of his property. And the removal of a chimney could have caused the release of asbestos into the atmosphere. There was no fault by the Council.

The complaint

1. I refer to the complainant as Mr X. He complained about the Council’s consideration of works done to the house next to his. He considered work was carried out which did not have planning approval and the Council did not take enforcement action. He considered the change to a window increased overlooking of his property. And the removal of a chimney could have caused the release of asbestos into the atmosphere.

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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 an organisation’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. 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

4. I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

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What I found

5. Mr X lives next to the house which is the subject of his complaint. There is a path to the back garden of each house and boundary fence between them. The works about which Mr X complained related to the removal of the chimney and changes to a landing window in the side elevation.
6. The owners of the house submitted an application for a certificate of lawful proposed use or development. This type of application is made where the applicant believes they do not need planning permission for the works because they are permitted by the blanket planning permission granted by parliament. Such development is referred to as ‘permitted development’ and the detail of what is covered is in the General Permitted Development Order (GPDO). If the works comply with the requirements of the GPDO local planning authorities have no planning control over the works done.
7. The application referred to a single storey extension and a room in the roof with a side and rear dormer. The Council decided the works described met the requirements of the GPDO so issued the certificate.
8. Mr X raised two points. One relates to the removal of the chimney and the second to a window.

The chimney

9. The removal of the chimney was not referred to in the application for the certificate. Mr X argued it fell to be considered under a specific provision in the GPDO which deals with works permitted to chimneys. His view, and the research he carried out, he believes supported the view that the removal of a chimney is not permitted development.
10. It is not our role to carry out a technical evaluation of whether something is permitted development, or not. We are looking to see whether the Council considered the matter properly. The Council addressed itself to the question. It said that planning inspectorate appeal decisions support the view that the removal of a chimney can be carried out without the need for formal planning consent. The information Mr X provided supports this view and there is no basis to question it. It is not fault for the Council to follow the line taken by the planning inspectorate.
11. Mr X went on to argue that the key point here was that the developer did works which were not in accordance with the certificate the Council issued. The application for the certificate explicitly stated the chimney would not be removed. He therefore considered the Council had grounds to take action. Such action would, he considered, have ensured any works were done properly.
12. Councils can take planning enforcement action if they find planning rules are breached. But here the Council did not consider any planning rules were broken. It considered the removal of the chimney was permitted development and therefore there was no basis to take any enforcement action. The fact that a certificate was issued for works which did not include the chimney does not alter that. It would mean the certificate does not cover the works to the chimney but that does not give the Council grounds to take any action. Provided the developer did works which were allowed under the GPDO, which the Council considered they did, then it cannot take planning enforcement action.

The window

13. A window was included in the dormer facing Mr X’s property and was referred to on the certificate application. There were two other windows in the existing house on the same elevation. One was bricked up. The other had a replacement window inserted. It is not clear when that work was done. The Council believed it may pre-date when the current owners bought the property . Mr X was not certain of the exact date the window was replaced but it was definitely part of these works.
14. Although councils can take enforcement action when planning rules have been broken it is not automatically the case that they must do so. Enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
15. Here the window opening was not altered but the new window frame is opening and clear glazed whereas the original was fixed shut and obscure glazed. The owner of the property put an obscure glazed film over the window. Mr X considered this was not adequate but the Council was satisfied it provided a satisfactory level of obscurity. The Council commented that the window was on the landing so did not serve a habitable room so it did not consider it caused an unacceptable degree of overlooking. Taking all these factors into account the Council did not consider it should take enforcement action in respect of the window.
16. The Council considered this properly. It took into account all the relevant information and reached a decision based on that. There was no fault by the Council.

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Final decision

17. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman