Summary: Mr and Mrs X complained about the Council’s decision not to take planning enforcement action in relation to a building in their neighbour’s garden, which they say affects their amenities. We ended our investigation as we are unlikely to be able to show that any potential fault made a difference to the Council’s decision.

The complaint

1. Mr and Mrs X complain about the Council’s failure to take enforcement action against their neighbour, who constructed a building in his garden, which affects their outlook and amenities.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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
• any fault has not caused an injustice to the person who complained that we could remedy, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

3. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the application plans and the case officer’s report.
4. I gave Mr and Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
7. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
8. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
9. Permitted development regulations allow the construction of buildings within the ‘curtilage’, of a dwelling house. Curtilage means the land attached to a dwellinghouse including the buildings and structures within it. Within the context of a typical house, the curtilage is usually the garden area around the house.
10. Buildings within a dwellinghouse’s curtilage are permitted development, unless:
• For dual pitched roof buildings, if they exceed 4 metres in height;
• Or are higher than 2.5 metres if within 2 metres of a boundary; and
• If any part of the building is forward of the ‘principal elevation’.
11. An ‘elevation’ is the face or view of a building or structure, as seen from one side as shown on a plan or drawing.
12. There is no definition of principal elevation within the regulations, but the government has issued technical guidance, which says that:

“In most cases the principal elevation will be that part of the house which fronts (directly or at an angle) the main highway serving the house (the main highway will be the one that sets the postcode for the house concerned). It will usually contain the main architectural features such as main bay windows or a porch serving the main entrance to the house. Usually, but not exclusively, the principal elevation will be what is understood to be the front of the house.

There will only be one principal elevation on a house. Where there are two elevations which may have the character of a principal elevation, for example on a corner plot, a view will need to be taken as to which of these forms the principal elevation.”

13. Planning 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Background

14. Mr and Mrs X complain on behalf of themselves and their neighbours, Mr and Mrs Y.
15. The complainants’ neighbour (the developer) has constructed a building in his garden, near the boundary with the complainants’ homes. There is a long planning history of applications for development including a garage, and a variety of outcomes, including approvals, refusals and an appeal to the Planning Inspector, which was refused.
16. The Council said that three planning enforcement officers (PEOs) have been involved with development on the site.
17. The first PEO (PEO 1) advised the developer that a building could be built on the site, providing it was within permitted development regulations. The developer constructed a building, claiming it was permitted development and so did not need approval.
18. A new officer (PEO 2) took over the case and visited the site. PEO 2 thought that the building was not permitted development. This was because, in his view, the principal elevation was not the gable end facing the road, but the elevation facing the rear of the complainants’ homes. Because the building was built in front of the principal elevation, it could not be permitted development. PEO 2 discussed his opinion with a planning manager, who considered that, while there was a breach of control, it was not expedient to take enforcement action.
19. The complainants were unhappy with the manager’s opinion and complained to a local Councillor. The manager agreed to re-open the investigation, as a new enforcement officer (PEO 3) had taken over the case.
20. PEO 3 visited the site, measured the building and its distance from the boundary. PEO 3 measured the height of the building from the ground level on the development site, and the distance from the boundary from the mid-point of the boundary wall. He wrote a report setting out his findings and recommendations. These were that the building was not permitted development, because it was built in front of the principal elevation, but if an application was received, it is likely it would be approved. Because of this, the Council should not take formal enforcement action against the developer. The Council decided not to take any further action.
21. Mr and Mrs X said they were unhappy with the outcome of PEO 3’s investigation and the Council’s general handling of the investigation. This was because:
• an earlier planning officer report had stated that the scheme was not acceptable, nor would any amendments make it acceptable. The Council’s decision that the building as constructed is likely to be approved is inconsistent with the position it had taken in the past.
• the building was higher and closer to the boundary than the permitted development regulations allowed;
• there had been confusion amongst officers about which building they had complained about;
• the developer had been told that the building could be permitted development, when because of its location in front of his house, this would not be possible;
• there had been significant delay since they first complained about the building until the Council reached its decision not to enforce.
22. The Council responded to the complainants’ concerns through its corporate complaints procedure. It accepted there was delay, in a large part caused by the fact that planning officers had left the authority, so three separate officers had been involved.
23. It also accepted that:
• there had been confusion in the way building had been referred to, sometimes as a garage and sometimes as an outbuilding, and this is likely to have caused confusion;
• officer opinions had changed throughout the course of the investigation about what could, could not be determined as permitted development;
• one of the PEOs had advised the complainants that if they disagreed with their decision, they could seek judicial review, but this response, while legally correct, was not considered appropriate in the circumstances.
24. However, the Council was satisfied that the planning enforcement position that it had eventually reached was correct. This was that the building was not permitted development but enforcement action was not justified.
25. Mr X said he is also unhappy with how the Council dealt with his complaints through its complaints procedure.

My findings

26. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
27. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
28. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
29. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
30. I should not investigate this complaint further, and my reasons are as follows.
31. It is possible that further investigation could lead to a finding of fault in some of what has happened before the Council made its decision. Indeed, the Council has accepted that it took too long to reach its conclusion and that its investigations included contradictions and caused confusion at times.
32. However, when it did make its decision, PEO 3’s report and findings are clearly stated. I can see the Council has considered the long planning history of the site, the complainants’ concerns and planning law and guidance. It followed the planning enforcement decision-making process we would expect and so it is unlikely we would find fault.
33. Because I am unlikely to find fault with the planning enforcement decision the Council eventually made, I am also unlikely to be able to show the outcome would probably have been any different. Without a different outcome, I am unlikely to be able to demonstrate a significant injustice to the complainants that we can remedy. Our remedies generally focus on resolving the impacts on amenities caused by buildings and structures that, but for some fault, would not have existed, or built in the same way or where they are now.
34. I am unlikely to find fault in relation to the differences of opinions between officers as to what could be considered permitted development. Decisions about the regulations require judgements to be made, and different officers will legitimately have different views on, for example, what is or is not a principal elevation. I cannot say PEO 1 was wrong to consider a building near the complainants’ boundary could be permitted development, even if all those that followed took a different view.
35. For the same reasons, I am also unlikely to find fault in the differences of opinion about whether any structure could have been acceptable in planning terms, as it seems was once argued in a planning officer’s report. While it might be true that there are differences between the proposed building under consideration in that report, and what is built now, planning decisions do not create precedents that must be followed. Providing the decision maker takes account of the relevant planning matters, which often include the planning history of a site, they are free to reach their own judgement on what is and is not acceptable.
36. Mr X said he is unhappy with how the Council dealt with him through its complaints procedure. I can see the Council considered his complaints and responded to them. Mr X was not happy with the outcome. I checked our records of how this Council deals with complaints handling, but found no evidence to suggest systemic problems. I have considered this complaint and for the reasons set out above, do not consider it proportionate to investigate further.

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Final decision

37. I ended my investigation, because further investigation is unlikely to be able to demonstrate that any fault caused a significant injustice to the complainants.

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Investigator's decision on behalf of the Ombudsman