Summary: Mr X complains about the Council’s handling of a planning enforcement investigation about a gazebo built by his neighbour. We find the Council at fault for failing to consider the correct distance between the structure and Mr X’s boundary. But, we do not find this caused Mr X a significant injustice as the incorrect measurements were unlikely to change the Council’s decision not to take formal enforcement action. The Council has accepted it failed to fully respond to Mr X’s emails and provide timely responses. We find the Council has suitably remedied the uncertainty and frustration this caused Mr X as it has apologised to him and carried out a related service improvement.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains about the Council’s handling of its planning enforcement investigation into a wooden gazebo constructed in his neighbour’s garden. More specifically, Mr X complains the Council:
1. failed to consider the height of the patio that the gazebo was built on when it decided that the gazebo was a permitted development;
2. failed to respond to Mr X’s complaint that the roof overhang of the gazebo brought the structure to within 2 metres from the boundary, which he said was not considered during the Council’s initial investigation. Mr X says this means the gazebo height of over 4 metres exceeds the 2.5 metres height restriction for developments, such as the wooden gazebo, built less than 2 metres from the boundary of a property. Mr X says the Council failed to consider this when it decided it was not expedient to take enforcement action;
3. failed to respond to his complaint that as the gazebo has a pyramidal roof design, it must not be higher than 3 metres (rather than 4 metres) to be a permitted development; and,
4. failed to fully respond to Mr X’s emails or provide timely responses.
2. Mr X says, because of the height of the wooden gazebo, he and his family experience light pollution from the lights around the roof overhang.
3. Mr X says he has gone to time and trouble getting the Council to fully respond to his reports of issues with the wooden gazebo. He says he was caused frustration and uncertainty about what response, if any, he would receive from the Council.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome

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

6. If we are satisfied with an organisation’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

7. I spoke with Mr X about his complaint. I considered all the documents and information that Mr X and the Council sent me.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

Permitted development

9. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.
10. Of relevance to this complaint, permitted development includes buildings or enclosures that are incidental to the enjoyment of a dwelling house (“Class E” developments).
11. Each type of permitted development right has certain conditions and limitations. If a development does not meet all the relevant criteria then a planning application will be required.
12. For Class E developments, these benefit from permitted development rights on the condition that the height of the building, enclosure or container does not exceed:
1. 4 metres in the case of a building with a dual-pitched roof,
2. 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse, or
3. 3 metres in any other case.

Schedule 2, Part 1, Class E, Town and Country Planning (General Permitted - Development (England) Order 2015

Enforcement

13. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
14. 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.
15. 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 2021, paragraph 59)

What happened

16. Mr X’s neighbour built a wooden gazebo in the garden next to Mr X’s.
17. Mr X reported the structure to the Council’s Planning Enforcement team. He said the structure was within 2 metres of the boundary between the properties.
18. Two months later, Mr X chased the Planning Enforcement team and asked it to investigate the works carried out by his neighbour.
19. A few days later, the Planning Enforcement team replied to Mr X to say it had opened an enforcement case on the matter.
20. Mr X sent the Council photographs of the gazebo, which included lighting on the structure.
21. A few days later, the Planning Enforcement team told Mr X that it had contacted his neighbour.
22. Several months later, a Council Planning Enforcement Officer replied to Mr X. The Officer said to Mr X that, after discussing the matter with Mr X’s neighbour, the Council was satisfied the structure was not within 2 metres of the boundary. The Officer attached a photograph showing this as well as the measurements of the structure based on the manufacturer’s drawings. These showed the structure was less than 4 metres in height. The Officer said this meant the structure was a permitted development.
23. Mr X replied to say he disagreed with the Council’s decision. He said:

• the structure was on a raised patio, which likely brought the overall height of the structure to be above 4 metres;
• the structure had a pyramid roof so different height conditions applied to benefit from permitted development rights; and,
• the measurements only looked at one side of the structure and its distance from the boundary.

24. Several weeks later, Mr X sent a letter to the Council. He complained that he had not received a reply to his previous email. Mr X said the structure was less than 2 metres from his property, meaning it did not benefit from permitted development rights as it was above 2.5 metres.
25. Two and a half months later, the Council’s Customer Services team received a further email from Mr X and forwarded this to the Planning Enforcement team.
26. Mr X complained to the Ombudsman. We referred Mr X’s complaint back to the Council as it had not completed the Council’s complaints process yet.
27. The Council sent Mr X its stage one complaint response. It said the Council had decided it would not be expedient to take enforcement action in this case.
28. Over the next six months, Mr X continued asking the Planning Enforcement team questions, which it replied to.
29. Mr X requested the Council escalate his complaint.
30. Two weeks later, the Council sent Mr X its stage two complaint response. It did not uphold Mr X’s complaint. It said that it had decided not to take formal enforcement action. This was because “[if] we were to have insisted that your neighbours submit a planning application to regularise the structure, and notwithstanding the planning application process … I cannot see any material planning considerations at this point that may have warranted a refusal of the application.”
31. Mr X made a further complaint to the Ombudsman as his complaint had completed the Council’s complaint process.

Analysis

Decisions by the Council’s Planning Enforcement team

32. In the Council’s stage one complaint response, it said the original decision made by its Planning Enforcement team that the structure was a permitted development was based on incorrect measurements taken by Mr X’s neighbours. This was because, at the time, the Council was unable to carry out a site visit due to COVID-19 restrictions. But, I do not consider this caused Mr X a significant injustice. The Council has explained the reasons why it relied on the measurements by Mr X’s neighbour and, at the time of the decision, provided Mr X with clear information on the measurements, which allowed Mr X to challenge their correctness.
33. When Mr X disputed the measurements, the Council’s Planning Enforcement team carried out a site visit to check the measurements and produced an expediency report on whether to take enforcement action.
34. In the Council’s expediency report it first considered the position of the structure and its intended use. It found the gazebo would not unacceptably affect the neighbours’ amenity in respect of outlook, loss of light or overlooking. It then considered the height of the gazebo compared to permitted development rights. It found it was only higher than the permitted development rights of 4 metres in height by a marginal amount. It included the height of the raised patio when reaching this decision and assessing the height of the gazebo.
35. But, the Council told me when it carried out the site visit to check the measurements, the Investigating Officer failed to take the roof overhang into consideration. I find this means there was fault in in how the Council compared the structure to permitted development rights. This is because the structure is within 2 metres of the boundary meaning permitted development only allowed 2.5 metres in height, and the structure is over 4 metres.
36. However, I do not find this caused a significant injustice to Mr X. The Council had already considered the position of the structure and decided it did not unacceptably impact on residential amenity. The subsequent comparison to permitted development rights added weight to its decision, but is unlikely to have changed its assessment that there was no unacceptable impact on amenity. I have not found fault with the Council’s assessment on amenity. Therefore, I cannot find that, but for the fault, the Council is likely to have made a different decision (parts a and b of the complaint). This is supported by the fact the Council has considered whether it might grant approval if the Council were to receive an application for the development. In the Council’s stage two complaint response and its answers to my questions, the Council confirmed it was unlikely to refuse such an application and, therefore, it decided it was not proportionate to take formal enforcement action, such as an enforcement notice.
37. Mr X complains the Council failed to respond to his complaint that, as the gazebo has a pyramidal roof design, it must not be higher than 3 metres (rather than 4 metres) to be a permitted development. I do not find the Council at fault here (part c of the complaint). As explained in the previous paragraph, the Council has explained in its stage one and stage two complaint responses the reasons why it has decided not to pursue enforcement action in this case based on the as built structure.
38. Mr X has not raised concerns about overlooking or overshadowing. His main concern is that lights attached to the gazebo make it overbearing. However, lights of this nature do not normally require planning approval. The Council told me it has decided the lights are not considered ‘development’ in planning terms meaning there is no basis for it to consider taking enforcement action. The Council explained this to Mr X in its stage one complaint response. This is a decision it was entitled to make. Without fault in how the Council reached its decision, I cannot question the content. If Mr X is concerned about the impact of the lights, or the frequency and timing of their use, it is open for him to raise a complaint with the Council’s environmental health team.

Council handling of Mr X’s complaints

39. Mr X complains the Council failed to fully respond to Mr X’s emails or provide timely responses.
40. In the Council’s stage one complaint response, it upheld this part of Mr X’s complaint (part d of the complaint). It accepted that the Council failed to send a reply to Mr X’s letter and there were delays in the Council replying to his complaint. It said the delays were in part due to the high number of enforcement investigations that Mr X’s allocated Enforcement Officer was handling. Because of the fault accepted by the Council, Mr X was caused uncertainty and frustration about when he would receive a response from the Council. To remedy the fault causing injustice, the Council apologised to Mr X and said the issues identified would be discussed with the Planning Enforcement team to improve communication throughout future investigations. The Council also provided a clear response as to why it had decided it was not proportionate to take formal enforcement action in this case. I find the Council has suitably remedied the fault causing injustice here. Based on the evidence I have seen, communications between the Planning Enforcement team and Mr X improved after his stage one complaint response and Mr X received a timely stage two complaint response from the Council.

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Final decision

41. I have completed my investigation.
42. I find that Mr X was not caused a significant injustice by the fault by the Council identified in relation to parts a and b of the complaint.
43. I do not uphold part c of the complaint. This is because I have not seen evidence of fault by the Council.
44. The Council has accepted that there was fault by the Council causing Mr X injustice regarding parts d of the complaint. I find the Council has suitably remedied the injustice caused.

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Investigator's decision on behalf of the Ombudsman