Summary: We found no fault in how the Council decided development near Mrs X’s home did not breach planning control.

The complaint

1. Mrs X said the Council failed to comply with its enforcement policy because it did not make a site visit before deciding a house extension was permitted development. Mrs X said the extension did not meet permitted development rules and was overbearing and unsightly. Mrs X wanted the Council to follow its enforcement policy and properly assess whether the extension was permitted development.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)

Back to top

How I considered this complaint

4. I:

• considered Mrs X’s written complaint and supporting information;
• talked to Mrs X about the complaint;
• asked for and considered the Council’s comments on the complaint;
• shared the Council’s comments with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

Back to top

What I found

Background

5. Most development needs planning permission from the local council. However, Parliament has given a blanket planning permission (‘permitted development’) for many minor works. With a few exceptions not relevant to this complaint, councils have no control over permitted development. This means that if someone wishes to carry out such permitted development they may do so without contacting the council.
6. There are detailed rules for permitted development, which can be complex. If development does not meet all the relevant rules it will not be ‘permitted development’ but a breach of planning control. Councils should investigate reported breaches, but they do not need to act against every breach they find. Rather, the law gives councils a discretion to act. The Government’s National Planning Policy Framework says councils “should act proportionately in responding to suspected breaches of planning control”.
7. The Council has a Planning Enforcement Policy (‘the Policy’) that sets out its approach to planning enforcement. The Policy says the Council will normally acknowledge a complainant’s reported breach within three days and provide the name of the officer that will investigate the case. The officer:

“will then check the Council’s records, inspect the site and interview witnesses in order to establish whether a breach of planning control has occurred.”

The officer will write to the complainant to let them know if no breach is found.

8. The Policy also sets out how people may complain about the enforcement service. The Council will first consider a complaint informally and, if the complainant remains dissatisfied, formally under its complaints procedure.

What happened

9. Mrs X contacted the Council about the start of building work for an extension. Mrs X considered the extension would exceed the maximum height allowed under permitted development rules. As work progressed, Mrs X updated the Council, including sending photographs.
10. The Council told Mrs X the extension did not exceed the relevant height to be permitted development. It was therefore lawful development.
11. In line with the Policy, Mrs X first made an informal and then a formal complaint. Mrs X questioned how the Council had investigated her concerns saying it had not made the site visit needed by the Policy (see paragraph 7). Mrs X also said the Council had not correctly applied the permitted development height rules to the extension.
12. The Council said site inspections could take many forms and a physical visit was not always necessary. It was also minimising visits while COVID-19 restrictions were in place, especially where officers would need to go inside buildings. The Council said it could inspect a site by examining photographs and Internet street and aerial view information. The Council told Mrs X it was satisfied a valid site assessment, which included consideration of photographs, had taken place for the extension. It had therefore followed the Policy without a physical visit. The Council also explained why the extension met permitted development rules and said its position, which differed from Mrs X’s, on a ‘wall’ was a matter of planning judgement.

Consideration

Introduction

13. We are not a planning appeal body. Our role is to consider how councils reach their planning decisions and whether there is evidence of fault in the process. Where we find evidence of fault, we consider if this is likely to have affected a council’s planning decision and caused the complainant significant injustice.

The Policy

14. The issue raised by Mrs X essentially concerns interpretation of the Policy reference to ‘inspect the site’. Mrs X, having read the Policy, expected the Council to visit to view the extension. However, the Council did not visit but used photographs and other Internet information to ‘inspect’ the site.
15. Good administrative practice requires councils to provide clear, accurate and complete information. Many people would consider an inspection meant a visit, but the Policy does not say ‘visit’. And councils should act proportionately in responding to reported breaches of planning control (see paragraph 6). A visit to a site may not necessarily be proportionate given the circumstances of a particular case. Overall, I did not find the Policy wording fell below acceptable administrative standards.

The extension

16. The Council, in responding to Mrs X’s complaint to the Ombudsman, visited the site, taking both measurements and photographs of the extension. The Council found the extension met relevant permitted development rules, including its maximum height, taking account of the disputed ‘wall’. I recognised Mrs X might disagree with the Council’s view about the ‘wall’ and its resulting decision that the extension was permitted development. However, I could not question the Council’s decision in the absence of procedural fault. The Council found no breach on considering the case using ‘desk-based’ information and, after visiting the site, confirmed that decision. I therefore had no grounds on which to find fault in how the Council reached its decision (see paragraphs 2 and 13).

Back to top

Final decision

17. I completed my investigation finding no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman