Summary: Mr X complained about the Council’s failure to take planning and building control enforcement action in relation to his neighbour’s development. We completed our investigation as there was no fault in the way the Council made its decisions.

The complaint

1. Mr X complained that the Council’s building control and planning enforcement officers were wrong not to take enforcement action against his neighbour, who had carried out work which Mr X believes is in breach of both building control and planning regulations.
2. Mr X said that the Council’s failures to act have caused an impact on his privacy and security, as he believes his neighbour’s building is now structurally unsafe.

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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 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)
4. 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

5. 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 and building control files, including details from site visits, judgements on planning and building control issues, photographs and an officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Building Control law and guidance

7. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
8. Building regulations approval can be granted by Council’s acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
9. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
10. Where there is an alleged breach of building regulations, Council BCOs may take enforcement action.

Planning law and guidance

11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. 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.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. 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.
16. 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’.
17. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
18. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
19. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days to for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

What happened

20. Mr X’s neighbour had planning permission to build a rear extension in his garden. Development work begun, and Mr X became concerned that construction work was making his neighbour’s building unsafe, and as their houses were attached, this would be a danger to Mr X’s property. Mr X was also concerned that the neighbour had misled the Council, when he had said there were no trees close to the property. I have seen nothing to suggest that trees on the site were protected by planning conditions or TPOs.
21. Mr X complained about the work to the Council’s building control department. A BCO wrote to Mr X to explain the neighbour was using an independent inspector for building regulations.
22. Mr X complained again to Council building control with details of why he thought building regulations were in breach.
23. A BCO sent several responses to Mr X to explain the Council’s position. The BCO said that they had carried out a number of inspections but found no breach of regulations or evidence to show the structure was unsafe. The Council decided there were no grounds to take further enforcement action. The BCO said that some of the details in Mr X’s complaints related to planning controls, so they were referred to the Council’s planning enforcement officers.
24. A planning enforcement officer (PEO) visited the site and found development in breach of planning controls. However, the Council decided the breaches did not cause sufficient harm to justify formal enforcement action and so closed the case.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. When we find fault, we look for evidence to show it caused a significant injustice to the individual complainant. If we find no fault in the decision-making process, we cannot recommend a remedy or comment on the judgements that have been made by officers in reaching their decisions.
26. The evidence I have seen shows that, before Council building control and planning enforcement officers made their decisions, they considered Mr X’s allegations, their statutory powers, the circumstances on site and the potential for harm to the public.
27. The Council has followed the decision-making processes we would expect, and so I find no fault. Mr X is unhappy with the judgements that have been made within the decision-making processes, but I cannot comment on them in the absence of fault.

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Final decision

28. I completed my investigation as there was no fault in the decision-making processes.

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Investigator's decision on behalf of the Ombudsman