Summary: Mr X complained about the Council’s decision not to take enforcement action in respect of his neighbour’s development. We have not found fault with the Council’s actions.

The complaint

1. Mr X complains about the Council’s refusal to take enforcement action regarding development at his neighbour’s property. He disagrees with the Council’s judgement that planning permission was not required.
2. He says the Council failed to take account of relevant information he provided about the site and disregarded the significant detrimental impact on the privacy of his home when deciding there was no breach of planning rules and so no enforcement action would be taken.

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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 have considered Mr X’s complaint and have spoken to him about it.
6. I have also considered the Council’s response to Mr X and to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and policy

Permitted development

8. The Town and Country Planning Act (General Permitted Development) Order 2015 applies to this complaint.
9. 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’ (PD).
10. Relevant to this complaint, PD allows the construction of a hard surface within the curtilage of a dwellinghouse, for any purpose incidental to the enjoyment of the dwelling house.
11. PD also allows for a raised platform to be built, as long as it is less than 0.3m above ground level.

Planning enforcement

12. 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. Government guidance says: “Effective enforcement is important to maintain 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)
13. Planning enforcement action is subject to statutory time limits. Development becomes immune from enforcement action if not action is taken within four years of substantial completion of the development.

The Council’s Planning Enforcement Policy

14. This echoes national guidance. It explains “in exercising enforcement powers, the Council will not over-regulate nor pursue minor matters. Officer time will focus on, amongst other things, “development not covered by PD that adversely affects neighbour amenity. Where an enforcement investigation is concluded to be PD, the Council will not take action, even if a third party objects”.

What happened

Summary of key events

15. Mr X’s neighbour, Y, carried out improvements to her rear garden. This included the construction of a patio area, including a raised platform towards the rear the garden. The development was completed in March 2021.
16. Mr X says this significantly impacted on the privacy of his home. While previously the height of the boundary fence had protected his privacy, after the ground level had been raised, the fence had little effect. Anyone standing in Y’s rear garden, now had a clear view into both Mr X’s garden and rear habitable rooms.
17. Mr X quickly reported his concerns to the Council, as he believed the patio had been built without planning permission. He was also concerned about the materials and method of construction, including poor drainage and pressure being placed on his boundary fence.
18. In response, the Council contacted Y and carried out a site visit in June 2021. The Council determined the patio was PD and so did not require planning permission. Mr X was notified of this outcome in July 2021.

Mr X’s complaint

19. Mr X raised a formal complaint. In support of his position, he submitted several historical and recent photographs, together with his own set of plans and measurements. He believed this additional evidence demonstrated the development should not have been classed as PD. He also said the impact on his privacy had not been properly considered because the officer did not visit his property, only that of Y.
20. The investigating officer carried out a site visit, including to Mr X’s property.
21. The Council’s complaint response was both detailed and technical. It is not necessary for me to cover every issue raised, only those that are pertinent to the complaint. Below is a summary of these main points:

• Due to cumulative development on site, it was not possible to establish the natural ground level.
• Previous development on site should have been the subject of a planning application. But as this was completed over four years ago, this was now immune from enforcement action.
• The raised platform required planning permission because it was over 0.3 meters above ground level. However, because of its main function was as a step, this was deemed to be a “technical breach” and so the Council decided it would not be expedient to take enforcement action.
• It was accepted the development had increased the level of overlooking and there an element of harm to Mr X’s privacy. However, it was decided there was “no material harm or adverse impact on the amenity of the site”. This decision was based on the fact it was a domestic development that was not out of character, and he works were not visible to the wider public.

22. Mr X says the Council’s stage one reply failed to have proper regard to his privacy and requested the Council should insist on a retrospective planning application. He asked the Council to reconsider its position in light of the further evidence he provided.
23. In response the Council accepted it should have explained in more detail the assessment that had taken place regarding the impact on privacy. This part of his complaint was upheld. However, the Council’s overall position remailed the same. This was confirmed at stage three of the Council’s complaints procedure.
24. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman. He says the Council failed to consider the technical information he had provided and failed to properly consider the significant impact on his privacy.

Analysis

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. In this case, the planning enforcement officer considered Mr X’s concerns, visited the site, and decided there was no breach of planning control. This is the decision-making process we expect and so I find no fault here. I do not criticise the Council for not visiting Mr X’s property as there was no requirement for it to do so. There is nothing I have seen to suggest the officer would not have been able to make an assessment of privacy from Y’s property alone.
27. The Council carried a further investigation under its complaint’s procedure. Its detailed replies were informed by information gained by the investigating officer during at site visit to Mr X’s property. I am satisfied the Council was fully aware of the impact the development had on Mr X’s privacy. This was acknowledged in the Council’s complaint responses. From the photographs I have seen, I agree there is a degree of overlooking. But, this does not mean the Council was compelled to take action. Enforcement action is discretionary. I am also satisfied the Council considered the many other issues Mr X raised about planning policy in general.
28. I recognise Mr X disagrees with the Council’s overall assessment that this loss of privacy did not warrant action by the Council. Having considered all the evidence available, I am satisfied there was no procedural fault in reaching this decision. It applied the correct legal test and followed the Council’s own policy on enforcement. It also responded to all of Mr X’s concerns and considered the evidence he provided.
29. I appreciate Mr X is of the firm belief the Council should have made further enquiries about the natural ground level because he says this had a direct impact on whether the development was PD or not. The Council was not obliged to do so, and am satisfied it had a sufficient understanding of the site to reach the view it did without the ground survey requested by Mr X.

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Final decision

30. I have not found fault with the Council’s decision not to take enforcement action. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman