Summary: We will not investigate this complaint about the Council’s enforcement investigation into an alleged breach of planning control at a property next to the complainant. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The alleged fault is unlikely to have affected the planning outcome, and the Council apologised for failing to update the complainant when it closed the enforcement case.

The complaint

1. The complainant, whom I refer to as Mr X, says the gap between his property and the neighbour’s extension is less than shown on the approved plans, and the Council has not properly measured this gap. Mr X also says the Council failed to adequately respond to his enquiries about the matter.

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The Ombudsman’s role and powers

2. The Ombudsman can investigate 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 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
• we are satisfied with the actions a council has already taken.

(Local Government Act 1974, section 24A(6) & (7))

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How I considered this complaint

3. I considered information provided by Mr X and the Council, which included their complaint correspondence.
4. I also considered our Assessment Code, the Council’s ‘Extensions and Alterations to Dwellings – Supplementary Planning Document’, and information about the neighbour’s planning application on the Council’s website.

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My assessment

5. The approved plans show a gap of 30cm between the neighbour’s extension and the boundary with Mr X. The Council’s enforcement team found the dimensions of the ‘as built’ extension were in accordance with the plans, but the gap to the boundary was approximately 25cm. It said this is within acceptable tolerances, so did not take enforcement action. Mr X says the gap is actually 20.5cm.
6. Whilst I recognise Mr X is unhappy the Council has decided not to take enforcement action, we do not provide a right of appeal against that decision. Rather, we review the process by which the decision was made, and consider if any fault is likely to have influenced the outcome.
7. In my view, even if the Council had measured the gap as 20.5cm, it is unlikely to have decided to take enforcement action. So, the planning outcome would have been the same. In reaching this view, I am mindful that Government guidance says councils should not take enforcement action just because there has been a breach of planning control. 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. In that regard, I have seen no policy requirement for there to be a 30cm gap, and it is common for single-storey, rear extensions to be built up to the boundary.
8. As the outcome is likely to have been the same, I do not consider Mr X has been caused an injustice by the alleged fault in the gap measurement. With reference to paragraph 2 above, the Ombudsman will therefore not investigate this part of the complaint.
9. The Council has also apologised for failing to provide Mr X with an update once it had concluded its enforcement investigation. This is a satisfactory way to address this part of the complaint.

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Final decision

10. We will not investigate Mr X’s complaint because the alleged fault in the enforcement investigation is unlikely to have affected the outcome, and the Council has apologised for failing to update him when it closed the case.

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Investigator's decision on behalf of the Ombudsman