Summary: We will not investigate Mrs X’s complaint about the Council allowing smaller separation distances between a new house and the boundary with her property than was shown on a planning permission, and delay in it dealing with her complaint. There is not enough evidence of fault in the Council’s planning enforcement process to warrant investigation. We do not investigate councils’ internal complaints processes where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mrs X bought her house in 202. A site next door had permission in place for a residential property. Mrs X complains the Council:
1. allowed smaller separation distances between the new house and the boundary with her property than was shown on the planning permission;
2. delayed in dealing with her complaint.
2. Mrs X says she was misled by the documents because the officer report referred to a separation distance between the new house and the boundary as ‘some 2.5 metres’, much less than once the house was built. Mrs X says the new development has impacts on her house such as loss of light, loss of value, and possible subsidence. She says the matter has caused her stress and she may have to move house.
3. Mrs X wants the Council to:
• explain why the measurements mentioned in the permission were wrong;
• supply documents about the new property’s impact on light in her property and possible subsidence;
• compensate her for her probable losses in sales value;
• take responsibility for any subsidence which might happen.

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The Ombudsman’s role and powers

4. The Ombudsman investigates 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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained.

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

5. 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)

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How I considered this complaint

6. I considered information from Mrs X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X says the Council’s planning officers ‘disregarded’ the 2.5 metre separation distance at the time they granted the permission. This is to confuse the planning permission process and the planning enforcement process. The Council granted the planning permission on the basis the house would be ‘some 2.5 metres’ from the boundary. Once the permission was granted, it was for the developer to build the property in line with the permitted plans. It was the developer who built the property closer to the boundary than the approximate 2.5 metres mentioned in the planning documents. That was a later decision and action taken by the developer, not a decision by the Council’s officers when they granted the permission.
8. Where someone believes a development has not been built in compliance with the planning permission granted, and reports this to a council, it then becomes a planning enforcement matter. Once Mrs X reported her concerns, it was for the Council’s planning enforcement officers to decide what action they should take. This is what happened here. It is the enforcement process which is the one the Council followed in response to Mrs X’s concerns that we can consider.
9. We may only go behind a council’s decision where there is evidence of fault in their decision-making process which, but for that fault, would have resulted in officers making a different decision. We cannot replace officers’ properly reached professional judgement with our or anyone else’s opinion. In response to Mrs X’s report about the location of the new house, the Council visited the site and measured the separation distances at three points. Officers found the majority of the new house’s side wall was about 2.07 metres from the boundary fence. The short width of the chimney breast serving the living room was about 1.62 metres away. Officers concluded the property as built did not amount to a breach of the planning permission because of these separation distances.
10. There is not enough evidence of fault in the Council’s planning enforcement decision-making here to warrant an investigation. Officers gathered the relevant information from the planning application and the property as built to reach their enforcement decision to not take action. That was a decision officers were entitled to make. I recognise Mrs X may disagree with that decision. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Mrs X says the Council delayed in dealing with her complaint. We do not investigate councils’ complaint-handling processes in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
12. I note Mrs X’s is concern that the property built close to hers might cause subsidence. If the new house causes that kind of damage to Mrs X’s property, this would be a private civil matter between her and the new property’s owners. This is because it is the owners’ developers who built the house in its location, not the Council. It is the owners who would be liable for any such damage Mrs X claims is caused by the new house’s location.
13. Mrs X also says the house as built reduces the value of her property. Impact on existing property value is not a material planning issue. The Council could not take it into account when granting the planning permission so it is not fault for them not to have done so. In any event, Mrs X’s concern about her property value loss and other impacts here relates to the decision of the owners and their developers to build the new house in a place she considers is too close to hers. As explained, that was not a decision or action by the Council. If Mrs X considers the new property as built negatively affects her property, this would be a matter between her and the new property’s owners.

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Final decision

14. We will not investigate Mrs X’s complaint because:
• there is not enough evidence of fault in the Council’s processes to warrant investigation; and
• we do not investigate councils’ internal complaints processes where we are not investigating the core issue giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman