Summary: Mrs B complains about how the Council handled planning matters when her neighbour built an extension. There was no fault by the Council when it decided not to take enforcement action. It properly considered this decision. I have not investigated how the Council considered the original planning application, as the complaint about this is late.

The complaint

1. Mrs B complains about how the Council handled planning matters relating to a side extension to her neighbour’s house. In particular, Mrs B says:
• The Council failed to properly consider the impact on Mrs B’s amenity when it granted planning permission to build a single storey side extension adjacent to her boundary. Specifically, the Council did not consider the true difference in ground levels, that the plans were misleading, and her loss of privacy from the clear-glazed door and window to the extension.
• The Council did not take enforcement action when the neighbour raised the ground levels and built the extension higher than the plans indicated; when the neighbour completed the work without submitting the required information; and when the neighbour’s development meant that trees and planting had to be removed.
2. Mrs B says that as a result of the Council’s shortcomings she has lost privacy and outlook. The extension is much higher than the plans indicated and her neighbours look into her garden from the shower inside the extension. As the ground levels have been raised, the boundary wall is now a retaining wall when it is not built to that standard.

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What I have and have not investigated

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. I have not investigated Mrs B’s complaint about the Council’s decision to grant planning permission. The Council granted this in May 2021 and Mrs B did not bring the complaint to us until January 2023. More than 12 months had passed. Mrs B says that she did not complain sooner because she was not aware of the Council’s complaints process. I agree that when the Council shared with her its decision on the planning application, it did not signpost her to the complaints process. But the Council does not have to notify neighbours that it has granted planning permission, and details of the Council’s complaints process are on its website. There does not appear to be good reason why Mrs B did not complain sooner.
5. I have investigated Mrs B’s complaint that the Council has failed to take effective enforcement action.

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The Ombudsman’s role and powers

6. 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)
7. 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

8. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents, and I have interviewed a senior officer involved in the case. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement.

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What I found

The law and guidance

9. 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.
10. 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.
11. Government guidance says: “Effective enforcement is important as a means of maintaining 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)

What happened

12. In May 2021, the Council granted planning permission for Mrs B’s neighbour to erect a single‑storey side extension. Mrs B had objected to the application. Her neighbour’s house and garden are higher, the gardens also slope. The new extension abuts the boundary of Mrs B’s garden with a window that faces into her garden. Mrs B said it would impact on her light, privacy and outlook.
13. The Council attached a planning condition that before starting work, the neighbour must submit foundation design plans. This is to protect the nearby trees and root systems and to safeguard against future subsidence.
14. Mrs B’s neighbour has built the extension. Mrs B says that as the ground was sloping, her neighbour has raised the ground levels, so it is higher than the approved plans. Mrs B says the plans showed a step down from her neighbours’ main house to the extension, but it has been built level.
15. The extension includes a shower room with a clear glazed window overlooking Mrs B’s garden. Mrs B tells me that her neighbour has asked her not to use her garden while they use the shower. Also, six hedgerow trees have been cut down.
16. Mrs B complained to the Council that it has not been built in accordance with the approved plans. Mrs B says that the extension foundations were also not in accordance with the plans.
17. The Council visited the site in February 2022. The senior officer compared the extension to the plans, and looked at the relationship between the extension and both the neighbour’s house, and Mrs B ‘s house. The officer saw a marginal difference between the approved plans and the extension as built. However, the Council concluded that the extension as built was not harmful in planning terms. This means that there was not an unacceptable impact on Mrs B’s use of her property, or a harmful impact on the character of the area. The Council decided that it would not be proportionate to take enforcement action.
18. The Council also investigated whether the neighbour had complied with the planning condition. The neighbour had submitted details of the foundations after starting work. This is technically a breach of the planning condition. The Council had consulted its Tree Officer, who had asked for more details of the type of foundation as certain types could possibly cause problems for the trees. The neighbour had not responded. The Council refused to discharge the planning condition.
19. However, on its February site visit the Council found that the foundations were the type that would be less problematic to the trees. On this basis, the Council decided not to take enforcement action for the breach planning condition. The Council has explained to me that an approved inspector has dealt with the building regulations approval. We cannot investigate complaints about the work of approved inspectors. The Council retains responsibility for enforcement where building regulations are breached. The Council has explained that if it had concerns about the foundations, it would have asked for more detail from the approved inspector, but in this case, it had no concerns.
20. Mrs B complained that the front boundary was not in accordance with the plans. In October 2022, the Council inspected the site and decided that the neighbour had breached a condition by installing a front fence. The Council served an enforcement notice instructing the neighbour to remove the fence. The neighbour appealed to the Planning Inspector about the notice and the appeal is still pending a decision.
21. The site is in a conservation area, this means that the neighbour must give notice of works to trees. The Council has explained that trees were removed to make way for an earlier extension. The Council had approved this and required a payment from the neighbour to a fund for replacement trees. The Council used this money to plant trees in the area. The Council is satisfied that the neighbour has not removed trees without consent.

Was there fault by the Council causing injustice to Mrs B?

22. There was no fault in how the Council handled the planning enforcement matters of the new extension. It inspected the site and made comparisons with the surrounding buildings and the approved plans. It took into account the information Mrs B had provided. The Council noted that the extension was not in accordance with the plans but that the difference was marginal. There is no fault in how the Council reached its decision, and so I have no basis to question the decision not to take enforcement action.
23. I appreciate that the foundations are a concern to Mrs B. The difference in ground levels and the proximity of the new extension to her house would naturally cause concerns. However, there is no fault by the Council. It investigated this and found the neighbour breached the condition. It then must decide whether to take enforcement action. It decided not to do so because it could see that the foundations were a type that were unlikely to interfere with the trees. Whether the foundations met building regulations is a separate matter and this was for the approved inspector to decide.
24. My understanding is that trees were removed when the neighbour built an earlier extension. The Council has explained that it approved this, and the neighbour made a payment to the Council’s fund which allowed it to plant replacement trees in the vicinity. I have not investigated the Council’s decision making about these trees as my understanding is that these were removed some time before the scope of my investigation.

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Final decision

25. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman