Summary: We found no fault on Ms P’s complaint about the Council failing to take enforcement action on her report of a neighbour erecting a wooden structure in his front garden without planning consent. The Council properly considered whether it was appropriate to take formal enforcement action. When doing so, it considered the lack of harm caused to the character of the area, and the lack of impact on residents’ amenities.

The complaint

1. Ms P complains about the Council failing to take enforcement action on her reports about a neighbour erecting a wooden structure in the front garden without planning consent: as a result, the structure is affecting her amenities.

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What I have and have not investigated

2. I have not investigated any complaint Ms P may have about the Council’s actions that took place before April 2022. This is because she complained to us in April 2023. The law says we cannot investigate late complaints unless there are good reasons. A late complaint is one where a complainant has taken more than 12 months to complain to us about what a council has done.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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Council Managing Development Delivery Document (Local Plan): February 2014

7. This states the parking standards are based on the use class of a development. The developer must prove that parking will not have a detrimental effect on traffic safety or on the character of an area due to an increase in parking on the public highway.
8. Parking standards should be regarded only as a starting point in any discussions with the Council as each development site will need to be assessed on its own merits within the wider context of the area in which the development sits.

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Council Local Planning Enforcement Plan

9. This states the use of planning enforcement powers by the Council is discretionary and carrying out development without planning consent, while unauthorised, is not illegal. All alleged breaches of planning control will be investigated. It tries to resolve all breaches by way of informal negotiation at first unless the breach is causing, or is likely to cause, imminent irrevocable harm requiring immediate action. The aim is to achieve compliance without resorting to formal proceedings.
10. Any action should be proportionate to the level of harm and should take account of relevant circumstances where expedient and necessary to do so (i.e. in the public interest). The Council will consider whether it is expedient having regard to the Development Plan and any other material considerations. It also must be in the public interest to take formal enforcement action to remedy the breach.
11. Planning harm is not defined in planning regulations. National Planning Policy Guidance says formal enforcement actions should be taken when, ‘There is a clear public interest in enforcing planning law and planning regulation in a proportionate way'. It would not be appropriate to issue an enforcement notice for unauthorised development which is acceptable in planning terms (i.e. if planning consent would be granted if it was the subject of a planning application).

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How I considered this complaint

12. I considered all the information Ms P sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Ms P and the Council. I considered the Council’s response.

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What I found

13. Ms P is unhappy with the Council’s failure to properly investigate her reports of a breach of planning consent. A neighbour erected a building in his front garden without planning consent close to her boundary. This is a wooden cabin type structure without wheels (the ‘hut’). She notes it is higher than her garage and he had used it for business use. The Council initially would not act because it decided the structure was a caravan, not a building. The Council now accepts this is a building but still refuses to take enforcement action. It closed its investigation of her report.
14. Ms P believes the Council tried to get the neighbour to apply for retrospective planning consent for it, but he refused to do so. She is unhappy with its decision not to take enforcement. She argues it causes harm to the area and goes against planning policy which states you cannot extend in front gardens. As the neighbour also converted his garage to accommodation, she argues this breaches another Council planning policy as he cannot provide extra off-road parking space.
15. In response to my enquiries, the Council said, when reaching its decision not to take formal enforcement action, it took the following into account:
1. It considered the lack of parking restrictions on the street which has no on-street parking problems. Any future resident could remove the hut to create more parking and/or create further parking spaces in the front garden.
2. The conversion of the garage was approved before the erection of the hut. The approved plan for the conversion shows a cycle store, toilet, utility room, and study.
3. Its Local Plan does not say a loss of a garage requires the creation of an additional parking space. It does say parking standards are a starting point and each development is assessed on its merits.
4. It persuaded the owner not to use the hut for business use.
5. Planning policies do not specifically say building cannot take place in front of the building line. It assessed the impact of the hut on the character of the area within the expediency report and noted the building line. The neighbouring property is forward of the property with the hut and provides some screening within the street scene. It also took account of the hut being single storey but does not agree it is in a prominent location. It is set back from the road by some distance.
6. Whether a structure is classed as a building is not straight forward. It must consider permanence, size, and the degree of attachment to the ground. The Council decided it was not a caravan as it was fitted for storage and workshop which meant it was not fit for human habitation as required by the Caravan Sites and Control of Development Act 1960 (section 29).
16. I have seen a copy of the ‘Not Expedient Report’ issued in January 2023. This noted a previous investigation for the site for this hut was done about two years earlier. The Council had then served a planning contravention notice, but the response suggested the hut was a caravan as it was capable of being moved and was not permanent.
17. The report now decided the hut was a building because of changes made since its last investigation and the level of permanence. It noted: the staggered building line on this side of the road meant there was no ‘principle building line’; it was single storey; there was no detrimental impact on neighbours in terms of amenities, overlooking, overbearing, or loss of light to adjacent properties; there is minimal disturbance caused to the character of the area; if the Council received a planning application to keep the hut, it would be likely to recommend it for approval. Taking all these into account, the Council decided it was not expedient to take formal enforcement action.

My findings

18. I found no fault on this complaint. In reaching this conclusion, I took the following into account:
1. The evidence shows the Council responded to Ms P’s report of the neighbour installing the hut in his front garden. There is evidence of an officer visiting the site as the photograph used in the Not Expedient Report states it was taken the month after Ms P’s report about it.
2. The Council had discretion to take formal enforcement action or not. When reaching a decision about whether to take such action, the Council had to consider Planning Policy Guidance (para 003 Ref ID 17b-003-20140306). This states:

‘There is a clear public interest in enforcing planning law and planning regulation in a proportionate way. In deciding whether enforcement action is taken, local planning authorities should, where relevant, have regard to the potential impact on the health, housing needs and welfare of those affected by the proposed action, and those who are affected by a breach of planning control.’

3. The Guidance goes on to say (005 Reference ID: 17b-005-20140306):

‘Effective enforcement is important to:

• tackle breaches of planning control which would otherwise have unacceptable impact on the amenity of the area;’

4. I am satisfied the Not Expedient Report shows the Council considered what was required of it under this Guidance. This is because it shows it considered whether there was a detrimental impact on neighbouring amenity in terms of it being overbearing, causing overlooking, or causing loss of light. It decided there was no such impact. This was because it was single storey, did not extend beyond Ms P’s garage, and that side of the road had a staggered building line which meant there was no principle building line. It also concluded it was not causing detrimental harm to the character of the area. It noted that if the Council received a planning application for its retention, it would likely be recommended for approval. It was not, therefore, expedient to take formal enforcement action.

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Final decision

19. I found no fault on Ms P’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman