Summary: Ms D complained on behalf of Mr C that the Council, in respect of building work carried out by his neighbour, had failed to investigate breaches of planning control properly or take enforcement action to ensure the breaches were put right. We have not found fault with the actions of the Council.

The complaint

1. Ms D complained on behalf of Mr C, that Sheffield City Council (the Council), in respect of development at Mr C’s neighbour’s property:
1. approved the retrospective planning permission despite knowing the plans and drawings did not accurately show what had already been built;
2. failed to properly investigate breaches of planning control on the site;
3. failed to take into account the impacts on Mr C’s amenity when deciding not to take enforcement action; and
4. failed to respond accurately and fairly to Mr C’s complaints.
2. Ms D says the development as built is overbearing, causes overshadowing to Mr C’s property and the matter has caused him and his family upset and distress. They are reluctant to use their garden because they consider the development is unsafe.

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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 how the organisation made its decision, 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 the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms D 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

Enforcement

6. 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.
7. 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.
8. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
9. 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 September 2023, paragraph 59)

What happened

10. In early 2021 Mr C’s neighbour had submitted a planning application for an extension to their property. The Council refused this due to the unacceptable impact on the neighbouring properties, including Mr C.
11. Later that year the neighbour applied for a certificate of lawful development for an extension which the Council approved saying it constituted permitted development (development which does not require planning permission).
12. In 2022 the building work started. The building control team inspected the site five times between May and July 2022. In August 2022 Mr C complained to the Council via his local councillor about the work. He said the work appeared to need planning permission. The councillor forwarded the complaint to the planning enforcement and building control teams. The building inspector noted that there was possibly poor workmanship involved which it did not control but there was also an outstanding query from the water company which needed addressing before completion could be approved.
13. The enforcement team visited the site in September 2022 and confirmed that the development required planning permission due to the extension being wider than allowed under the permitted development regulations. In respect of the boundary wall, it said the applicant needed to make sure the wall was no higher than two metres from ground level on the site. Mr C said the wall was higher than two metres on his side but due to a difference in ground levels the applicant said it was less than two metres on their side. The Council said it would ask for the boundary wall to be included in the planning application.
14. The Council received a planning application for the extension in November 2022. Mr C objected to the application saying that the development was overbearing and overshadowed his property, it affected the light and created a sense of enclosure. Additionally, the boundary wall had been built too high.
15. The planning case officer visited the site in December 2022 and concluded the development was acceptable. They wrote a report assessing the application and concluded the dimensions were largely similar to those allowed under permitted development rules and the extension did not cause any amenity issues to the neighbours. The Council granted planning permission in early 2023. The application had not included the boundary wall.
16. In February 2023 Mr C complained to the Council about the decision and raised the issue of the boundary wall. The Council said that the plans showed the boundary wall built on the neighbour’s land and being less than 2 metres high, which did not require planning permission. But the enforcement officer had noted the wall had been built on Mr C’s land and was higher than two metres so required planning permission. The Council had requested a planning application, but it had not been received. The Council explained however that it was unlikely to take any formal action as it had already considered the impact of the wall on Mr C’s amenity and concluded it was acceptable.
17. In May 2023 Mr C’s representative, Ms D (a planning consultant) submitted a complaint about the planning decision, alleging a breach of planning control. She enclosed a surveyor’s report done in March 2023. She said the Council had missed the fact that the applicant had raised the ground levels and the submitted drawings bore little resemblance to the structure as built. She highlighted where the work was not in accordance with the plans and said the work was unsafe and dangerous.
18. The Council visited the site again and took measurements. It responded to the complaint the following month, saying that although there were some discrepancies in the measurements, they were all within +/- 5 cm and acceptable. It accepted the Council had not noticed that a window was in a different position to the plans and there was a roof overhang. But it considered these were minor variations which could be addressed by a further planning application, and it was not expedient to take any action against them if an application was not forthcoming. It repeated its view of the boundary wall and the fact it had requested a planning application. The quality of the building work and any allegations of trespass on Mr C’s land were not planning matters. The building control team had an open case, but they did not consider the work was dangerous.
19. Ms D made a stage two complaint and the Council responded in October 2023. It upheld the stage one response and said the discrepancies were not significant enough to warrant enforcement action.
20. Ms D complained to us. In response to my enquiries the Council has given a detailed response to the allegation that the ground floor levels had been raised. It said in all three applications the drawings showed a raised internal floor level in the original house and none of the applications showed a raised external floor level. It has provided annotated drawings from the officer site visits and before/after photographs in support of its view.

Analysis

21. I have not identified any fault in the way the Council considered Mr C’s complaints about the development. It has acted promptly when Mr C complained about the potential planning breaches: It visited the site in August 2022, following Mr C’s initial complaint in July 2022 and requested a planning application in early September 2022. Following Mr C’s second complaint in February 2023 it responded promptly explaining why it did not consider enforcement action was necessary. On receipt of Ms D’s complaint in May 2023 it visited the site again taking detailed measurements and photographs to support its view that the variations were minor, and it was not expedient to take enforcement action.
22. In response to my enquiries, it has provided further detailed information in respect of the ground levels and does not consider there is a breach of planning control here.
23. The Council has provided a number of photographs from the site and from Mr C’s property showing it was fully aware of the relationship between the development and Mr C’s property when it made its decisions.
24. The Council has also provided evidence that building control inspections took place at the appropriate stages and the Council was satisfied that the building regulations had been followed even if the workmanship was poor.
25. It is not my role to decide if there has been a breach of planning control or whether the Council should take enforcement action. I have rather considered the way in which the Council has reached those decisions and its justification for them. The Council has considered the points raised by Mr C and Ms D. It agrees that the development as built differs in minor ways from the drawings but has decided it would not be expedient to take enforcement action as the variations are insignificant when compared to the impact of what should have been built according to the approved plans and what is allowed by permitted development.
26. I understand Mr C is unhappy with the outcome of the development, but I have not found fault with the way it has reached those decisions or the explanations it has provided so I cannot change them or recommend the Council takes any further action. Neither have I found fault with the way the Council responded to the complaints.

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Final decision

27. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr C.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman