Summary: Mr F complained about the Council’s handling of his planning and building control concerns regarding building works completed by his neighbour. We found some limited fault by the Council for delay in actioning his planning control and fire safety concerns. However, its apology was enough to remedy the injustice this caused him. There was no fault in the process the Council followed to reach its views, it therefore reached decisions it was entitled to make.

The complaint

1. The complainant, Mr F, complains the Council’s Planning and Building Control failed to investigate his concerns about a neighbour’s development since April 2023 and take appropriate action. He also said the Council has shown bias towards his neighbour.
2. Mr F said, as a result, his property had been impacted due to an extension being bolted to his property and blocking an air vent. He also said the works caused a fire risk due to a change of use of the neighbouring building.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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

6. As part of my investigation, I have:
• considered Mr F’s complaint and the Council’s responses;
• discussed the complaint with Mr F and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and policy to the complaint.
7. Mr F 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

Planning Enforcement

8. 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.
9. 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.
10. 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.
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 September 2023, paragraph 59)
12. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Building Control

13. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
14. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
15. A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building inspectors to carry out this work.
16. There are three ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The Council’s inspector or an independent approved inspector will visit the site at various stages of the work to check compliance with building regulations.
• Regularisation application. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service.
17. We do not normally investigate damage to property caused by a neighbour’s building work. It would normally be a matter for private legal action by the property owner against the neighbour. If work is being carried out, at or near the common boundary of the properties it is possible that a Party Wall Act Agreement should have been made between the neighbours. A local authority has no part to play in this agreement – it is a civil matter between the neighbours.

Council Policy

18. The Council’s Planning Enforcement and Direct Action Policy sets out how it will consider reports of planning control breaches. Its objectives include:
• to communicate clearly to the responsible person responsible for the alleged breach;
• to take formal action where require in the event that attempts to negotiate a remedy appear to fail; and
• to update complaints about what action is being taken at key stages of the process and inform about the final outcome of the complaint.

What happened

19. Mr F owns a property which has several floors, and he lets out part of the property to tenants.
20. In 2019 the Council approved a planning application for the change of use of a building next to Mr F’s property.
21. In April 2023 Mr F reported concerns about a roof structure completed by the owner of an adjacent building. He said:
• the roof was bolted to his building and blocked an air vent;
• questioned the standard of work of the roof; and
• the roof covered a yard but there was no fire exit in the building which was a fire risk due a change use of the building.
22. Mr F also reported concerns about an air conditioning unit.
23. The Council’s building control acknowledged Mr F’s report and wrote the owner of the neighbour’s building to arrange an inspection. It inspected in May 2023.
24. The Council’s planning enforcement opened an investigation in Summer 2023 and informed Mr F it could take 16 weeks to investigate his concerns.
25. In September 2023 the Council shared the outcome of its investigations with Mr F. It found the development took place more than four years ago and was therefore immune from enforcement action. It told him the neighbour’s construction of the roof onto Mr F’s property was a civil matter between the two parties. It had discussed the air conditioning unit with his neighbour, and this had since been removed.
26. Mr F was unhappy with the Council’s decision. In particular as he felt the fire safety concerns had not been considered. He also disputed the neighbours works took place more than four years ago.
27. The Council acknowledged Mr F’s concerns. It apologised it had not considered his fire safety concerns and opened a new case as it found works had been completed without relevant building control permission. It again explained its view the roof structure was immune from enforcement action and any damage or impact on his building was a civil matter.
28. The Council inspected the neighbouring building again in October 2023, where Mr F was present.
29. Two weeks later Mr F asked the Ombudsman to consider his complaint about the Council’s lack of action against his neighbour. He said he believed the Council was showing bias toward his neighbour and suggested this may be discriminatory due to his ethnicity.
30. The Council informed the Ombudsman it had not yet responded to Mr F’s complaint as it had opened an investigation, but it would respond to his complaint.
31. The Council discussed the concerns it had received with Mr F’s neighbour regarding unauthorised works without building control permission. In January 2024 he applied for building control to approve the works which had taken place retrospectively.
32. In February 2024 the Council and Mr F again discussed his concerns. Mr F confirmed the air conditioning unit had been removed and replaced by a gas flue. His main concern was the roof works and fire safety. The Council explained its view was unchanged as its planning control had found the works to be immune from enforcement and a civil matter, and its building control was now closed as it was considering his neighbour’s regularisation application for the works including fire safety.
33. In April 2024 the Council provided its final complaint response to Mr F. It did not uphold his complaint. It also explained it had investigated his concerns and it found no grounds to suggest it had shown bias toward his neighbour.
34. Mr F asked the Ombudsman to consider his complaint.

Analysis and findings

35. Mr F shared concerns about the Council’s decision to approve his neighbour’s planning application in 2019. This part of his concerns is late as it relates to a matter which was approved more than 12 months ago. I have seen no good reason to exercise discretions to consider this matter.

Did the Council cause delays?

36. Mr F brought his concerns about his neighbour’s roof, an air conditioning unit, and fire safety concerns to the Council’s attention in April 2023.
37. I found some fault by the Council for causing delays in considering Mr F’s concerns. This is because the evidence shows:
• its planning control did not acknowledge his concerns until Summer 2023, which was three months after he reported the concern. However, its building control acknowledged his concerns and started its investigation without delays; and
• its building control did not consider Mr F’s fire safety concerns until October 2023. This was after it had closed its initial case and informed Mr F about the outcome.

The Council’s decision process

38. I found no fault in the process the Council followed when it considered Mr F’s planning control or building control concerns. This is because it inspected the site, spoke with Mr F and his neighbour, considered photos and surveys for when the works was likely to have taken place. It also correctly found Mr F’s concerns about the roof being bolted to his property and blocking his air vent was a civil matter between him and his neighbour.
39. I understand Mr F disputes the works took place more than four years ago, however, without any clear evidence of this, the Council was entitled to reach its view the work was immune from enforcement action. As I have found no fault in the process it followed to reach its views, it therefore reached decisions it was entitled to make.
40. I have not found any further delays in the Council’s handling of Mr F’s concerns. This is because once it realised it had not responded to his fire safety concerns, it remained in communication with his neighbour to address this. Once it received his building control regularisation application to have the works considered, it was correct to close its enforcement case pending the outcome of the application.
41. In addition, Mr F said he believed the Council was biased towards his neighbour or discriminatory based on his ethnicity. I have seen no evidence to substantiate this allegation.

Complaints handling

42. I have also not found fault in the Council’s complaints handling. This is because:
• when Mr F disputed its decision in September 2023, it apologised and opened a new building control enforcement case;
• when Mr F complained to the Ombudsman in November 2023, we asked the Council if it had provided its complaints response. While it took the Council until April 2024 to provide its final complaint response, it remained in contact with Mr F and his neighbour, conducted site visits, informed him about his neighbour’s regularisation application in January 2024, and responded to his communication February 2024; and
• it shared its unchanged view of his planning control concerns throughout, including the informal steps it had taken for the neighbour to remove the air conditioning unit which Mr F confirmed had been completed.
43. If Mr F believes the Council has caused further delays since its final complaint response in April 2024 or he believes its consideration of his neighbours building control application to regularise the works is flawed, he will need to complain to the Council again.

Injustice

44. While I found some fault by the Council for its delay in starting its planning control investigation and to consider his fire safety concerns in 2023, I am not satisfied this caused Mr F a significant injustice.
45. In reaching my view, I was conscious Mr F did not experience an impact on his amenity as a result of its faults, the delay was limited, and the outcome of its investigation did not lead to the outcome he was hoping for. I also note his genuine concerns about fire safety did not cause a risk of harm to Mr F.
46. I am therefore satisfied the Council’s initial apology was enough to remedy the injustice it caused him.

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Final decision

47. I have completed my investigation with a finding of some fault by the Council. Its apology was enough to remedy the limited injustice this caused him.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman