Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because we are unlikely to find fault.

The complaint

1. Mr X complains about the Council’s decision not to take enforcement action against a breach of planning control by his neighbours. He says the unauthorised development impacts his privacy and amenity.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
6. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
7. Mr X notified the Council that his neighbour had erected a garden room without planning permission. He said this impacted on his privacy and encroached into his property and an access road.
8. The Council looked into Mr X’s concerns. A planning enforcement officer visited the site. They advised Mr X there may be a minor breach in that the height of the garden room slightly exceeded that allowed by permitted development rights. However, they considered the harm caused by the breach was not significant and it is not expedient to take enforcement action. They also advised that encroachment into the access road or Mr X’s property is a civil matter and not something for the Council to resolve.
9. Following further correspondence with Mr X, the enforcement officer visited the site again, accompanied by the planning enforcement team leader. The Council agreed there had been a breach as the garden room did not comply with the requirements set out in permitted development rights. However, it remained of the view it would not be expedient or in the public interest to take formal action. The Council said the outbuilding in the location was acceptable and would not cause material harm or a detrimental loss of privacy to Mr X’s home. It also said it was likely planning permission would be granted if Mr X’s neighbour applied for this retrospectively.
10. Mr X continued to raise concerns. And, as the neighbour is a Council employee, the Council decided to ask a neighbouring authority to carry out an independent peer review. The neighbouring authority concluded they would have come to the same decision that it is not expedient to take enforcement action against the breach of planning control. However, it suggested the Council should have asked the neighbours to make a retrospective planning application to regularise the breach.
11. The Council confirms it has invited the neighbours to make a retrospective application but they have declined to do so. The Council cannot force the neighbour to make the application. I also understand the Council has not visited Mr X’s home, nor another neighbour who he says also objects to the garden room. However, there is no obligation on the Council to visit complainant’s properties and I cannot criticise it for not doing so.
12. I understand Mr X disagrees with the Council’s decision not to take enforcement action. But the Council is entitled to use its professional judgement to decide enforcement action is not necessary. Councils also do not need to take enforcement action just because there has been a breach of planning control. As the Council properly considered if it was necessary to take enforcement action, it is unlikely I could find fault.

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Final decision

13. We will not investigate Mr X’s complaint because we are unlikely to find fault in the way the Council came to the decision not to take enforcement action against the breach of planning control at their neighbour’s property.

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Investigator's decision on behalf of the Ombudsman