Summary: We will not investigate Mr X’s complaint about the Council not enforcing against his neighbour’s roof light window. There is not enough evidence of fault in the Council’s planning enforcement process to warrant us investigating, and we cannot achieve the outcome Mr X seeks from his complaint.

The complaint

1. Mr X lives in a property next to a house whose owner installed a roof light window. He complains the Council has decided not to enforce against the roof window despite it having been installed in a different position than planned.
2. Mr X says the roof window causes overlooking to his bedroom window. He wants the Council to use its powers to get his neighbour to reinstall their roof window in the right position.

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The Ombudsman’s role and powers

3. 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; or
• we cannot achieve the outcome someone wants.

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

4. 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)

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and the Ombudsman’s Assessment Code.

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My assessment

6. Planning authorities may take enforcement action where they identify a planning control breach. They are required to investigate claimed breaches, but use of their enforcement powers is discretionary and it is for an authority to decide whether it is expedient to use their powers in each case. They are under no duty to enforce every planning breach they identify. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Effective enforcement is important to maintain 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.’ Councils as planning authorities have different options to respond to planning control breaches, from taking no formal action, through inviting retrospective planning applications, to issuing Enforcement Notices.
7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s decision solely because we or someone else disagrees with it. So we consider the process councils have followed when making their decision.
8. In response to Mr X’s concerns about the roof light window’s impact on his property, the Council’s officer visited the site. They gathered information about the window’s installation, including its position, and compared this with its previously intended location. They decided there had been a planning breach but that enforcement action was not expedient. Officers determined the difference between the window’s new position and the proposed one was minimal and did not cause such material planning harm to warrant enforcement. Officers gathered the relevant information to investigate the breach and inform their decision not to enforce. That was a discretionary decision they were entitled to make. There is not enough evidence of fault in the Council’s enforcement decision-making process here to justify us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. The outcome Mr X wants from his complaint is for the Council to make his neighbour move the window back to the originally intended position on the roof. We cannot order councils to overturn their enforcement decisions to take such action. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

10. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s planning enforcement decision to warrant an investigation; and
• we cannot achieve the outcome he seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman