Summary: We will not investigate Mrs X’s complaint about the Council not enforcing against a neighbour’s opening side window and how it has acted in response to her reports. There is not enough evidence of fault in the Council’s planning enforcement decision-making process to warrant us investigating. Mrs X’s concerns about future impacts from other build elements are speculative and cause insufficient injustice to warrant investigation.

The complaint

1. Mrs X lives next to a property whose owner received planning permission for its development. There is a six-foot separation distance between Mrs X’s and the neighbouring property’s side walls. Mrs X complains the Council:
1. has not enforced against the property’s owner installing a new top-opening window serving a shower room;
2. failed to visit her property during the matter;
3. was biased in favour of the developer;
4. may allow installation of an extractor fan for the shower room, a boiler flue in the kitchen and a boundary fence over two metres tall in places.
2. Mrs X says the opening window will cause overlooking, loss of privacy and noise impacts, which she considers will blight her property. She says the flue and fan will cause environmental issues due to their closeness to her open windows and a fence would block her light. Mrs X says she has had debris falling on her window, glass kitchen door and pathway during the works.

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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
• any injustice is not significant enough to justify our involvement.

(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 Mrs X and the Council, relevant online planning documents, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
7. Enforcement is a discretionary power held by local planning authorities, so there is no duty on them to enforce against all planning breaches they see. It is for those authorities’ officers to make their decisions on whether to use their powers. National government advises authorities to use enforcement as a last resort and only where there is significant harm caused by a planning breach.
8. In response to Mrs X’s concerns, the Council considered the evidence she provided, including photographs of the new window, its size, design and location. Officers noted the window as shown in the permitted plans did not show a top‑opening section but was a simple square. The approved plans note the window would be obscure glazed, but do not say whether the window would be opening. Officers assessed the impacts of the window as installed and concluded it did not warrant enforcement action. They determined the planning impacts caused by the window, including on privacy and overlooking, did not meet the expediency test for enforcement action in national government guidance, so decided not to enforce.
9. Officers gathered and assessed relevant information and applied government guidance to inform their decision to not enforce. That was a discretionary judgement they were entitled to make. There is not enough evidence of fault in the Council’s planning enforcement decision-making process to warrant us investigating. We realise Mrs X disagrees with the Council’s decision but that is not grounds for us to go behind that decision. It is not fault for a council to properly make a decision with which someone disagrees.
10. We note Mrs X says the Council did not visit her property to assess the impacts of the development. It is for officers to decide how to gather the relevant information to make their enforcement decisions. Officers determined they had the appropriate information about the site and the development from Mrs X, their previous visits and their planning records to make their decision here. It is not fault for officers to decide not to visit somewhere during their assessments.
11. Mrs X consider the Council has been biased in favour of the developer. While officers did not make the decision Mrs X wanted, that does not mean their process involved bias. There is not enough evidence of such bias in the officers’ enforcement decision-making process here to warrant an investigation.
12. We recognise Mrs X is concerned about the future installation of an extractor fan for the shower room, a boiler flue from the kitchen and a boundary fence which may be over two metres tall in places. But the development is ongoing and we understand none of these additions have happened. We cannot investigate matters that have not happened and so have not caused injustice. Should any of these items be installed, and Mrs X considers they cause environmental or light impacts, these would be new issues. She would need to report them to the Council in the first instance and, if dissatisfied with the outcome, go through the Council’s internal complaint process before bringing any matter to us.
13. Mrs X mentions that during the works she has had debris falling on her property. If Mrs X considers there has been damage caused to her property by activities during the development, this would be a private civil matter between her and the developer or their contractors, not a matter involving the Council.

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Final decision

14. We will not investigate Mrs X’s complaint because:
• there is not enough evidence of fault in the Council’s planning enforcement decision-making process to warrant us investigating; and
• concerns about future impacts from other build elements have caused insufficient injustice to warrant investigation.

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Investigator's decision on behalf of the Ombudsman