Summary: We will not investigate this complaint about the way the Council dealt with a breach of planning control. This is because we are unlikely to find fault. Also, we cannot achieve the outcome the complainant is seeking. Finally, we consider the Council’s apology for delay in its response is a suitable remedy to the complainant’s concerns about delay.

The complaint

1. Mrs X complains on behalf of her parents, Mr and Mrs Y. She says the Council has allowed Mr and Mrs Y’s neighbour to build a garage and workshop in their garden without planning permission.
2. She says as her elderly parents do not go out much they have to look at the unauthorised building every day. And they are distressed that they were unable to object to the building.

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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))

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How I considered this complaint

4. I considered information provided by Mrs X, including the Council’s responses to her complaint.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils can take enforcement action if they find breaches of planning rules. 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. 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 undertaking, or requesting submission of a planning application.
8. 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)
9. 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.
10. In this case, Mrs X reported the breach of planning control to the Council. The Council confirms officers have visited the site and considered the building in the garden. It agrees the building does not have planning permission and is not permitted development. Therefore the building is a breach of planning control. However, the Council has decided the visual impact of the building can be mitigated by applying render to match the existing property. They also note the building is at least 12 metres from and is below Mr & Mrs Y’s main windows. The Council considers the building does not have a negative impact on Mr and Mrs Y’s privacy, light or amenity.
11. Having visited the site the Council decided it would be disproportionate to require the neighbours to demolish the garage. It confirms it will ask the neighbours to render the building to match the existing home.
12. I understand Mrs X and her parents are disappointed with the Council’s decision. However, as previously stated, it is not our role to act as a point of appeal against decisions councils make with which complainants are unhappy. We cannot question council decisions if they have followed the right steps and considered the relevant evidence and information. The Council recognises the neighbour’s building is a breach of planning control. But it has decided it is not expedient to take enforcement action and explained its reasons. This is a decision the Council is entitled to make and there is no evidence to suggest fault affected it.
13. Mrs X also complains about the delay in the Council considering her report of the breach of planning control. The Council has apologised for the delay. We consider this is an appropriate remedy for this part of the complaint.

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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 way the Council decided not to take enforcement action.
• We cannot require the Council to demolish the neighbour’s garage.
• We consider an apology for the delay in responding to Mrs X is a suitable remedy to her complaint about delay.

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Investigator's decision on behalf of the Ombudsman