Summary: Ms F complained on behalf of her mother that the Council failed to deal with possible breaches of planning control and building regulations by her neighbour. We found the Council failed to keep Ms F updated, causing her frustration. The Council has agreed to apologise for this. There was no fault in the way the Council decided there was no breach of planning control or in the actions it took in relation to a building control breach. There was delay and poor record keeping but this did not cause injustice to Ms F or her mother.

The complaint

1. Ms F complains on behalf of her mother, Mrs M, that the Council has failed to deal with possible breaches of planning control and building regulations by her neighbour. As a result Mrs M’s property has been damaged and overshadowed and they have concerns about safety and fire risk. Ms F also complains the Council delayed progressing the case and did not keep her updated, causing her distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. 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(1), as amended)

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How I considered this complaint

5. I spoke to Ms F about the complaint and considered the Council’s response to my enquiries and relevant law and guidance.
6. Ms 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

Relevant law and guidance

Planning Control and Enforcement

7. Most development needs planning permission from the council. If development takes place without the necessary planning permission or that fails to comply with a planning permission, there will be a breach of planning control. Councils should investigate reported breaches.
8. Planning enforcement action is discretionary, so even if councils find a breach, they may decide to take informal action or not act at all. When deciding whether to take enforcement action, councils should consider the likely impact of harm to the public and whether they might grant planning permission if they received an application for the unauthorised development.

Building Control and Building Regulations

9. 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.
10. A certificate of building regulations approval can be granted by councils acting as building control authorities. A building owner can get building regulations approval by submitting a “full plans” or building notice application. They may also apply for “regularisation”, i.e. retrospective approval for work already carried out without building regulations consent.
11. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations; the duty to comply with regulations lies with the building owner. If work is sub-standard, individuals may be able to seek redress in the courts, if they can show their builder did not act with reasonable care or skill.
12. Similarly, works to or near a party wall are a civil law matter under the Party Wall etc Act 1996. Damage to property caused by a neighbour’s building work would normally be a matter for private legal action by the property owner against the neighbour. Any dispute is a matter for a court of law, not the council, to decide.

What happened

13. Mrs M lives in an end terrace house. Ms F says Mrs M’s neighbour added a conservatory a number of years ago. She says the Council advised at the time that the conservatory could not be “permanently sealed off”.
14. In May 2023, Ms F advised the Council that the neighbour had added a further extension to the conservatory and made it a fully brick built “closed off” extension.
15. The Council opened a planning enforcement case and attempted to visit the neighbour a week later. The officer could not gain access. I have seen no evidence the Council kept Ms F informed or tried to visit again.
16. Ms F contacted the Council again in August 2023. She said the workmanship of the build was extremely poor and she was concerned there was a fire hazard. Ms F said the neighbour had “blocked off their kitchen into a permanent, fixed external extension using Mrs M’s garden wall”. This had damaged Mrs M’s property, breached the boundary and blocked the light. There was no party wall agreement in place. The Council said it would try to visit again.
17. The Council’s building control officer visited the neighbour’s house on 24 October. They found there was a breach of building control as a flat roof had been placed on a conservatory without building regulations approval.
18. The Council wrote to the neighbour asking them to submit a building control regularisation application. When it received no response, in December 2023 it added the building control contravention to the local land charges register. The Council decided it was not expedient to pursue a prosecution against the neighbour for the breach of building control.
19. The Council says it then closed the planning enforcement case following a desktop assessment. It has no case records of the planning enforcement case.
20. The Council emailed Ms F on 20 December with the outcome of the building control case but it did not explain that the planning enforcement case had also been closed.
21. Ms F came back to the Council in March 2024. She was concerned that she had not heard from the Council and that no enforcement action had been taken despite the Council determining that the build was “illegal”. I have seen no evidence the Council replied.
22. Ms F made a formal complaint in September. She said the build was a fire risk, had crossed Mrs M’s boundary and the workmanship was shoddy. In response, the Council said it would make a joint planning enforcement and building control visit.
23. The Council visited again on 19 November and took photographs. It found there was no breach of planning control because, whilst alterations including roof works and new windows had been made, these had not fundamentally altered the structure. I have seen no evidence that the Council advised Ms F of this outcome. The Council says the neighbour then submitted a regularisation application for building regulations approval.

My findings

24. The Ombudsman is not an appeal body. It is not our role to determine whether there has been a breach of planning or building control or whether enforcement action should be taken. That is the Council’s role. My role is to look at the procedures the Council has followed to reach its decisions. If we consider it followed those procedures correctly, we cannot question whether any resulting decision is right or wrong, regardless of how strongly a complainant may disagree with it.
25. I have reviewed the way the Council dealt with the enforcement cases it opened in 2023 when Ms F report alleged breaches.
26. Ms F reported the building work in May 2023. The Council tried to visit a week later but could not gain access. I have seen no evidence a further attempt was made until after Ms F came back to the Council. The Council then visited in October, five months after the initial report. The Council’s building control and planning enforcement policies do not contain any deadlines for making visits but I consider five months to be delay and fault.
27. In relation to building control, the Council has a record that in October 2023 the officer found there was a breach of building regulations. To resolve this the Council asked the neighbour to submit a regularisation application for retrospective building regulations approval. The neighbour did not do so, so in December 2023 the Council added the building control contravention to the local land charges register and decided not to prosecute. It then closed the case. These are decisions the Council was entitled to make and I have seen no fault in the way they were made. The Council says the neighbour made this application in November 2024.
28. In relation to planning enforcement, the Council has no case records from 2023. It says a desktop assessment was made in 2023 and the case closed but Ms F was not informed. This was fault. Whilst a planning enforcement case can be dealt with using a desktop assessment, we would expect records to be kept of what was found and why the Council decided to close the case. The informant should also be advised of the outcome.
29. The planning enforcement officer visited the neighbour in November 2024 following Ms F’s complaint. No breach of planning control was found. This is a decision the Council was entitled to make and I have seen no evidence of fault in the way it was made. I have seen no evidence the Council advised Ms F of the outcome, which is fault.

Did the fault cause injustice?

30. I have found there was poor communication with Ms F. This is fault which caused Ms F frustration and distress and to have to pursue the Council.
31. I have also found there was a delay in re-visiting the neighbour in 2023 and that it was fault not to maintain planning enforcement case records in 2023. But I do not consider this caused significant injustice to Mrs M or Ms F. This is because once the visits were made, no changes were made to the neighbour’s build and no planning control breach was found.

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Action

32. Within a month of my final decision, the Council has agreed to apologise to Ms F for the poor communication.
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman