Summary: Mr X complained the Council failed to act on planning breaches and environmental health issues and delayed responding to his complaint. The Council delayed investigating the planning issues and delayed responding to the complaint which caused Mr X frustration. There is no fault in how the Council assessed the planning breaches or in how it considered the environmental health issues. An apology for Mr X’s frustration is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council:
• failed to act on environmental health issues created by a building on a neighbouring property;
• failed to act on planning and building regulation breaches; and
• delayed responding to his complaint.
2. Mr X says the Council’s actions meant he experienced noise, light and smoke pollution as well as a loss of privacy.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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(i), as amended)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr X and the organisation 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

Government guidance - permitted development rights for householders 2019

9. This sets out the various classes where permitted development rights exist. Class E is for buildings within the curtilage of a house for and says permitted development is:
• a)any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or
• b)a container used for domestic heating purposes for the storage of oil or liquid petroleum gas
10. The guidance sets out the circumstances where development is not permitted which includes:
• where the building has more than a single-storey
• where the height of the building, enclosure or container would exceed:
1. 4 metres in the case of a building with a dual pitched roof;
2. 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwelling house; or
3. 3 metres in any other case.
11. The height of the building, enclosure or container should be measured from the highest ground level immediately adjacent to the building, enclosure or container to its highest point.

The Council’s planning enforcement policy

12. The first part of an enforcement case is the desktop investigation. In this stage the investigating officer checks the planning history of the site, planning policy considerations and reviews relevant legislation, case law and any other information.
13. Sometimes the Council asks the person that has complained to complete diary sheets or provide other information to substantiate their allegation.
14. Stage two is the site visit. Once on site, the officer will identify themselves and the reason for their visit and, where possible, obtain the identity of the person who owns or is otherwise responsible for the site.
15. Where unauthorised development is found or suspected, photographs and any necessary measurements will be taken along with a written description of the development and any other relevant information.
16. Planning enforcement powers are discretionary, and the Council can only take formal action when it is expedient to do so. This means that when deciding to take action it takes into account national and local planning policy and other material considerations, including the effect on a business, the harm to the amenity of neighbours and the public interest.
17. It is unlikely to be expedient to take enforcement action against a breach of planning control that is minor or technical in nature and does not, in the Council's view, cause any harm.
18. The Council’s policy sets three categories:
• Category A for high priority cases which require urgent action where a site visit is required within 1 working day. That includes unauthorised development that causes immediate, irreparable and serious harm to the neighbourhood.
• Category B for cases with medium priority where a site visit must take place within 10 working days. That includes breaches that cause an ongoing disturbance to neighbours and the character of the area.
• Category C for low priority cases where a site visit will take place within 15 working days. That includes cases where there are technical breaches of planning control where there appears to be no significant harm and matters where an initial assessment indicates it may be permitted development or recommended for approval if a regularising application was submitted.
19. It is not a criminal offence to carry out development without planning permission, except for works to listed buildings, protected trees and the display of unauthorised advertisements. If a breach can be remedied by imposing planning conditions or with minor changes, the enforcement team will request submission of a retrospective planning application.

The Council’s nuisance investigation and enforcement procedure

20. It refers to the Environmental Protection Act 1990 and its explanation of what constitutes a statutory nuisance. That includes smoke, noise and artificial light emitted from premises so as to be prejudicial to health or a nuisance.
21. To investigate complaints of nuisance fairly contact must be made with the person responsible. Initially that is through informal letters alerting them to a complaint raised about nuisance from their property.
22. After receiving a complaint an officer will telephone the person that has complained to understand the nature of the complaint. Once it is established the complaint is something the Council can investigate it will inform the person that has complained of the investigation procedure and request cooperation to provide evidence to support the complaint such as nuisance monitoring forms or use of the noise app. That allows noise to be recorded and uploaded so the investigating officer can listen to it.
23. The Council will send the complainant and the person complained of first action letters, if the complainant agrees. The complainant’s letter will include a noise leaflet, and advice sheet on use of the noise app and the monitoring form.
24. If recordings using the noise app or entries on the returned monitoring form do not support the complaint the officer will tell the complainant it cannot be substantiated and the complaint will be closed. The Council will give the complainant advice on taking their own action under section 82 of the Environmental Protection Act 1990.
25. Officer observations may be made in the vicinity and the complainant may be offered noise monitoring equipment.

Details of the main events for planning

26. Mr X contacted the planning department about a building erected in his neighbour’s garden in September 2024. When Mr X had not received a response he put in a complaint on 11 December 2024.
27. A Council officer visited the neighbour’s property on 28 January and measured the height of the development as 2.47 metres. The officer considered the development was permitted development. The Council told Mr X that.
28. Mr X contacted the Council on 7 February to challenge its decision. Mr X said the height was 3.5 metres at the boundary and the unit covered 25% of the garden area. In response the Council provided Mr X with guidance on permitted development and outbuildings.
29. Mr X put in a stage two complaint on 20 February.
30. The Council responded to that complaint on 18 March. The Council said the small degree of exceedance of the height from what would be permitted development, in combination with the minimal visual impact as the structure was screened, meant the Council did not consider it warranted formal enforcement action to lower the height to 2.5 metres.
31. Mr X again said the Council had relied on wrong measurements as he said the building was 3.5 metres tall. Mr X asked whether the Council had included the height of the chimney. In response the Council clarified the measurement is from the land on which the building has been erected. The Council explained although the chimney height would likely mean the building exceeded 2.5 metres it considered it a technical breach that would not warrant enforcement action. The Council pointed out if the chimney was 10 cm lower it would not be within the Council’s control.

Details of the main events for the noise complaint

32. Mr X contacted the Council’s environmental health department to report noise from the building in his neighbour’s garden in September 2024. Mr X said his neighbour uses the building to watch TV and listen to music. He said he had asked his neighbour to reduce the volume but his neighbour had ignored him.
33. The Council wrote to Mr X and his neighbour. The Council asked Mr X to complete noise app recordings and monitoring sheets. After considering those Mr X had returned in October 2024 the Council decided the noise did not constitute a statutory nuisance. Mr X said there had been an improvement but he could still hear the noise. Mr X asked for more time to get evidence, which the Council agreed to. Later in October Mr X told the Council the noise had improved and the Council closed the case.
34. In March 2025 Mr X reported further noise nuisance and followed that up with a further report on 3 April due to building work taking place. A Council officer visited the street on 4 April and although the officer could hear some drilling it did not last long and the officer did not hear any music. The Council contacted Mr X to give him some advice about statutory nuisance and asked him to complete monitoring sheets and use the noise app.
35. The Council’s officer carried out further visits to the street in April but did not identify any noise. The Council closed the noise complaint as not substantiated on 10 April.

Details of the main events for the smoke complaint

36. Mr X contacted the Council to report smoke from the chimney on the building in the neighbour’s garden which was entering his house and leaving soot deposits inside his property. The Council explained to be a statutory nuisance the smoke would need to be persistent and must unreasonably and substantially interfere with the use or enjoyment of the property. Mr X said it was persistent and affected the enjoyment of his property.
37. Mr X provided the Council with photographs and videos. The Council asked Mr X to complete the monitoring sheets. The Council then wrote to Mr X’s neighbour about the complaint.
38. Mr X provided the Council with completed monitoring sheets in March 2025. The Council said an officer needed to visit to evaluate the impact first hand. The Council asked Mr X if he could confirm if he would be happy to do that. When Mr X agreed the Council asked Mr X for dates.
39. Mr X provided the Council with further monitoring sheets on 25 March and videos of smoke nuisance. The Council carried out visits to the area at various times of the day and night in March and early April 2025. The Council did not identify any smoke, noise or light nuisance.
40. The Council asked Mr X to provide further monitoring sheets. Mr X raised concerns about the Council asking for more information as he felt he had provided enough to show the effects on him. Mr X also raised concerns about the Council not visiting him as it had offered to do. In response the Council told Mr X the nuisance monitoring sheets were the most important part of the evidence to support any formal action.
41. Mr X provided the Council with further monitoring sheets. The Council told Mr X the small number of instances of smoke occurring during the day would not meet the threshold for a statutory nuisance. The Council also said the light from the cabin did not meet the criteria for statutory nuisance as it was diffused through frosted material and no brighter than any other window visible from the rear of Mr X’s property. The Council said to act it needed evidence of frequent, substantial and unreasonable interference with the use and enjoyment of the property and the evidence Mr X had provided did not support that threshold. The Council therefore said it could not act although Mr X could pursue private action under section 82 of the Environmental Protection Act.
42. On 25 April the Council closed the smoke complaint as not substantiated.

Analysis

43. Mr X says the Council failed to act on noise, smoke and light pollution from a building built in the garden of a neighbouring property. Mr X says he has experienced noise nuisance and has had to keep his windows and curtains closed to prevent overlooking, light pollution and smoke entering his property.
44. The evidence I have seen satisfies me Mr X at first complained to environmental health about noise from the building. I am satisfied the Council followed its procedure by speaking to Mr X and then writing to him and his neighbour about the issues raised. I am also satisfied the Council considered the noise recordings Mr X made, the noise app recordings and the monitoring sheets Mr X completed. After considering those I am satisfied the Council wrote to Mr X to explain it did not consider the noise he had reported constituted a statutory nuisance and it therefore closed the file in 2024. As I am satisfied the Council followed the right procedure and considered all the information before it reached its decision there are no grounds on which I could criticise it.
45. I am also satisfied the Council properly investigated the noise, smoke and light issues Mr X raised in 2025. Again, I am satisfied the Council followed its procedure by speaking to Mr X and sending a letter to him and his neighbour. I am also satisfied the Council carried out a visit to the area where the officer could view the building complained of and Mr X’s property at various points during each day visited. The evidence I have seen satisfies me on those occasions the officer did not identify any noise, light pollution or smoke.
46. I am satisfied that is the reason the Council closed the complaints in 2025. As I am satisfied the Council properly considered the matters which included considering the monitoring sheets Mr X completed, the video and photographic evidence Mr X provided and the results of officer monitoring visits to the area, I could not say the Council had reached its decision with fault. I therefore have no grounds to criticise it for deciding there was no evidence of a statutory nuisance in this case. That is not to say the smoke, noise and light issues did not have a significant impact on Mr X. It is clear they did. However, that is not the same as saying those matters constitute a statutory nuisance for which the Council can act.
47. I note though the Council offered Mr X a visit to his property in March 2025 so an officer could witness the nuisance themselves. The Council says that visit did not take place because Mr X did not provide a suitable time when the Council asked for one. That is accurate. However, I am also satisfied further communications from Mr X in April 2025 raised concerns about an officer not visiting his property as agreed. I would have expected the Council to follow that up with Mr X and seek to arrange a visit given the complaint was still open at that point. I have seen no evidence it did so. That is fault.
48. I do not consider it likely though, on the balance of probability, if the Council had viewed the noise, smoke and light issues from Mr X’s property it would have reached a different conclusion. That is because it would not change the fact the Council had already considered videos of the light and smoke nuisance, had considered noise app recordings, had monitoring sheets so the Council could find out the frequency and duration of the alleged nuisance and had visited the area in line with the times when nuisance was recorded to make observations. I therefore consider Mr X’s injustice here is limited to his frustration, for which I consider an apology an appropriate remedy.
49. Mr X says the Council failed to act on breaches of planning and building regulations. For the planning breach Mr X says the building is 3.5 metres tall and as it is within 2 metres of the boundary it exceeds the permitted development rights and therefore needs planning permission.
50. The evidence I have seen satisfies me the Council has measured the height of the development and is satisfied the building is within the 2.5 metres permitted development rights. The Council accepts the chimney protrudes slightly above the 2.5 metres and its view is that this is a technical breach that does not warrant enforcement action.
51. I understand Mr X strongly disagrees with the Council’s assessment here. As I make clear in paragraph 4 though, it is not my role to comment on the merits of the Council’s decision unless there is evidence of fault in how the Council has reached that decision. As the Council has reached the decision after measuring the height of the development I have no grounds to criticise it.
52. As I make clear in paragraph 16, there is no requirement for a Council to take enforcement action even if it has identified a breach of planning control. Instead, in each case the Council has to decide whether it is expedient to take enforcement action. The evidence I have seen satisfies me the Council has identified that including the height of the chimney the development exceeds 2.5 metres in height. However, the Council does not consider that exceedance to be so significant as to warrant enforcement action. That is a decision the Council is entitled to take and is not one the Ombudsman could criticise, no matter how much Mr X disagrees with it.
53. In reaching that view I note Mr X raised concerns the Council did not measure the height of the development from his property. However, the Council is required to carry out the measurement from the nearest adjacent land on which the development is built. What that means in this case is the ground level of the garden on which the development is built. The Council has carried out the measurement from that ground level. I therefore have no grounds to criticise it.
54. I recognise Mr X is concerned because his ground level is lower than the ground level on which the building has been erected. The building is therefore higher when measured from his ground level. I cannot criticise the Council for not carrying out measurements from Mr X’s property. That is because for permitted development purposes the measurement should take place from the ground level on which the building has been built.
55. For the chimney height, I recognise Mr X has raised concerns about the chimney not according with the building regulations. I have no evidence Mr X raised that matter with the Council before it closed his planning enforcement complaint. I am satisfied though it is a matter Mr X raised as part of his later complaint. I am satisfied the Council dealt with that by consulting its building control department. That department said a single story structure of less than 15 m², not used for sleeping, is exempt from the building regulations. As I am satisfied the Council has considered Mr X’s concerns and explained why it cannot act there are no grounds on which I could criticise it.
56. I note though there was a delay identifying the Council needed to consider whether the electrics and water connection are compliant with the building regulations. I cannot see the Council identified that until it responded to the stage two complaint in March 2025. That delay is fault. I note the Council intended to investigate that further although I do not have any further detail about what happened with that investigation. As Mr X has now moved out of the property and as I have not found any fault in how the Council assessed the planning and building control concerns Mr X raised or in how it dealt with the environmental health issues I do not consider it necessary to make further enquiries.
57. Mr X says the Council delayed responding to his complaint. The evidence I have seen satisfies me Mr X first raised concerns about the building in his neighbour’s garden on 17 September 2024. I have seen no evidence the Council took any action to investigate until January 2025. That delay is fault and does not meet the timescales set out in the Council’s enforcement procedure. The Council accepts it then delayed responding to Mr X’s December 2024 complaint. That is also fault. Those delays are unlikely to have convinced Mr X the Council was taking his concerns seriously and caused him frustration and distress. I consider the apology the Council has already offered satisfactory remedy.

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Action

58. Within one month of my decision the Council should apologise to Mr X for the frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman