Summary: X complained the Council failed to require demolition work to reduce the size of their neighbour’s extension. X said the extension affected their amenity and was partly built on X’s land. We ended our investigation because it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to require demolition work to reduce the size of their neighbour’s extension.
3. X said the extension affected their amenity and was partly built on X’s land.

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The Ombudsman’s role and powers

4. 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 could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint.
6. I gave the Council and X an opportunity to comment on an earlier draft of this decision.

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What I found

Planning enforcement powers

7. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
8. When steps set out in an enforcement notice are not taken within the period of time allowed in the notice, the Council may enter land, carry out work and recover costs against the landowner.
9. However, 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 assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Material planning considerations

10. When carrying out their planning functions, councils may only take account of material planning considerations. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.

What happened

12. X’s neighbour built an extension without planning permission. X complained to the Council because of the impact the extension had on their amenities and because it was partly built on X’s land.
13. The Council’s planning enforcement officers investigated X’s allegation and found the extension to be in breach of planning controls. The Council served an enforcement notice requiring the landowner to demolish the extension or reduce its size.
14. The landowner did not comply with the notice and so the Council considered what to do next. It decided to carry out works in default to finish and make good the wall facing X so that it was visually acceptable. To carry out this work, the Council needed access to X’s land.
15. X refused access because:
• enforcement officers had previously said works in default would include demolition of the extension; and
• the extension encroached over the boundary line and so affected their private property rights.
16. The Council said it considered the works it proposed to be a proportionate response to the breach of planning control, and as X had denied it access to carry out the work, it ended its investigation.
17. X continued a private action for encroachment against their neighbour and was successful. The extension has now been removed.

My findings

18. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
20. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
21. Before it made its decision to end its planning enforcement investigation, the Council:
• considered X’s allegation;
• considered its enforcement powers under the Town and Country Planning Act 1990;
• investigated the situation on site;
• found a breach of planning control and served an enforcement notice; and
• when the landowner did not comply with the terms of the notice, considered what action was necessary and proportionate.
22. This is the planning enforcement process we expect and further investigation by me is unlikely to find fault or lead to a different outcome.
23. Some parts of X’s complaint relate to an encroachment over the boundary affecting their private rights as a landowner. Private land interests are not a matter for planning authorities to resolve.
24. X took their property dispute to a civil court and was successful. The court was the appropriate body to determine X’s rights as a landowner.
25. For these reasons, I have ended my investigation.

Decision

26. I ended my investigation because it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman