Summary: We will not investigate Mrs X’s complaint about the Council’s handling of a planning enforcement matter. This is because it is unlikely we could achieve any worthwhile outcome for Mrs X. The Council accepts it made an error in closing the initial report in 2023 but has decided the breach complained about does not warrant enforcement action and I have not seen any evidence of fault in the way it reached its decision.

The complaint

1. Mrs X complains the Council has failed to take enforcement action against a neighbouring property owner for a breach of planning control. She also says the Council has failed to take account of the impact of the breach on her property.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

Back to top

My assessment

4. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) allows certain development without the need for planning permission. This is known as ‘permitted development’.
5. Mrs X has reported concerns about a structure to the rear of her neighbour’s property over several years. The Council investigated the matter in 2023 but decided the structure did not require planning permission as its dimensions fell within those allowable as permitted development. Had Mrs X had concerns about the Council’s decision it would have been reasonable for her to complain to us at the time, but she did not.
6. Mrs X contacted the Council again about the structure in late 2024 as she said it was too tall and could not therefore be permitted development. The Council reinvestigated and confirmed Mrs X was correct. It noted the structure was slightly too tall to be permitted development and apologised to Mrs X for the error. However it explained the breach was so minor that it did not warrant formal enforcement action. It also confirmed that it is highly likely it would have granted planning permission for the structure, had the property owner applied for it.
7. Mrs X is unhappy about the Council’s error and says its recent decision not to take formal enforcement action failed to take account of the impact of the structure on her and her property. She believes the Council should remove the structure or alternatively place restrictions on its use.
8. While there is a technical breach of planning control in the height of the structure, permitted development rights provide a ‘fallback’ position which the Council must consider. The fallback position looks at what the property owner could do without planning permission and takes account of the impact of any difference between this and what they have built. In this case the breach relates to the height of the structure, so if Mrs X’s neighbour reduced this it would be immune from enforcement action as permitted development. The Council must therefore consider what impact the additional height has and not any impact caused the structure’s use, as this could continue lawfully if its height was reduced. The Council has decided the additional height does not cause sufficient harm to warrant enforcement action and that there is no basis to ask the neighbour to apply for planning permission to keep it.
9. The decision not to take enforcement action is one the Council was entitled to make and I have seen no basis for us to question it.

Back to top

Final decision

10. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council in the way it reached its decision not to take enforcement action.

Back to top

Investigator's decision on behalf of the Ombudsman