Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because there is not enough evidence of fault in the Council’s enforcement decision‑making process to justify investigating.

The complaint

1. Miss X complains the Council refused to take enforcement action against the breach of planning control at her neighbour’s property. She says the development is too large to be considered permitted development and caused a loss of light.
2. Miss X’s neighbour is a private landlord who rents out the property. Miss X complains about the Council’s handling of noise reports against the tenants living in her neighbour’s property. She complains her neighbour advertised the property for rent without a valid House of Multiple Occupation (HMO) licence.

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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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Miss X is unhappy about her neighbour’s extension, and that the Council has decided it is not expedient to pursue planning enforcement action.
8. But the Ombudsman is not an appeal body. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
9. I consider there is not enough evidence of fault in the way the Council made its decision to justify starting an investigation. In reaching this view, I am mindful that:

• the Council made its decision after considering the fact it had asked the neighbour to submit a retrospective planning application, but they did not do so
• while the Council said there was a technical breach of planning control in the overall size of the structure, it explained 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.
• Government guidance says planning authorities should usually avoid taking formal enforcement action where there is a trivial or technical breach of planning control.
• the Council considered the impact of the extension on Miss X, but decided, with regard to the appearance/size and level of loss of light, the difference between what has been built and what has been deemed to be acceptable under permitted development rights, was very small.

10. For these reasons, we will not investigate the complaint because there is not enough evidence of fault by the Council to justify investigating. The Council has explained why it does not consider the breach has caused serious harm and will not take enforcement action.
11. The Council’s Community Response Team has investigated Miss X’s report of noise nuisance from her neighbour’s tenants (mainly connected with playing music and talking loudly). It has decided the noise is daily living noise, meaning it would not take action. The Council investigated Miss X’s reports but found no grounds on to which to base further action. We will not investigate because there is not enough evidence fault by the Council.
12. Miss X says the tenants have since moved out and she no longer experiences the same noise from the current tenants.
13. We will not investigate Miss X’s complaint that her neighbour advertised the property for rent without a valid HMO licence. After Miss X reported this to the Council, this led to the neighbour successfully applying for an HMO licence. We will not investigate the complaint. The Council acted on Miss X’s report and this led to an HMO licence. There is not enough evidence of fault to justify investigating and any injustice is not significant enough to justify our involvement.
14. Miss X’s recent complaint about the suitability of the HMO licence based on the new tenants is premature. It is reasonable to expect Miss X to first complain to the Council about this. If she remains unhappy with its final complaint response, she may wish to make a new complaint to the Ombudsman.

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Final decision

15. We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant investigation.

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Investigator's decision on behalf of the Ombudsman