Summary: We will not investigate this complaint about the Council’s failure to take enforcement action against a breach of planning control. We have not seen enough evidence of fault in the way the Council considered the report of a breach of planning control and in the way it approved a retrospective planning application.

The complaint

1. Mrs W complains for Mr X and Mr Y. She says the Council has failed to take enforcement action against breaches of planning control, instead approving a retrospective planning application against their wishes. She also says the Council:
• Failed to instruct a party wall surveyor; and
• Failed to consider the neighbours have built on Mr X’s and Mr Y’s land.

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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 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.

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

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How I considered this complaint

3. I considered information provided by Mrs W and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council granted planning permission for an extension to the property next to Mr X’s & Mr Y’s home. Their neighbours did not build the extension according to the approved plans.
6. Mrs W complains the Council did not take enforcement action or require the property to be built in accordance with the original plans.
7. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
8. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
9. In this case, the Council decided to accept a retrospective planning application, which was approved, and would resolve the breaches of planning control on the site. This is a decision the Council is entitled to make.
10. The Council publicised the new application and Mr X and Mr Y objected.
11. The applicant put in three different sets of plans. The Council notified the neighbours each time and Mr X and Mr Y objected to each set of plans.
12. The Planning Officer’s report on the proposal includes a summary of Mr X’s and Mr Y’s objections. It also details the Planning Officer’s professional opinion on why the proposal overcomes the objections.
13. The Council, as local planning authority, must consider all relevant planning matters, including objections received. However, it has discretion about what weight to give to them. Our role is only to consider whether the planning authority acted correctly by considering relevant planning matters, not to reach their own view of them where there is no fault.
14. From the information I have seen the Council considered Mr X’s and Mr Y’s objections and the impact of their neighbour’s extension on their home.
15. Mrs W says the Council should not have granted permission for the neighbours to build on Mr X’s and Mr Y’s land.
16. It is the applicant’s responsibility to ensure the correct ownership certificate is completed with their application and it is not the Council’s responsibility to decide land ownership. In this case the applicant originally signed the certificate stating they were the sole owner of the property. However, they later presented a signed certificate B confirming they had given notice to the owner or tenant of any part of the land. The Council received this document before it granted planning permission.
17. I understand Mrs W says the neighbours did not give Mr X and Mr Y notice. However, this is the applicant’s responsibility and not for the Council to check.
18. The planning officer’s report sets out the national and local planning policies. It considers the objections and explains why the officer believes the proposal should be approved.
19. A senior officer agreed with the planning officer and granted planning permission under the Council’s scheme of delegation.
20. I understand Mrs W disagrees with the Council’s decision and believes it should take enforcement action to remove the breaches of planning control. However the Council is entitled to use its professional judgement to decide to accept a retrospective application to regularise the breaches of planning control at the neighbour’s property. Enforcement action is discretionary and councils do not need to take formal enforcement action just because there has been a breach.
21. I have not seen sufficient evidence of fault in the way the Council decided to accept a retrospective planning application. Nor is there enough evidence of fault in the way it made its decision to approve the application.
22. As the built extension has planning permission there are now no breaches of planning control on the site and therefore nothing for the Council to take enforcement action against.
23. Mrs W also says the Council failed to involve a party wall surveyor. And the neighbours have built across Mr X’s and Mr Y’s boundary, damaged their property and left a mess. However, these are actions of the neighbours, not the Council. They are private civil matters for Mrs W, Mr X and Mr Y to resolve directly with their neighbours.

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Final decision

24. We will not investigate Mrs W’s complaint because we have not seen enough evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman