Summary: We will not investigate this complaint about the Council’s handling of planning enforcement and building control matters related to extensions constructed by the complainant’s neighbour. There is insufficient evidence to conclude that fault by the Council has affected the outcome.

The complaint

1. Mr X complains about the Council’s handling of the planning enforcement and building control matters related to extensions at a neighbouring property. In particular, he says the Council delayed in carrying out a planning enforcement site visit, and thinks it should have stopped the development from proceeding.

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The Ombudsman’s role and powers

2. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation, or
• we are satisfied with the action the Council has already taken in response to the complaint.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

3. With regard to the first bullet point, we can 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

4. I considered:
• information provided by Mr X, which included the Council’s Stage 2 complaint response.
• information about the neighbour’s planning application, as available on the Council’s website.
• the Council’s ‘Planning Enforcement Policy’, as available on its website.
• the Ombudsman’s Assessment Code.

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My assessment

5. If there is a breach of planning control, councils have the discretion to take enforcement action to remedy this; but they are under no obligation to do so. In each case, councils may decide whether further action is expedient. Government guidance is that councils should act proportionately when considering this. There is no expectation councils should automatically enforce against every planning breach. Councils may therefore decide to take informal action or not to act at all. Informal action might include negotiating improvements or seeking the submission of an application. Government guidance encourages councils to resolve issues through negotiation and dialogue.
6. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault in how decisions were made, and we consider if any fault we may find is likely to have affected the planning enforcement outcome. In other words, we will only pursue a complaint if there is clear evidence of fault in the way a decision was made which, but for that fault, is likely to have led to a different enforcement decision/outcome.
7. I consider there is insufficient evidence that fault in the handling of the enforcement case has affected the outcome. So, we will not start an investigation. In reaching this view, I am mindful that:
• it would be unusual for a planning stop notice to be issued by a council for this type of planning enforcement matter.
• prior to the site meeting, the building control officer attempted to visit the site on three occasions, and followed this up with letters to the neighbour advising that a building control application was necessary. The final complaint response sets out how the Council would deal with any outstanding building control issues in the event that the neighbour’s planning appeal is allowed.
• the Council has acknowledged a planning enforcement visit was not carried out within the timescale detailed in its policy, however it notes the observations from the building control visits were communicated to the planning service.
• prior to the site visit, the planning enforcement officer wrote to the neighbour twice about the breaches of planning control.
• the Council was entitled to invite the submission of a retrospective planning application. The Council refused this application, but it was allowed on appeal by the Planning Inspectorate.
• the loss of a view is not regarded as a material planning consideration when determining a planning application.
• Party wall issues, covenants, and the ‘right to light’, are all private, civil matters, so would not be taken into account when determining a planning application.
8. I also note the Council has apologised for failing to return Mr X’s calls requesting an update on the case, and has reiterated the importance of good communications to the officer involved. This was a satisfactory way to address that part of the complaint.

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Final decision

9. We will not investigate Mr X’s complaint primarily because there is insufficient evidence to conclude that fault has affected the enforcement outcome.

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Investigator's decision on behalf of the Ombudsman