Summary: We will not investigate this complaint about the Council deciding not to take planning enforcement action against an extension built next to the complainant’s home. There is insufficient evidence of fault in the way the Council reached its decision on the expediency of taking action.

The complaint

1. Mr X complains the Council has not taken planning enforcement action against his neighbour’s extension, which he says has been built closer to his property than was shown on the approved plans. He says the works overhang his property and prevent him from maintaining his roof.

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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 investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

3. With regard to the first bullet point above, 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 and the Council, which included the Council’s enforcement and complaint responses.
• information about the neighbour’s planning application, as available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

5. Councils can take action if they find a breach of planning rules. However, they should not take enforcement action just because there has been a breach of planning control. 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.
6. The Council says a planning enforcement investigation has taken place, and the development appears to comply with the approved plans, so there is no breach of planning control. Mr X disagrees, as he says the wall is approximately 350mm closer than it should be.
7. But as I understand it, even if there has been a breach of planning control, the Council says the development does not cause significant harm to the public amenity, so it would not be expedient to take enforcement action. This is a professional judgement the Council is entitled to reach. It could not take into account Mr X’s concerns about trespass/encroachment as these are private, civil matters between him and his neighbour. Overall, there is insufficient evidence of fault in the way the Council reached this decision, so we will not start an investigation.

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Final decision

8. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council decided it would not be expedient to take planning enforcement action.

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Investigator's decision on behalf of the Ombudsman