Summary: We will not investigate this complaint that the Council failed to properly assess a breach of planning control by a councillor. There is insufficient evidence of fault in the way the Council considered the matter.

The complaint

1. Miss X complains the Council failed to properly assess a breach of planning control by her neighbour, who is a councillor. She says the increased height of the extension reduces light into habitable rooms and her garden, and has an overbearing impact.

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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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), 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 Miss X.
• information provided by the Council, which included: photographs/notes from its site visit; and confirmation of where the height measurement was taken from.
• information about the planning application, as available on the Council’s website.
• the Council’s ‘Planning Enforcement Policy’.
• the Ombudsman’s Assessment Code.

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My assessment

5. I appreciate Miss X is unhappy the Council decided it was not expedient to take enforcement action when the extension was built higher than shown on the approved plans.
6. But the Ombudsman is not an appeal body, and our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how it made its decision.
7. I consider there is insufficient evidence of fault in the way the Council considered the enforcement case, so we will not start an investigation. In reaching this view, I am mindful that:

• Councils can take enforcement 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. As enforcement is discretionary, formal action should only happen when it is a proportionate response to the breach; it is up to the council to decide whether it is expedient to take action.
• the Council visited the application site. It measured the height from the ground level next to the extension up to the eaves, and compared this with the approved plan.
• there was no requirement to also measure from Miss X’s property.
• the Council was entitled to reach a professional judgement that it was not expedient to take enforcement action against the 19cm increase in height.

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Final decision

8. We will not investigate Miss X’s complaint because there is insufficient evidence of fault in the way the Council considered the enforcement case.

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Investigator's decision on behalf of the Ombudsman