Summary: The Ombudsman will not investigate this complaint about the Council concluding it could not take enforcement action against a gazebo erected by the complainant’s neighbour. There is insufficient evidence of fault in the way the Council reached its decision.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council should take enforcement action against a gazebo erected over a hot tub by his neighbour.
2. Mr B believes the gazebo is a permanent structure, is contrary to Class E(e) of Part 1 of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 2015, as amended (referred to here as ‘permitted development rights’), and has an unacceptable impact on his neighbouring residential amenity.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
4. In that regard, we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered:
• Mr B’s complaint to the Ombudsman;
• The Council’s 3 October letter to Mr B;
• Information from the Council about how it responded to the complaint;
• Mr B’s comments on a draft version of this statement.

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What I found

Background

6. ‘Development’ is defined by the Town and Country Planning Act 1990. If an operation or use is not considered to be ‘development’, then it is not subject to planning control, including permitted development rights.
7. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority.

What happened

8. Mr B contacted the Council about a gazebo his neighbour had erected over a hot tub. Mr B says the gazebo is adjacent to and slightly overhangs his boundary, and that it does not benefit from permitted development rights because it is over 2.5m high.
9. The Council conducted a site visit. It reached the view the structure did not amount to ‘development’, due to it’s tent like nature, so it could not consider taking enforcement action.

Assessment

10. I appreciate Mr B disagrees with the Council’s decision that it cannot take enforcement action against the gazebo. But the Ombudsman cannot question the Council’s decision unless there is evidence of administrative fault in the way it was made.
11. I find there is insufficient evidence of fault by the Council to warrant the Ombudsman pursuing the complaint further. In reaching this view, I am mindful that:
• the Council visited the site where the gazebo had been erected, and was entitled to then reach a professional planning judgement on whether the structure constituted ‘development’. There was no requirement for the Council to visit Mr B’s property in order to reach that judgement;
• an assessment of the visual impact would normally only occur if it had been established that the works amounted to ‘development’ AND were contrary to permitted development rights. The Council would then consider the visual impact in deciding whether it was expedient to pursue enforcement action or in determining an associated planning application;
• if Mr B believes the noise from the hot tub amounts to a nuisance, then it is open to him to report this to the Council’s Environmental Health department;
• if Mr B believes the gazebo overhangs his boundary, then that is a private, civil matter between him and his neighbour.

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Final decision

12. The Ombudsman will not investigate Mr B’s complaint. This is because there is insufficient evidence of fault by the Council

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Investigator's decision on behalf of the Ombudsman