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Medway Council (20 008 700)

Category : Planning > Other

Decision : Not upheld

Decision date : 21 May 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council told him construction work his neighbour completed without planning permission was Permitted Development despite his neighbour completing works above roof level. Mr X says his neighbour’s property now overlooks his because of the construction work and the Council’s failure to act. The Ombudsman does not find fault with the Council.

The complaint

  1. Mr X complained the Council told him construction work his neighbour, Mr Y, completed without planning permission was Permitted Development despite Mr Y completing works above roof level.
  2. Mr X says Mr Y’s property now overlooks his because of the construction work and the Council’s failure to act.

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The Ombudsman’s role and powers

  1. 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. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Mr X provided comments on my draft decision. I considered Mr X’s comments before making my final decision.

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What I found

Permitted development rules

  1. Most new buildings and changes to existing buildings require a grant of planning permission from the Council. But, some developments benefit from a grant of planning permission from central government. Such permission, called Permitted Development, does not require a full planning application to the Council for approval.
  2. Each type of Permitted Development has certain conditions and limits. If a development does not meet all the relevant criteria a person will need to make a planning application.
  3. The Town and Country Planning (General Permitted Development) Order 2015 set out the different types of Permitted Development. Class B concerns the enlargement of a dwelling house consisting of an addition or alteration to its roof. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B).
  4. Development is not permitted under Class B if:
    • Any part of the dwelling house would, as a result of the works, exceed the height of the highest part of the existing roof. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B.1 (b)).
    • Any part of the dwelling house would, as a result of the works, extend beyond the plane of any existing roof slope when this roof slope faces a highway. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B.1 (c)).
    • The cubic content of the resulting roof space would exceed the cubic content of the original roof space by more than 50 cubic metres for detached or semi-detached houses. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B.1 (d.ii)).
    • The part of the dwelling house, as a result of the works, is closer than 0.2metres from the pre-existing eaves other than for a hip-to-gable enlargement. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B.2 (b.i)).
    • No part of the enlargement extends beyond the outside face of any external wall of the original dwelling house. (Town and Country Planning (General Permitted development) Order 2015, Schedule 2, Part 1, B.2 (b.ii)).

Council’s enforcement policy

  1. The Council’s policy outlines it commits to investigate alleged breaches of planning control. The Council’s enforcement team will act to ensure developments take place in line with legislation for planning conditions.
  2. The Council’s policy outlines that it is not illegal to build without the benefit of planning permission. The Council needs to decide each development on its own merits.
  3. When a person complains to the Council about a possible enforcement issue the Council will:
    • Assign an investigating officer and acknowledge a complaint.
    • Make an initial site visit within 20 working days.
    • Contact the person responsible for a breach of planning control.
    • Advise the complainant once it has made a site visit and what the result of the investigation is.
    • Advise complainants and offenders if the Council will take formal action if a person has breached planning control.
    • Tell complainants and the person the Council is investigating that it will close an enforcement case where the Council do not consider it expedient to pursue the case further.

What Happened

  1. Mr Y, began building works on their property in June 2020 after putting up scaffolding above roof height.
  2. Mr X discovered Mr Y did not have planning permission and contacted the Council to complain on 4 June 2020. The Council opened a planning enforcement case to investigate Mr X's complaint.
  3. A council officer from the Council’s enforcement team attended the site on 12 June 2020. The council officer took photographs of the site showing the scaffolding and property pre-works. The Council asked the developer to send the Council development plans.
  4. Mr X complained to the Council on 12 June 2020 and 14 June 2020 that work was continuing. The Council told Mr X it was investigating the complaint and would provide an update once it completed its investigation.
  5. The developer sent the Council the development plans on 15 June 2020.
  6. Mr X contacted the Council various times in June 2020 to complain. The Council told Mr X it had received the development plans and would be checking the measurements to decide if Mr Y was acting in line with Permitted Development.
  7. The Council’s enforcement team calculated measurements from the photographs and plans. The Council’s enforcement team found:
    • The original roof to the property measured at 99.86metres cubed.
    • The side Gable extension increased the roof size by 10.24metres cubed.
    • The rear Dormer extension increased the roof size by 25.95metres cubed.
    • The property previously had a single-story extension of 10.26metres cubed.
    • The overall increase in size was 46.45metres cubed which was within Permitted Development rules.
    • All other aspects of the designs appeared to be Permitted Development.
  8. Mr X advised the Council building works stopped on 27 June 2020 but asked the Council for an update to the enforcement case. The Council did not respond to Mr X.
  9. Mr X contacted the Council on 2 September 2020 to advise Mr Y had restarted building works. Mr X asked for an update from the Council.
  10. The Council told Mr X the works appeared to be Permitted Development on 10 September 2020.
  11. Mr X complained about the Council’s use of the phrase “appeared” and questioned the accuracy of the Council’s enforcement investigation and whether the Council had visited the site.
  12. The Council confirmed to Mr X it had visited the site in June 2020 and had reviewed the development plans. The Council explained it did not visit the site again because of the Covid-19 pandemic and it is not always necessary to visit a site as part of an investigation.
  13. Mr X complained about the Council’s investigation and further works completed by Mr Y five times from 11 September 2020 to 28 September 2020. Mr X provided photographs and disputed the works were Permitted Development as the roof height had changed and pitch of the roof had also changed.
  14. The Council completed a second site visit on 1 October 2020. The Council took photographs of the site on this date which showed no front development, Gable extensions to the side and a Dormer rear extension, both extensions sitting at least 20centimetres back from the eaves.
  15. The Council provided its Stage 1 complaint response to Mr X on 27 October 2020. The Council said:
    • It carries out site visits from the land and it carries out investigations in a manner which does not put anyone at risk due to the Covid-19 pandemic.
    • Following its investigation, the works completed appeared to follow Permitted Development rules.
  16. Mr X disputed the Council Stage 1 response on 29 October 2020. Mr X said:
    • The Council had not completed a proper investigation.
    • The phrase “appears to comply” does not confirm the Council has checked the works are in line with Permitted Development rules.
    • Mr Y had increased the height of the roof by five or six foot which is not in line with Permitted Development.
  17. The Council sent its Stage 2 respond to Mr X on 19 November 2020. The Council said it had visited the site, it had checked the works against the plans and Mr Y’s works followed Permitted Development rules.
  18. Mr X complained to the Local Government and Social Care Ombudsman.

Analysis

  1. Mr X complained Mr Y extended the loft on his property without planning permission.
  2. The Council said Mr Y’s loft extension was in line with Permitted Development rights.
  3. A person can build on their property without a planning application if the proposed works fall in line with Permitted Development rights.

Council enforcement investigation

  1. Mr Y began construction on his loft without consultation with the Council. Mr Y had no duty to contact or consult with the Council if he believed his loft extension fell within Permitted Development rights.
  2. Mr X complained to the Council about Mr Y’s construction works. Mr X complained to us about the Council’s investigation and lack of enforcement action.
  3. The Council has a duty to investigate alleged breaches of planning control. Should the Council discover breaches of planning control it should take suitable enforcement action as it sees fit.
  4. The Council opened an enforcement case when Mr X contacted to allege a breach of planning control. The Council enforcement team attended Mr Y’s property within 20 working days of Mr X reporting the breach. Attending the site for an initial site visit in this timescale is in line with the Council’s policy.
  5. During the site visit the Council contacted Mr Y and asked him to provide planning documents for the works. The Council took photos of the works and made notes. The Council also updated Mr X that it was investigating the alleged breach following the site visit. The Council acted in line with its policy, and I do not find fault.
  6. The Council decided the proposed extension works were Permitted Development in July 2020 from the development plans. Mr X confirmed the works stopped after June 2020. Since the development plans showed works in line with Permitted Development and Mr Y had not completed development by July 2020, the Council enforcement team could not take further action.
  7. Mr X asked for an update at the end of June 2020 for which the Council did not provide a response. While it would have been favourable for the Council to provide a response, the Council’s policy outline it will update a person once it closes an enforcement case or decides on further action. Since the Council had not decided to close at this point, the Council was not at fault.
  8. Even if I did find fault, the delay in responding did not cause Mr X an injustice as construction work stopped in July and August 2020.
  9. When Mr X contacted for an update in September 2020, the Council responded accordingly. The Council advised Mr X of its thinking and completed a second site visit in October 2020. The Council completed the second site visit after Mr Y finished construction.
  10. The Council decided the works were Permitted Development, told Mr X and closed the enforcement case.
  11. The Council acted in line with its policy while completing the enforcement investigation. I do not find fault with how the Council handled the investigation.

Council’s findings

  1. The Council got objective evidence of measurements from the development plans.
  2. Given the concerns of the Covid-19 pandemic, it was fitting for the Council to get objective evidence of the measurements rather than completing internal measurements themselves.
  3. Measurements from the development plan show the overall size increase of the loft is 46.45metres cubed, including previous extended space. Class B Permitted Development rights allow a person to expand a roof space by up to 50cubic metres without planning permission. The Council is not at fault for deciding the total space increase is Permitted Development.
  4. The Council also took photographs to show the outside of the building works during and after construction and compared these with images from before construction work began.
  5. The Council’s photographs show the side Gable extension and rear Dormer extension both sit back from the original eaves of the house. The photographs show these extensions sit back at least 0.2metres from the eaves and do not go beyond the outside face of any existing wall. This again falls in line with Permitted Development rights and I do not find fault with the Council’s decision.
  6. Mr X raised specific concerns over the height of the roof. Permitted Development rights do not allow a person to increase the height of the roof or extend beyond the plane of a roof facing a highway.
  7. The photographs taken after completion of the works do not show any extension beyond the plane of the roof at the front of the house, facing the highway.
  8. The photographs taken and the images obtained before Mr Y starting construction work also do not show an increase to the overall height of the roof. While Mr Y erected scaffolding above the height of the roof this was to enable access and not for increasing the roof height. Mr Y extended the roof closer to, and around, the chimney stack and the overall mass of the roof has increased. While this gives an illusion of an increase in height, the height of the roof has not itself changed.
  9. The lack of change in height and no extension beyond the front roof plane falls in line with Permitted Development rights and I do not find fault with the Council’s decision.
  10. The Council’s investigation showed no breach of planning controls. The Council reached its decisions in line with objective evidence it obtained, or Mr Y provided. The Council’s decision making is in line with Permitted Development legislation for a Class B building and I do not find fault.

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Final decision

  1. I have completed my investigation as there was no fault in the Council’s decision that the construction works completed were Permitted Development.

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Investigator's decision on behalf of the Ombudsman

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