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Birmingham City Council (16 011 428)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: There was no fault in the way the Council considered an application from Mr B’s neighbour to build an extension under the prior approval process. There was also no fault in the way the Council considered what action to take in respect of an unauthorised patio area and steps to the rear of the extension.

The complaint

  1. Mr B complains that the Council has not taken appropriate steps to deal with a breach of planning control by their neighbours who have built an unauthorised patio onto their new rear extension. Although the Council has allowed their neighbours to build a fence along the boundary to mitigate the overlooking from the patio, the addition of this fence has also affected Mr B’s amenity.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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

  1. I have considered Mr B’s written complaint and spoken with him. I have considered correspondence involving Mr B, his neighbour and the Council, and papers relating to the planning application and the enforcement investigation. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

  1. Planning permission is required for the development of land (including its material change of use). There are different ways in which planning permission can be granted. An applicant may apply for planning permission, but there is also permitted development, where Parliament has given a blanket planning permission for many minor works.
  2. Between a planning application and permitted development there is a third process - prior notification (also known as prior approval.) This applies where the development is, in principle, permitted development, but gives the Local Planning Authority (LPA) limited control to regulate more controversial development.
  3. In May 2013, the government introduced a scheme allowing householders whose properties had permitted development rights to build larger, rear single storey extensions using the Prior Approval scheme. (General Permitted Development Order 2015 Class A.1(g))
  4. The scheme allows increases in the depth of extensions from 6 to 8 metres for detached houses and bungalows. The applicant must provide the following information to the LPA:

“(a) a written description of the proposed development including -

        1. how far the enlarged part of the dwellinghouse extends beyond the rear wall of the original dwellinghouse;
        2. the maximum height of the enlarged part of the dwellinghouse; and
        3. the height of the eaves of the enlarged part of the dwellinghouse;

(b) a plan indicating the site and showing the proposed development;”

  1. The applicant must also give the LPA the addresses of any adjoining neighbours. The LPA will then tell the neighbours. Neighbours can object but only if it will harm their amenity, in which case the LPA must decide whether the impact is acceptable. If no objections are received, the development can go ahead once the local authority notifies the developer.

Planning Enforcement

  1. LPAs can take enforcement action if they find that planning rules have been breached. However they do not have to take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)

What happened

  1. Mr and Mrs B own and live in a detached house. Their neighbour’s house is also detached. Due to the difference in ground levels, steps are needed to access the back gardens of both houses.
  2. In late 2015, Mr B’s neighbours applied for prior approval for a rear extension to their house. They supplied a plan showing the location of the proposed extension and the following dimensions: a 7.4m deep single storey rear extension, with maximum height of 3.5m, and eaves height of 2.9m (as amended). There was no reference to a patio area or steps. The Council notified Mr B. As it received no objections, there was no requirement to consider the impact on Mr B’s amenity so the Council notified the neighbours that development could proceed.
  3. However, when the neighbours started building the extension, they added a narrow patio area (around 1m in depth) which extended beyond the 8m permitted depth of the extension. Steps then led from the patio area to the back garden.
  4. Mr B complained to the Council that there was no planning permission for the patio area. He was concerned that patio would result in overlooking to his home.
  5. The Council undertook an enforcement investigation. It considered that the extension was permitted development, but the patio was unauthorised. It felt that steps would be necessary to access the garden due to the land levels. The Council felt that the main issue affecting Mr B was potential overlooking from the patio and this could be remedied by their neighbours installing a 1.8m fence to screen the side of the patio.
  6. Mr B’s neighbours agreed to this and promptly installed the fence. However, Mr B was unhappy with this compromise. He felt that extending the fence further along the boundary would make the extension more overbearing and enclosing.

My assessment

Prior approval

  1. I have considered whether there was fault in the prior approval process.
  2. The extension itself is less than 8m deep and so is within the parameters of the prior approval scheme. The height is less than the maximum 4m allowed under permitted development, and the eaves height matches the existing.
  3. As the proposals submitted appear to comply with the requirements of the prior approval process and the Council received no objections, there were no grounds for it to go on to consider whether the impact of the extension would be acceptable. So the Council notified the neighbours that development could proceed.
  4. I see no fault in the way the Council considered the application.

Enforcement investigation

  1. Mr B complains that his neighbours should not have built a patio as this is not permitted development. This has also lead to a breach of the 8m limit on the depth of the extension. Furthermore, the steps also extend well to the rear of the building and should not have been allowed without planning permission.
  2. He feels that the Council should have required his neighbours to submit a planning application to regularise the patio area and steps. But instead the Council decided, without consulting them, that asking their neighbours to build a fence would provide a solution to their objections. Mr B does not consider that this solves the problem. Instead it adds to the overbearing nature of the development.
  3. It is clear that the patio area and steps were not authorised under the prior approval process. However, the Council has considered whether to invite a planning application to regularise the patio, or to take enforcement action to seek its removal.
  4. The Council did not consider that it could support an application to regularise the patio, but felt that any overlooking could be largely remedied by installing a close-boarded fence at the side of the patio. As this would limit the impact on Mr B’s amenity, the Council did not consider that it would be expedient to take further action.
  5. As to the steps at the rear, the Council has explained that, due to the difference in ground levels in the back gardens, it would have been necessary to have steps to access the extension from the garden. It considers that the steps would have been acceptable had it been asked to consider the matter further under the prior approval process. It does not appear therefore that the outcome would have been different even if a planning application been required for the steps.
  6. I appreciate that this is a source of frustration to Mr B. I understand that he does not consider the Council’s actions to be proportionate or that they maintain confidence in the planning system.
  7. However, the Council considers the steps taken to be proportionate to the breach of planning control. I see no fault in the way the Council considered the breach, so I cannot question the merits of the Council’s decision to take no further action, even though Mr B disagrees with that decision.

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Final decision

  1. For the reasons set out above, I have not found fault in the Council’s handling of the application or the subsequent enforcement investigation.

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Investigator's decision on behalf of the Ombudsman

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