The Ombudsman's final decision:
Summary: Mr and Mrs X complain about the Council’s failure to control their neighbour who has not completed building a house extension. There was no fault in the way the Council made its decision not to take enforcement action.
- Mr and Mrs X complain the Council has failed to use its enforcement powers against their neighbour, who has:
- not completed an extension for which the Council granted planning permission; and
- left a scaffold which overhangs their land for an unreasonable period of time.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I read Mr and Mrs X’s complaint. I read the Council’s response to the complaint and discussed it with a Council Officer.
- I gave the complainants and the Council an opportunity to comment on a draft of this decision.
What I found
- Planning enforcement powers are found in the Town and Country Planning Act 1990. The Council’s enforcement powers are discretionary. The Council may take action if it feels it is ‘expedient’ to do so. The public may make allegations of breaches of planning control, but have no right to insist enforcement action is taken or right of appeal about the merits of any such decision.
- The government has issued guidance for councils to help them decide when it would be expedient to take action. Councils should only take action if it would be a proportionate response. They should take account of the harm caused by the breach and consider whether action is in the public interest.
- Planning powers are used to protect the public in general. They cannot be used to resolve private disputes. Trespass of land is a private matter between land owners and may only be resolved in the civil courts
- Under section 215 of the Town and Country Planning Act 1990 the Council may serve a notice on an owner or occupier of land if it appears that the amenity of the area is affected by the condition of the land. Section 215 notices may be used to tidy land or improve the condition of a building.
- Once a planning permission is granted, it must begin within a specified period if it is to remain lawful. Once approved development begins, it becomes lawful in perpetuity (i.e. forever).
- Planning permissions do not set completion dates and councils have limited powers to require completion. A completion notice may be served under section 94 of the Town and Country Planning Act, but it would need to be confirmed by the Secretary of State. The notice warns that unless the building is completed within a reasonable time, the planning permission will become invalid.
- If the notice is not complied with, the planning permission becomes invalid, but those parts of the building already complete remain lawful. The notice cannot be used to ensure completion of the development and for this reason they are rarely used by councils.
- The Ombudsman is not an appeal body to planning enforcement decisions. Our role is to review the process by which decisions are made and, where we find fault in the process, to determine if a significant injustice was caused.
- In 2013 Mr and Mrs X’s neighbour received planning permission to build a single storey rear and first floor side extension.
- In 2015 Mr and Mrs X complained the development was not built in accordance with plans. The Council found a breach of planning control as the materials used were not those approved in the permission. The Council discussed the issue with the developer’s agent, who agreed a satisfactory resolution.
- The Council says later in 2015 it received further complaints from Mr and Mrs X about the time taken to complete the building work, that the scaffold was encroaching on the land and that building materials had fallen onto their land.
- The Council explained that it had no power to require completion of the development and that the scaffold did not require planning permission.
- Mrs X has suggested the Council could use a section 215 notice to require removal of the scaffold. A Council Officer has explained that the Council would not use section 215 for this purpose.
- In the Council’s view the purpose of this section is to require the removal of detritus or maintain unkempt buildings. In this case, the building work is lawful and progressing, albeit slowly. Removing the scaffold would only serve to slow completion of the building works.
- The Council says there is no current breach of planning control and in any event this would not be a high priority. In the Council’s view, the scaffold is a temporary structure and is being used to complete a lawful development. It is not causing a significant impact to the public in general, but it is the subject of a neighbour dispute relating to private rights.
- The Council is aware of Mr and Mrs X’s concerns. It has considered them alongside its powers under the Town and Country Planning Act 1990 and has made its decisions in accordance with government guidance. We are not an appeal body and cannot comment on the judgements that have been made in the absence of fault in the process.
- In these circumstances it is entitled to make the decision it has.
- If Mr and Mrs X believe the scaffold is encroaching their land or that building operations are causing a real threat nuisance to them, they should exercise their private rights in the civil courts.
- I have completed my investigation as I found no fault in the way the Council made its decision.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman