Summary: Mrs B complains that the Council has not responded properly to her complaints about breaches of planning control, the Party Wall Act and the building regulations by her neighbour in constructing a rear and side extension. She considers that this has adversely affected her amenity. The Ombudsman has found no fault in the way the Council responded to Mrs B’s complaints about breaches of planning control. The other parts of her complaint are outside the Ombudsman’s jurisdiction.

The complaint

1. Mrs B complains that:
• After her neighbour failed to build an extension in accordance with the approved plans, the Council failed to take adequate enforcement action against her neighbour.
• Instead, the Council granted planning permission to regularise an overbearing extension on the boundary with her home, with only a small change in its height, which has adversely affected her family’s outlook and amenity.
• The Council has also allowed her neighbour to retain windows on the boundary, which have resulted in a loss of privacy, and to keep guttering which overhangs her property and does not accord with the approved plans.
• The Council has also not properly investigated her concerns that her neighbour’s house is being used as a House in Multiple Occupation (HMO).

Back to top

What I have investigated

2. I have investigated Mrs B’s complaints about the way the Council investigated concerns about breaches of planning control by her neighbour. For the reasons set out below, I have not investigated other aspects of her complaint.

Back to top

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. 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)
4. 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)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A (1), as amended)

Back to top

How I considered this complaint

7. I have considered Mrs B’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have taken into consideration the extensive correspondence with Mrs B, and planning papers that the Council has provided or are available online. I have also sent Mrs B and the Council a draft decision and considered their comments.

Back to top

What I found

8. The general power to control the development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.

Planning permission

9. Planning permission may be granted subject to conditions relating to the development and use of land. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. Government statements of planning policy are material considerations. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
11. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Planning enforcement

12. Councils can take enforcement action if they find that planning rules have been breached. Councils are not able to monitor all the works that take place within their area and so will rely on members of the public to notify them of possible breaches of planning control.
13. Enforcement action is discretionary and councils should not 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 July 2018, paragraph 58)

What happened

14. Mrs B lives in a two-storey detached house in a street of similarly sized houses with long back gardens. Most houses in the street have rear extensions or conservatories. Mrs B’s home has a single-storey rear extension with a pitched roof, and a small terraced area to the rear, facing towards the west.
15. The neighbouring house to the north had two rear extensions with pitched roofs covering the width of the main house. There was also a single-storey garage with a pitched roof on the side next to Mrs B’s home.
16. In late 2016, Mrs B’s neighbour (the applicant) applied for planning permission to demolish the garage and rear extension and erect a two-storey side extension and a single-storey side and rear extension. The plans for the rear extension showed a dual pitch roof.
17. Planning permission was granted in early 2017 and works started later that year. In October 2017, Mrs B complained to the Council that the development was not being built in accordance with the approved plans and had a flat roof instead of dual pitch roof.
18. The Council asked the applicant to re-submit the application with new plans showing the changes to the rear extension. The Council consulted neighbours, including Mrs B, who objected on grounds of loss of privacy from the side windows. They also raised concerns about the scale of the extension and the increased eaves height.
19. The case officer considered the application and prepared a report setting out the planning history of the site, policy considerations, neighbour objections and an analysis of the merits of the proposals. It was felt that the issue of privacy could be addressed by conditioning the planning permission to require the side windows to be obscure-glazed (and non-opening above 1.7 metres on the southern side of the extension). It was not felt that objections to the increased height could be sustained because there was a reduction in the ridge height, and the eaves height was only marginally greater than what could be built under permitted development rules. The report therefore recommended approving the application.
20. Planning permission was granted under delegated authority subject to conditions, including obscure glazing.
21. Soon after, Mrs B complained that the extension was larger than shown in the approved plans. Enforcement officers visited and initially informed Mrs B that the extension had been built in accordance with the plans. However, they visited again and took further measurements on the side next to Mrs B’s property using the damp proof course as a fixed point. This confirmed that the extension was 30 centimetres higher than approved. The Council apologised for the misleading information and explained that it had been difficult to measure the height relative to the ground level accurately at the first visit as the land around the extension had not been fully reinstated.
22. The Council wrote to the applicant advising her of the height difference and invited her to make a new application. An application was submitted for the development as built and a new raised patio area. The case officer prepared a report recommending refusal on grounds that the scale, massing and design of the extension would harm the character of the dwelling and the streetscene.
23. In August 2018, Mrs B complained that the applicant’s property was being used as an HMO. The Council investigated and inspected and concluded, on the evidence seen and provided, that the house was not being used as an HMO.
24. Following discussions, the applicant agreed to remove the proposed patio from the planning application. The plans were also amended to reduce the height of the rear extension from a maximum of 3.93 metres to 3.645 metres next to Mrs B’s home (and 3.675 metres on the northern side).
25. The case officer prepared a report for the Planning Committee to consider. The report again set out the planning history of the site, policy considerations, neighbour objections and an analysis of the merits of the proposals. It explained that the second application was a valid planning permission and that the present application must be considered against what could be built under the previous application. The case officer concluded that the changes were sufficient to overcome the previous grounds for refusal and recommended approval.
26. The application was considered by the Planning Committee and Mrs B spoke to the Committee expressing her concerns and objections. The Committee resolved to grant planning permission for the reasons set out in the case officer’s report. The planning permission was subject to conditions including the requirement that within two months the two north-facing side windows be made obscure glazed. The extension was also to be reduced in height to a maximum of 3.675 metres within six months.
27. In April 2019, Mrs B made a further complaint that the applicant’s house was being used as an HMO.
28. The Council undertook a further investigation. It found that there was no physical change to the property but, having regard to the property’s ongoing use, it should be regarded as a small-scale HMO. However, as there were fewer than six occupants, this change of use was permitted development and did not require planning permission. The Council also confirmed that the windows had been obscure glazed
29. The applicant then undertook works to reduce the height of the extension, as required by the condition on the third planning permission. In the event, the height was reduced to a maximum of 3.705 metres rather than 3.675 metres. Mrs B complained about this but the Council did not consider it expedient to take further action as the height difference was minimal compared with what was approved in the third application.

My assessment

30. This has been a lengthy and frustrating process for Mrs B and she remains unhappy with the outcome and the impact on her amenity. However, it was for the applicant to comply with planning permission and, where that was not the case, it was for the Council to decide what action, if any, to take.

Initial complaint about the extension and second planning application

31. Mrs B initially complained when the applicant started building a flat roofed extension which did not comply with the planning permission. As the building control function was not being undertaken by the Council, it was unaware of the deviation from the plans until notified by Mrs B.
32. The Council asked the applicant to apply to regularise what was being built. It did not have to ask the applicant to stop works, but continuing construction was at the applicant’s own risk. I see no fault here. It was for the Council to decide whether it was expedient to take formal enforcement action.
33. The Council then considered the application, as set out above, and granted planning permission with conditions designed to protect the amenity of neighbours. I see no fault in the way the Council considered the second application, so it is not for the Ombudsman to question the merits of that decision.

Second complaint about the extension and third planning application

34. Mrs B then raised concerns that the extension was higher than approved. The Council undertook an enforcement investigation and, once it had established the ground level which had been affected during construction, it determined that there was a breach of planning control.
35. It was again for the Council to decide whether to take formal enforcement action at this stage. The applicant chose to apply to regularise the works but was told that this was unlikely to be acceptable. She then submitted plans to reduce the height of the extension. The Council considered that the changes proposed were acceptable in planning terms and granted planning permission subject to conditions to protect neighbouring amenity.
36. I see no fault here. It seems to me that the Council has acted proportionally in seeking a further application, and I see no fault in the way it considered that application.

Failure to comply with third planning permission

37. During the second HMO investigation the Council checked compliance with the condition on obscure glazing and found that the windows complied with the condition.
38. The applicant then reduced the height of the extension. Although the final height was three centimetres higher than approved, I see no grounds to question the Council’s view that it was not expedient to take further action given the minimal difference in height. I see no fault here.

House of Multiple Occupation

39. The Council has twice investigated Mrs B’s complaints about a change of use to an HMO. On the first occasion it did not consider that, as a matter of fact and degree, a change of use had occurred. On the second occasion, it decided that there was now enough evidence to determine that there had been a change of use, but that this use was permitted development. I see no fault in the way the Council investigated this matter.

Back to top

Final decision

40. I have closed my investigation into Mrs B’s complaint because I have found no fault in the way the Council responded to her concerns about breaches of planning control.

Back to top

Parts of the complaint that I did not investigate

41. I am not investigating Mrs B’s concerns about the closeness of the extension to the boundary because the location of the extension was approved in the 2016 application and this is now out of time for the Ombudsman to investigate.

Trespass

42. I cannot investigate Mrs B’s concerns about trespass in respect of foundations and drainage issues because these are private legal matters between Mrs B and her neighbour and do not involve the Council.

Compliance with the building regulations

43. I cannot investigate Mrs B’s concerns about the way that the building control function was carried out because this was not undertaken by the Council but by a private company.

Information on the Party Wall Act

44. I am not investigating Mrs B’s complaint that the Council did not inform her about the Party Wall Act because there is no obligation for the Council to do so. It is open to Mrs B to raise this with her MP if she thinks that the law should be changed in this regard.

Less favourable treatment

45. I am not investigating Mrs B’s complaint that she has been treated less favourably than other residents because another comparable application in the street was recently refused. This is because each application will be considered on its own individual merits, and the Ombudsman would expect Mrs B to first pursue a complaint about this with the Council.

Back to top

Investigator's decision on behalf of the Ombudsman