Summary: I have seen no evidence of fault in the Council’s actions prior to its decisions not to pursue enforcement action against the complainant’s neighbour. The Council investigated the complaint and confirmed not all matters in the enforcement notice were completed. However, it told the complainant it would not take further action as the main issue in the Enforcement Notice had been complied with. And the decking is not raised, and the harm caused (if any) is insignificant.

The complaint

1. The complainant, who I shall call Mrs X, disagrees with the Council’s decision not to take further action on a wall, fencing, decking and light pollution from a neighbouring property. She says the Council has not provided a justifiable reason for not taking further action.

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The Ombudsman’s role and powers

2. 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

3. I considered the information provided by Mrs X and the Council. I also discussed the matter with Mrs X and considered her complaints on the draft version of this decision.

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What I found

4. The Council served an Enforcement Notice on the freeholder of the flats next to Mrs X’s home for erection of a front boundary wall and fencing without planning permission.
5. The Enforcement Notice required the freeholder to:
1. reduce the height of the front boundary wall and fence to no more than one metre when measured from pavement level
2. make good any exposed surface resulting with compliance with the above action; and
3. remove all resultant debris from compliance with (a) and (b) above.
6. The Council says the freeholder has partly complied with the Enforcement Notice. It accepts the wall is not a maximum of one metre along its length when measured from the pavement.
7. It has considered the matter and advised Mrs X it believes the most harmful elements of the breach of planning control have been complied with. It decided pursuing the matter in the courts is not a proportionate response, nor is it in the public interest.
8. Mrs X disagrees with this decision.

Assessment

9. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary, the Council does not have to take action.
10. In this case, the Council issued an Enforcement Notice to remedy a breach of planning control. This Notice related to the front boundary wall only. The Council visited the site and told Mrs X of the reason it did not intend to pursue the remaining breach in court. While I understand that Mrs X disagrees with the decision, it is a decision the Council may to take, and I find no evidence of fault.
11. Mrs X also complains about unauthorised decking at the neighbouring property.
12. The Council has confirmed it inspected the decking and it is not permitted development. However, it is not raised, and the Council does not consider the harm (if any) is so significant enough to warrant formal action.
13. Mrs X says prior to the COVID 19 pandemic the owner was using the property as unregistered holiday accommodation. She says residents sat out on the decking making a noise, disturbing residents.
14. If Mrs X believes the owner has changed the use of the property to holiday accommodation, she can report this to the Council who will consider whether there is breach of planning control and if a change of use application is required.
15. Noise nuisance in general is not a planning consideration as nuisance arising from noise can be controlled through other legislation. If Mrs X believes the current neighbours are causing a statutory noise nuisance, she can make a complaint to the Council’s Environmental Health department who can consider the matter.

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Final decision

16. I will not investigate this complaint. The Council has considered the breaches of planning control at the neighbouring property and advised Mrs X of the reasons for not taking further enforcement action. I have not seen evidence of fault in the process leading to this decision.

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Investigator's decision on behalf of the Ombudsman