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Bury Metropolitan Borough Council (20 014 101)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 03 Aug 2021

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint about how it dealt with planning applications by the complainant’s neighbour for a house extension and garden room.

The complaint

  1. Mr X lives next door to a property whose owner applied for and received planning permission for two developments: a house extension and a separate garden room. Mr X complains the Council:
    • produced an inaccurate planning report for his neighbour’s extension;
    • did not make sure his neighbour complied with the planning permission for their extension;
    • has ignored his neighbour’s multiple breaches of planning permissions;
    • failed to tell him the planning system did not concern itself with land ownership issues;
    • did not deal properly with his complaints.
  2. Mr X says:
    • his neighbour’s development has damaged his garden, requiring replanting;
    • the extension is encroaching on to his land, without his agreement;
    • the neighbour has removed a ‘party fence’ on the shared boundary, without his agreement;
    • the matter has caused increased tension with the neighbours, severe mental upset, distress, and ill health;
    • he has suffered severe financial loss of £20,000 as he has employed a solicitor to determine the property boundary, get justice and compensation;
    • the garden room is overbearing and causes a loss of his view from his conservatory;
    • the Council did not tell him that land ownership was not a material planning issue, so he lost his chance to try to stop the work sooner.
  3. Mr X wants the Council to:
    • keep complainants updated on progress of complaints and acknowledge emails in future;
    • have impartial people deal with complaints;
    • follow its planning Enforcement Charter;
    • make sure similar circumstances do not happen to others.

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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. 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. As part of my investigation I have:
    • considered the complaint and the documents provided by Mr X;
    • viewed relevant online planning documents and maps;
    • issued a draft decision, inviting Mr X and the Council to reply;
    • considered Mr X’s reply to my draft decision.

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What I found

  1. A council’s grant of planning permission does not give rights to the applicant to damage or remove someone else’s property. The planning process is also not concerned with any ownership issues relating to the land to be developed.
  2. The Council granted planning permission, which gave the neighbour the right to build the extension in line with the permitted plans as seen and considered by planning officers. The neighbour then built the extension, partially on land owned by Mr X, and not in line with the plans.
  3. Where a developer does not follow the permitted plans and this is brought to a planning authority’s attention, the council would then decide what action to take. In this case, the Council noted the divergence from the permitted plan was minor, and if the applicant had sought permission for the development as built, it would have received permission. That is a decision officers were entitled to take. It is not fault.
  4. I note Mr X says the developer’s divergence from the plans resulted in the loss of the fence, damage to Mr X’s property, loss of his planting and claimed encroachment of the extension on to Mr X’s land. None of these claimed injustices stem from the Council’s planning decision. They are a direct result of actions by Mr X’s neighbour. It is not fault by the Council that Mr X’s neighbour built the extension differently from the permitted plans.
  5. In respect of the garden room, the neighbour built it without planning permission several years ago. They believed its location and size was covered by the General Permitted Development Regulations (GPDR). The Council noted the structure when viewing the site for the extension application. Officers took the view the garden room was not compliant with GPDR because it was 30cm too tall for its location near the boundary. They invited the neighbour to apply for planning permission for the garden room, which they did. The Council granted permission, with a condition that the structure be reduced in height by 30cm.
  6. Officers have visited and are satisfied the appropriate work to reduce the height has been done. Mr X disagrees and says the neighbour has not reduced the structure’s height, only increased the levels of ground surrounding it.
  7. Mr X says the garden room is overbearing and ruins his view from his conservatory. The Council accepted the outbuilding has some detrimental impact on light available to the rear of Mr X’s property. However, the judgement of the Council’s officers is that the ground levels surrounding the garden room were not raised.
  8. Officers were of the view there was little or no planning harm caused by the outbuilding, which had been in place at an increased height with no permission for 2 years, and with no complaint from Mr X. Even if not reduced to the exact permitted development height or under due to site level increase, officers were of the view there would be little planning harm to justify further enforcement action.
  9. It is not for the Ombudsman to substitute his judgement for that of the Council’s officers unless there was fault in the process leading to the judgement. In this case, I am satisfied there was no fault in the process. Officers informed Mr X of their judgement and also provided reasons for their judgement. While Mr X disagrees with their judgement, it is clear there is reasoned justification for the decision. This is not fault.
  10. I note Mr X’s concerns about delays by the Council in responding to his complaints. The Ombudsman does not condone delays by councils in responding to correspondence from residents. However, as I have not found fault in the substantive issues of the complaint, I do not consider this aspect of the complaint warrants further pursuit by the Ombudsman. Mr X cannot be said to have suffered serious enough injustice because of complaint handling when the Council was not at fault in the main matters of the complaint.

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Final decision

  1. There was no fault by the Council in the matters raised here by Mr X. I have closed the complaint.

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Investigator's decision on behalf of the Ombudsman

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