Summary: Mr B complains the Council has not enforced against a neighbouring development that does not comply with approved plans. He says this has led to a loss of outlook from his property. The Ombudsman does not find fault with the way the Council considered whether to take enforcement action.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not enforced against a neighbour’s extension, which is closer to his boundary than approved plans. He says the plans showed the extension at least one metre away but the final build is only 86cm away. Mr B says the Council did not measure the distance from the true boundary. He also says the developer has used different materials to those outlined in the plans.

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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 an organisation’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)
3. If we are satisfied with an organisation’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

4. I considered the information Mr B provided and spoke to his representative about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
6. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
7. 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 2021, paragraph 59)
8. Approved Inspectors are private bodies or individuals who may undertake building control functions. The Approved Inspector and applicant must submit an "Initial Notice" to the Council Building Control service before work begins. Once the notice is accepted, the Approved Inspector is responsible for ensuring building works comply with Regulations. We cannot investigate complaints about how they carry out their work.

Background

9. The Council granted planning permission for Mr B’s neighbour to build an extension to their home. The approved plans showed the extension would end one metre from Mr B’s boundary.
10. On construction of the extension, Mr B raised concerns with the Council that the neighbour had used the wrong building materials. The extension was meant to be built with bricks, but the neighbour used large blocks. The Council visited and identified that this was a breach of planning permission. The neighbour initially told the Council they would add brick slips to the blocks. However, they instead built a brick wall on the outside of the blocks, rather than taking the blocks down and starting again.
11. Mr B raised concerns with the Council that the additional brick wall, on the outside of the blocks, meant the edge of the extension was closer to his boundary than on the approved plans. The Council visited and measured the distance. It measured from a wall at the front of Mr B’s property. It recorded a gap of 97cm. It found it was not expedient to take enforcement action, based on a difference of 3cm between the that and the approved plans.
12. Mr B says the wall the Council measured from is inside his boundary. He says the true boundary is represented by a fence that runs along a larger part of the boundary. From this fence, the distance is only 86cm.
13. The Council says the fence is old and an unreliable place from which to take the measurement. Its notes confirm the Council conducted further research, using an online tool, which showed an outbuilding was on the boundary. That outbuilding is inside the fence. It therefore believes the fence is not the correct boundary. It says it believes the true boundary is from the wall at the front, which is the point at which it measured 97cm.
14. Mr B also says the roof tiles of the extension are grey, which is not in keeping with the street. He says the tiles were meant to be red. The Council said it would not take action on this point as the tiles are close in colour and, over time, they would fade and become more in line with the other properties. Mr B says no amount of time or weathering will turn the tiles from grey to red.
15. Mr B also says the windows are the wrong colour. The Council asked the neighbour to paint the windows to the correct colour. However, it did not follow up to check this happened and Mr B says it has not happened. The Council says it does not consider it would be worth pursuing the neighbour on this point as they could paint the windows any colour using permitted development rights.

Findings

16. I do not find fault with how the Council decided it was not expedient to take enforcement action.
17. It is clear there is a dispute between Mr B and the Council about where the correct boundary is. I cannot resolve this dispute. I can only investigate whether the Council has properly followed its procedures and taken into account all the information available in making its decision. I can see the Council has considered Mr B’s comments about the location of the boundary. It has carried out further research to check its understanding of the boundary location. Therefore, I cannot find fault in how the Council decided which point was the correct boundary. I also cannot find fault in the Council deciding the 3cm difference, compared to the approved plans, is not significant enough to warrant enforcement action.
18. Mr B is concerned the inclusion of a brick wall around the blocks, places extra weight on the foundations. He says the foundations are not suitable to take that weight and is concerned that it poses a safety risk to his property. I cannot find fault on this issue.
19. The safety of the construction is not a planning consideration. The planning officer who approves the application needs to consider the impact on residential amenity, such as loss of privacy, light or outlook. These are also the relevant factors for the planning enforcement team to consider. The enforcement team found there was not enough impact on residential amenity to warrant enforcement action here.
20. Building regulations set out the standards for safe construction. In this case the owner used an approved inspector, who was responsible for checking the construction met building regulations. If the inspector found the construction did not meet building regulations, and the owner failed to put this right, the inspector would have passed the matter back to the Council, who could have taken enforcement action. The inspector approved compliance with building regulations, so this did not happen.
21. I understand the approved inspector has not responded to Mr B’s concerns. However, this is not something the Ombudsman or the Council can get involved in. Approved inspectors have the responsibility to decide whether a building is complaint, and it is not the Council’s role to check how they reached that decision. If any damage is caused going forward, this would be a private legal matter between Mr B and his neighbour.
22. An approved inspector might also be subject to legal action if they approve something that is not in line with the regulations, and this leads to damage. Again, this would be a private matter between the parties involved.
23. The reference to brick slips appears to be a miscommunication based on the initial course of action the neighbour indicated they would take. It does not make any difference to the outcome, as the officer took the measurements from the new brick wall of the extension.
24. I also do not find fault in the Council not taking further action on the tile and window colours. The Council accepts these are different to the approved plans but again does not consider this causes significant enough harm to take action. I understand Mr B's point, that grey tiles are unlikely to turn the same colour as red tiles. However, this alone does not cause significant injustice to Mr B, and I cannot criticise the Council for finding it is not expedient to take further action. I also accept that the owner can paint the windows a different colour under permitted development rights, so again cannot find fault in the Council not considering it proportionate to pursue this further.

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Final decision

25. The Council is not at fault in how it considered whether to take enforcement action.

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Investigator's decision on behalf of the Ombudsman