Summary: X complained about the Council’s failure to take enforcement action against his neighbour, who carried out development works without planning permission. We did not investigate this complaint further, because we were unlikely to find fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s failure to control development on their neighbour’s land.
3. X said that parts of a new building overhang the boundary and surface water flows onto their land.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and received an update from a planning enforcement officer.
6. I gave the Council and X an opportunity to comment on my draft a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. If a development is built without permission and is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Council planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.
8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Planning enforcement powers

13. Councils have a range of options for formal planning enforcement action available to them, including the following.
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
14. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Building Control

15. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with Building Regulations, and requiring or carrying out emergency works to make buildings safe.
16. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
17. Building regulations approval can be granted by Council’s acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
18. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner. Only council building control authorities can take enforcement action in relation to non-compliant work.

What happened

19. X’s neighbour built extensions on the front and rear of their house. X complained to the Council about these extensions because they felt:
• parts of the building extension overhung the rear boundary;
• there was a large chimney on the rear extension;
• the buildings were constructed of poorly matching materials;
• rainwater flooded onto X’s land; and
• the extension of a bay window at the front caused a loss of privacy.
20. X also complained about:
• large outbuildings in the neighbour’s garden;
• storage of rubbish in the neighbour’s rear garden; and
• vehicles parking on the neighbour’s driveway.
21. I asked for an update from a planning enforcement officer, who told me:
• there is a breach of planning control because the extensions are not permitted development;
• the Council invited the landowner to make a retrospective planning application, but this had not happened yet;
• if there is no application, the Council will then decide what, if anything, it should do next. In making this decision it will consider what harm is caused to the public by the breaches;
• the allegations relating to overhanging buildings and surface water run-off are, in so far as they directly affect X, private matters between landowners. However, the Council may consider drainage issues along with other planning considerations if it receives a retrospective planning application;
• building control have examined the chimney and are satisfied it meets building regulations;
• the outbuildings do not need planning permission because they are built within permitted development regulation limits;
• parking vehicles on the neighbour’s driveway is not a matter for the planning authority; and
• the condition of the neighbour’s garden is not a matter for the planning authority.

My findings

22. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
23. Before we begin or continue our investigations, we consider two, linked questions, which are:
• is it likely there was fault; and
• is it likely any fault caused a significant injustice.
24. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
25. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
26. I should not investigate this complaint further, and my reasons are as follows:
• We do not normally investigate while enforcement action is ongoing. This is because, if we were to find fault, we would need to determine whether it caused an injustice, and we cannot assess injustice until the planning outcome is settled.
• There is no obvious evidence of fault here. The Council considered X’s allegations, investigated them, found a breach of planning control and decided to invite a retrospective application. This is the enforcement process we expect.
• We do not expect councils to become involved in disputes between neighbours over private land matters. If there is an encroachment or damage caused by flood water, disputes can only be resolved in the civil courts.

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Final decision

27. I ended my investigation, because it was unlikely to result in a finding of fault, a recommendation for a remedy for X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman