Summary: Ms X complained about the Council’s failure take action in response to her complaint about a breach of planning permission. We did not find the Council to be at fault because it considered her concerns but decided the development was built in accordance with the approved plans. In the absence of fault in the process, we are unable to recommend the Council takes action to restore Ms X’s privacy.

The complaint

1. Ms X complains about the Council’s failure to take action in response to breaches of planning permission. Her property backs on to a newly-built school that she says has not been built in accordance with the approved plans. Specifically, she says:
1. the plans did not include a car park to the rear of her property;
2. the plans did not indicate the ground level would be raised;
3. the plans did not include wooden storage sheds or the dimensions of an unsightly metal storage unit and;
2. Ms X says her privacy has been significantly reduced and she no longer enjoys spending time in her garden. She asked the Council to pay for trees to enhance her privacy, but the Council refused to do so.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and policy

Planning enforcement

7. 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.
8. 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.
9. 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.

10. 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.
11. The Council was responsible for approving the planning application for the Development, however, the local district council is responsible for making the final decision a about whether to take enforcement action.

What happened

12. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
13. Ms X bought her home (“the Property”) in 2021. She was aware there was a live application to build a new school (“the Development”) on land to the rear of the Property.
14. The Council approved the application. Ms X had no objection to the scheme in principle. However, she says she school was not build in accordance with the approved plans. Specifically, she claimed:

• the ground level was raised by two metres;
• the area of land to the rear of her property was being used as a car park, instead of a playground;
• a larger that expected metal storage unit was positioned in Ms X’s line of sight, together with two wooden sheds, creating a visual eyesore.

15. Ms X raised her concerns with her MP and local district councillor in March 2024, when the scheme was near completion. She also had discussions with council officers about ways to increase her privacy. She wanted to the Council to pay for trees to be planted at the rear of her garden. The Council said it was not obliged to do so but did volunteer to plant some climbing plants over the metal container. Ms X says these died soon after planting and have not been replaced.

The Council’s position

16. In response to both Ms X’s complaint and the Ombudsman’s enquiries, the Council says:

• the ground levels are in accordance with the approved plans
• other than a photograph provided by Ms X, there is no evidence of the playground being used as a car park. Even if it was being used as a car park, it is unlikely to be a breach of planning control that would prompt enforcement action; and
• the metal storage unit was included in the approved drawings and so is not in beach of planning permission.

17. Because the Council says there has been no beach of planning permission, it has not responsibility to pay for trees to increase Ms X’s privacy.

Analysis

18. It is not the role of the Ombudsman to decide if there has been a breach of planning control or whether enforcement action should be taken. We are not an appeal body. Our role is limited to consider the way on which the Council reached its decisions and its justification for them.
19. I have not identified any fault in the way the Council considered Ms X’s complaints about the Development. It acted promptly when Ms X raised concerns through her district councillor about the potential planning breaches. It asked relevant planning officers to consider the issues she raised and the evidence she presented, including photographs of her outlook, parking on the playground and the metal storage container.
20. I will address Ms X’s specific areas of concerns below.

Raised ground level

21. The Council considered whether the Development was built in line with the approved plans and decided it was. In response to my enquiries the Council provided copies of the plan that included the relevant measurements of the intended site topography. I appreciate these are highly technical drawings and not necessarily easy for the layperson to interpret. It is entirely understandable why it may not have been apparent to Ms X what the topography of the Development would be. There was no fault in the Council’s consideration of Ms X’s complaint about the raised ground level.

Use of the playground

22. Ms X has been clear that she does not object to the playground. She says she enjoys the sound of children playing and a playground does not impact of the view from her property. However, she does object to the playground being used as a car park because of the unsightly outlook and drivers being able to see into her garden and home.
23. The records show the Council investigated this issue. It found no evidence of the playground being routinely used as a car park. While I understand Ms X would disagree, this conclusion was one the Council was entitled to reach based on the enquiries it made. In any event, the Council has explained it would be highly unlikely enforcement action would be taken because parking would be considered ancillary to the use of the land as a school.

The sheds and metal storage unit

24. Ms X provide the Council and the Ombudsman with photographs showing two wooden shed and a metal storage unit. I accept these three structures can be clearly seen from the Property and could be considered an eyesore and impact on Ms X’s amenity.
25. The metal storage unit was included on the plans, in the vicinity of where it now stands. Its approximate size would have been apparent from the approved plans. The Council has explained it has been positioned in its current location for safeguarding reasons so ensure children can be seen from the school. The sheds are used for storing games equipment.
26. The Council was entitled to conclude the relatively minor deviation from the positioning on the plans, for the reason stated, would not be considered a breach of planning permission. The sheds are both temporary structures that would not necessarily require planning permission. There was no fault in the way the Counsil considered these matters.

Conclusion

27. I understand Ms X is unhappy about the impact of the Development on her property. But I have found no fault with the way it reached its decisions or the explanations it has provided to Ms X. This means I cannot interfere with the decision or recommend the Council offers pay for Ms to plant trees at the bottom of her garden.

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Final decision

28. I find the Council was not at fault. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman