Summary: We will not investigate this complaint the Council failed to take planning enforcement against an outbuilding. There is not enough evidence of fault to justify investigating.

The complaint

1. Mrs X complained the Council have not taken enforcement action about an outbuilding in a neighbouring garden. Mrs X said the Council failed to consider her complaint about the number of sheds at the neighbouring property. She said the outbuilding structure affected her view at her property and may negatively impact her business. She wanted the Council to require the height of the outbuilding to be reduced or provide financial compensation to make up for business losses she suffers.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Councils can take enforcement action if they find a breach of planning rules. 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 only happen 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. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
10. 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 December 2024, paragraph 60)
11. Mrs X complained the Council did not take enforcement action against an outbuilding in a neighbouring garden.
12. In its complaint response, the Council told Mrs X it had conducted two site visits to the neighbouring property and decided the outbuilding exceeded permitted development rights by a height of 0.3 metres. The Council agreed not to take formal action because the development did not represent a flagrant breach of planning legislation. It also said if the building was reduced to the permitted height, this would not have a substantial difference to the impact on Mrs X’s property.
13. Mrs X also complained about the number of outbuildings within the neighbouring garden. The Council told Mrs X there was no restriction on the number of outbuildings that could be erected in a garden. It said that no more than 50% of the garden could be developed, and an assessment of the site showed this limit had not been reached.
14. While Mrs X may be disappointed with the Council’s decision, it is not our role to act as a point of appeal against decisions councils make with which complainants are unhappy. We cannot question council decisions if they have followed the right steps and considered the relevant evidence and information. The Council visited the site and acknowledged that a breach had occurred but decided it was not expedient to take enforcement action. This is a decision the Council is entitled to make and there is not enough evidence to suggest fault affected it.
15. Mrs X sought financial compensation for loss of earnings. However, we do not normally recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings on such matters through our investigations. We cannot usually establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.

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Final decision

16. We will not investigate Mrs X’s complaint because there is not enough evidence of fault to justify investigating.

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Investigator's decision on behalf of the Ombudsman