The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s handling of a planning enforcement matter. This is because the injustice Mr X claims is not the result of any fault by the Council.
The complaint
The complainant, Mr X, complains the Council has failed to take enforcement action against his neighbour for a breach of planning control. Mr X is unhappy the Council has allowed his neighbour to retain the development without applying for planning permission and says it drains water onto his property. He also says he will have to install screening at considerable cost.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) We cannot question whether a council’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)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
Background
The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) allows certain development without the need for planning permission. This is known as ‘permitted development’. Permitted development rights are subject to limitations and exclusions, but when a proposal falls within the parameters of development allowed by the Order it will not require planning permission.
Development which exceeds the parameters set out in the Order will, in most cases, require planning permission. Where development requires planning permission but proceeds without it a council may ask the person responsible to submit an application. If they do not the Council must consider whether it is ‘expedient’ to take formal enforcement action. This decision takes into account material issues such as the impact on neighbouring properties in terms of overbearing, loss of privacy and loss of light. It cannot base formal enforcement action on non-material issues such as damage to property which is a private civil matter.
Mr X’s complaint concerns his neighbour’s development which sits within 2m of their shared boundary. Because of its proximity to the boundary the development is limited in height to 2.5m as measured from the ground to the eaves and 3m at its highest point. The Council confirms the development complies with these limits but Mr X’s neighbour has now installed a further addition which means it exceeds the limits for permitted development in another way.
My assessment
The Council cannot force Mr X’s neighbour to apply for planning permission to address the breach of planning control. It has invited them to do so on several occasions but they did not proceed with this. The Council therefore had to consider the level of harm caused by the breach and whether it would be expedient to take formal enforcement action. On balance it decided the breach did not cause Mr X significant harm so did not warrant formal action and this is a decision it was entitled to reach. While Mr X complains it took too long to make its decision this issue did not cause him significant injustice for which we would recommend a remedy.
Further to this, Mr X’s main concerns relate to parts of the development which do not require planning permission. Therefore, while there is a minor technical breach on another point this does not provide a way for the Council to limit or remove the rest of the development which is permitted under the 2015 Order. Any injustice resulting from this permitted development stems from Mr X’s neighbour’s actions and the 2015 Order itself rather than fault by the Council.
If Mr X is concerned about water draining onto his property he may wish to seek legal advice about a claim against his neighbour. If Mr X is concerned the development causes a nuisance he should report the matter to the Council’s environmental protection department.
Final decision
We will not investigate this complaint. This is because Mr X’s claimed injustice is not the result of any fault by Council.
Investigator's decision on behalf of the Ombudsman