The Ombudsman's final decision
Summary: There was no fault with how the Council dealt with Mr X’s report of his neighbour’s alleged breach of planning control. The Council investigated and made a professional judgement. We have completed our investigation.
The complaint
Mr X complained the Council mis-measured the height of his neighbour’s decking. He said this meant its decision not to take enforcement action against his neighbour was wrong.
Mr X said the height of the decking means his neighbours overlook his garden and it also causes his garden to flood.
Mr X wants the Council to carry out a proper enforcement investigation with the correct measurements.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered Mr X’s complaint and have spoken to him about it.
I have also considered the Council’s response to Mr X and to my enquiries.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Planning legislation 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.
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.
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) What happened In March 2021, Mr X reported to the Council that his neighbour had erected fencing and decking higher than permitted development rights allow. The Council investigated and concluded that the development did not require planning permission.
Mr X pursued the matter, and the Council reviewed its decision. It reiterated that there was no requirement for building regulations approval for Mr X’s neighbour’s decking as it was exempt and it was considered that planning permission was not required.
The Council said even if the height exceeded permitted development limits and technically planning permission was required, it would need to consider if sufficient harm was caused to warrant action being taken. It said, should that have been the case, the Council would still have considered it was not expedient to take action.
My findings
Planning legislation requires councils to investigate when it receives a report of a breach of planning control. The Council visited the site of the alleged breach and carried out an investigation before concluded there was no breach. When Mr X remained dissatisfied, the Council visited the site again and reviewed its decision before reaching the same conclusion.
I cannot question the Council’s decision if there was no fault in how it was reached. The Council acted in line with planning legislation and was entitled to reach a decision based on the Council officers’ professional judgement.
Mr X said the Council’s measurements are incorrect. The Council has visited and measured the height on more than one occasion. I am satisfied the Council took the appropriate steps and I therefore cannot question the outcome.
There was no fault with the Council’s actions in relation to the enforcement case.
Final decision
I have completed my investigation. There was no fault with the Council’s actions regarding Mr X’s report of a breach of planning control.
Investigator's decision on behalf of the Ombudsman