The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s lack of enforcement action against their neighbour’s gazebo. There is not enough evidence of fault to justify an investigation.
The complaint
The complainant, I shall call Mrs K, complains the Council failed to take enforcement action against a gazebo on their neighbour’s property which is a breach of planning control.
She also complains the Council has not advised why she had to apply for planning permission to erect a fence around her garden when her neighbour has not.
Mrs K wants the Council to require her neighbours to remove the gazebo or reduce its height and remain at least two metres from her boundary.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating we could not add to any previous investigation by the organization further investigation would not lead to a different outcome we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A (6))
How I considered this complaint
I considered information provided by the Mrs K and the Council. I also considered the information available of the Council’s website.
I considered the Ombudsman’s Assessment Code.
My assessment
In 2020, Mrs K told the Council her neighbour had installed a gazebo next to their boundary. She later advised the neighbour has also erected a fence next to the boundary wall.
The small development where Mrs K lives has a complex planning history. The Council: visited the site took measurements and photographs; and sought legal advice It decided the gazebo required planning permission unless the neighbours lower it to three metres high and move it at least two metres from the boundary. It decided the fence benefits from permitted development (PD) rights as it is less than two metres tall and is not next to the highway.
The Council invited the neighbours to put in a planning application. This was not forthcoming.
After further site visits the Council established the gazebo has been moved at least two metres from the boundary. However, an officer measured it as 3.2 metres high. Therefore, it confirmed the gazebo remains in breach of planning control.
A planning officer prepared a report for the Planning Committee. The report summarises the planning history of the site and it benefits from PD rights. The gazebo is not permitted development because it exceeds more than three metres high.
The planning officer confirmed the Council can only require the gazebo to be reduced to three metres high. A reduction of approximately 20cms. Their report recommended it was not expedient to take action.
The report was presented to the Planning Committee. I have listened to a recording of the Committee meeting which is available on the Council’s website. Following a debate, the Committee decided it is not expedient to take enforcement action.
Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. In deciding whether it is expedient to initiate enforcement action, the Council must consider different facts such as: PD rights whether the Council is likely to grant planning permission for the unauthorised development; and the need to balance the protection of amenity and allowing development which is acceptable.
In this case, the Council decided not to take enforcement action to reduce the height of the gazebo. Having considered the relevant information this is a decision it is entitled to make.
Mrs K also complains the Council has failed to explain why she had to apply for planning permission to erect a fence, but her neighbour has not.
The Council has confirmed her planning application was for the change of use of land from agricultural land to residential garden. This is not a matter which benefits from PD rights. Therefore, a planning application was required. The neighbour has erected a fence which is less than two metres high. Such a fence, when not next to the highway, is permitted development.
Final decision
We will not investigate Mrs K’s complaint because it is unlikely we will find fault in the way the Council considered whether to take enforcement action against her neighbour’s gazebo.
The Council has explained why Mrs K required planning permission for a change of use for her land. And that a fence that is less than two metres high is permitted development.
I do not consider that further investigation would lead to a different outcome. And we cannot require the Council to remove the gazebo or reduce its height which is the outcome Mrs K is seeking.
Investigator's decision on behalf of the Ombudsman