The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decision not to take planning enforcement action against his neighbour. There is not enough evidence of fault by the Council in its decision-making process, nor of significant injustice to Mr X stemming from the Council’s actions and decisions, to warrant investigation.
The complaint
Mr X lives next to a property whose owner sought and received planning permission in 2021 for an extension. He complains the Council failed to take planning enforcement action against the neighbour even though he believes they are not building the extension in accordance with the permission.
Mr X is concerned about the neighbour installing guttering or other additions to the extension which overhang the boundary and his property. He wants the Council to take enforcement action.
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; or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
Mr X raised his concerns with the Council about whether the development was being built in compliance with the planning permission granted. He believed the side elevation closest to the fenced boundary with his garden had been built too close. The permission had stated the separation distance would be ‘approximately one metre’.
In response to Mr X’s report, a Council enforcement officer visited the site. They determined the extension side wall had been built in line with the wall of the host property, in accordance with the plans. They measured the separation distance between the extension’s wall and the boundary fence as 0.85m. The officer took the view that the difference in distance between that required by the permission and that measured at the site was ‘de minimis’ – that the difference was not sufficiently large to be significant in planning terms. As a result, they decided there had been no planning breach at the site and closed the enforcement file.
We can only go behind a council’s decision if there is evidence of fault in the process they followed when assessing a matter which, but for that fault, would have resulted in a different outcome. Officers took the appropriate action of visiting and measuring the site to gather the relevant evidence to inform their decision. There is not enough evidence of such fault in the Council’s decision‑making process here to warrant an investigation. I realise Mr X disagrees with the Council’s decision not to enforce. But it is not fault for a council to properly make a decision with which someone does not agree.
Mr X disputes the Council’s measurements. He believes the separation distance to be 5cm less than officers measured, at 0.80m. Even if the Council’s measurement of 0.85m is incorrect, or there was other fault in the Council’s enforcement decision‑making process, we will not investigate. This is because Mr X’s claimed injustice is his concern that some element of the neighbour’s extension or some addition to it may overhanging his property. But that situation has not happened so is a speculative claim of an injustice. Furthermore, if Mr X’s neighbour does encroach on Mr X’s land in this or any other way in future, that would not be due to a Council decision or action. The planning permission granted by the Council does not give the neighbour legal rights to encroach on or over others’ land. So if the concern Mr X raises as an injustice does occur, it would in any event be a private legal matter between Mr X and his neighbour, not with the Council. There is insufficient evidence of injustice to Mr X stemming from any action of the Council to justify an investigation.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault by the Council in its planning enforcement decision-making process to warrant investigation; and there is not enough evidence of a significant personal injustice to Mr X caused by the Council to justify an investigation.
Investigator's decision on behalf of the Ombudsman