The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the way the Council decided not to take enforcement action against unauthorised works to the roof of a neighbouring building. There is not enough evidence of fault in the Council’s enforcement decision-making process to warrant investigation. Ms X’s concern about future the effect of its decision on future unauthorised development is speculative and does not cause her significant injustice warranting investigation. We also cannot achieve the outcome Ms X wants.
The complaint
Ms X lives next to a property where the owner installed new roof flues and windows. She complains the Council failed to: take enforcement action against the owner for doing the works without planning permission; take proper account of the host building’s architectural merit when making its decision; consider the impact its decision not to enforce will have on future developers’ compliance with planning processes.
Ms X can see the additions to the roof from her flat, which she finds totally out of keeping with the host building and visually offensive. She considers the works to undermine the architectural integrity of the host property. Ms X also fears the Council not enforcing here jeopardises other buildings in the Conservation Area in future. She wants the Council to require the building’s owners to apply for retrospective planning permission, and for the Council to then give proper weight to the architectural merit and importance of the building during that process.
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, or we cannot achieve the outcome someone wants.
(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 Ms X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
Ms X says the Council should have taken enforcement action against the building’s owner for doing the works on the roof without planning permission. She raises particular concern that officers did not take proper account of the building’s architectural merit when making their decision. Ms X says an application has been made for the building to be listed and it is in a Conservation Area.
Councils’ enforcement powers are discretionary. It falls to officers to decide whether to use their powers, based on the merits and facts of each case. We may only go behind a council’s decision where there is evidence of fault in the decision-making process they followed which, but for that fault, would have resulted in a different outcome. So I have considered what the Council did to reach its enforcement decision.
Officers visited the area to gather information to assess the case. They determined the host building was too tall for the works on the roof to be visible from and have significant impact on the street scene. Officers took the view the additions to the roof did not have such a negative impact on the street, the host building or the surrounding Conservation Area to justify further action against the owners. While an application for the building to be listed may have been made, the building was not listed at the time of the works. Officers also determined the works would not be unduly prominent as additions to the roof from other viewpoints, which would include views from properties such as Ms X’s with sight of the works from her property. Officers decided they would invite the building’s owner to make a planning application to regularise the work, but would not take enforcement action.
There is not enough evidence of fault in the Council’s decision‑making, leading to its conclusion that it should not enforce, to warrant us investigating. Officers collected appropriate information to reach their discretionary enforcement decisions, which they were entitled to make. I realise Ms X disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
Ms X says the Council should have considered the impact its decision not to enforce will have on future developers’ compliance with planning processes. Ms X may consider the Council’s decision here will create a planning enforcement context in which developers take more chances by not applying for permissions, believing the Council will not enforce against their unauthorised works. But each enforcement case must be determined on its own specific facts and merits. Councils cannot make enforcement decisions based on an attempt to pre‑emptively influence the actions of other future developers. In any event, we will not investigate this matter because it does not cause a significant injustice to Ms X. Her claimed injustice here is a speculative concern about what might happen to other buildings, not about events which have happened. This is not a significant injustice to Ms X which warrants investigation.
The Council has invited the owner of the building to apply for retrospective planning permission. But officers cannot order the owner to submit that application; it is for the owner to make that decision. It follows that we also cannot order the Council to demand that application from the owner and achieve the outcome Ms X seeks from her complaint. That we cannot get that outcome for Ms X is a further reason why we will not investigate the complaint.
Final decision
We will not investigate Ms X’s complaint because: there is not enough evidence of fault by the Council in its decision-making to justify an investigation; and her concern about future unauthorised development is speculative and does not cause such significant injustice to her to warrant investigation; we cannot achieve the outcome Ms X wants.
Investigator's decision on behalf of the Ombudsman