The Ombudsman's final decision
Summary: A man complained about the Council’s failure to take enforcement action about a breach of planning control by his neighbour. But we do not have reason to investigate the complaint because there is no sign of fault in the way the Council dealt with this matter to warrant our further involvement.
The complaint
Mr B complained about the Council’s refusal to take any action in response to his neighbour’s replacement of a first floor, non-opening, clear glass window at the side of his property with an obscure-glazed window which was openable.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) We consider whether there was fault in the way a council made its decision. But 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 the information Mr B provided with his complaint. I also took account of Mr B’s complaint correspondence with the Council, copies of which were supplied by the Council. In addition, I considered Mr B’s comments and the information he provided in response to a draft of this decision.
My assessment
In making his complaint Mr B quoted information from the Planning Portal website that: “If new windows are in an upper-floor side elevation they must be obscure-glazed and either non opening or more than 1.7 metres above the floor level.” He considered this as authority for his view that the Council was required to take enforcement action in his neighbour’s case.
The wording in question derives from the Town and Country (General Permitted Development) (England) Order 2015 (‘GPDO’) issued by Parliament which gives a blanket planning permission (‘permitted development’) for many minor works.
In effect, the GPDO says that new windows in upper-floor, side elevations must fulfill certain criteria to be considered as permitted development, otherwise the developer will need to apply for planning permission. So, the GPDO does not go as far as imposing a legal ban on the non-compliant windows it describes, which councils must necessarily then enforce. All it says is that such development is outside the scope of permitted development.
In this instance, Mr B’s neighbour did not obtain planning permission for his window. Therefore, the window was in breach of planning rules.
Councils have powers to take enforcement action if they find there has been a breach of planning control. However, they are not expected to take action just because there has been a breach, and they must have regard to Government guidance in this respect .
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system.” But it also says: “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) Therefore, the guidance makes clear that enforcement is discretionary for councils and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils are also guided to consider, among other matters, the likely impact of harm to the public from the development as it stands.
The Council considered the circumstances in Mr B’s case when he raised his complaint last year. But it decided there were insufficient grounds to use its discretionary enforcement powers.
Before the Council made its decision it asked Mr B to say what harm the window was causing him, but he did not respond. Mr B said he saw no merit in providing any details at that time because the Council had already told him it did not take formal action in cases such as his.
This year Mr B did provide information about adverse impacts the window was having on his amenity and the Council considered matters again. But it confirmed its previous decision not to take action.
However, we have no powers to rule on planning issues or to change the Council’s planning decisions. Our remit is limited to looking at whether there is fault in the Council’s decision-making process which may have affected the outcome. So, we may not question the merits of council officers’ professional planning judgements which are made without fault.
But I have concluded there is insufficient sign of fault in the Council’s processes in this case to justify us calling its decision into question.
In particular, I consider the Council took due account of Mr B’s views and relevant planning factors in deciding whether to take any further action about the planning breach. I also consider the Council’s decision was one open to it to reach, given its discretion in this respect. In the circumstances, I do not see we would be in any position to conclude that the Council is at fault because it did not necessarily take enforcement action in Mr B’s case.
Final decision
I consider that we should not investigate Mr B’s complaint about the Council’s failure to take enforcement action concerning a breach of planning control by his neighbour. This because there is insufficient evidence of fault by the Council to warrant our further involvement.
Investigator's decision on behalf of the Ombudsman