The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to enforce against her neighbour’s garden development, and how officers dealt with her complaint. There is not enough evidence of fault in the Council’s decision-making processes to warrant an investigation. We do not investigate councils’ internal complaints processes where we are not investigating the core issues giving rise to the complaint.
The complaint
Mrs X’s neighbours built a wooden structure in their garden, on to the rear of their house. She complains the Council: failed to take enforcement action against the neighbour’s development; did not visit her property to properly consider the matter; failed to properly deal with her complaint.
Mrs X says the development has resulted in a loss of light getting to her property. She has been distressed by the situation caused.
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. (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 Mrs X, and the Ombudsman’s Assessment Code.
My assessment
Mrs X reported her neighbour’s garden development to the Council in spring 2022. When it receives a report of a possible planning breach, council officers should respond within a reasonable time. They should gather relevant evidence to reach their professional judgement on what response they should make to the reported breach. Planning enforcement powers held by councils are discretionary. So even if there has been a planning breach, they may not take further action. National government guidance on the use of enforcement powers is that they should be a last resort.
We cannot go behind and criticise a council’s professional judgement unless there has been fault in officers’ decision-making process which, but for that fault, would have resulted in a different decision. So I have considered the Council’s decision‑making process when determining its response to Mrs X’s report.
In response to Mrs X’s report about the rear garden structure, the Council visited the site within a few days, to gather information. The officer noted the height and scale of the structure and its relationship with surrounding properties, including Mrs X’s house and garden and the boundary fence. Officers also received photographs from Mrs X. After a further days of consideration, they took the view that the development did not cause such planning harm to the surrounding existing properties to justify the Council taking further action or enforcing. Officers invited the neighbour to make a retrospective application, which planning authorities can do to regularise the development within the planning system. But they managed Mrs X’s expectations by stating that if such an application were received, it would be likely to receive retrospective permission.
There is not enough evidence of fault in the Council’s decision‑making processes here to warrant an investigation. I recognise Mrs X disagrees with the Council’s decisions. But it is not fault for a council to properly make decisions with which someone disagrees.
Mrs X says the Council failed to visit her property during its investigations. But it is not fault for a council to decide not to visit any particular property neighbouring the development site. Officers have discretion to decide what information they need to reach their decision. They took the view that information gathered during the site visit and the photographs and comments provided by Mrs X were sufficient for them to make their enforcement decision. That was a view they were entitled to reach. There is not enough evidence of fault by the Council on this part of its decision-making to warrant an investigation.
Mrs X’s complaints to the Council mention her ‘right to light’. Private rights such as the right to light are legal issues and do not form part of the planning process. The Council’s role here was to investigate Mrs X’s report of a planning breach, assess the planning harm caused by the development and determine what action it considered should be taken in response. Its role was administration of a planning process, not a process to protect any party’s legal rights. If Mrs X considers her neighbours’ garden structure affects her rights to light or heat to her property, then that would be private civil law matter between her and her neighbours. If Mrs X wishes to take this route to assert a legal right to light against the neighbours, she may wish to take independent legal advice.
Mrs X says the Council did not deal with her complaint properly. We do not investigate councils’ internal complaint-handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
Final decision
We will not investigate Mrs X’s complaint because: there is not enough evidence of fault in the Council’s planning enforcement decision-making processes to justify investigation; we do not investigate complaints about councils’ internal complaint processes in isolation where we are not investigating the core matters which gave rise to the complaint.
Investigator's decision on behalf of the Ombudsman