The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s planning process and enforcement decision regarding her neighbours Mr and Mrs Y’s development. The complaints about the grant of planning permission in 2021 are late and there is no good reason to investigate them now. There is not enough evidence of Council fault affecting its final decision on the planning enforcement issue to warrant us investigating.
The complaint
Mrs X lives next to a property whose owners, Mr and Mrs Y, received planning permission to convert an existing building to the front of their property to living space. One if the development’s walls abuts Mrs X’s property. She complains the Council failed to: notify her about the application in 2020; consider the overbearing impact of the development’s wall on her property; confirm the height of the development before granting the permission; take sufficient enforcement action when the developers built the wall too high.
Mrs X says the process has been stressful and she felt she was not listened to. She says the development as built is overbearing to her property and not in keeping with the surrounding properties. She says she needs to try to screen the wall as built. Mrs X wants the Council to order Mr and Mrs Y to reduce the height of the development so it is only increased 0.5m from the original wall height. If that is not possible, she wants compensation for the overbearing wall. She also wants the Council to change its processes so officers properly scrutinise plans.
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, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
Mrs X says there were faults in the Council’s planning process which led to the grant of the permission. She says there were faults in the notification process because the site notice was in the wrong place and she did not receive a letter. Mrs X also says the Council did not consider the overbearing nature of the development during the planning decision stage or confirm the height of the wall next to her property.
We expect people to complain to us about what they think a council has done wrong within 12 months of them being aware of the matter complained of. The Council granted the permission in early 2021. Mrs X has complained to us about the Council’s planning decision-making process, and the decision to grant the permission, in October 2022. The complaints about the Council’s planning process and outcome, issues a) to c) in paragraph one, are late.
We may investigate late complaints if there is good reason to do so. There is no good reason to do so here. If Mrs X considered the Council’s planning decision‑making process was wrong, she could have complained to us in time by early 2022.
In any event, Mrs X says she had no objection to Mr and Mrs Y’s development in principle. She became concerned when the contractor increased the wall’s height from that granted in the permission. So the core of Mrs X’s complaint is about the Council’s responses to those concerns, which is a planning enforcement matter, not a planning decision process matter. That part of the complaint, issue d) in paragraph one, is in time.
We can only go behind a council’s decision where there has been fault in the decision-making process which, but for that fault a different decision would have been made. So we must consider the process the Council used here to reach its final decision not to take formal enforcement action.
The Council accepts there was inconsistency in the expected height of the adjacent wall. Officers initially considered the development to have been built in line with the permission but changed this view after another site visit. The Council acknowledges Mrs X’s concern about the wall height was warranted because it recognised it had been built higher than the permission allowed.
The Council then followed its planning enforcement process. Officers spoke with Mr and Mrs Y and their contractors and made further visits. They negotiated to reduce the height of the wall by three brick courses. This amendment satisfied officers that the work to the wall was completed to the height they had expected from the permission, and they visited the site again to confirm this. The outcome of the Council’s initial visit was not in line with the position it took later in the matter. But that visit did not affect the rest of the Council’s enforcement process which included various further visits to achieve the planning outcome they considered resulted in a compliant development. There is not enough evidence of fault in the Council’s enforcement process which affected its final decision here to warrant investigation.
I recognise Mrs X considers the wall should be reduced further. She is frustrated that the Council negotiated with the applicant and their contractor to reduce the wall less than she wanted. But enforcement action, including action short of formal enforcement, is a discretionary power. Informal negotiation is part of that process as national government guidance is for councils to only use their formal enforcement powers as a last resort. It is for officers to determine whether action taken by a developer or owner after negotiation is sufficient to comply with a granted permission. That is what has happened here. I realise Mrs X disagrees with the Council’s decision not to take further action regarding the wall height. But it is not fault for a council to properly make a decision with which someone disagrees.
Final decision
We will not investigate Mrs X’s complaint because: the complaints about the 2021 grant of planning permission are late and there is no good reason to investigate them now; there is not enough evidence of Council fault affecting its final decision on the planning enforcement issue to justify an investigation.
Investigator's decision on behalf of the Ombudsman