The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s decision not to take enforcement action against a neighbour’s garden development. There is not enough evidence of fault in the Council’s decision-making, nor sufficient personal injustice caused to Ms X, to warrant us investigating.
The complaint
Ms X lives in a property where a neighbour to the rear received planning permission for a development in their garden. In 2019 she reported the development to the Council as not built in line with the permission.
Ms X complains the Council has failed to take enforcement against the development’s owner. She finds the development unsightly and says the matter has caused, and continues to cause, her anxiety. She paid for professional advice to deal with the matter.
In her complaint to the Council, Ms X says she wants its officers to re-measure the development’s height, review some additional openings in the building which were blocked up in 2021, take enforcement action against the owner and require the building to be amended so it is in line with the permission.
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 fault has not caused injustice to the person who complained; 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 Ms X and the Council, viewed online maps, and considered the Ombudsman’s Assessment Code.
My assessment
We may only go behind a council’s decision where there is evidence of fault in the decision-making process which, but for that fault, a different decision would have been made. We consider the process councils have followed to reach their decisions.
Ms X reported the garden development to the Council in 2019. To make the decision to not take enforcement action, the Council’s officers visited the site. Additional openings in the building were blocked up in early 2021. After some disagreements and confusion about the height of the development, officers determined it had been built 35 centimetres taller than approved. They noted the separation distance between Ms X’s house and the garden building was just over 21 metres, and that some of the building was obscured by an existing structure in Ms X’s garden. Officers took the view that the difference between the development as built and the permission granted, and the planning harm it caused to surrounding properties, was not sufficient to justify them taking enforcement action.
Officers gathered relevant information to make their decision. It was a decision they were entitled to take as they are not required to use their discretionary enforcement powers in response to every breach. National government guidance requires them to consider each planning circumstance on its own merits, which is what officers have done.
There is not enough evidence of fault by the Council affecting their final enforcement decision to warrant us investigating. I realise Ms X disagrees with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Even if there had been fault by the Council which affected its enforcement decision, we would not investigate. I say this because the increase in the permitted height of the neighbour’s building, at a distance of 21 metres from Ms X’s house, does not have an impact on the amenity of Ms X’s property which would amount to a significant personal injustice. I recognise Ms X does not like the look of the part of the new building visible from her property. But there is no right to a specific or unchanging view given to residents by the planning process. The planning outcome of the development as built does not cause Ms X sufficient personal injustice to warrant us investigating.
Final decision
We will not investigate Ms X’s complaint because: there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant us investigating; and the planning outcome does not cause her a significant personal injustice which would justify an investigation.
Investigator's decision on behalf of the Ombudsman