The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to enforce against windows in an administrative building across from her house which breach a 2016 planning permission. There is not enough evidence of fault in the Council’s enforcement decision to warrant us investigating.
The complaint
Mrs X lives across the road from a medical facility. She complains the Council has failed to enforce against windows in an administrative building facing her house which contravene a planning permission condition set in 2016.
Mrs X says the Council’s decision not to enforce means the windows are having a direct and ongoing detrimental impact on the privacy of her house and garden and the wellbeing and quality of life of her and her family. She wants the Council to enforce so the windows meet the planning condition. This would require all parts of the windows below 1.7 metres from the floor level to be non-opening. She also wants the Council to make sure the owners of the site do not build any future developments in contravention of planning conditions.
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, online maps, and the Ombudsman’s Assessment Code.
My assessment
The Council granted planning permission for the administrative building in 2016. The permission included a condition which meant the windows closest to Mrs X’s property should be obscure glazed. The condition also required the windows not to have any openable parts below 1.7 metres from the internal floor level. The purpose of the condition was to protect the amenities of adjoining properties from overlooking.
We consider the process councils follow when making their decisions. We cannot go behind a council’s decision unless there has been fault in its decision-making process which, but for that fault, would have resulted in a different decision.
In response to Mrs X’s complaint about the windows, its Planning Investigation Team officer visited the building and considered photographs Mrs X had provided. During the visit they found the windows: to be obscure glazed in compliance with the 2016 condition; had openings lower than 1.7 metres above the floor level, in breach of the condition; were fitted with limiters restricting their opening, so any view out was ‘severely limited’.
Officers concluded the windows did not comply with the condition wording because of the lower openings. But they took the view the aim of the planning condition was met by the obscure glazing and limiters which severely restricted overlooking of neighbouring properties. They considered Mrs X’s photographs also showed that restriction of overlooking. Officers decided enforcement would not be reasonable or expedient given the windows as fitted met the aims of the planning condition, even though this had been achieved through different means.
Officers gathered relevant information, took account of national government guidance on enforcement and considered the 2016 planning condition to make their decision not to enforce. It is a decision they were entitled to reach because their planning enforcement powers are discretionary. Councils are not required to use them in all cases where a planning breach is found.
There is not enough evidence of Council fault in its enforcement decision-making here to warrant investigation. I realise Mrs X disagrees and wants the Council to enforce. 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 there is not enough evidence of Council fault in its decision‑making to warrant an investigation.
Investigator's decision on behalf of the Ombudsman