The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council not enforcing planning conditions relating to a new development near his property.
There is not enough evidence of fault in the Council’s decision-making processes to warrant an investigation. There is insufficient significant personal injustice to Mr X from the Council not requiring the developer to comply with an earlier planning condition to justify us investigating.
The complaint
Mr X lives next to a site which has been the subject of several planning applications for residential development, including in 2018 and 2020. One property, house A, is closest to his property. Mr X complains the Council has: failed to enforce the condition on the approved planning permissions for the site which required submission of landscape finished levels and contours; allowed the developer to install windows in house A larger than the permitted plans.
Mr X says the property as built results in major overlooking into his amenity area, lounge, dining room and kitchen.
The Ombudsman’s role and powers
We investigate 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 continue 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), as amended, section 34(B)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
Enforcement is a discretionary power held by local planning authorities. It is for those authorities’ officers to make their decisions on whether to use their powers. National government advises authorities to use enforcement as a last resort and only where there is significant harm caused by a planning breach.
In response to Mr X’s concerns, in 2024 the Council surveyed the site as built, including house A. Officers confirmed house A’s floor levels were higher than in the application drawings by about 160 millimetres. They concluded this breach of planning control did not warrant enforcement action and described it as ‘minor’. Officers assessed house A’s windows and determined the only permitted window facing Mr X’s property had been installed in line with the permission. They decided the property level increase did not cause overlooking or loss of privacy to Mr X’s property from house A’s windows. In making their decision they noted the boundary between the development and Mr X’s property included mature trees and another structure on his land so concluded no further planting or landscaping within the boundary was required.
Officers gathered and assessed the relevant information and applied government guidance to inform their decision not to enforce against the planning breach. They took the view that it was not expedient to pursue the land levels breach on the evidence before them because it caused insufficient planning harm to warrant enforcement. There is not enough evidence of fault in the Council’s planning enforcement process to warrant investigation. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Mr X’s complaint to us refers to the Council not requiring compliance with a condition from its 2018 decision for the same site. The condition required the developer to submit details of landscape works for the site, including land levels, before starting the development. Mr X wants the Council to require the developer to comply with this condition. But the 2020 permission under which the development including house A was permitted and built does not have the same condition attached. The 2020 decision and conditions for the development of the planning site supersedes the 2018 one. It is not fault for a council to not require a developer’s compliance with a superseded planning condition. Even if it was fault for the Council not to include the 2018 condition on the 2020 decision notice nor require the developer’s compliance with it, we would not investigate. The Council has assessed the land levels for the site and reached its professional judgement that the height of the new properties as built and the planning impact this causes does not warrant enforcement. As set out above, this was a properly made decision, one officers were entitled to make and that we cannot go behind. The planning outcome here would have been the same, whether or not the 2018 condition had been in place in 2020 and enforced. There is insufficient significant personal injustice to Mr X from the Council not requiring the developer to comply with the 2018 condition to justify an investigation.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the Council’s planning and enforcement decision‑making process to warrant an investigation; and there is insufficient significant personal injustice to him from the Council not requiring the developer to comply with the 2018 condition to justify us investigating.
Investigator's decision on behalf of the Ombudsman