Summary: X complained about the Council’s failure to protect their privacy from the use of land next to their home by a business operation. We found no fault in the way the Council made its decision to end its enforcement investigation.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council’s planning enforcement officers have failed to protect them from the use of a commercial premises next to X’s home.
3. X complained a flat roof is used for storage and is regularly accessed by those who work for the business. This affects both X’s outlook and privacy in their home and garden.
4. X would like materials to be removed from the roof.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including enforcement case notes and records of legal advice.
8. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

Permitted development

9. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
10. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.

Untidy land

11. Councils can serve a notice on the owners or occupiers of land that adversely affects the amenity of the area or adjoining land.
12. Councils can require remedial action, including tidying, planting, demolition, re-building, re-painting, cleaning or clearing land or buildings.

Planning enforcement

13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

14. X’s neighbour operates a commercial business on land next to X’s home.
15. X complained about the use of the site, because the business was using a flat roof on the boundary of X’s garden to store material relating to the business.
16. The Council’s planning enforcement officers sought legal advice from the Council’s lawyers. The lawyers advised the officers that:
• the storage use of the site applied to the whole site, and so the Council could not require removal of materials from the flat roof;
• the storage use of the site was lawful, so the Council could not use its ‘untidy land’ powers to require remedial action.
17. The enforcement officers considered this advice and ended their investigations. The Council wrote to X to explain its decision.

My findings

18. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. Before the Council decided how to respond to X’s concerns about the use of the site, its officers took advice from its lawyers. After considering the advice the Council ended their enforcement investigation. The Council followed the decision-making process we would expect and so I find no fault.

Final decision

20. I found no fault in the way the Council made its decision to end its enforcement investigation. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman