In 2004, planning permission was granted for the construction of two semidetached houses on land next to my house. The approved plans showed a garage to be built one metre from my boundary wall. In reality, this has been built directly onto the wall – and it protrudes above it by at least 50cm. The council’s enforcement officer, however, has said action against the developers cannot be justified: the discrepancy in the garage’s position “is de minimis”, and, in a small development, it is not a material consideration. What can we do?

DCS, Moray, Scotland

The council enforcement officer is wrong. The siting of a garage in a small development is certainly a material consideration, and its resiting, in the way you describe, does require planning permission. The mistake appears to have happened because the site was smaller than shown on the plans submitted with the planning application. This is almost certainly because the developer did not have the site surveyed properly – an all too common problem.

The council should have picked up this discrepancy during the construction phase – if not earlier, at the planning application stage. Once the problem had been identified, it should have instructed the developer to stop work until it had been sorted out. This should have involved the submission of a revised planning application – on which you should have been consulted. That the council failed to do this almost certainly amounts to maladministration.

You can make a formal complaint to the Scottish Public Services Ombudsman (the Local Government Ombudsman in England or Wales), alleging maladministration by the council because it failed to identify the discrepancy, and pointing out that you have suffered injustice as a result: the garage wall is visibly intrusive above your own wall, which you cannot now properly maintain. You can obtain a form from your local council or complain online via the Ombudsman’s website (www.spso.org.uk). Before doing so, however, raise your concerns with your local councillor. Ask them to arrange a meeting with the council’s development-control manager, and see whether remedial action could be instigated: the council might prefer this to potentially being found guilty of maladministration.

There is another issue here, too: the developer might have encroached onto your land with the garage foundations. Take this up with your solicitor or surveyor – if it can be established that this is the case, you will have a remedy of your own under civil law.

Michael Haslam OBE is a past president of the Royal Town Planning Institute and a director of Michael Haslam Associates; hmhaslam@btopenworld.com

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