The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to take enforcement action against a developer, who had carried out works near a river. We did not investigate this complaint further, as we are unlikely to find fault, recommend a remedy for Mr X or reach any other meaningful outcome.
The complaint
Mr X complained about the Council’s refusal to take enforcement action against a developer, who had carried out works near a river.
Mr X said the river was polluted and trees were removed to build an access track for the development.
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 further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6)) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done.
(Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views over another’s land; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
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.
Environmental protection The Environment Agency (EA) is a public body with statutory power to protect the environment. Its role includes control of pollution in rivers.
The Office of Environmental Protection (OEP) may investigate failures of public authorities to comply with environmental law. It may investigate complaints from individuals if it considers there has been: a failure to comply with environmental law; and the failure would be serious.
What happened Several years ago, the Council gave planning permission for works near a river. The approval included planning conditions controlling landscaping and construction of an access track.
More recently, Mr X complained to the Council that: the development was not built in accordance with approved plans: and the site was adjacent to a tip, and construction work had polluted the river.
The Council responded to say that the development was not built exactly as was approved, but the differences were not significant enough to justify formal action. The route for the access track had been approved under a planning condition and was considered acceptable.
In relation to Mr X’s allegation about pollution of the river, the Council advised this was a matter for another body, the EA.
Mr X confirmed that he had raised his concerns about the impact the development had on the river with the EA and had complained about its failure to take enforcement action to the OEP.
Mr X lives more than a mile from the site and says the amenity of the area is affected by what has happened on it.
He says the Council caused serious pollution of the river but has denied responsibility.
My findings
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.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation, we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I decided not to investigate this complaint further. My reasons are as follows: I found two planning decisions relating to this development on the Council’s planning portal. A full application and a condition discharge application. I should not investigate these planning decisions, as they were made long before our 12 month time limit. I would need a good reason to exercise discretion to go back several years, and I have seen no evidence to suggest there is a reason. Mr X’s complaint about the planning decision is not about administrative procedures by which they were reached. Mr X believes the principle of development was wrong, because of the site’s location and its potential to cause damage to the environment.
The Council considered whether to take planning enforcement action after Mr X complained the development was not built in accordance with approved plans. The Council agreed there were discrepancies but did not consider they caused sufficient harm to justify formal action. Councils have a wide discretion on whether to take enforcement action, and as long as they consider the allegation, their powers and the consequences of any breach they find, they are free to use their discretion as they see fit. The Council explained why it did not take formal action after Mr X’s allegation, and further investigation by me is unlikely to result in a finding of fault.
We generally need evidence that the individual complainant was caused a significant injustice by some fault on the part of the Council. Mr X is not directly affected by what has happened. Because of this, even if I was to find fault in the way the Council made its decision not to enforce, I am unlikely to be able to recommend a remedy for Mr X.
There is another body that can investigate allegations that public authorities failed to comply with environmental law, and Mr X has already complained to it.
Final decision
I ended my investigation because it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman