The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of a planning application and associated enforcement matters relating to a site next to the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault by the Council directly causing the complainant a significant injustice.
The complaint
The complainant, whom I refer to as Mr X, complains about the Council’s handling of his neighbour’s planning application and subsequent enforcement issues. In summary, Mr X says the Council: Presented a negligent and misleading report to the Planning Committee, which was then relied on by the Planning Inspector who approved the application.
Failed to adequately enforce against subsequent breaches of planning control which included: Construction of the development contrary to the separation distances shown on the approved plans The removal of trees from within the site without consent, and the failure to submit details of a landscaping scheme prior to the commencement of the development.
The increase in height of the roof.
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 any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) We do not provide a right of appeal against a Council’s decision. And we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended) Finally, we cannot investigate the actions of bodies such as the Planning Inspectorate. (Local Government Act 1974, sections 25 and 34A, as amended)
How I considered this complaint
I considered information provided by the complainant and the Council, which included their complaint correspondence.
I also considered our Assessment Code, and information about the planning applications on the Council’s website.
My assessment
Planning permission for the neighbour’s development was granted on appeal by the Planning Inspector. I therefore do not consider any fault/errors in the information presented by Council to the Planning Committee has directly caused the claimed injustice to Mr X, because the Council was not responsible for approving the application. It was for the Planning Inspector to reach her own judgement on the information before her, and we have no power to investigate or comment on her decision. So, the Ombudsman will not investigate any parts of the complaint about how the planning application was determined.
Turning to the planning enforcement issues, Councils can take enforcement action if they find planning rules have been breached. However, government guidance advises that enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. It encourages Council’s to resolve issues through negotiation and dialogue with developers. (National Planning Policy Framework July 2021, paragraph 59) I appreciate Mr X might disagree with the Council’s enforcement decisions, but it is ultimately for the Council to decide what action, if any, should be taken in response to alleged breaches of planning control. The Ombudsman cannot question the Council’s decisions unless there is evidence of fault in the way they were made.
Overall, I find there is not enough evidence of fault causing significant injustice in the way the Council has responded to the planning enforcement issues here to justify the Ombudsman investigating this part of the complaint either. In reaching this view, I am particularly mindful that: The Council investigated Mr X’s report of the loss of trees within the site, and this resulted in the submission of a retrospective application to discharge the landscaping condition. Although there is no requirement for Council’s to notify neighbours about this kind of application, the Council has met with Mr X and says his concerns will be taken into account when it determines this application. It hopes to do so in May 2022.
The Council accepts there has been delay in determining the discharge of condition application. It says this was due to a combination of a high turnover of staff and wanting to fully understand the issues raised by Mr X in his simultaneous complaint. I also understand Mr X had asked for the determination to be delayed pending resolution of an associated land ownership dispute. The Council sought legal advice on the ownership issue and concluded it could not halt the determination on the basis of an ongoing ownership dispute.
The Council says the site has been visited on several occasions and it has measured the development from a fixed point on the existing dwelling. It is satisfied it is being constructed in accordance with the approved plans.
The Council also says Mr X’s photographs and concerns about the height of the roof have been checked by three separate officers. The Council is content that the works amount to permitted development.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council directly causing him a significant injustice.
Investigator's decision on behalf of the Ombudsman