The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of planning, enforcement, and building control matters involving the complainant’s neighbour. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate.
The complaint
The complainant, whom I refer to as Mr X, is unhappy with the Council’s handling of planning, enforcement, and building control matters relating to extensions at his neighbour’s property, which he thinks have been influenced by the neighbour’s role as a councillor. Mr X also believes his neighbour sought to use his position to influence the decision on Mr X’s own planning application.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. But 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 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, or we are satisfied with the actions a council has already taken response to the complaint (Local Government Act 1974, section 24A(6)& (7)) 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. (Local Government Act 1974, section 34(3), as amended) And 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I considered information provided by Mr X and the Council, which included their complaint correspondence.
I also considered our Assessment Code, and information about the neighbour’s and Mr X’s planning applications from the Council’s planning website.
My assessment
The 12-month time restriction, detailed in paragraph 5 above, applies to much of Mr X’s complaint. This is because his neighbour’s applications were approved more than four years ago, and I understand the extensions were completed in 2018. Mr X’s own planning application was also approved in late-2020. Yet Mr X did not contact the Ombudsman until February 2022. I do not consider there are sufficient grounds to exercise discretion to consider any parts of the complaint about the Council’s handling of these applications, or any associated building control matters, now.
And whilst Mr X might question the quality/standard of his neighbour’s building works, I have seen nothing to suggest this has caused Mr X a significant injustice, and the law does not allow us to consider speculative future injustice which may or may not happen. In addition, if Mr X thinks his neighbour’s works have caused damage to his property, then we would normally consider that to be a private matter between those two parties. This is because caselaw has established that liability for any defects rests with those that commission the work and those that carry it out. Similarly, Party Wall and boundary disputes are private, civil matters which the Council would not be responsible for resolving.
Furthermore, I see no evidence of fault in the way the Council considered Mr X’s recent code of conduct complaint against his neighbour. The Council followed its code of conduct complaint procedure, and was entitled to reach the view that most of Mr X’s allegations related to the actions of his neighbour as private individual, rather than in his role as a councillor. With regard to the neighbour’s use of his council email address to object to Mr X’s application, the Council reminded him of his responsibilities when using Council resources, and concluded it was not a good use of public funds to pursue this aspect further. The Ombudsman cannot question these decisions just because Mr X might disagree with them.
I do, however, acknowledge that in 2022 the Council accepted the neighbour’s extension was built larger than approved, despite having previously concluded in 2018 that there was no breach of planning control. The Council apologised for this error, and sought a retrospective application from Mr X’s neighbour to consider the 15cm discrepancy in the width of the extension. I am satisfied the Council has taken appropriate action to address this part of the complaint. In particular, the Council’s response was in accordance with Government guidance on taking planning enforcement action (www.gov.uk/guidance/ensuring-effective-enforcement, paragraph 11), and I see no evidence of procedural fault in the way the Council considered the retrospective planning application. I am not persuaded that any residual injustice, arising from the failure to identify the breach earlier, is so significant as to warrant further pursuit of this part of the complaint by the Ombudsman.
Final decision
We will not investigate Mr X’s complaint for the reasons identified above.
Investigator's decision on behalf of the Ombudsman