The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council allowing a developer to change the surface material used for parking spaces at a residential development. 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 in the way the Council considered the amendment.
The complaint
The complainant, whom I refer to as Mr X, says the Councill was negligent in its management of the construction of a residential development where he purchased a property, as it should not have approved a non-material amendment application which allowed the parking bays to be surfaced with gravel instead of tarmac.
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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) In that regard, we cannot question whether an organisation’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)
How I considered this complaint
I considered information provided by the complainant, which included the Council’s final complaint response.
I also considered our Assessment Code, and information about the associated applications on the Council’s planning portal.
My assessment
I recognise Mr X disagrees with the Council’s decision to allow the gravel parking spaces, but we do not provide a right of appeal against that decision. Rather, we review the process by which planning decisions are made.
Councils can take planning enforcement action if they find planning rules have been breached. However, it is discretionary, and Government guidance encourages councils to act proportionately in responding to breaches of planning control. It says councils should avoid taking formal enforcement action where: development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development; where it is considered an application is the appropriate way forward to regularise the situation (National Planning Policy Framework July 2021, paragraph 59 & Planning Practice Guidance - Enforcement and post-permission matters, paragraph 11) So, once residents made the Council aware the spaces had not been constructed in accordance with the originally approved plans, it was entitled to invite the applicant to submit a non-material amendment application. The Council decided there were no planning grounds to refuse the application and approved the alternative material.
I find there is not enough evidence of fault in the way Council considered the amendment to justify the Ombudsman starting an investigation.
And if Mr X thinks the developer has breached the terms of the purchase contract, then that is a private, civil matter to be resolved between those two parties.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council has considered the change in material.
Investigator's decision on behalf of the Ombudsman