The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action over a development which required planning approval. There is insufficient evidence of fault which would warrant an investigation.
The complaint
Mr X complained about the Council’s failure to take enforcement action against the operator of a replacement concrete plant which was built without planning approval following the Council’s previous advice that was permitted development. He says this has reduced the value of his property and that he should be compensated for this. He also wants the Council to require a planning application to be submitted.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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) 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 further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant. I have also considered the decision on our previous investigation into this development reference 21 000 995.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to us in 2021 about the Council’s advice to a quarry operator that it did not require planning approval to build a replacement concrete plant as it constituted permitted development. The investigation concluded that the Council was at fault because it should have required the operator to apply for planning approval.
The investigation remedy was that the Council should require the operator to submit a retrospective application. If it failed to do so then the Council should consider whether it was expedient to take enforcement action.
The operator failed to submit a planning application in 2021 and the Council undertook a review of the case and an assessment report was prepared for the planning authority to decide what action should be taken.
Planning enforcement action is discretionary and not mandatory. Before the Council considers whether it is expedient to take enforcement action, it may give the operator the opportunity to regularise the development by submitting a planning application. The local planning authority has a choice of different enforcement options for a breach of planning control. The options range from taking no formal action to service of an enforcement notice.
The Council considered that had the operator submitted plans for the new plant it would have met the material planning considerations and would have been approved. The operation was not dissimilar from the previous operations in terms of noise, traffic and visual amenity. It decided that it would not pursue enforcement action because it was “unlikely to cause an additional impact to the environment or to the amenity of the local community “.
When considering complaints, we may not question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers or members. Instead, we focus on the process by which the decision was made. This means that we will not intervene in disagreements about the merits of decisions.
The Council considered all relevant matters, took account of the relevant guidance, and information from Mr X. It followed the appropriate procedures when making this decision and I cannot and therefore I cannot consider the merits of the decision it made.
Final decision
We will not investigate this complaint about the Council’s decision not to take enforcement action over a development which required planning approval. There is insufficient evidence of fault which would warrant an investigation.
Investigator's decision on behalf of the Ombudsman