The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because it is not yet possible to determine if the complainant has suffered significant injustice as a result of the alleged fault.
The complaint
The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with a breach of planning control at a site near his home. Mr X says the development has not been built in line with the approved plans and the new dwellings are higher than they should be and closer to the boundary with his property. Mr X says his privacy has been significantly impacted and enforcement action should be taken.
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))
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation. However, if the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.
In this case, the Council has looked into Mr X’s concerns and agreed there has been a breach of planning control. It has invited the developer to make a retrospective application to regularise the development.
I understand Mr X says the Council should take formal enforcement action and the new houses should be built in the position originally approved. He also says the Council has taken too long to look into his concerns. But it is not unusual for a council to invite a retrospective application to regularise a development. The Council says it will consider if it is expedient to take formal action if an application is not received.
As the enforcement investigation has not concluded, it is not yet possible to say if Mr X has been caused any significant injustice because of any alleged fault by the Council. The Council may decide the development, as built, is acceptable and grant retrospective permission or if the application is not submitted it may still decide enforcement action is not necessary. If Mr X is unhappy with the outcome of the retrospective application or the enforcement decision once it is made, he can raise a separate complaint in this regard.
Final decision
We will not investigate Mr X’s complaint because it is not yet possible to determine if he has suffered significant injustice as a result of the alleged fault by the Council.
Investigator's decision on behalf of the Ombudsman