The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council failing to enforce a refused, retrospective planning application. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The personal injustice caused by the delays and lack of communication in the enforcement case is not significant enough to justify our continued involvement.
The complaint
The complainant, whom I refer to as Mr X, says the Council failed to take enforcement action after it refused a retrospective planning application for an outbuilding at a site near his home, and failed to respond to his requests for updates about what was happening.
Mr X says the Council should pursue enforcement action, otherwise it will set a precedent for similar buildings to be erected.
The Ombudsman’s role and powers
The Ombudsman can investigate 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, 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)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council, which included the Council’s correspondence of 25 January, 3 October, and mid-November 2022.
I also considered our Assessment Code.
Summary background The breach of planning control was reported to the Council in early-2021, which prompted the submission of a retrospective planning application. This was refused in mid-2021.
Mr X sought an update from the Council in July 2021. Despite an assurance in September 2021 that an update would be forthcoming, this did not happen. Mr X complained. In January 2022, the Council apologised for failing to provide an update and said it intended to issue an enforcement notice.
Mr X continued to seek updates, and eventually complained to the Ombudsman in November 2022. Meanwhile, the Council decided it was not expedient to pursue enforcement action and explained its reasons to Mr X.
My assessment
We do not investigate all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include the extent of the injustice caused to the complainant as result of any fault by the Council. We only investigate the most serious complaints.
There have clearly been delays in progressing this case, and the Council failed to update Mr X about what was happening. This would have been frustrating, and his expectations would have been raised when the Council said it intended to pursue enforcement action in January 2022.
However, the Council has apologised for the delays and the failure to update Mr X. I am also particularly mindful that Mr X does not live immediately adjacent to the site. Although the outbuilding is visible from his first-floor windows, I do not see that he would have been significantly impacted by the structure itself during the period of delay.
Furthermore, the Council was ultimately entitled to reach its recent decision that, having now visited the site and seen the building in-situ, it was no longer considered expedient to pursue enforcement action. The Ombudsman does not provide a right of appeal against that decision.
On balance, I find the residual injustice caused by the delays and lack of communication is not significant enough to warrant further pursuit of the complaint by, or remedy from, the Ombudsman.
Final decision
We will not investigate Mr X’s complaint because the personal injustice caused by the identified fault is not significant enough to justify the Ombudsman pursuing the matter further.
Investigator's decision on behalf of the Ombudsman