The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of planning applications and associated enforcement matters relating to a development next to the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to have contacted us sooner about the earlier events, there is not enough evidence of fault causing injustice in the determination of the retrospective application, and the Council has apologised for errors related to the complaints process.
The complaint
The complainant, whom I refer to as Mrs X, complains about the Council’s consideration of a retrospective planning application for a dwelling next to her home, and its handling of associated enforcement issues. In summary, Mrs X says the Council: Ignored the applicant’s failure to comply with pre‑commencement conditions on the original planning permission for the development, and was negligent/ineffective when she reported damage being caused to her tree in July 2020.
Was unprofessional at the Planning Committee meeting where the retrospective application was determined, and insufficient information was provided in relation to floor levels/building height, Failed to impose a condition on the retrospective planning permission requiring the submission of evidence to demonstrate compliance with the flood risk assessment (FRA) recommendations, Delayed in responding to her complaint, and did not address all the matters raised, including build control issues and ‘non-planning’ matters.
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 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 the Council has already taken satisfactory action in response to the complaint.
(Local Government Act 1974, section 24A(6) & (7)) 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 Mrs X and the Council, which included their complaint correspondence.
I also considered our Assessment Code, and information about the planning application and Planning Committee meeting on the Council’s website.
My assessment
Mrs X complained to the Ombudsman in mid-October 2022. The 12-month time restriction detailed in paragraph 3 above therefore applies to any parts of the complaint about the enforcement issues which arose between 2019 and early-2021. I see no good reasons why she was prevented from contacting the Ombudsman sooner, so we will not exercise discretion to consider these earlier events now.
And whilst I recognise Mrs X is very unhappy about the Council’s decision to grant planning permission for the development, the Ombudsman does not provide a right of appeal against that decision. Rather, our role is to review the process by which the decision was made, and to consider if any fault is likely to have affected the outcome.
On balance, there is not enough evidence to conclude that fault is likely to have affected the outcome here, so Mrs X has not been caused a significant injustice by the alleged errors. We will therefore not investigate this part of the complaint. In reaching this view, I am mindful that: Mrs X’s objections to the proposal were summarised in the report to the Committee, and three objectors spoke at the Committee meeting. The Committee Members were therefore aware of Mrs X’s concerns when reaching their decision.
The Committee meeting minutes say there was lengthy debate, and Members raised concerns and requested clarity on a number of issues. It was ultimately for the Members to then decide if they had sufficient information upon which to reach a decision, and if a condition should be impose requiring evidence of compliance with the FRA recommendations.
Concerns about maintenance are not a material planning consideration, so could not be taken into account when determining the application.
Similarly, boundary disputes, damage to property, and Party wall matters are private, civil issues and not something the Council would be involved in.
The applicant has appointed a private, Approved Inspector to deal with building control issues, so the Council is not currently involved in ensuring compliance with the Building Regulations.
Finally, the Council has apologised for the delay in providing its Stage 2 complaint response, and for the references made to Mrs X’s formal complaint during the Committee meeting. This was a satisfactory way to address and respond to these parts of the complaint, so the Ombudsman will not pursue them either.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect her to have complained sooner about the earlier events, there is not enough evidence of fault causing injustice in the determination of the application, and the Council has apologised for errors related to the complaints process.
Investigator's decision on behalf of the Ombudsman