The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council refusing to take enforcement action against a breach of condition. 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 reached its decision on the enforcement matter.
The complaint
The complainant, whom I refer to as Ms X, says the Council should enforce a planning condition which said an obscured glazed window at the neighbouring property should be non-opening below 1.7m from the floor level.
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. (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 Ms X and the Council, which included the enforcement and complaint correspondence.
I also considered our Assessment Code.
My assessment
I appreciate Ms X disagrees with the Council’s decision not to take enforcement action against her neighbour for installing an opening, casement window. But the Ombudsman does not provide a right of appeal against that decision. Rather, our role is to review the process by which a decision is made, and to consider if any procedural/administrative fault is likely to have affected the outcome of that decision-making process.
Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. It is a discretionary power, and local planning authorities are advised to act proportionately in responding to suspected breaches.
I have seen no evidence of procedural fault in the way the Council made its enforcement decision in this case. In reaching this view, I am mindful there was no requirement to visit Ms X’s property, or to consult her before the decision was made. The Ombudsman will therefore not investigate the complaint.
Final decision
We will not investigate Ms X’s complaint because there is not enough evidence of fault in the way the Council reached its decision on the enforcement case.
Investigator's decision on behalf of the Ombudsman