The Ombudsman's final decision
Summary: We will not investigate this complaint about planning enforcement as he has a remedy through the courts.
The complaint
Mr X complains that a neighbour has built on his land and damaged his property.
The Ombudsman’s role and powers
We 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 continue 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 we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or it would be reasonable for the person to ask for a council review or appeal; or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X’s neighbour obtained planning permission for an extension. Mr X says that the work encroached on his land and his property was damaged by the neighbour’s drainpipe.
The Council investigated the complaint and found that some of the work did not comply with the planning permission. The Council asked the neighbour to submit a retrospective planning application, which was submitted and refused. The Planning Inspector upheld an appeal and granted the development planning permission as it stood.
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.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
The Council concluded that the matters related to damage caused by the neighbour or a dispute over land ownership and these were more properly matters for civil legal action.
Any damages caused by the neighbour (or a dispute over land ownership) are more suitably considered by a court where an appropriate remedy could be obtained.
Final decision
We will not investigate Mr X’s complaint because there is a more suitable reedy through the courts.
Investigator's decision on behalf of the Ombudsman