The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of alleged breaches of planning law. This is because one of the alleged breaches of planning conditions is subject to an appeal being heard by the Planning Inspectorate. In respect of other alleged breaches, the Council is considering its legal powers to take enforcement action and it has not ruled this out. As enforcement action is a discretionary power, there is insufficient evidence of fault.
The complaint
The complainant (Miss X) complains about the Council’s handling of alleged breaches of planning control. She says the owners of land which adjoins her property have placed large storage containers on a field in breach of planning conditions. Miss X also says dog walkers are using adjoining fields close to her home in breach of planning restrictions. She alleges the Council has failed to enforce the relevant planning conditions.
In summary, Miss X says she storage containers results in excessive noise when used and she explains these are accessible 24 hours a day, seven days a week. She also refers to noise and other disturbances from dogs and their owners. Miss X explains the lack of Council action is adversely affecting her use and enjoyment of her property. As a desired outcome, Miss X wants the Council to apologise for the alleged faults, take meaningful enforcement action and compensate her the impact and injustice caused.
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 this.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)).
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).
We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended).
How I considered this complaint
I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.
My assessment
The Council is not under any legal duty to take enforcement action in response to a breach of planning control, even where a breach has been clearly determined. The law says a local authority may take enforcement action in response to a breach where it considers it expedient to do so. Therefore, enforcement action is a discretionary power of the Council. I cannot therefore find fault with a decision to not take formal enforcement action in circumstances where the Council has properly considered alleged breaches and its powers to take action.
With respect to the storage of containers, the Council issued an enforcement notice in December 2023. The notice gives the recipient until July 2024 to comply with its terms. The Council has informed Miss X that the recipient of the enforcement notice has lodged an appeal with the Planning Inspectorate. We cannot by law investigate a complaint when someone has appealed to the Planning Inspectorate about matters subject to a complaint to us. In any event, the deadline for compliance with that notice has not passed.
The remaining issue concerns dog walking on neighbouring fields which Miss X says is in breach of planning restrictions. I recognise Miss X refers to earlier complaints to the Council in 2020 which concern this issue, but I have no legal jurisdiction to consider these. We can only investigate a complaint made within 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion. In my view, there is no good reason why such matters could not have been brought to our attention earlier. I will not therefore exercise my discretion. I have however considered Miss X’s concerns as outlined in her most recent complaint to the Council. The formal responses to Miss X outline that enforcement officers will inspect the area from April 2024 when the area is likely to be more popular for dog walkers. In the meantime, the Council has requested Miss X to keep a record noting her concerns about any breach of planning control it can keep the matter under regular review. The Council is therefore actively considering its enforcement powers and not fettering its discretion. I am unlikely to find evidence of fault on this basis.
Final decision
We will not investigate this complaint. This is because the Council has considered its legal powers to take enforcement action. It has not ruled out taking enforcement action and is waiting on future events. There is no evidence of fault.
Investigator's decision on behalf of the Ombudsman