The Ombudsman's final decision
Summary: We will not investigate the part of this complaint about the Council’s decision not to take enforcement action against alleged breaches of planning control. There is not enough evidence of fault in the way the Council made its decision. We will not investigate the part of this complaint about the content of the Enforcement Notice issued in 2019 as it is too late.
The complaint
Mr X complains the Council refuses to take enforcement action against a breach of planning control. He also complains that the lack of enforcement action has allowed the site owner to apply for and receive a Certificate of Lawful Existing Use or Development (CLEUD).
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. (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 investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Planning Inspectorate. (Local Government Act 1974, sections 25 and 34(1), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council received reports that land attached to a house near Mr X’s home was being used as a business. The Council served an Enforcement Notice in 2019 stating that ‘without planning permission, the material change of use of the land as an operating base for a landscape contractors’ business’.
In 2020 the Council issued another Enforcement Notice stating, ‘without planning permission, the material change of use of the land for storage’.
The neighbour appealed to the Planning Inspector against both notices. The Inspector upheld the 2019 Notice but the 2020 Notice was quashed. The upheld Notice took effect in March 2022. It required the owner to: “i) Cease use of the land as an operating base for a landscape contractor’s business and ii) Remove from the land all plant machinery, lawn mowers, trailers, paving slabs, tyres, timber planks, ladders, gardening tools and equipment, wooden pallets, plant pots, surplus fencing and any other item associated with the unauthorised use.”
The owner was given six months to comply with the Notice.
The Council says officers visited the site in November 2022. It says they were satisfied at that time that the requirements of the Enforcement Notice had been complied with.
The Council received further reports of breaches of the Enforcement Notice. It confirms it investigated the reports, and considered all information it received including photos and emails. Following investigation, it sought legal advice. The Council then decided not to take further enforcement action as it considered there was not enough evidence of a breach of planning control.
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a person disagrees with the decision the organisation made.
I have considered the steps the organisation took to consider the issue, and the information it took account of when deciding not to take enforcement action. There is no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.
Mr X also complained about the Council’s decision to issue a CLEUD. He says the Council failed to include a building on the land affected by the extant Enforcement Notice.
The Council confirms the building to which the CLEUD relates was not included within the land affected by the Enforcement Notice as the use of building was not a clear breach of planning control at the time the Notice was issued.
The law says a complaint must be made to the Council within twelve months of a person becoming aware of the matter. The Enforcement Notice, including the details of the land and buildings affected by it, have been in the public domain for some years. Mr X was aware of the Notice and was an interested party at the Planning Inspector’s Inquiry which took place in 2021. Therefore, he has been aware of the issue for more than twelve months. Any complaint about this issue is therefore late. I have decided not to exercise discretion and investigate this complaint as the decision to uphold the appeal, including the land and buildings affected, was made by the Planning Inspectorate which is outside our jurisdiction.
Final decision
We will not investigate Mr X’s complaint because: There is not enough evidence of fault in the way the Council considered Mr X’s reports of further breaches of planning control and the subsequent decision not to take further action.
It is too late to complain about the content of the Enforcement Notice. And the content of the Enforcement Notice was upheld by the Planning Inspectorate which is outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman