Summary: We will not investigate this complaint about how the Council dealt with breaches of planning control. This is because we are unlikely to find fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with breaches of planning control. Mr X disagrees with the Council’s decision not to take enforcement action and says it has made errors in fact and law when reaching its decision.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils can take enforcement action if they find planning rules have been breached. However, councils do not need to take enforcement action just because there has been a breach of planning control.
7. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

8. The Ombudsman does not act as an appeal body for enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
9. Mr X contacted the Council to complain about scaffolding erected on a building near his home. He also said the basement of the building had been converted to a residential premises without permission. The Council considered Mr X’s concerns and agreed there had been breaches of planning control. However, it decided the unauthorised developments were immune from enforcement action as more than four years had passed since the date of the breaches. Mr X disagreed with the Council’s decision. He argued the scaffolding did not constitute development and therefore the enforcement time limits did not apply. He also said the owners of the building had concealed the residential use of the basement.
10. I am satisfied the Council properly considered if it should take enforcement action. It considered Mr X’s concerns and the evidence available to determine when the breaches likely occurred. It has also explained why the scaffolding will amount to development in the circumstances and why it does not consider there is evidence to show deliberate concealment of the flat. The Council also considered if the scaffolding could be removed under different legislation.
11. I understand Mr X disagrees with the Council’s decision and its interpretation of planning law. But the Council was entitled to use its professional judgement to decide not to take enforcement action, and the Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered if it should take enforcement action, it is unlikely I could find fault.

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Final decision

12. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council.

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Investigator's decision on behalf of the Ombudsman