Summary: We will not investigate this complaint about the Council’s handling of a breach of planning control at a property next to the complainant. 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 planning enforcement issue, and the Information Commissioner’s officer is better placed to consider the alleged breach of data protection laws.

The complaint

1. The complainant, whom I refer to as Ms X, thinks the Council should take planning enforcement action to reduce the height of her neighbour’s raised patio. She also says the Council breached data protection rules when dealing with her complaint about the enforcement issues.

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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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(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)
4. We normally expect someone to refer the matter to the Information Commissioner’s officer (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered the information/documents provided by Ms X, and the Council’s 10 September and 3 November 2021 reports on the issues being complained about.
7. I also considered our Assessment Code.

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My assessment

8. I understand Ms X has already contacted the ICO about her complaint that the Council breached data protection rules when dealing with her enforcement case. The ICO is in the best position to consider such matters so, with reference to paragraphs 2 and 4 above, the Ombudsman will not investigate this part of Ms X’s complaint.
9. I also appreciate Ms X disagrees with the Council’s decision not to take enforcement action against the neighbour’s raised patio. But we do not provide a right of appeal against that decision, and cannot question it unless there is evidence of fault in the way it was made.
10. In my view, there is not enough evidence of fault in the way the Council considered the enforcement case to justify the Ombudsman pursuing this part of the complaint further. In reaching this view, I am mindful that:
• The Council visited the site and asked the neighbour to either submit a planning application or reduce the height of the raised patio.
• The Council checked the patio again after the neighbour reduced the height, and has explained to Ms X why it does not consider it expedient to take enforcement action where there is only a marginal breach of the patio height allowed under permitted development rights.
• The Council considered the report produced by Ms X’s surveyor, and has explained why it remains satisfied with its own measurements and its decision not to take enforcement action.
• Government guidance says Council’s 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.
11. Finally, I acknowledge Ms X feels there was delay in providing a response to her subsequent complaint about the planning enforcement decision. However, where the Ombudsman has decided not to investigate the substantive issues complained about (i.e. Ms X’s concerns about data protection and the planning enforcement decision) we will not usually use public resources to consider ancillary issues such as complaint handling.

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Final decision

12. We will not investigate Ms X’s complaint because there is not enough evidence of fault in the way the Council assessed the planning enforcement matter, and the ICO is better placed to consider her data protection concerns.

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Investigator's decision on behalf of the Ombudsman