Summary: We will not investigate Mr X’s complaint about the Council’s handling of several planning matters. His complaints about the Council’s actions in 2016 and 2019 are late and its more recent decision to close an investigation into a potential breach of planning control relating to a boundary fence does not cause Mr X significant injustice. We cannot investigate Mr X’s complaint about the Council’s handling of his planning application as he has used his right of appeal to the Planning Inspectorate.

The complaint

1. The complainant, Mr X, complains the Council:
• Failed to take appropriate action to deal with a breach of planning control in 2016, resulting in the breach becoming immune from enforcement action;
• Failed to properly investigate his concerns about a separate breach of planning control by his neighbour;
• Failed to report an alleged breach of data protection to the Information Commissioner;
• Failed to properly consider his planning proposal and to provide pre-application advice;
• Was inconsistent in its handling of his planning application.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal but cannot investigate if the person has already appealed. (Local Government Act 1974, section 26(6)(b))
6. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about decisions to refuse planning permission.
7. We normally expect someone to refer the matter to the Information Commissioner 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)

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How I considered this complaint

8. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

Breach of planning control from 2016

9. We asked the Council to investigate Mr X’s concerns about a possible breach of planning control by his neighbour in 2016. The Council investigated the issue but found that due to the amount of time that had passed since the breach took place it was immune from planning enforcement action. It confirmed this decision to Mr X in late 2016 but Mr X did not complain to us about it until January 2022. The complaint is therefore almost five years late and due to the amount of time that has passed it unlikely full records exist for us to be able to reach any meaningful decision as to whether the Council was at fault for not dealing with the matter sooner. If Mr X is concerned his neighbour’s development has caused damage to his property he may wish to seek legal advice about a claim against his neighbour.

Separate alleged breach of planning control

10. Mr X also raises concerns about the Council’s handling of a more recent planning enforcement issue concerning his neighbour’s fence but I have seen nothing to show this issue causes Mr X significant injustice. Mr X claims the fence is too tall and blocks light to his property but the distance from the boundary to his home is such that any impact is likely to be minimal. He also suggests the new fence has damaged his own but this would be a private civil matter between him and his neighbour and not something the Council could or should become involved in.

Breach of data protection

11. Mr X says the Council failed to report a possible breach of data protection to the Information Commissioner but this issue dates to sometime in 2016 and is therefore late. It has also not caused Mr X significant injustice as he could have reported the incident to the Information Commissioner himself.

Pre-application advice

12. The pre-application advice Mr X refers to was from 2019; while this is more recent than some of the issues referred to above, any complaint about the Council’s handling of the matter is still late. It also did not cause Mr X significant injustice. The Council confirmed it would not support his proposal but Mr X chose to proceed with it anyway.

Mr X’s planning application

13. The Council refused Mr X’s planning application and Mr X appealed against its decision. Because Mr X has used his right of appeal we cannot investigate any complaint about the Council’s actions in connection with its determination of the application. We cannot therefore consider whether the Council properly applied its policies or if it was consistent in its approach to his application. Mr X also disputes information provided by the Council to the Planning Inspector but this would be a matter to take up with the Inspector. Only they can decide whether the issue has a bearing on the decision to dismiss Mr X’s appeal.

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Final decision

14. We will not investigate this complaint. This is because several of the issues raised by Mr X are late and there is no evidence to show the Council’s actions caused Mr X significant injustice. We cannot investigate any complaint about the Council’s handling of Mr X’s planning application as he has used his right of appeal.

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Investigator's decision on behalf of the Ombudsman