Summary: We will not investigate Mr X’s complaint the Council’s planning enforcement team is taking action against a raised patio he built as part of an extension. Mr X should take his own advice on how to proceed. If the Council issues an enforcement notice it would be reasonable for Mr X to use his right of appeal to the planning inspector.

The complaint

1. Mr X complains the Council has not properly investigated a neighbour’s complaint that his raised patio is a breach of planning control. Mr X says the Council’s enforcement officers acted unreasonably and may be biased. Mr X says because the Council caused time, trouble, and stress he decided to break up the patio. He wants the Council to change its position and pay the cost of reinstating the patio. Mr X says the patio had planning permission and he disagrees with the Council’s view that it is too large.

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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:

• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))

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How I considered this complaint

5. I considered information provided by the complainant including the Council’s communications and complaint replies.

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My assessment

6. I will not investigate for the following reasons:
7. Mr X is in the position of a developer and it is for him to decide how to proceed. The Council advised him to take his own advice from his agent and he had an architect. It is not appropriate for the Ombudsman to intervene in this situation, and we could not achieve the outcome Mr X wants. The Council’s January complaint reply says the enforcement team wishes to visit the property.
8. Mr X could follow the Council’s advice which at one point included submitting a retrospective planning application for the patio or altering it. Mr X could also wait to see if the Council serves an enforcement notice.
9. If the Council served an enforcement notice Mr X would have rights of appeal putting the complaint outside the Ombudsman’s jurisdiction (see paragraphs 3 and 4 above). The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

10. I would consider it reasonable for Mr X to use his right of appeal in that situation because the planning inspector has the power to change the Council’s decision.

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Final decision

11. The Ombudsman will not investigate Mr X’s complaint the Council’s planning enforcement team is taking action against a raised patio he built as part of an extension. Mr X should take his own advice on how to proceed. If the Council issues an enforcement notice it would be reasonable for Mr X to use his right of appeal to the planning inspector.

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Investigator's decision on behalf of the Ombudsman