Summary: We will not investigate this complaint about planning enforcement because there is no evidence of fault by the Council.

The complaint

1. Mr X complains that the Council has failed to enforce a planning condition requiring ecological works to be carried out to new properties being built as part of a planning permission.

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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 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, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council granted planning permission for a development of houses in 2017 which included a condition which required various ecological measures to be introduced prior to occupation or any other date agreed by the Council.
6. Mr X contacted the Council to say that bird boxes, etc were not being built as part of the development and asked the Council to enforce the condition.
7. The Council replied that there was no obligation to implement the ecological measures until 5 years had passed or the first houses were occupied.
8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
11. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
12. I am satisfied that the Council properly considered its powers to enforce in this matter. The condition can be enforced at either of two different dates, neither of which has been reached yet and so no enforcement would be possible. Any such action is at the discretion of the Council and not obligatory.
13. The Ombudsman must be satisfied that any fault by a Council has caused a significant injustice to the complainant. In cases such as these the Ombudsman would usually only accept a complaint from an ecological group in future rather than a neighbour, given the effect upon the complainant.
14. In the absence of fault the Ombudsman would not investigate this complaint.

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Final decision

15. We will not investigate Mr X’s complaint because there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman