Summary: The Ombudsman will not investigate Ms X’s complaint about how the Council dealt with a planning permission from a nearby property. A neighbour sought permission to develop on part of an access road serving their property, and Ms X’s. The complaint is late and there are no good reasons for the Ombudsman to investigate it now. The ownership of the access land was not a material planning matter for the Council and is a private civil matter. There is not enough evidence of fault by the Council in the way it dealt with the planning applications to warrant an Ombudsman investigation.

The complaint

1. Ms X lives in house A. She works for the organisation which owns house A and another building next door. Next to that building is house B. To the side of house B and the rear of all three buildings is an access road. In 2016, the owner of house B submitted a planning application to develop the property, which included works to the access road.
2. Ms X complains the Council has:
1. failed in its duty to make sure it did not allow land to be developed not owned by house B’s owner;
2. failed to make sure the land has not been developed in a way to unfairly impact neighbours;
3. failed to answer questions about its responsibilities.
3. Ms X says the development has affected the access to house A and the other building. She and house A’s owners are concerned about future flooding of their property, due to the changes to the access road.
4. Ms X wants the Council to:
• reconsider the permission; and
• sanction the developer for falsely claiming ownership of land within the planning application; and
• get the developer to return the road to its former state; or
• reach an agreement between the developer and house A’s owners about the access land.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

8. As part of my assessment I have:
• considered the complaint and the documents provided by Ms X;
• considered information provided by the Council;
• viewed relevant online maps and planning documents;
• issued a draft decision, inviting Ms X to reply.

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What I found

9. The Council received the planning application involving works on the access road in 2016. The Council’s planning report notes officers received objections saying the tenants of house A use the access for deliveries. The Council granted the permission later in 2016. The planning officer’s report noted the access to the rear of house A was not a material planning issue and would need to be resolved between the applicant and any affected parties for the planning permission to be implemented in full.
10. The evidence indicates Ms X or the organisation for which she works would have been aware since autumn 2016 of the permitted plans which involved the access issue. The Ombudsman expects someone to complain about a matter within 12 months of their becoming aware of it. Ms X complained to the Ombudsman in January 2020, so the complaint is over two years late. I have not seen good reason why the Ombudsman should investigate this matter now.
11. Furthermore, even if the Ombudsman did use his discretion to consider this late complaint, I do not consider the Ombudsman should investigate. I say this because the core issue in Ms X’s complaint is that the neighbour’s development involves land currently used by house A and the building next door as a rear access. Property ownership issues are not material planning matters. Any disputes about rights of development and use of the access land are private civil matters between the interested parties, separate from the planning process.
12. The Council’s role on receiving the planning application was to decide whether the plans as submitted were acceptable in planning terms. That process does not involve any determinations on the ownership of land or property involved in the application. Since land ownership is not a material planning matter, the Council could not refuse the application for any reason related to who owned the land.
13. Ms X or her employers may wish to seek independent legal advice, to protect or recover the rights of use of the access land they consider they should have. I consider legal action is an appropriate route for them to take. It is a route they may use to pursue the outcome they seek: a future agreement or arrangement with the owner of house B about the access land.
14. The planning officer’s report considers impact on the amenities of surrounding properties as part of the planning process. They reach the view that the proposed works would not have such impact on existing properties to sustain a planning refusal. I have not seen enough evidence to show the Council failed to consider the development’s impacts on neighbours.
15. I recognise Ms X considers the development affects the access land in a way she considers unfair. But as explained above, that was not a material issue for the Council to consider within its planning process.
16. Ms X says the Council failed to answer questions about its responsibilities in the matter. I have not seen enough evidence to show the Council failed to explain its role. The Council’s complaint responses explain its planning role does not include ruling on land ownership, with appropriate reference to the 2016 planning report. I recognise this response would disappoint Ms X and her employers, but it was not fault for the Council to reply in that way.
17. I have not seen enough evidence of fault in the Council’s planning process to warrant an Ombudsman investigation.

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Final decision

18. The Ombudsman will not investigate this complaint. This is because:
• the complaint is late and there is no good reason why the Ombudsman should investigate the matter now;
• the core issue is a private civil matter between the owners of house A and the building next door, and the owner of house B, and was not a material planning issue;
• there is not enough evidence of fault by the Council in the way it has dealt with the planning applications to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman