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Bath and North East Somerset Council (17 018 650)

Category : Planning > Enforcement

Decision : Closed after initial enquiries

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s handling of a planning enforcement case. Mrs X has appealed against the Council’s decision to refuse her planning application and can appeal any enforcement notice the Council issues for her alleged breach of planning control.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains about the Council’s handling of a planning enforcement matter.

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The Ombudsman’s role and powers

  1. 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, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • we cannot achieve the outcome someone wants.

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

  1. 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))
  2. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
  • delay – usually over eight weeks – by an authority in deciding an application for planning permission
  • a decision to refuse planning permission
  • conditions placed on planning permission
  • a planning enforcement notice.

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How I considered this complaint

  1. I reviewed Mrs X’s correspondence with the Council about her complaint. I shared my draft decision with Mrs X and invited her comments.

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What I found

  1. Mrs X wanted to remove her front boundary wall as it had been damaged by tree roots. She began to demolish the wall and decided she may be able to create an off-street parking area. She discussed the proposal with the Council and it advised her to submit a formal planning application. Mrs X does not agree that planning permission is needed but applied to the Council anyway. The Council refused her application and served a planning contravention notice asking her for further information.
  2. Mrs X appealed against the Council’s decision to refuse her application but the Planning Inspectorate dismissed the appeal. Mrs X believes the decision was wrong as it suggests removing the wall and creating the off-street parking area were all part of the same action, whereas Mrs X contends they were entirely separate. The Council considers Mrs X’s removal of the wall amount to a breach of planning control but she has so far refused to reinstate it. She would prefer to include a gate or fence when she rebuilds the wall but the Council says this is unacceptable. It has also told her it may consider serving an enforcement notice if she does not take action to remedy the breach.
  3. The Ombudsman will not investigate this complaint. Mrs X’s injustice stems from the Council’s view that she has breached planning control and from her belief that she has not. This is not something we can resolve.
  4. If Mrs X disputes the Council’s view she may refuse to reinstate the wall and await further action. If the Council issues Mrs X an enforcement notice she may appeal against the notice to the Planning Inspectorate. The Planning Inspectorate can consider Mrs X’s argument against the alleged breach and rule on its merits. It can also overturn any enforcement notice issued by the Council if it finds grounds to do so. This is not an outcome the Ombudsman can achieve.
  5. Mrs X is also unhappy with the Council’s decision to refuse her planning application but she has already appealed against this. The Ombudsman therefore has no jurisdiction to investigate any complaint about the Council’s actions in connection with or having a bearing on its consideration of the application.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because Mrs X has appealed against the Council’s decision to refuse her planning application and can appeal any enforcement notice it issues her for the alleged breach of planning control.

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Investigator's decision on behalf of the Ombudsman

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