Summary: Mr X complained the Council was slow to take enforcement action. The matter is now the subject of an appeal to the Planning Inspectorate. We should not investigate further, as the decision on whether the impact on public amenity is unacceptable, will be made by the Planning Inspectorate, which is a body outside of our remit.

The complaint

1. Mr X complained the Council was slow to take enforcement action against his neighbour, who inserted windows that overlook his home, affecting his privacy.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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
• it is unlikely further investigation will lead to a different or meaningful outcome; or
• we cannot achieve the outcome someone wants.

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

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)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed the complaint with a planning enforcement officer.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
12. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

13. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

14. Mr X says that for some considerable time, he has been complaining about windows that were inserted without planning permission. Mr X says that, despite his complaints, the Council has not acted to protect his amenity. Mr X says the Council:
• was slow to act, as he has been complaining about breaches of planning control for several years;
• was too close in its relationship with the developer, often closing complaints soon after they were opened; and
• took too long to avail itself of important facts, such as the numbering and ownership of different parts of the building.
15. I spoke to a planning enforcement officer, who told me the internal layout of the building behind Mr X’s home is complicated, and it was not until October 2019 that he managed to gain access. The officer found two windows that were in breach of planning control and that the use of part of the building for residential purposes was unlawful.
16. The planning enforcement officer said the Council served an enforcement notice against the owner of the property in December. The owner appealed against the notice and the appeal will be heard by the Planning Inspectorate. The Council’s investigation is ongoing.

My findings

17. To investigate complaints, we need evidence that the individual complainant was caused a significant injustice because of some fault in the decision-making process.
18. In this case, the Council’s enforcement investigation is ongoing, and an appeal has been made to the Planning Inspectorate. The Inspectorate will decide whether there is a breach of planning control, and if so, whether the breach causes unacceptable harm to the public.
19. Because of this, we would not be able, even if we found fault, to determine that it caused an injustice – the impact the development and the Council’s actions have had on Mr X will be decided by the Planning Inspectorate, a body outside the scope of our investigations.

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Final decision

20. I ended my investigation as the matters Mr X complains about are under investigation and the subject matter of an appeal to the Planning Inspectorate, which is a body outside of our remit.

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Investigator's decision on behalf of the Ombudsman