Summary: The Ombudsman will not investigate Mr D’s complaint about the way the Council has dealt with an enforcement matter at a nearby business. The Ombudsman cannot investigate complaints about decisions that have been the subject of appeals to the Planning Inspector and cannot investigate a complaint about the commencement of court proceedings.

The complaint

1. The complainant, whom I shall call Mr D, complains the Council is discriminating against cyclists by taking planning enforcement action against the owner of a café and applying to court for an injunction to prevent cyclists meeting at the café.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
3. 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.

4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

5. I have considered the information Mr D provided and I have researched the planning and enforcement history of the site in question using information available on the Council’s website and the internet. I sent a draft decision to Mr D and invited comments before I made my final decision.

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What I found

Background

6. The complaint relates to a building that is used as a café and cycle repair workshop. Mr D does not own the building but makes use of the facilities.
7. The building has been the subject of planning enforcement action as the owner had not obtained planning permission or change of use permission before commencing the activities on site. The Council refused an application for a certificate of lawfulness and decided the applicant had failed to demonstrate the use of the site was lawful. The Council then issued an enforcement notice on the grounds the owner had, without planning permission, changed the use of the land to a mixed use of a café, retail, cycle repairs and a meeting place. The owner made an appeal against the enforcement notice to the Planning Inspector, who part allowed the appeal and granted permission for the use of the building as a café and ancillary cycle workshop, but not as a ‘cycle meeting place’ or retail space.
8. The Council considered the owner of the building was in breach of the planning enforcement notice because cyclists were meeting at the café. It was seeking an injunction against the owners of the building, but in the last two weeks the Council has withdrawn its application.
9. Mr D complains the Council was discriminating against cyclists by seeking the legal injunction to prevent them gathering at the café. He wants the Council to work with the owner of the café to resolve the issue.

Assessment

10. While Mr D is dissatisfied with the action the Council has taken, the Ombudsman will not investigate this complaint. Being a cyclist is not a protected characteristic so there can be no claim of discrimination which the Ombudsman or the courts could measure against relevant law.
11. The Council’s decisions to refuse the certificate of lawfulness application and to take enforcement action carried rights of appeal to the Planning Inspector. The owner of the café has used their rights of appeal. While Mr D and other users of the café have an interest in the outcome of those decisions for their continued enjoyment of the facility, the Ombudsman has no power to investigate.
12. The Council’s application for an injunction for a breach of the enforcement notice was due before the courts in November 2019 and has since been withdrawn. The Ombudsman cannot investigate complaints about the commencement of court proceedings (which would be from the point the application to the court was made) and therefore cannot investigate a complaint about the Council’s decision to seek an injunction.
13. The Council has not taken any action against Mr D personally and he is not caused a significant injustice by the Council’s actions. The Council has clarified it would not seek an injunction against any cycling groups that met at the café and apologised for initially suggesting it would.

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Final decision

14. The Ombudsman will not investigate this complaint. The Ombudsman cannot investigate complaints about decisions that have been the subject of appeals to the Planning Inspector and cannot investigate a complaint about the commencement of court proceedings.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman