Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has refused to take enforcement action regarding a garage and neighbouring development, has slandered him, and has failed to deal properly with his freedom of information request. There is no injustice and most of the complaint is outside the Ombudsman’s jurisdiction being made late.

The complaint

1. Mr X complains the Council has not taken enforcement action against a neighbour where a development built in 2017, particularly the view from a garage door, affects his privacy. He says the Council has not handled the case properly and has not been impartial. Mr X says the Council should improve its practice and apologise.
2. Mr X complains the Council has published defamatory comments on its website about him. He says he has suffered humiliation and harassment from officers and the Council should pay compensation.
3. Mr X complains the Council has not complied with his freedom of information request.

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The Ombudsman’s role and powers

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)
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, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

8. I have considered Mr X’s information, comments and reply to my draft decision statement. I have considered information on the Council’s planning website and the Council’s reply to Mr X’s complaint dated 6 November 2018. I have considered the Ombudsman’s previous decision about the development at this site, dated 2 November 2016 (reference 16004994). I have considered photographs of the site including the Council’s photographs taken at the site visit in April 2017 and those included in the 2015 officer report, when planning permission was granted).

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What I found

9. In 2015 the Council granted planning permission to Mr X’s neighbour for a development including an extension and a detached garage at the back of the property. In April 2017 the Council granted planning permission for a single door inserted into the back of the garage. Mr X in his complaint to the Council says this application was not properly handled because: ‘the additional door was constructed prior to the amendment application’.
10. The Council’s officer assessment of the garage door, in 2017, includes Mr X’s objections that the door overlooks his rear garden and ground floor windows thereby ‘reducing privacy’. Also, that the garage as constructed is considerably higher than the approved plans and has an ‘overbearing impact’. The officer granted planning permission because: a) there are no direct views through the doorway, b) any views are at ‘an extremely acute angle’, c) given the use as a garage the partial views through the doorway have no adverse impact. The officer also noted that once the garage was built the developer could insert a door under the general permitted development rules i.e. without planning permission. The Council’s complaint reply says in this situation it would be perverse to refuse permission.
11. On 5 April 2017 the Council’s enforcement officer visited the site and considered the not fully finished garage, with door space, and took photographs. Mr X is critical that the photographs do not include one taken from within the door looking towards his property. The Council did not consider it expedient to take enforcement action and has confirmed that view in its final complaint reply of November 2018. The Council says it is not expedient to ask the neighbour to reduce the level of the lawn (which Mr X says was raised by 0.5 metre). The enforcement officer viewed the site and did not consider any overlooking from the garage significant. The Council told Mr X its final position was: ‘the inclusion of a garage door at that location is acceptable’.
12. The Council’s complaint reply says it will review and consider removing or redacting information if Mr X identifies the document he considers has slandered him.

Analysis

13. Having considered detailed information and photographs the Ombudsman will not investigate this complaint for the following reasons:
14. Mr X’s complaint about the Council’s actions in 2017 relating to the approval of the garage door and decision not to take enforcement action is outside the Ombudsman’s jurisdiction on the 12 month rule (see paragraph 4 above). Mr X complains late because he did not complain to this office until October 2019. I will not exercise discretion to investigate because Mr X could have complained sooner.
15. There is insufficient evidence of Council fault regarding the decision not to take enforcement action as confirmed in its November 2018 communication. The Council visited the site, considered relevant facts and is entitled not to enforce.
16. The Council has not caused Mr X injustice by its decision not to enforce. The photographs show that the garage door does not adversely affect his amenity at the side or back of his property. The door is set at an angle and is in a garage with solid walls. The garage as built has a limited impact on his property and is not overbearing.
17. The complaint alleging slander is outside the Ombudsman’s jurisdiction because Mr X has or had an alternative remedy at court (see paragraph 6 above). Mr X tells me he took advice and cannot afford to go to court. I consider it reasonable for Mr X to use his remedy because a court can decide the case and award costs and compensation. I have not seen evidence of injustice requiring investigation.
18. Mr X can go to the Information Commissioner if he disagrees with the Council’s response to his freedom of information request (see paragraph 7). There is ultimately an appeal right to a tribunal if there is a dispute about what information should be released. Mr X says the Information Commissioner has previously made the Council release documents. He is therefore able to return to that office if he has an issue.

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Final decision

19. The Ombudsman will not investigate Mr X’s complaint that the Council has failed to take enforcement action, has slandered him, and not dealt properly with his freedom of information application. There is no injustice and most of the complaint is outside the Ombudsman’s jurisdiction being made late.

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Investigator's decision on behalf of the Ombudsman