Summary: Mr X complains the Council refuses to issue an enforcement notice against his neighbour who is breaching planning control. The Ombudsman will not investigate as he is unlikely to find fault in the Council’s actions.

The complaint

1. Mr X complains the Council has failed to issue an enforcement notice against his neighbour who is breaching planning control.

Back to top

The Ombudsman’s role and powers

2. 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)

3. 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)

Back to top

How I considered this complaint

4. I considered the information provided by Mr X, including the Council’s final response to his complaint.

Back to top

What I found

5. Mr X complained to the Council that his neighbour is running a commercial car business from his home. This involves storing in an agricultural barn next to Mr X’s boundary. He says because of this he is suffering from noise and unwanted visitors using their shared drive.
6. The Council says its investigations revealed the barn may have been used for non-agricultural storage for more than 10 years. And the owner has appointed an agent to prove this. In its response to Mr X’s complaint the Council says it has decided that it is not reasonable or proportionate to serve an enforcement notice.

Assessment

7. Local planning authorities have a duty to investigate when they are told of a breach of planning control. In this case, once the Council was informed of the breach it considered what, if anything, should be done.
8. Mr X says the neighbour may not use his barn for cars because it does not have the correct planning permission. The Council’s statutory duty is to consider the matter. It has powers to act, but it has no duty to do so. Its duty is to consider whether further action is appropriate.
9. The statutory test it must apply is in The Town and Country Planning Act 1990, section 172. This says the local planning authority may issue an enforcement notice where it appears to it there has been a breach of planning control; and “it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.”
10. The National Planning Policy Framework offers further guidance. It says: “Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”
11. The Council has considered the case. It says it is possible the barn has been used for non-agricultural storage for more than 10 years which would make the use lawful. Also, the planning agent has told the Council statutory declarations are complete and an application for a certificate of lawfulness of use will be submitted soon
12. The Council to decide it is not proportionate or reasonable to issue and enforcement notice. I understand that Mr X may disagree with the Council’s decision but, without fault, the Ombudsman has no powers to criticise it.

Back to top

Final decision

13. I will not investigate this complaint because further investigation is unlikely to find fault in the way the Council came to its decision.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman