Summary: The Ombudsman will not investigate this complaint about the Council’s decision not to take enforcement action for a breach of planning control. This is because part of the complaint is late, and the complainant has not been caused any significant injustice by the remaining issues.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision not to take enforcement action against his neighbour for a breach of planning control.

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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 the injustice is not significant enough to justify our involvement.

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

3. 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

4. I have considered the complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision.

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What I found

5. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the Council to decide if there has been a breach of planning control and what, if any, enforcement action is necessary.
6. The Town and Country Planning Act 1990 sets out time limits within which the Council can take enforcement action. A development will become immune from enforcement if no action is taken within four years of the substantial completion of operational development carried out without planning permission.
7. The local planning authority may also decide it has no grounds to take enforcement action if permitted development rights apply. Permitted development rights are a national grant of planning permission which allows certain development to be carried out without making a planning application to the local planning authority.

What happened

8. In 2011, Mr X discovered his neighbour had built a large pond without planning permission. He contacted his neighbour to discuss his concerns and in 2013 complained to the Council. Mr X said the pond regularly floods his home and the public highway.
9. Mr X has had ongoing correspondence with the Council about his concerns. In 2016, the Council told Mr X the pond was immune from enforcement action as it had been built at least four years before it was aware of the issue. Mr X was unhappy with this decision. He agreed the pond was built in 2010 but argued that he had told the Council about the unauthorised development in 2013. Mr X also reported further planning breaches by his neighbour. He said his neighbour had built an agricultural building, conservatory and boat house without planning permission. The Council looked into Mr X’s concerns but said it would not take any action as some of the building was permitted development and the remainder was immune from formal action due to the time that had passed.

Assessment

10. I will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action for breaches of planning control.
11. Mr X’s main concern relates to the pond his neighbour built without planning permission. The Council says it cannot take enforcement action due to the length of time that has passed since the development was carried out. Mr X has known about the Council’s decision not to take enforcement action since 2016. Therefore, this part of the complaint is late. While the Ombudsman does have discretion to investigate late complaints, I have seen no good reason to exercise discretion in this case. I understand Mr X has been in ongoing correspondence with the Council about his concerns with the pond, but he could have complained to the Ombudsman about the issues sooner.
12. Mr X has also complained about the Council’s decision not to take formal action against his neighbour for building a boat house, conservatory and agricultural building without permission. I will also not investigate this part of the complaint as Mr X has not been caused any significant injustice by the Council’s decision. The Ombudsman will not normally investigate a complaint unless the complainant has suffered a personal injustice as a direct result of the Council’s actions and Mr X has not been affected by the developments he says are unauthorised.
13. Mr X has also raised concerns about highway safety. He says the pond floods onto the road and creates a potential hazard. He has been complaining about this issue for some time, but the Council has not taken any action. The Council says that its flood risk manager will investigate the concerns to decide if the existing drainage arrangements are adequate. If Mr X is unhappy with the outcome once the flood risk manager’s investigations are complete, he can raise a separate complaint about this issue.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because Mr X’s complaint about the Council’s decision not to take enforcement action in relation to an unauthorised pond is late. Mr X has not been caused any significant injustice by the Council’s decision not to take enforcement action against his neighbour for the rest of the development he says is unauthorised.

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Investigator's decision on behalf of the Ombudsman