Summary: The Ombudsman cannot investigate this complaint about the Council’s decision to take enforcement action for a breach of planning control. This is because the matter has already been appealed to and considered by the planning inspectorate.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision to serve an enforcement notice for a breach of planning control. Mr X disputes there has been a planning breach and says he has evidence to show this. Mr X has also complained about the actions of the enforcement officer dealing with the case.

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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 considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

4. I have considered Mr X’s complaint and the information from the Council. I invited Mr X to comment on a draft of this decision and have considered the comments he has made in response.

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What I found

Planning enforcement

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 or changed the use of land 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.

What happened

6. In 2006, the previous owners of the property where Mr X now lives applied for planning permission to change the use of the land next to their home from public open space to a private garden. The Council considered the application and refused planning permission. The applicants appealed to the planning inspectorate, but the appeal was dismissed.
7. In 2018, the Council started an enforcement investigation after it found out that a fence had been erected to enclose the land. The Council decided this was a material change in use of the land and served an enforcement notice to the then owners of Mr X’s home. An appeal against the notice was made to the planning inspector.
8. In 2019, Mr X purchased the property. He was aware of the ongoing enforcement action and submitted comments to the planning inspector. The planning inspector dismissed the appeal and upheld the enforcement notice.
9. Mr X has complained about how the Council has dealt with the matter. He disputes there has been a breach of planning control and argues that he has proof the land is not, and has never been, public open space. Mr X also says he has evidence to show the Council told the previous owners of the property that the fence was permitted development and believes the Council has been dishonest in this regard. Mr X argues the Council must prove that the land is public open space.

Assessment

10. The Ombudsman cannot investigate Mr X’s complaint about the enforcement action the Council took for a breach of planning control. This is because the enforcement notice has already been appealed to the planning inspector and the Ombudsman cannot investigate where the matter has already been appealed to a government minister.
11. Mr X disputes there has been a breach of planning control. He says he has evidence to show the land has never been public open space and therefore the use of the land has not changed. Mr X says this evidence and his concerns about the land not being public open space were not considered by the planning inspector. Mr X also argues the Council told the previous owners of the property that the fence could be erected using their permitted development rights. While I understand Mr X says the enforcement notice was not warranted, the planning inspector has already considered an appeal against the enforcement notice and decided the notice should be upheld.

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Final decision

12. The Ombudsman cannot investigate this complaint. This is because the matter has already been considered by the planning inspector.

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Investigator's decision on behalf of the Ombudsman