Summary: The Ombudsman will not investigate this complaint that the Council failed to take planning enforcement action against extensions erected by the complainant’s neighbour in 2012, and that an officer asked for money in return for enforcement action during a site visit in 2019. This is because it is reasonable to expect the complainant to have contacted the Ombudsman within 12 months of becoming aware of his concerns about the extensions, and we are unlikely to be able to establish whether the Council acted with fault during the 2019 site visit.

The complaint

1. The complainant, whom I refer to as Mr D, says the Council should have taken planning enforcement action against his neighbour’s extensions, because there were discrepancies on the plans submitted with the planning application, the development is contrary to the Council’s planning policy, and it encroaches onto Mr D’s land.
2. Mr D also says that during a site visit in October 2019, a Council officer asked for money in return for taking enforcement action against the extensions.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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. We refer to this as ‘injustice’. We provide a free service, but must use public money carefully. So, we may decide not to start or continue with an investigation if we believe:

• 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.

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

5. And 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

6. I have considered:
• Mr D’s original complaint to the Ombudsman, and the additional information he submitted on 26 February 2020;
• The Council’s Stage 1 and 2 complaint responses;
• Information about the neighbour’s planning application for the extensions on the Council’s website, and a copy of the case officer’s report for that application;
• What Mr D said during telephone conversations with me in response to my draft decision on hit complaint;
• The emails and attachments Mr D sent in response to my draft decision;
• The additional complaint form Mr D submitted to the Ombudsman on 3 March 2020.

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What I found

The neighbour’s extensions

7. The 12-month time restriction detailed in paragraph 5 above applies to Mr D’s complaint. This is because the neighbour’s planning application was approved in 2011, the extensions were constructed in 2012, and Mr D corresponded with the Council about his concerns in 2012 and 2013. So, Mr D appears to have first become aware of his concerns about the extensions in 2012/2013. Yet he did not contact the Ombudsman until January 2020, having resurrected his complaint with the Council again in late‑2019.
8. Mr D has provided various reasons why he did not contact the Ombudsman sooner. In summary:
• He was regularly chasing the planning enforcement team, but the case was left pending;
• There were delays/errors by a solicitor and surveyor who he instructed to represent him in a legal dispute against the neighbour. Mr D initiated a professional negligence claim against the solicitor in early-2019, and he says he only received the associated files around mid-2019. Mr D also says this solicitor had a close relation at the Council;
• His email account was closed so he couldn’t recover his emails;
• He has been very busy due to someone defrauding him in relation to a property transfer;
• He was unaware he was able to complain to the Ombudsman, until the Council referred to us in its January 2020 Stage 2 complaint response.
9. However, I am also particularly mindful that:
• The 12-month time limit starts from when Mr D first became aware of the alleged fault by the Council i.e. in 2012/13. Although Mr D contacted the Council again in 2019, this does not re-start the 12-month period;
• Although Mr D was involved in legal disputes with his neighbour and a solicitor in the intervening years, this did not prevent him from pursuing a separate, formal complaint against the Council if he was unhappy with the planning enforcement team’s response in 2012/13. Information about how to make a formal complaint against the Council would have been available on its website, or by asking the officers involved in the enforcement case;
• Although Mr D says he was unaware of the Ombudsman, we do not generally accept that as a reason for not coming to us, because we have existed since 1974, and information about us has been available on our website for many years;
• It is not the Council’s or the Ombudsman’s role to adjudicate in the land ownership/legal dispute between Mr D and his neighbour; that is a private, civil matter;
10. Taking all of the above into account, it is my view that there are insufficient reasons to exercise discretion on the 12-month time restriction, so I do not consider the Ombudsman should investigate this part of the complaint now.

The 2019 site visit

11. In the absence of independent witnesses or an audio recording, an investigation by the Ombudsman is unlikely to enable us to establish, on the balance of probabilities, what was said during the officer’s 2019 site visit.
12. With reference to paragraph 4 above, I therefore do not consider the Ombudsman should investigate this part of the complaint either.

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Final decision

13. The Ombudsman will not investigate Mr D complaint. This is because it is reasonable to expect him to have complained to the Ombudsman sooner about the neighbour’s extensions, and we are unlikely to be able to establish whether the Council acted with fault during the 2019 site visit.

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Investigator's decision on behalf of the Ombudsman