Summary: Mr X complains about the Council’s decision not to take enforcement action against a business for building a storeroom without planning permission. The Ombudsman will not investigate this complaint as we are unlikely to find fault in the Council’s actions. Nor can we achieve the outcome Mr X is seeking.

The complaint

1. Mr X complains the Council:
• Failed to investigate his reports of a breach of planning control quickly
• Refused to compel a developer to apply for retrospective planning permission
• Deceived the planning committee
• Failed to consult neighbours on a recent application for an advertisement sign; and
• Failed to consider health and safety concerns at the site

He says this impacted residential amenity. And causes safety issues.

2. Mr X wants the Ombudsman to:
• Require the Council to compel the developer to submit a retrospective planning application; and
• Carry out site surveys for all future applications for the site

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The Ombudsman’s role and powers

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)
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. 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
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

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

5. 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)

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How I considered this complaint

6. I considered the information provided by Mr X which includes the Council’s responses to his complaints. I also considered documents from the Council’s planning files, including the application plans.
7. I reviewed the information provided by Mr X with his comments on the draft version of this decision..

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What I found

Planning law and guidance

8. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
9. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

10. Mr X lives near a service station. There is a petrol station, shop, a bakers selling baked goods, hot pies etc and storeroom on the site.

Planning enforcement

11. Mr X complained to the Council the storeroom does not have planning permission.
12. The Council inspected the building. It says it is a low-level building at rear of site partially screened by fencing. It considers the building is not causing any noticeable harm. It says the site has satisfactory parking, is not prominent, is not causing harm to street scene or residential amenity for noise etc. It decided that it is not expedient to take enforcement action.
13. The Ombudsman is not a planning appeal body. His role is to review the process by which planning decisions are made.
14. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
15. In this case, it appears the Council:
• was aware of Mrs X’s concerns about the storeroom
• considered its powers under the Town and Country Planning Act 1990 decided there was a breach of planning control
• decided enforcement action would not be expedient
16. The Council appears to have followed the planning enforcement decision-making process we would expect, it is unlikely that we would find fault in its actions in considering this matter.
17. Mr X wants the Council to compel the developer to put in a retrospective application for the storeroom. This is not something the Ombudsman can achieve.

Planning applications

18. Mr X says the storeroom was installed to free up the original storeroom on site, which was originally a car wash, for conversion to a bakers.
19. The law says a complaint must be made to the Ombudsman within 12 months of the person complaining becoming aware of the matter. Planning permission for the bakers was granted by a retrospective planning application in July 2017. Therefore, Mr X’s complaint regarding this application is late.
20. I have considered whether to exercise discretion and look at this late part of the complaint. As permission has been granted and the business is operating on the site it is unlikely that further investigation of this late complaint will lead to a different outcome. I have decided not to consider Mr X’s concerns about the way this planning application was processed.
21. The developer has put in an application to vary the condition restricting opening hours on the site. The Council has publicised this application and Mr X has objected. The Council has not yet determined this planning application. I understand Mr X is concerned about the planning process. But a decision has not yet been made. Therefore, I do not consider that he has suffered significant personal injustice because of the Council’s alleged faults or that any useful purpose would be served by starting an investigation into this matter.
22. A further application for an illuminated sign has also been received by the Council. Mr X complains the Council has not consulted the public on this application.
23. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 regulates the requirements for consultation on planning applications for advertisements. There is no requirement in the Regulations for the Council to consult Mr X or his neighbours on this application. I do not intend to investigate Mr X’s complaint about this application as we are unlikely to find fault in the Council not inviting representations. And this application is undecided. So, again, I do not consider Mr X has suffered significant personal injustice or that any useful purpose would be served by starting an investigation into this matter.
24. The Council has advised Mr X:
• health and safety concerns that he has raised about fire exits and petrol filling valves should be directed to the Health and Safety Executive
• all matters about highways including parking on the road near the site should be raised with the county council; and
• he should report problems with noise and/or pollution to its environmental health team

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Final decision

25. I will not investigate this complaint. This is because:
• We are unlikely to find fault in the Council’s actions regarding Mr X’s report of a breach of planning control
• Complaints about processing planning applications in 2017 and 2018 are too late
• I do not consider Mr X has suffered significant personal injustice on planning applications that have not yet been decided; and
• We cannot require the Council to compel the developer to submit a retrospective planning application

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Investigator's decision on behalf of the Ombudsman