Summary: Mr B complains the Council refuses to act against an alleged breach of planning control. The Ombudsman will not investigate this complaint as we are unlikely to find fault in the way the Council decided not to take enforcement action. And, if Mr B believes the Council has been negligent, he can ask the court to decide whether the Council should pay compensation.

The complaint

1. Mr B complains for his mother, Mrs C. He says the Council is refusing to take enforcement action against a builder who he says has breached planning control.
2. Mr B says the builder damaged part of his mother’s property by using vehicles wider than the lane. He wants the Council to investigate and ensure the builder repairs the damage.
3. He also wants the Council to pay compensation for what he considers to be failings in its investigation.

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The Ombudsman’s role and powers

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.

(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)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7.  

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How I considered this complaint

8. I considered information provided by Mr B and the Council. Mr B commented on the draft decision version of this decision.

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What I found

9. In 2016 the Council granted planning permission for a new property close to Mrs C’s home. The Decision Notice does not contain any conditions about the size of vehicles permitted to use the lane.
10. In 2019 Mrs C contacted the Council stating the builder had damaged her property when using the private lane for access during construction.
11. Mr B says the Council’s initial response was the matter was a boundary dispute and it refused to intervene.
12. Mr B disagreed with the Council’s position. He says the complaint is not about a boundary but about damage to property. He does not believe such damage is permitted by the terms of the approved development. He says by specifying the plans with which development must comply, the Council is in effect requiring the developer not to damage lane. Therefore, he asked the Council to investigate the alleged breach of development and ensure the builder repairs the damage. The Council maintained its opinion, so Mr B complained.
13. In response to his complaint the Council confirmed an officer had visited the site. In her view the there was little harm caused by the alleged breach. There was no compromise of highway safety and no residential amenity harmed. The Council confirmed it will not take enforcement action.

Assessment

14. Mr B believes a breach of planning control has occurred. However, the Ombudsman cannot override the Council’s decision not to take enforcement action. We can only consider whether that decision was properly made.
15. The Council’s enforcement powers are discretionary. Government guidance says a Council’s response to a breach of planning control must be proportionate to the harm caused. In this case harm refers to local public amenity.
16. The Council has confirmed an officer has visited the site and considers there is no harm to public amenity. Therefore, it will not act.
17. Mr B says the Council did not request photographic evidence of what the lane looked like before the damage therefore, it could not determine whether there has been harm to public amenity.
18. The Council is required to inspect the site and consider whether the conditions present cause harm to public amenity. It has done so. Being aware of Mr B’s concerns and having inspected the site, this is a decision the Council is entitled to make.
19. Mr B also says the Council should pay compensation for failing to investigate his report of planning control. This is a question of whether the Council was negligent in its consideration of his report. Only the courts can decide if the Council has been negligent. And only the courts can decide what damages, if any, Mrs C should receive.

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Final decision

20. I will not investigate this complaint. We are unlikely to find fault in the way the Council decided not to take enforcement action on the alleged breach of planning control reported by Mr B. Also, Mr B can ask the courts to consider whether the Council’s consideration of the alleged breach of planning control was negligent. And if so, the amount of damages, if any, that should be paid.

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Investigator's decision on behalf of the Ombudsman