Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s handling of a planning enforcement matter. This is because it is unlikely we would find fault by the Council.

The complaint

1. The complainant, Mr X, complains the Council wrongly decided his neighbour’s hot tub does not amount to “development”. He says the noise of the hot tub affects his enjoyment of his garden and claims financial loss in seeking legal advice to challenge the Council’s position. He also says the matter has caused him stress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

3. I reviewed the information provided by Mr X, shared my draft decision with him and invited his comments.

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What I found

4. Mr X is unhappy about his neighbour’s hot tub. He says it is close to his bedroom window and makes a continuous noise which ruins his enjoyment of his garden. He reported the matter to the Council as unauthorised development and expected it to take action to remove the hot tub. But it has explained it does not consider it “development” and it is not therefore subject to planning control. Mr X disagrees. He has sought legal advice and disputes the Council’s position. He wants the Council to accept the hot tub amounts to “development” and believes it should take formal enforcement action against his neighbour.
5. The Ombudsman will not investigate this complaint. The Council sought its own legal advice on whether the hot tub amounted to development and has explained in detail why it does not. Mr X may dispute the Council’s decision but I have seen no evidence of fault in the way it was reached; we cannot therefore question it.
6. The Council has explained to Mr X that he may report the noise to its environmental health department to investigate a possible statutory nuisance and this seems the best way forward for him. Even if the Council decides not to take action Mr X could bring his own proceedings against his neighbour if he believes the noise does amount to a nuisance.

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Final decision

7. The Ombudsman will not investigate this complaint. This is because the Council’s decision is a matter of professional judgement and the law does not allow us to question it.

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Investigator's decision on behalf of the Ombudsman