Summary: The Ombudsman cannot investigate this complaint about how the Council dealt with a breach of planning control and retrospective planning application. This is because the complainant has already appealed to the Planning Inspectorate.

The complaint

1. The complainant, whom I shall refer to as Mrs X, has complained about how the Council has handled a breach of planning control and subsequent retrospective planning application. She says it has been unsupportive, inconsistent and caused confusion. Mrs X says she has been put to unnecessary time, trouble and expense because of the Council’s actions.

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The Ombudsman’s role and powers

2. 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 the injustice is not significant enough to justify our involvement.

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

3. 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)
4. 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

5. I have considered Mrs X’s complaint and the Council’s responses. I invited Mrs X to comment on a draft of this decision and have considered her comments in response.

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What I found

6. Planning authorities can 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 without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation. However, if the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.

What happened

7. In March 2019, an enforcement officer from the Council visited Mrs X’s home in response to a complaint about an unauthorised car port that had been recently built. The officer advised Mrs X she should make a retrospective application for the outbuilding. The officer told Mrs X the application should include a shed that had also been built without permission.
8. Mrs X submitted the application for planning permission. Shortly after this she also provided information to show the shed at the site had been built more than four years ago and was therefore immune from enforcement action. The Council agreed and this was removed from the planning application.
9. The Council refused Mrs X’s application and subsequently issued an enforcement notice requiring the removal of the unauthorised structure. Mrs X appealed to the Planning Inspectorate against the Council’s decision to refuse planning permission.
10. Mrs X has complained about how the Council dealt with the breach of planning control and the subsequent retrospective application. She says the Council’s planning system was difficult to use, she was asked to provide unnecessary information and several officers were dealing with the case which created confusion. Mrs X says there was also a long delay before the Council confirmed the shed was immune from enforcement action and further confusion was caused by the way the Council served the enforcement notice. Mrs X says she has been put to considerable time and trouble as a result. She also complains she has incurred additional expenses because of the matter.

Assessment

11. The Ombudsman cannot investigate Mrs X’s complaint about how the Council dealt with the retrospective planning application. This is because she has used her right to appeal to a government minister.
12. I understand Mrs X has raised many concerns about how the Council handled the application. However, these matters are related to the planning decision which has been appealed. The Ombudsman cannot investigate when someone has appealed to the Planning Inspector, even if the appeal does not provide a remedy for all the claimed injustice.
13. Mrs X could have also appealed to the Planning Inspector against the enforcement notice and the Ombudsman will not normally investigate where an appeal right exists. Mrs X says her complaint is about the confusing way the notice was served and is unhappy it was issued while her appeal was ongoing. But I cannot say Mrs X was caused any significant injustice in this regard as she was aware she could appeal the notice and the Council told her it would likely be withdrawn if her appeal against the retrospective planning application was successful.

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Final decision

14. The Ombudsman cannot investigate this complaint. This is because Mrs X has already used her right to appeal to a government minister.

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Investigator's decision on behalf of the Ombudsman