Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision not to enforce against a neighbouring property’s breach of a planning condition requiring the construction and retention of a bin store. There is not enough evidence of fault in the Council’s decision not to use its discretionary enforcement powers, or a significant personal injustice caused to Mr X by the matter, to justify an Ombudsman investigation.

The complaint

1. Mr X lives next to a property which has been developed into flats. A condition of the planning permission required the developer to build and retain a store at the front of the property to house residents’ bins. The developer built but then removed the bin store, and Mr X reported this to the Council.
2. Mr X complains the Council has failed to take enforcement action against the developer for the removal of the bin store.
3. Mr X says the bins sometimes get overloaded and can attract birds and vermin. He says the bins clutter the area, damaging its visual amenity and residents’ living conditions, as well as causing anti-social nuisances of odour and litter. Mr X wants the Council to get the developer to rebuild the bin store.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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, or
• the injustice is not significant enough to justify our involvement.

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

Back to top

How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Mr X to reply, and considered his response.

Back to top

What I found

7. The Council’s officers considered Mr X’s report about the removal of the bin store and agreed the developer breached the planning condition by removing it. But councils’ planning enforcement powers are discretionary. They are not bound to use those powers wherever there has been a planning breach. So once the Council’s officers agreed there had been a breach, they had to consider whether enforcement action would be an appropriate and proportionate response.
8. Officers considered the context of the local area and noted many other households left their bins at the front of their properties. They reached the view that enforcing against the development property to require the rebuilding of its bin store would make minimal difference to the area’s amenity and that the breach caused minimal planning harm to the area.
9. Officers also recognised the existence of a bin store would not oblige the property’s residents to use it, and the Council would have no powers to compel them to. The removal of Mr X’s concerns depends on the residents using the bin store, and that is not something the Council could enforce.
10. There is not enough evidence of fault in the way officers made their decision to warrant an Ombudsman investigation. Officers reached the view it would not be expedient for the Council to take enforcement action after considering relevant information. That was a professional judgement officers were entitled to take. I realise Mr X disagrees with the decision. But it is not fault by a council to properly make a decision with which someone disagrees.
11. Even if it was fault for the Council not to enforce here, this matter does not cause Mr X such a significant personal injustice to require an Ombudsman investigation. Other households on the street place their bins at the front of the properties without using bin stores, securing or concealing them. I do not consider the development property’s residents doing the same causes such harm to Mr X that it amounts to a significant injustice which would warrant an Ombudsman investigation.

Back to top

Final decision

12. The Ombudsman will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council in its decision not to take enforcement action against the bin store planning breach to justify an Ombudsman investigation; and
• even if there has been Council fault, the matter does not cause a significant personal injustice to Mr X which would warrant an Ombudsman investigation.

Back to top

Investigator's decision on behalf of the Ombudsman