Summary: We will not investigate how the Council has dealt with planning breaches near the complainant’s home. There is no evidence of fault in how the Council decided it was not expedient to take enforcement action.

The complaint

1. The complainant, who I refer to here as Miss C, has complained the Council has not dealt with planning breaches she has reported. She says a 1.3 metre high fence and waste bins make it difficult for her to exit her driveway safely. Both issues are related to a recent development near Miss C’s home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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’.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained;
• any injustice is not significant enough to justify our involvement; or
• it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)

6. 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 that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

7. I have considered what Miss C said in her complaint. The Council also provided background information in including its responses to Miss C’s concerns. Miss C commented on a draft before I made this decision.

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What I found

Background – enforcement action

8. Councils can take enforcement action if they find planning rules have been breached. However they should not do so because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

9. In deciding whether it is expedient to take enforcement action, a council will take account of several different factors. These include:

• national and local planning policies;
• permitted development rights;
• whether the development is likely to be granted planning permission; and
• the need to achieve a balance between the protection of amenity and permitting development which is acceptable.

Analysis

10. I consider the Council has provided a full and reasonable response to Miss C’s complaint and investigation would add nothing significant to what we know.
11. The Council accepts the fence Miss C complains about does not have the necessary planning permission. However, given the nature and location of the fence, it has decided it would not be expedient to take enforcement action.
12. The Council also accepts the developer should have provided a storage space for waste bins. Having considered the matter, it has decided enforcement action would not be appropriate.
13. In both cases, the Council has considered Miss C’s concerns about visibility but has not been persuaded these justify enforcement action.
14. Miss C believes the situation has arisen because the Council did not enforce all the planning conditions when the development took place in 2016. There is no reason we should investigate a complaint about this so long after the event. More importantly, the Council has to consider the planning situation as it is now and I have seen no evidence of fault in how it has done this.

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Final decision

15. I have decided we will not investigate this complaint. This is because we are unlikely to find fault in how the Council has considered Miss C’s concerns. In the absence of fault, we cannot question the merits of the Council’s decisions not to take enforcement action.

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Investigator's decision on behalf of the Ombudsman