Summary: We will not investigate this complaint about how the Council dealt with a planning application or breaches of planning control. This is because the complaint is late, and it would be reasonable for the complainant to seek a remedy through the courts if she considers the Council has been negligent.

The complaint

1. The complainant, whom I shall refer to as Miss X, has complained the Council has failed to protect her, and other residents, from a large development near her home. Miss X says the developer breached planning conditions and the Council failed to deal with the matter. Miss X says the development has damaged her home and caused her health problems.

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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. 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)
4. 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)
5. 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)

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How I considered this complaint

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

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What I found

7. When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. Material considerations relate to the use and development of the land in the public interest and includes matters such as the impact on neighbouring properties and the relevant planning policies. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.
8. 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

9. The Council received a planning application for a residential development near Miss X’s home. It considered the application and granted permission subject to conditions. One of these conditions restricted the hours for construction works at the site. Another condition required the developer to carry out the development in line with an approved construction management plan.
10. Miss X has been in contact with the Council for the last few years to report problems with the site. These include building outside the permitted hours and dust and vibrations from the site. Miss X says the development has damaged her home and caused her health problems. She says the Council failed to anticipate the issues such a large development would create and did not put proper measures in place to protect her and other local residents. Miss X also says there have been breaches of planning control and the Council failed to deal with the issues effectively.

Assessment

11. I will not investigate this complaint about how the Council dealt with a planning application or breaches of planning control. This is because parts of the complaint are late. Miss X can seek a remedy in court if she considers the Council has been negligent.
12. A complaint is late if it has taken someone more than 12 months to complain to the Ombudsman. Miss X says the Council failed to put proper measures in place to protect residents when it granted planning permission for the development. She has also complained about how the Council dealt with breaches of planning control. But the Council granted planning permission more than 12 months ago and the planning breaches occurred and were dealt with in 2017, 2018 and 2019. Therefore, I consider Miss X’s complaints about these matters late. I see no good reason to exercise discretion to investigate as Miss X could have complained to the Ombudsman sooner.
13. I understand Miss X disagrees and says she could not have complained to the Ombudsman sooner as her concerns about planning breaches were ongoing. But even if I could say the complaint was in time, my decision not to investigate would be the same. This is because I am unlikely to find fault by the Council. I am satisfied the Council considered Miss X’s concerns about disruption and dust from the site. The Council’s planning officer and environmental health team visited the site and were in contact with the developer. The Council also took some formal action in relation to the planning breaches. The Environmental health officer confirmed there was no evidence of a statutory nuisance.
14. Miss X says her property has been damaged and health affected by the issues. However, If Miss X considers the Council is responsible in this regard, she is effectively claiming it has been negligent. Only a court can decide if a council has been negligent and if damages should be paid. The Ombudsman does not have the power to enforce an award of damages and we would normally expect someone to seek a remedy through the courts or via the council's insurer.

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Final decision

15. I will not investigate this complaint. This is because the complaint is late and it would be reasonable for Miss X to seek a remedy through the courts if she believes the Council has been negligent.

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Investigator's decision on behalf of the Ombudsman