Summary: We will not investigate Mrs X’s complaint about the Council’s failure to take enforcement action for an alleged breach of planning control. This is because there is no evidence of fault by the Council and we cannot achieve the outcome Mrs X wants.

The complaint

1. The complainant, Mrs X, complains the Council has failed to take enforcement action against a developer for non-compliance with a planning condition. She acknowledges there has been no impact to her house so far but is concerned it may suffer subsidence in the future.

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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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. 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

4. I reviewed Mrs X’s complaint and the Council’s response. I shared my draft decision with Mrs X and invited her comments.

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What I found

5. The Council granted planning permission for a new housing development on land near Mrs X’s home several years ago. The developer did not comply with the planning permission so they applied for retrospective permission to retain the development as-built, which the Council granted.
6. The original planning permission included plans which showed a retaining wall in the area between the new development and Mrs X’s property. The Council required the developer to submit details of this wall, as well as other boundary treatments, for approval prior to occupation of the new dwellings. This was to ensure they protected neighbouring residents’ amenity and to ensure their appearance was acceptable.
7. When the developer applied for retrospective permission they removed the retaining wall from the plans. The planning officer commented on this in their report and raised no concerns about the impact it would have on the existing properties.
8. Mrs X believes the retaining wall remains a requirement under the planning permission for the new development. She quotes from the planning officer’s report which says the condition attached to the original planning permission has not been discharged and so will be imposed on the retrospective permission. She is concerned that if the retaining wall is not built her property may suffer from subsidence.

My assessment

9. The Council is clear there is no longer any requirement to build the retaining wall so the fact the developer has not built it is not a breach of planning control. I have reviewed the information available and I see no evidence of fault in the way the Council reached its decision. We cannot therefore criticise it.
10. The retaining wall was clearly not included in the retrospective application and the planning officer commented on this point specifically in their report. While they went on to confirm the original condition would be included in the retrospective planning permission this does not change the position.
11. While Mrs X is concerned about what might happen in future we cannot provide a remedy for something which has not yet happened. We also cannot say the Council must alter the planning permission it has granted to include the retaining wall, which is what Mrs X wants.

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Final decision

12. We will not investigate this complaint. This is because there is no evidence of fault by the Council. We also cannot achieve the outcome Mrs X wants.

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Investigator's decision on behalf of the Ombudsman