Summary: Mr X complained the Council took too long to use its enforcement powers against a landowner who had carried out development without planning permission. We ended our investigation as planning enforcement action is ongoing.

The complaint

1. Mr X complained about the Council’s failure to act quickly to use its enforcement powers against a landowner who had carried out development on land without planning permission.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files.
4. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
7. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
10. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
11. The Planning Inspector acts on behalf of the responsible Government minister. 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.

What happened

12. Mr X complained to the Council about development on land and a potential change of use of the land. His home is about 120 metres from the site and there is a main road situated in between. The landowner had previously sought planning permission to change the use of the land, but the Council had refused to give its consent. Mr X said he is complaining on behalf of other residents, but I have no evidence to show he has consent to act as a representative.
13. The landowner began working on the land, claiming the work was permitted development and merely intended to improve the land. The Council received complaints about the work. At first it decided not to use its enforcement powers, but as matters progressed, it changed its position and issued an enforcement notice.
14. The landowner appealed against the enforcement notice and the matter is now with the planning inspectorate.

My findings

15. I should not investigate this complaint further, and my reasons are as follows:
• The planning enforcement case is ongoing and is currently with the Planning Inspector. The Planning Inspector will decide whether there is a breach of planning control and, if so, whether it causes harm to the public. The planning inspectorate is not a body within our jurisdiction.
• Even if we were able to investigate, it is unlikely we would be able to show Mr X was caused a significant personal injustice by the works or the use of the land because he lives some distance from it. Usually, we need evidence to show there is some direct and immediate impact on the individual complainant, and this often requires close proximity.
• The fact that a council at first decided not to take enforcement action but later served an enforcement notice, is not evidence of fault in the decision making process. Councils have a wide discretion on whether or when to use their powers, and provided they are aware of the relevant circumstances, they may use them as they see fit.

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Final decision

16. I ended my investigation because the Council’s planning enforcement action is ongoing, and we are unlikely to find fault or a significant injustice we should remedy.

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Investigator's decision on behalf of the Ombudsman