Summary: We will not investigate this complaint that the Council should have taken enforcement action against a development which was built contrary to the approved plans. The complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate, as there is not enough evidence of fault in the way the Council reached its decision.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council should take enforcement action against a summerhouse in a neighbour’s garden, which has not been built in accordance with the planning permission. He says the Council’s enforcement investigation was delayed and substantially flawed.

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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 an investigation if we decide, for example, there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. We do not provide a right of appeal against a Council’s decision on a planning enforcement case. And 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

4. I considered information provided by the complainant and the Council, including their complaint correspondence. I have also looked at the planning application documents on the Council’s website.
5. I considered our Assessment Code.

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My assessment

6. Mr X’s neighbour obtained planning permission for a summerhouse. When the development commenced, Mr X realised its height, footprint and positioning were different to that shown on the approved plans. He reported the matter to the Council’s planning enforcement team in mid-October 2020.
7. The Council has explained the Covid-19 pandemic significantly impacted upon its ability to investigate enforcement matters. An increase in reports of potential breaches of planning control, combined with various lockdowns and the restricted ability of officers to visit sites safely, resulted in delays to enforcement investigations and the need to focus its limited resources on the most serious cases. The Council placed messages on its website explaining this situation, and reiterated its position when Mr X chased updates about his case.
8. The Council eventually visited the site in mid-May 2021. It decided it would not be expedient to take any further action.
9. In responding to the subsequent complaint, the Council apologised for the delay in progressing the case. It also acknowledged the case officer should not have told Mr X that ‘full measurements’ had been taken, when only the front elevation had been measured due to access limitations. However, it was satisfied the officer had been able to assess the impact of the built structure whilst on site.
10. I recognise Mr X says this matter has caused him distress, inconvenience and worry. But Council’s have discretion to decide whether to take enforcement action, and government guidance says planning authorities should act proportionately in responding to suspected breaches of planning control.
11. The Ombudsman cannot question the Council’s judgement, unless there is evidence of fault in the way its decision is made. I am satisfied that, although the officer did not take full measurements, it was still possible to assess the impact of the structure from the site visit. In my view, there is insufficient evidence to conclude the Council’s decision was affected by fault, so an investigation by the Ombudsman is not justified.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council reached its decision not to take enforcement action.

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Investigator's decision on behalf of the Ombudsman