Summary: We will not investigate Mr B’s complaint about the Council’s response to a breach of planning control he reported. This is because there is not enough evidence of fault to justify an investigation.

The complaint

1. The complainant, who I will refer to as Mr B, complains about the Council’s response to a breach of planning control he reported. Mr B says his neighbour has built an unauthorised structure in their garden which blocks his right of way and affects the amenity of his home. Mr B complains the Council delayed investigating the matter and was wrong to invite his neighbour to put in a retrospective planning application for the structure. Mr B would like the Council to resolve the issue by asking his neighbour to move the structure to another part of the garden.

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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 there is not enough evidence of fault to justify investigating.

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

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How I considered this complaint

3. I considered information provided by Mr B and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

Background - Planning enforcement

5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just 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)

What happened

6. Mr B reported this matter to the Council on 15 July 2021. On 13 September a Council planning enforcement officer told Mr B he had investigated the matter and was satisfied the structure was a breach of planning control. The Council asked the landowner to put in a retrospective planning application for the structure. The Council said it would notify local residents once an application is submitted and would consider any comments received. The Council has also advised Mr B that his concerns about right of way and property covenants are civil matters which cannot be considered under planning laws.

Assessment

7. The Council’s investigation took longer than stated in the Council’s enforcement plan, which says the Council will investigate within 12 working days of the alleged breach being reported. But, the Council’s delay was not excessive. Also, the information does not suggest the delay affected the Council’s decision on what action to take.
8. Mr B says the Council should have visited the site when the structure was being built to put a stop to the works. But, the Council would need to be satisfied a planning breach has already taken place before it could take such action. Also, the completion of the structure does not prevent the Council issuing an enforcement notice ordering the structure to be taken down.
9. Local planning authorities have a range of available options once a breach of planning control has been identified. The Council decided to invite a retrospective planning application for the works. This was a decision for the Council to make and I have not seen any information to suggest this decision was affected by fault. Also, this does not prevent the Council taking enforcement action if the Council decides to refuse planning permission.
10. The Council was also not at fault for telling Mr B that his concerns about a right of way and property covenants are civil matters which cannot be considered under planning laws.

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Final decision

11. We will not investigate Mr B’s complaint because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman