Summary: We will not investigate this complaint about the Council’s decision that a breach of planning control is now immune from enforcement action. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault in the way the Council has reached its decision on the case.

The complaint

1. The complainant, whom I refer to as Mr X, represents a residents organisation which disagrees with the Council’s decision that a business use in their area is immune from planning enforcement because the time limit for taking action has passed.
2. They say the use causes significant noise and disturbance, and would like the Council to either invite the owner to submit a Certificate of Lawful Use application or instigate enforcement action.

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The Ombudsman’s role and powers

3. 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))
4. In that regard, we cannot question whether an organisation’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

5. I considered information provided by Mr X and the Council. This consisted of their complaint/freedom of information correspondence, and associated attachments.
6. I also considered our Assessment Code.

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My assessment

7. I have decided we will not investigate this complaint.
8. Whilst I recognise the local residents disagree with the Council’s decision to close the enforcement case, we do not provide a right of appeal against that decision. Rather, we consider if there was administrative fault in the way the decision was made.
9. The Council has considered the historic evidence available on its enforcement files, the planning contravention notices completed by the site owner and occupier, aerial photography, and building control records. It reached the view, on the balance of probabilities, that the business use has been operating for more than 10 years, so is now immune from enforcement action.
10. In my view, there is not enough evidence of fault in the way the Council made this decision to justify the Ombudsman starting an investigation.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council reached its decision on the enforcement case.

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Investigator's decision on behalf of the Ombudsman