Summary: We will not investigate this complaint about planning enforcement as there is no evidence of fault by the Council.

The complaint

1. Ms X says that the Council has failed to enforce a planning legal agreement which has meant it is now more difficult to sell her house.

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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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

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

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My assessment

5. Ms X owns a property in a development subject to a legal s106 agreement which requires that any sale of a property has first to be offered for rental to local applicants in need.
6. Ms X says that others have sold without this legal agreement being applied.
7. The Council says that the agreement (reached in 1997) would now be unlikely to able to be enforced as the law has changed regarding such restrictions. The Council therefore takes the view that any enforcement could be refused by the courts or Planning Inspector.
8. Any restriction on the future sale of a property would have been part of the original purchase agreement. Ms X would therefore have been aware of such a restriction at that time and it was a private legal matter as to whether she proceeded or not. The sale or otherwise of other properties does not in my view cause any significant injustice to Ms X that would warrant investigation.

9. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
10. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

11. I am satisfied that the Council has properly considered whether or not enforcement should be used. Ms X's dissatisfaction lies with the merits of the Council's decision but, in the absence of fault, the Ombudsman cannot criticise the Council's decision.

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Investigator's decision on behalf of the Ombudsman