Summary: We will not investigate this complaint about the Council’s actions relating to its issuing a Planning Enforcement Notice and refusal of his application for a Certificate of Lawful Development. The complainant used his right of appeal to the Planning Inspector and took legal action on the Enforcement Notice. And he had the right to appeal against the refusal of the Certificate of Lawful Development. The complaint is therefore outside our jurisdiction.

The complaint

1. The complainant, I shall call Mr X, says the Council is guilty of:
• Misconduct, maladministration, and malicious damage to his reputation
• Distribution of libellous material
• Failure to respond to Subject Access requests (SARs); and
• Delays in responses to his complaints

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
4. 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.
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The law which grants us our powers says we cannot investigate Mr X’s complaint. That is because he has appealed to the Planning Inspectorate against the Council’s issuing of an Enforcement Notice and taken subsequent legal action. The use of that appeal and legal action takes all matters related to the enforcement process outside our jurisdiction.
10. The Council refused Mr X’s application of a Certificate of Lawful Development. We consider it reasonable to expect a complainant to have exercised an available right of appeal. Therefore, the restrictions described above applies to the parts of Mr X’s complaint connected to the Certificate of Lawful Development.
11. I understand Mr X is complaining about the Officer’s actions relating to the planning enforcement and application process. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, we have no jurisdiction to investigate. The principle set by this court judgement, referred to above, applies wherever a complainant has used a formal appeal right, including a Planning Inspectorate appeal. This limitation on our jurisdiction applies even if the appeal will not or cannot provide a complete remedy for all the injustice someone is claiming. So, we cannot investigate this part of the complaint because Mr X has used his formal Planning Inspectorate appeal rights. And he has taken court action about the same.
12. Mr X also complains about failures and delays in the Council’s responses to SARs.
13. The Information Commissioner’s Office (ICO) is usually best placed to consider concerns about how organisations handle individuals’ data. In this case, it is reasonable for Mr X to refer his complaint to the ICO. We could not decide whether the Council was justified in denying his request for information the Council holds about him, and we cannot compel the Council to share that information with him.
14. Finally, if Mr X believes the Council has libelled him, then it is a matter for the court to decide. The court can apply the proper legal tests for libel, which the Ombudsman cannot. The Ombudsman cannot determine whether a person has been defamed or libelled or the consequences of that. It is therefore reasonable to expect Ms X to pursue the matter in court.

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Final decision

15. We will not investigate Mr X’s complaint because:
• matters relating to the Enforcement Notice are outside our jurisdiction because Mr X appealed to the Planning Inspector and has taken legal action
• Mr X had a right to appeal against the decision to refuse his application for a Certificate of Lawful Development
• It is reasonable to expect Mr X to complain to the ICO about his concerns relating to his SARs; and
• The Ombudsman cannot determine whether the Council has libelled Mr X. This is a matter for the courts.

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Investigator's decision on behalf of the Ombudsman